Tools of Justice: Non-discrimination and the Indian Constitution [1 ed.] 0415523109, 9780415523103

Table of contents :
Cover
Title
Copyright
Dedication
Contents
List of Abbreviations
Acknowledgements
Introduction: Liberty and Non-discrimination — The Scope of Intersectional Jurisprudence
PART I: MAPPING DISABILITY DISCRIMINATION IN INDIA
Introduction
1. Trends in Disability Rights Jurisprudence
2. Recognition of Discrimination Based on Disability
3. Interpreting Disability Rights
PART II: DISCRIMINATION AND THE STANDARD MEASURES OF DIVERSITY
Introduction
4. Contextualizing Jurisprudence on Caste
5. The Caste System, Justice and the Law
6. Untouchability and the Right to Personal Liberty
7. Adivasi Homelands and the Question of Liberty
8. Plural Societies, Religious Minorities and Discrimination
PART III: SEX, GENDER AND THE DENIAL OF FREEDOMS
Introduction
9. Genealogies of Resistance to Sex Discrimination in India
10. Sex Discrimination Jurisprudence in India
11. Sexual Assault and the Right to Liberty
12. Rethinking the Constitutional Category of Sex
Conclusion: Eliminating Hostile Environments — Non-discrimination, Liberty and an Insurgent Constitutionalism
Bibliography
About the Author
Index

Citation preview

TOOLS OF JUSTICE

TOOLS OF JUSTICE Non-discrimination and the Indian Constitution In Honour of K. G. Kannabiran

Kalpana Kannabiran

LONDON NEW YORK NEW DELHI

First published 2012 in India by Routledge 912 Tolstoy House, 15–17 Tolstoy Marg, Connaught Place, New Delhi 110 001 Simultaneously published in the UK by Routledge 2 Park Square, Milton Park, Abingdon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 Kalpana Kannabiran Typeset by Star Compugraphics Private Limited D–156, Second Floor Sector 7, Noida 201 301

All rights reserved. No part of this book may be reproduced or utilized in any form or by any electronic, mechanical or other means, now known or hereafter invented, including photocopying and recording, or in any information storage and retrieval system without permission in writing from the publishers. British Library Cataloguing-in-Publication Data A catalogue record of this book is available from the British Library

ISBN: 978-0-415-52310-3

To my father, K. G. Kannabiran (1929–2010), and my mother, Vasanth Kannabiran, for teaching me the nuances of insurgency, constitutional and feminist, for telling me early on that home is where politics must begin, and for demonstrating to me the radical and stunning possibilities of both.

For the master’s tools will never dismantle the master’s house. — Audre Lorde, Sister Outsider (1984)

Contents List of Abbreviations Acknowledgements

ix xi

Introduction: Liberty and Non-discrimination — The Scope of Intersectional Jurisprudence

1

PART I: MAPPING DISABILITY DISCRIMINATION IN INDIA Introduction 1. Trends in Disability Rights Jurisprudence 51 2. Recognition of Discrimination Based on Disability 82 3. Interpreting Disability Rights 104 PART II: DISCRIMINATION AND THE STANDARD MEASURES OF DIVERSITY Introduction 4. Contextualizing Jurisprudence on Caste 124 5. The Caste System, Justice and the Law 163 6. Untouchability and the Right to Personal Liberty 206 7. Adivasi Homelands and the Question of Liberty 242 8. Plural Societies, Religious Minorities and Discrimination 272 PART III: SEX, GENDER AND THE DENIAL OF FREEDOMS Introduction 9. Genealogies of Resistance to Sex Discrimination in India

305

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10. Sex Discrimination Jurisprudence in India 11. Sexual Assault and the Right to Liberty 12. Rethinking the Constitutional Category of Sex

336 370 425

Conclusion: Eliminating Hostile Environments — Non-discrimination, Liberty and an Insurgent Constitutionalism

444

Bibliography About the Author Index

469 495 496

List of Abbreviations AIR ALD All ALT AP Bom C.W. No. Cal CHN CLR Del DLT DRJ ILR J&K JHA KAR LJ Ker KLT LAB IC LIC LLJ LR Mad MIA Ori P&H Raj SC SCC

All India Reporter Andhra Law Digest Allahabad Andhra Law Times Andhra Pradesh Bombay Civil Writ Number Calcutta Chandigarh Current Law Reporter Delhi Delhi Law Times Delhi Reported Judgments Indian Law Reports Jammu and Kashmir Jharkhand Karnataka Law Journal Kerala Kerala Law Times Labour Indian Cases Labour and Industrial Cases Labour Law Journal Law Reporter Madras Moore’s Indian Appeals Orissa Punjab and Haryana Rajasthan Supreme Court Supreme Court Cases

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SCR SUPP SCC Supreme TN US W.A. W.P. W.P. (Crl.) W.P. (C)

Supreme Court Reports Supplements Supreme Court Cases Supreme Today Tamil Nadu United States Writ Appeal Writ Petition Writ Petition (Criminal) Writ Petition (Civil)

Acknowledgements The beginnings of this project lie in my father Kannabiran’s insistence 30 years ago that I take an insurgent view of the constitution, and in his guidance on how I might accomplish this. The centrality of the rights to personal liberty and free speech to citizenship, and the ways in which these rights structure the relationship between state and citizen, are themes that I could not have grasped had I not been witness to my father’s untiring defence of personal liberty and free speech over four decades. He was my teacher and my best friend, and my initial forays into law were the direct result of my engagement with his work and writing. For my own writing I have relied almost totally on the treasure trove that is his library, and have rarely had to search beyond it for the books, reports and case files that I needed. This book has drawn from his philosophy and work in ways that defy citation. His close involvement with this work right till the completion of the manuscript has been my strength — I had hoped he would hold this book and share this moment with me. My mother Vasanth, feminist poet, writer and translator, has influenced me profoundly, both intellectually and emotionally. We wrote our first book together. We wrote our second book together. We have shared our thoughts and our intellectual resources in unbelievable ways. Thus, in a sense, nothing that I say or write about the social position of women is a result of my work alone, but rather my ideas have emerged out of arguments that we have thought through and developed together over time. S. R. Sankaran, through his life and his work as an insurgent bureaucrat, showed me how to crack open seemingly closed and confined spaces, forcing inclusiveness and social justice centrestage even at the most difficult times. Through quiet conversations, sharing valuable materials and seemingly random anecdotes with

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me week after week over 20 years, he demonstrated to me the positive impact of reservations and the grave and far-reaching consequences of discrimination. I am saddened by his absence, although it is a source of immense comfort that he read the entire first draft of this manuscript, especially the chapters on caste, before he left us. Raj Mohan Tella and I have shared ideas, work and home since the early 1980s, building an environment that is open, plural, caring, and equal. He was one of the first to read the entire draft of the manuscript of this book, providing detailed comments on the ideas and pointing me to the gaps, forcing me to sharpen my arguments, besides providing vital emotional sustenance and care. This project has been enriched by Ranabir Samaddar’s interest in my work, his active engagement with my ideas and his painstaking comments on the first draft of this manuscript. N. Vasanthi read several drafts many times over with rare diligence. I have benefited enormously from her forthright comments and insights. Zak Yacoob persuaded me to shift my focus from human rights and the broader questions of justice to discrimination. I have discussed and presented many of these ideas at the meetings of the Calcutta Research Group, the Alam Khundmiri Foundation and the 26th All India Sociological Conference in Orissa in December 2010. I am grateful to colleagues at these meetings for useful comments and discussions. Between October 2007 and March 2008, I interacted with members of the Expert Group on the Equal Opportunity Commission, discussing with them questions of equality and non-discrimination, which brought much clarity to my work. I consider it my good fortune that I was able to work so closely with N. R. Madhava Menon and the members of the Expert Group. My conversations with P. S. Krishnan on his work — particularly his role in drafting the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989; his report on Muslim backward classes for the Andhra Pradesh government and his preparation of the grounds for defending it in court; and his views on discrimination in relation to Telangana — have provided me the rare opportunity of a ringside view of the workings of the insurgent bureaucracy.

Acknowledgements

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This project took concrete shape in the course of discussions with my friends in social movements on the problem of discrimination and the gap between a legal and a political understanding. Sagari R. Ramdas, N. Madhusudhan, Kunjam Pandu Dora, Padala Bhoodevi, and comrades in Adivasi Aikyavedika have enriched my understanding of the possibilities of politics. I am grateful to the National Alliance of Women for providing me with the opportunity of working with the Committee on the Elimination of Discrimination against Women (CEDAW) through the preparation of the Second and Third Alternative Reports presented to CEDAW at its 37th session in January 2007. This was particularly useful in developing my arguments on discrimination based on sex. Volga has been a dear friend, co-author, and co-conspirator against the power of entrenched patriarchy in the Andhra polity. Her insights on feminism and radical politics have shaped my ideas in more ways than I can describe. Venkat’s sharp and unambiguous understanding of discrimination and the meanings of justice, and his insistence on work being socially and politically grounded, have been a guiding light. V. Ramakrishna has been a patient listener and a willing and interested reader. My association with Ruth Manorama, Padmini Swaminathan, Rhoda Reddock, Ritu Menon, Meera Velayudhan, Deepa Dhanraj, Jameela Nishat, Seema Misra, Abha Joshi, Sheba George, Upendra Baxi, Kancha Ilaiah, D. Narasimha Reddy, Peter Fitzpatrick, Nira Yuval-Davis, Kathy Sreedhar, Joan Mencher, Meena Radhakrishna, V. Geetha, S. Anandhi, and Justice D. K. Basu has brought clarity and joy to my work over the years. I am indebted to my students for allowing me to test my ideas for this book in the classroom over the last 10 years. Their critiques and the interest they showed — while they were in law school and after they graduated — have forced me to be more rigorous in my writing. I am particularly grateful to K. Parameshwar for generously volunteering research assistance over the years. Different parts of this work have been published in the Economic and Political Weekly, the Journal of the National Human Rights

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Commission and the Hindu between 2006 and 2010. Research for part of the disability section was carried out with support from Disability Rights Promotion International, York University, in 2008. Research for the chapter on gender discrimination was carried out as part of the South Asia Litigation Initiative coordinated by International Women’s Rights Action Watch (IWRAW) AsiaPacific, Kuala Lumpur, in 2007. Asmita Resource Centre for Women has been the site of most of the research carried out for this project during 2007–08. I have benefited enormously from the research assistance and administrative support I received from colleagues there throughout the writing of this book. From June 2009 till its completion, this project was housed in the Chityala Ailamma Centre for Interdisciplinary Research (CACIR-Asmita), where it was supported by the Dakshayani Constitutional Morality Programme. Nilanjan Sarkar, publisher–friend, has pursued this manuscript over five years with enormous patience, diligence and persistence, and has watched it grow from a mere idea into the present volume. It has been a pleasure to work with him. I am grateful to all the reviewers who provided comments on this manuscript in its various forms at various stages. My family has been my refuge and my source of intellectual, political, emotional, and moral support. I take this opportunity to thank each member of my family. My daughters Ramya and Keertana have been patient with an absentee and absent-minded mother, and have taught me ways of being positive, cheerful and upbeat all the time. Chitra Kannabiran, Arvind Kannabiran and R. Krishnan have been co-conspirators, sounding-boards for my ideas, and beloved friends. Dr L. L. Bhavani has always responded to my writing with unflagging interest and has taken time off from her work to provide care with a diligence I cherish. At the end of it all, having accumulated more debts than I can recall here, I hope this book will be of use to everyone with an abiding interest in the meanings of justice.

Introduction: Liberty and Non-discrimination — The Scope of Intersectional Jurisprudence We are millions and millions and we are the real owners of India. It has recently become the fashion to talk of ‘Quit India’. I do hope that this is only a stage for the real rehabilitation and resettlement of the original people of India. Let the British quit. Then after that, all the later-comers quit. Then there would be left behind the original people of India. — Mr Jaipal Singh, Representative of the Aboriginal Tribes of Nagpur, 11 December 1946 (Constituent Assembly Debates 1989: 46–47) A constitution is a political document which gives legal content to a set of pre-existing rights, secured politically by peoples’ struggles. Rights have always been acquired, never granted. Freedom was acquired by the people from the British and not granted to us by the Indian Independence Act of 1947. — K. G. Kannabiran, The Wages of Impunity (2003: 41)

The Indian constitution gives voice to counter-hegemonic imaginations of justice, rooted in the resistance movements and argumentative traditions that have blossomed in the region at different points in history. Central to an understanding of the constitution, therefore, is the fact of its historical location and specificity. The idea of constitutional morality signposts the inauguration of modernity, of a new social order in the subcontinent, which is distinct both from the colonial order and from the social order prior to colonialism. Given the realities of the social order into which the constitution was introduced, it has confronted incessantly the crises precipitated by the conflict between the status quo and constitutional morality; by the jostling of multiple identities; by the resolutions of governmentality that classified, demarcated and separated

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citizens, never clearly defined but made up of the disabled, the untouchables, the trans-genders, the tribals (notified and de-notified, primitive and assimilated, forest and nomadic), the minorities, and so on. This cursory official listing of citizens makes evident the hierarchies of citizenship and the politics of disentitlement and exclusion, contested relentlessly by radical activists and communities waging dramatic struggles, in the process creating new mediums of ‘constitutional communication’ (Samaddar 2004) and new constitutional conversations. Herein blooms another history of constitutionalism: for historically oppressed classes, constitutionalism continues to hold the promise of change. This work traces the juridical/legal meanings of discrimination and the interlocking of discrimination with the right to personal liberty. It explores the possibilities of using the constituting power of the constitution to offer a dynamic interpretation of nondiscrimination in the law. The relevance of this project lies in the increasing scale of exclusionary violence against a series of marginalized groups — a constituency that is constantly in a state of spiralling exclusion with more and more groups being discovered in the margins. What does a critical engagement with law mean in the context of the routine perpetration of atrocities on entire communities? It can be argued that this state of exclusion is the predictable outcome, since the structure of the bureaucracy at all levels, and of the judiciary at the state and district levels, is a colonial inheritance, as are the civil and criminal laws of the country. This gives rise to a very complex, historically specific class structure and state apparatus built on the competing interests of the metropolitan bourgeoisie, the indigenous bourgeoisie and the landed classes (Alavi 1972). However, the important difference is that, first, there was a shift in function from the mere maintenance of law and order to engaging in developmental work (Chatterjee 1997: 6); and second, while nominally the same, the laws were now reined to the framework of a new constitution, and were meant to be tempered by and interpreted afresh in the spirit of the constitution.

Introduction

3

The relationship between constitutionalism, colonialism and foundational violence is an important one. The centrality of colonial interpretive traditions and the excessive reliance on precedents (even colonial precedents) interrupt the development of transformative constitutional jurisprudence: The warp and set of our legal system was broadly set during the British Period. The basic premises of the system established by the British were those of their own society and its objective was to strengthen the foundations of their empire. . . . After independence we prepared and adopted a Constitution dedicated to the establishment of a socialistic society based on our own tradition and basic human values. . . . But the structure of the system, over which this crown of the Constitution was placed was totally dissonant with its basic spirit. . . . Consequently big mountains of violation of Constitution and human rights could remain hidden behind the small straws of the legal frame. (Twenty-Ninth Report of the Commissioner for Scheduled Castes and Scheduled Tribes [B. D. Sharma Report] 1990: para. 7)

Metropolitan societies, while honing to perfection modern notions of constitutionalism at home, were simultaneously putting in place the project of ‘epistemic legal racism’ in the colonies. In other words, liberal rule of law notions developed in the metropolis at the same time as the reign of terror was perfected elsewhere (U. Baxi 2004). This connection manifested itself differently at another level. The inauguration of constitutionalism after the overthrow of colonial rule (or the ‘transfer of power’, as it is often referred to on the Indian subcontinent) coincided with the foundational violence of partition. While this violence, in which colonialism was also complicit, provided the backdrop to constitution-making in India, memories of the violence unleashed during the birthing of the nation reverberate through the process of constitutional interpretation well into the post-colonial era; they form an important part of the constitutional inheritance of post-freedom generations. And yet, ‘Indian constitutionalism as an ensemble of formative state practices fatefully passes by the “responsibility to memory”’ (U. Baxi 2008: 12).

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Communalism, communal violence and the development of Hindu majoritarianism in India — represented by the violent Hindutva mobilization around Ayodhya from 1984, the demolition of the Babri Masjid and the ensuing violence that saw 1,700 dead in Ayodhya and over 5,000 injured across the subcontinent in December 1992 and immediately after, and the massacre of Muslims in Gujarat in 2002 — feed on this history of violent polarization, even while constitutional courts uncritically absorb the ahistorical distortions and lapses of memory. Through ‘interpretations’ that have scant historical validation, that in deeply problematic ways conflate mythology (Rama) with history (Babar), they construct a specific political ideology (Hindutva) as the essence of the Hindu religion.1 The 2010 decision of the Allahabad High Court, which based itself on the ‘faith and belief of the Hindus’, further validates the ahistoricity of the Ram Janmabhumi claim.2 This, despite the Supreme Court’s words of caution in the aftermath of the Babri Masjid demolition, that the ‘culture of the law, in the Indian Democratic Republic should be on secular lines’,3 and the court’s recognition that ‘strong religious consciousness not only narrows the vision but hampers rule of law.’4 As Baxi argues, ‘very little originary spaces remain, outside the Christendom, whether old or new, for any articulation of postcolonial constitutional secularity’; yet the ‘multi-religious’ Indian constitution 1

‘Communalism is collective antagonism organized around religious, linguistic, and/or ethnic identities’ (Ludden 1996b: 12). See Manohar Joshi v. Nitin Bhaurao Patil 1996 AIR (SC) 796 for the interpretation of Hindutva by courts. 2 Ayodhya Case: Other Original Suit (O. O. S.) No. 1 of 1989 (Regular Suit No. 2 of 1950), Gopal Singh Visharad since deceased and survived by Rajendra Singh v. Zahoor Ahmad and others; Other Original Suit No. 3 of 1989 (Regular Suit No. 26 of 1959), Nirmohi Akhara and others v. Baboo Priya Datt Ram and others; Other Original Suit No. 4 of 1989 (Regular Suit No. 12 of 1961), The Sunni Central Board of Waqfs, U. P. and others v. Gopal Singh Visharad (since deceased) and others; Other Original Suit No. 5 of 1989 (Regular Suit No. 236 of 1989), Bhagwan Sri Ram Lala Virajman and Others v. Rajendra Singh and others. In the High Court of Judicature at Allahabad (Lucknow Bench). Judgement delivered on 30 September 2010. 3 S. R. Bommai and Others Etc. v. Union of India and Others Etc. 1994 AIR (SC) 1918, para. 114. 4 S. R. Bommai and Others Etc. v. Union of India and Others Etc. 1994 AIR (SC) 1918, para. 116.

Introduction

5

presents the writing of rights in several distinctive ways. It significantly restricts religious freedom of the majority ‘Hindu’ faith communities by assailing some age-old practices of ‘untouchability’ in the constitutional idiom of outlawry. . . . Further, its way of writing human rights remain overwhelmingly and understandably concerned (given the Partition Holocaust) with a full recognition of collective rights of religious minorities, even when these manifestly conflict with the logics, paralogics, and rhetorics of constitutionally enshrined human rights. (U. Baxi 2008: 19)

The amnesia that the politics of dominance forces on the public consciousness necessitates constant reiteration of the simple fact that the constitution of India, phoenix-like, imagines a social order that celebrates freedom, pluralism, non-discrimination, and justice — an order that displaces the unfreedoms internal to the society as well as the unfreedom of colonization. The understanding of liberty in this context needs to be situated within the constellation of historical–social–political forces that gave rise to specific conditions of unfreedom and to the resistance to it. For instance, the Indian constitution prohibits practices of discrimination, untouchability and forced labour through the horizontal and vertical application of rights. Official records put out by the bureaucracy, the judiciary and citizen collectives, sometimes acting in concert, provide extensive documentation of the ways in which derogations continue to set the standard — the constitutional documentation itself therefore attaining an insurgent and rebellious character. The fact that this insurgent administration has been possible should lead us to explore the ways in which the courts and an insurgent bureaucracy5 may adopt the idea of insurgent jurisprudence (K. G. Kannabiran’s phrase) to institutionalize non-discrimination and the right to liberty, in the process reimagining democratic citizenship and reinventing the state. Exploring the idea of insurgency, recovering it from the monopoly of statist military discourse 5

This approach traces an immediate and everyday connection between the law and its application. Arendt’s critique of government by bureaucracy, given the latter’s illimitable possibility of exercising power without accountability, as also its contempt for law because of the law’s distance from application, is extremely relevant to the imagining of an insurgent bureaucracy. See Arendt (1976: 243–49).

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and thereby revalorizing it, helps resurrect and develop the radical possibilities of constitutionalism. In this, I draw on the seminal work of Ranajit Guha, who sees peasant insurgency against oppression by colonial rulers as well as the local ruling classes as fundamentally a struggle for justice — the site where . . . two mutually contradictory tendencies . . . that is, a conservative tendency made up of the inherited and uncritically absorbed material of the ruling culture and a radical one oriented towards a practical transformation of the rebel’s conditions of existence — [meet] for a decisive trial of strength. (Guha 1983: 11)

Upendra Baxi (2008) draws on the thought of B. R. Ambedkar and Antonio Negri to articulate the idea of constitutional insurgency. Ambedkar posits a contradiction between politics on the one hand, which validates non-discrimination — ‘one man, one value’ — and social and economic life on the other, which reinforces discrimination. Negri describes a dialectic between the constituted (which negates the political) and the constituent power (of the multitude that wages incessant struggle to create new lifeworlds). The very idea of the constitution, in Baxi’s view, involves its ‘other’, namely, constitutional insurgencies. This is especially relevant at a time when the neo-liberal managerial state regulated by the free market is dismantling welfare in the north and development in the south (Butler and Spivak 2007: 80), and dismembering the boundaries between state economies and global capital. The attempts by people’s movements to wrest fundamental rights from a reluctant and absentee state involve a reclamation of the constitution and the reinvention of the state, attempts which, to echo Spivak, ‘[go] beyond the nation-state into critical regionalisms’ that combat global capitalism (ibid.: 77–78). Struggles around ‘development’ provide a useful illustration of the relevance of the idea of constitutional insurgency. The dense discourse of development is as internally diverse, ironically, as the stunning biodiversity of our forests, hills and forested lands (though not anywhere near as energizing as such biodiversity might be if conserved). For a start, there are several ways of approaching ‘development’. The dominant recall of the term is ‘displacement’,

Introduction

7

‘big dams’, ‘environmental degradation’, ‘green revolution’, ‘economic growth’, mining, the appropriation of indigenous knowledges, trade liberalization, and globalization. Somewhat muffled by the juggernaut of this discourse of ‘development’ — including both its practice and the resistance to it — is the ‘other development’ — sustainability, permaculture, environmental protection, the nurturing of ecological systems and traditional knowledge systems — small, yet determined, struggles to find survival, voice and visibility. It is with reference to the criticality of socio-economic rights to survival and dignity, and to the centrality of unhindered access to socio-economic rights, that Kannabiran has persistently argued against the interpretive reduction of part IV of the constitution of India, the directive principles of state policy, to the nominal status of non-enforceability. Drawing a distinction between judicial enforceability and political enforceability, he argues that the directive principles require the urgent and continuous attention of governments because they are express provisions against concentration of wealth and inequitable distribution of material resources of the community to the detriment of the common good; place the government under obligation to constantly monitor the welfare of the people securing to them incontrovertible social, economic and political justice; ensure people of different age groups are not abused and they are not forced by economic necessity to enter into avocations unsuited for their age and strength; place the state under obligation to eliminate inequalities of status, facilities and opportunities between people residing in different areas. (K. G. Kannabiran 2010: 1–2)

If we use the frameworks of this ‘other development’ as our point of departure, it can scarcely be contested that pluralism and diversity (of all life forms) should lie at the core of the idea of development.6 6

The focus here is on the human dimension of pluralism and diversity, first, because I do not have the expertise to look at other life forms and, second, because the constitution addresses itself to the human dimension. The second difficulty is not insurmountable, especially after the Delhi High Court in its decision in the Naz Foundation case extended constitutionalism to the consideration of analogies. However, that exercise must wait for another time. See Naz Foundation and Others v. Government of NCT of Delhi and Others 2009 (160) Delhi Law Times, 277.

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A close look at the struggles for survival and dignity by communities and practitioners of the ‘other development’ (othered and distanced from the norm quite systematically) highlights the practical unattainability of justice as a core problem. While it is important to look at development as freedom, and to map carefully the ways in which development may be achieved through the realization of capabilities,7 it is necessary also to re-examine the barriers to freedom and the realization of capabilities in their historical and social specificity, and to understand the ways in which our social and political order engenders the development of underdevelopment and unfreedom (to recall a much older debate).

TWO SIGNPOSTS OF CONSTITUTIONAL MORALITY The foundations of constitutional jurisprudence relating to nondiscrimination may be explored productively in the context of the intellectual history of freedom on the subcontinent — freedom from colonial rule, freedom from caste, freedom from internal colonization, freedom from sexual subjugation, freedom from disabilities, and freedom from religious majoritarianism. While the preamble to the Indian constitution might reflect the dream of the French Revolution, the discussion of the preamble in the present context need not be confined to that framework and its ideological underpinnings, which only mask a very different potentiality that the Indian constitution contains. In taking this different route, it is necessary to revalorize the ideals of the preamble in an attempt to establish signposts that are historically distinct from those of the French Revolution.8 Two signposts that Ambedkar set up while presenting the draft constitution are pertinent to the present exercise. The first is based on George Grote’s observations on constitutional morality in the context of Athenian democracy: 7

To put in a nutshell, in full recognition of its importance, the perspective informing an enormous corpus of writings, especially those by Martha Nussbaum and Amartya Sen. 8 The strategy of revalorizing concepts has a history that goes back to the Jain contestation of Brahmana knowledge systems in ancient India (Zwilling and Sweet 2000).

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The diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable, without being strong enough to conquer ascendancy for themselves. (Ambedkar 2002c: 484)

But this was not all. The free state had to have citizens with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence . . . that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own. (Ibid.)

The idea of liberty that marks Ambedkar’s account of the constitution is one in which the free citizen is indispensable to the free state. Clearly distinct from the liberal notion of liberty, the neo-Roman school of thought embeds the liberty of a free citizen in the free state (Skinner 1998: 23). ‘It is only possible to be free in a free state,’ one that is governed by representatives of the body politic who can take no recourse to any form of arbitrariness, because that would reduce the body politic to one of several forms of public servitude (ibid.: 60, 49): To live in a condition of dependence is in itself a source and form of constraint. As soon as you recognize that you are living in such a condition, this will serve in itself to constrain you from exercising a number of your civil rights. . . . to live in such a condition is to suffer a diminution not merely of security for your liberty but of liberty itself. (Ibid.: 84)9

The framing of constitutional morality in terms of the idea of liberty, and the framing of liberty within the more expansive neoRoman framework rather than the comparatively restrictive classical liberal framework, enable a reassessment of the constitutional right to liberty in relation to conditions of freedom. 9

In contrast, classical liberalism, according to Skinner, posits that ‘force or the coercive threat of it constitute the only forms of constraint that interfere with individual liberty’ (Skinner 1998: 84).

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The second signpost relates to the question of protections for minorities against discrimination by the majority: In this country both majorities and minorities have followed the wrong path. It is wrong for the majority to deny the existence of the minorities. It is equally wrong for the minorities to perpetuate themselves. A solution . . . [must be found] such that it will enable majorities and minorities to merge some day into one. . . . It is for the majority to realize its duty not to discriminate against minorities. Whether the minorities will continue or will vanish will depend on this habit of the majority. (Ambedkar 2002c: 486–87)

It is quite clear from the debates in the minorities sub-committee of the constituent assembly that the reference to minorities during constitution-making in India was not restricted to religious minorities alone but referred to all classes that had been pushed to a position of marginality and were discriminated against (Rao 1968). This ‘habit of discrimination’ is the central problem that concerned Ambedkar. Elsewhere, in the specific context of caste, he spoke of the indispensability of ‘notional change’ for the annihilation of caste (Ambedkar 2002b). The complete absorption of the habit of discrimination makes for an essentially undemocratic body politic, which, for Ambedkar, necessitates the constitutional prescription of an appropriate administrative structure and apparatus that, together with the fundamental rights and directive principles, would ensure the entrenchment of constitutional morality — a moral framework into which the body politic must be schooled. Ambedkar’s sketch of constitutional morality addresses the insurgent imperative in the constitution, and looks to erode in fundamental ways the encrusted norm of discrimination in the body politic, a norm evident in liberalism’s assumption of a ‘seamlessly egalitarian social whole’ (Brown 2001: 20–21). Departing from traditional usage, Young (1990: 41) proposes the deployment of oppression as a structural concept that ‘designates the disadvantage and injustice some people suffer . . . [the causes of which] are embedded in unquestioned norms, habits, and symbols, in the assumptions and underlying institutional rules and the collective consequences of following those rules’. This concept of oppression has five faces: exploitation, marginalization, powerlessness, cultural

Introduction

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imperialism, and violence. Centring the category of oppression in looking at constitutionalism (an important form of political discourse) is useful because it involves analysis and evaluation of social structures and practices incommensurate with the language of liberal individualism — structures and practices that constitute discrimination (ibid.). Constitutional morality, then, is an intrinsic part of a larger project of morality in politics that nourishes a freeranging intellectual life and democratic political possibility rooted in democratic political struggle.

DEFINING DISCRIMINATION What is the definition of discrimination adopted by the Indian constitution? The first two clauses in article 15 of the Constitution of India, 1950, which speaks about discrimination, read: 15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to — (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

The first clause refers to the vertical application of the right to non-discrimination, that is, between the state and the citizen; the second speaks to the horizontal application of this right, between citizens inter se. Article 17 goes on to ban the practice of untouchability in any form — a provision aimed at disciplining both the state and the citizen. The key to the meaning of the phrase ‘shall not discriminate’ in 15(1) is contained in 15(2): subjecting a person to any disability, liability, restriction, or condition (implicitly detrimental) on grounds of religion, race, caste, sex, place of birth, or any of these would amount to discrimination. The idea of liberty is invoked in investing ‘discrimination’ with meaning; the substance of 15(2) is that no citizen’s freedom may be curtailed

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on the grounds specified. Moving further down to 15(3), 15(4) and 15(5),10 because discrimination is a curtailing conduct that operates indirectly as well as directly, the remedy also necessitates the creation of special provisions to combat discrimination.11 The terms ‘protective discrimination’ and ‘compensatory discrimination’, used in jurisprudence and constitutional analysis to describe these provisions, need to be problematized as contradictions-interms that create the discursive possibility of equivocation on the important question of reservation. More recent legislation, notably the proposed amendment to the Persons with Disabilities Act, adopts the definition of discrimination set out in the United Nations Convention on the Protection of Rights of Persons with Disabilities (UNCRPD). Like the Convention on the Elimination of Discrimination against Women (CEDAW), UNCRPD provides a broad-based, inclusive definition of discrimination as ‘any distinction, exclusion or restriction . . . which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise . . . on a basis of equality . . . of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’.12 The combined reading of articles 15(1) and 15(2) of the constitution of India produces the same result, as a quick comparison would demonstrate. 10

‘15 (3) Nothing in this article shall prevent the State from making any special provision for women and children. (4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. (5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.’ Constitution of India, 1950. 11 These two parts of the non-discrimination protection have also been seen by the court as subject to distinct interpretive strategies, where the strict scrutiny test would apply to derogations that infringe on liberty — 15(1) and (2), but not affirmative action laws. Naz Foundation and Others v. Government of NCT of Delhi and Others 2009 (160) DLT 277. 12 Convention on the Rights of Persons with Disabilities, article 2. http://www.un.org/ disabilities/documents/convention/convoptprot-e.pdf (accessed on 7 August 2011).

Introduction

13

Grounds are also specified in the non-discrimination protection; till very recently, these grounds were applied strictly by courts in India to determine whether or not a case of discrimination was maintainable. Further, discrimination would only be held to have occurred if it was established on one of the specified grounds, that is, on the grounds of race or religion or sex or caste or place of birth. While the argument that it is necessary to define discrimination in a manner that ‘focuses on impact (i.e., discriminatory effect) rather than on constituent elements (i.e., the grounds of the distinction)’ is well taken,13 the grounds, far from being purely a legal construct, serve to ‘separate people who experience discrimination from those who do not’, and ‘reflect a political and social reality to which the law has, belatedly, given recognition’ (Pothier 2001: 41). Further, even while specifying the grounds on which discrimination is prohibited, article 15 sets out the disadvantaged categories within those grounds — women (and now sexual minorities), scheduled castes, scheduled tribes, and socially and economically backward classes; elsewhere in the constitution, minorities. There is, therefore, little scope in the way the non-discrimination protections are constructed in India for a liberal flattening out of the provision for protection to: ‘all have the same right not be discriminated against.’ The definitional framework dealing with discrimination within the constitution is fairly unambiguous. However, the centrality of the grounds to the definition of discrimination and the exclusive application of grounds in Indian constitutional jurisprudence, where claims fail if they are found to be intersectional, can vitiate the spirit of the constitution. It is necessary, therefore, to combine discriminatory effects with the grounds in order to extend the reach of the protection creatively and to address the normal experience of multiple, intersecting discriminations. Speaking of the Canadian situation, Pothier makes the following pertinent observations: As a woman with a disability . . . I can never experience gender discrimination other than as a person with a disability; I can never experience 13

Justice L’Heureux-Dube in Egan v. Canada [1995] 2 S.C.R. 513 at 545; see Pothier (2001).

14

Tools of Justice disability discrimination other than as a woman. I cannot disaggregate myself nor can anyone who might be discriminating against me. I do not fit into discrete boxes of grounds of discrimination. Even when only one ground of discrimination seems to be relevant, it affects me as a whole person. If I am excluded or marginalized from something because of my disability, I am also excluded or marginalized as a woman and vice versa. (Pothier 2001: 60)

The effects-based approach in combination with the specification of grounds of discrimination was adopted in the deliberations on the Equal Opportunity Commission in India. Discrimination was defined through its effect on ‘deprived groups’ as follows: ‘Deprived group’ means a group of persons that is disadvantaged and/or suffers from impaired ability and/or cannot access existing opportunities, entitlements and/or rights available under law, schemes and/or policies of the government. A ‘Deprived Group’ is defined by any of the express or implied grounds on the basis of which discrimination is prohibited . . . and is identified through the application of the ‘Deprivation Index’.14

We may, in the first instance, identify ‘deprived groups’ through the medium of the constitution, and then extend the definition beyond that framework, drawing on the logic of that identification.15 The deprivation index consisted of broad indicators of deprivation that would help identify group claimants of equal opportunities: indicators such as lack of representation, prejudice or negative stereotypes and evidence of backwardness. This index would be region-specific, weighted on the basis of evidence from each region that would be updated and revised from time to time. 14

Tarunabh Khaitan, Yogendra Yadav and Kalpana Kannabiran, ‘Clarifying the Concept of Deprived Groups: Proposed Modifications to the EOC Bill’, 2009 (unpublished). See also ‘Equal Opportunity Commission Bill, 2008’, at http://www.minorityaffairs.gov.in/sites/ upload_files/moma/files/pdfs/eoc_wwh.pdf (accessed on 13 October 2011). 15 In identifying the possible claimants of equal opportunity, the Expert Group of the Equal Opportunity Commission got over the problem of exclusion of grounds in article 15(1) in part by including disability within the grounds of ‘discrimination’, although disability did not figure as a stated ground in article 15. The ground of sexual orientation, while it was discussed, had to wait for Naz Foundation and Others v. Government of NCT of Delhi and Others 2009 (160) Delhi Law Times, 277.

Introduction

15

B. D. Sharma’s delineation of deprivation is far more nuanced, interlocking the problem of discrimination with the question of liberty. For Sharma, deprivation includes: (a) non-recognition of rights over resources and restrictions on their use; (b) alienation of the worker from the means of production; (c) denial of due entitlement of labour; (d) bartering of personal liberty; and (e) the psychological state of accepting deprivation and destitution as justified and proper and the demise of self-respect and dignity (Twenty-Ninth Report of the Commissioner for Scheduled Castes and Scheduled Tribes [B. D. Sharma Report] 1990: para. 13). Both these attempts to define deprivation focus not on individual acts of discrimination but on historical or present disadvantage that need not be put to the test of technical legal proof (see Lacey 1995: 112–19). In many areas of social life, discrimination is the norm. The politics of exclusion creates a disjuncture between the statutory protection against discrimination and the social construction of it. ‘Descriptive and prescriptive conceptions of “the norm” shade into one another, generating a reluctance to conceive the statistically normal as the legally proscribed: descriptive normality confers legitimacy’ (ibid.: 103). Further, the problem of discrimination locks the different ‘deprived groups’ together along intersecting axes (dalit, Muslim, adivasi women, for example). Various strategies of deployment keep discrimination in place — exclusion from representation in the judiciary is a common strategy, and a very important one. There is, then, a shared experience of discrimination, even while there are clearly distinct specificities that arise from specific histories and locations. A focus on the strategies of dominance and on the shifting and multiple targets of dominance would foreground the intersecting axes of discrimination even more sharply. We could reflect, for instance, on the texture of power in the relationship (discursive and physical) between the dominant heterosexual, able-bodied, majoritarian man and a dalit, adivasi, Muslim woman, transgender person or person with disabilities.

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Tools of Justice

ON LIBERTY Article 21 of the Indian constitution says: ‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’ It is not out of place in speaking of liberty to recall Bauman’s analysis of Bentham’s panopticon as a model of a mini-society, precisely because it details for us the specific ways in which discrimination restrains liberty: Some actors are freer than others: discrimination in the degree of freedom allotted to various categories of actors is the very stuff of which the social system is moulded. Discrimination precedes action. . . . Instead of being an unanticipated outcome of the interplay between ‘phenomenologically equal’, similarly free agents, social order is something which some people set for others. . . . If it is true that ‘men make society’, it is also true that some men make the kind of society in which other men must live and act. Some people set norms, some other people follow them. (Bauman 1997: 23)

Discrimination — especially on the basis of caste and gender — and the resistance to it have been theorized in fairly complex ways by anti-caste philosophers and early, first-wave feminists on the subcontinent. This fairly large corpus of writings, which has played a foundational (albeit largely unacknowledged) role in the enunciation of non-discrimination in the constitution, underscores the connections between discrimination and the loss of liberty. Here, the denial of liberty inaugurates discrimination and provides the socio-political context for its perpetuation. This is a point that will be illustrated further as we go along. In working the constitution, however, courts have paid little attention to the complex interconnections between discrimination and the denial of liberty, especially the relationship between the conditioning environment and the specific justice claim. Kannabiran’s delineation of the right to liberty and his critique of the constitutional interpretation on this question in India is especially valuable. He describes the abrogation of the constitutional value system embodied in part IV of the constitution as the government’s ‘perpetual insurrection against its own people’ (K. G. Kannabiran 2003: 34). The judiciary’s failure to perceive the transformative role of the directive principles is evident in the refusal

Introduction

17

of courts for over a decade and a half to assign any interpretive role to the directives. ‘Absent this perception’, says Kannabiran, ‘every issue raised, every dissent and every political movement was looked upon as a law and order problem, and dealt with accordingly’ (ibid.: 40). There was never any recognition, in his view, of the political content of liberty in the adjudication of the validity of restraints on that liberty. This argument, in a sense, serves as my point of departure in this work. While preventive detention and the incarceration of political prisoners serve as one example of the restraint on liberty, and while the muzzling of dissent serves as a classic illustration of the political content of liberty, the connections that Kannabiran makes between the directives and the right to liberty need to be drawn out further.16 Who are the people for whom the enforcement of the directives is critical for survival with dignity? My central argument is that we can only begin to understand article 15 of the constitution and its reach if we draw a jurisprudential nexus between article 15 and article 21, i.e., between nondiscrimination and the right to liberty. In the chapters that follow, I will explore this argument with reference to six groups — persons with disabilities, dalits, adivasis, religious minorities, women, and sexual minorities, in that order.17 Also important to this exercise is the definition of the condition of liberty in each of these six contexts. To anticipate my argument, while non-discrimination might be a shared trope, liberty presents clearly distinct faces in each 16

Although the relationship between non-discrimination and liberty was at the heart of his work, Kannabiran — as an advocate and a philosopher — stopped short of drawing this relationship out in any detail, focusing instead on equality and liberty, and pointing to the limitations of the constitutional discourse on equality. I argue that such limitations are inevitable when non-discrimination is folded into equality, because this approach truncates the discursive space by ousting from it the experience of violence, exclusion and atrocity. Between 2008 and 2010, we had several extended, mutually enriching discussions (which echo through this work) on the distinction between non-discrimination and equality, and the interconnections between liberty and non-discrimination, which were at the core of Kannabiran’s reasoning with respect to the centrality of the directive principles. The arguments presented here attempt to build on K. G. Kannabiran’s work and take it forward. 17 These are, of course, broad categories, and within them there is further ‘need for clarity about precisely who the most deprived social groups are, and how they came to be so historically disadvantaged that the negative aspects of their existence still need purposeful remedying by the state’ (Radhakrishna 2008a).

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Tools of Justice

of these contexts. And while the question of liberty figures quite evidently in non-discrimination claims, the connection is never established. Instead we have the disaggregative norm of interpretation that bases itself on a reductionist reading of the constitutional fragment ‘on grounds only of religion, race, caste, sex, place of birth or any of them’.18 I hope to demonstrate through this project that looking at liberty and non-discrimination as interlocked categories helps us grasp the complexity of discrimination and enables an understanding of the ways in which the disaggregation of discrimination in the law produces counter-productive effects that further entrench the ideologies and practices of discrimination. The creamy layer argument is one example of this; the double advantage argument advanced to block reservation for women even while seeming to grant it, is another; the rhetoric of the appeasement of minorities is a third. We can find similar disabling strategies at work with reference to each of the groups that are the targets of discrimination. It has been argued that the right to personal liberty in the constitution applies only to political rights and the deprivation of liberty through state custody. I suggest that this narrowing of the field of liberty by courts is itself ideological and excludes the effective convergence of arguments about non-discrimination. In an important departure, personal autonomy — a core aspect of liberty, which encompasses the idea of self-determination — has been interpreted as an aspect of non-discrimination under article 15.19 It is only when placed in the context of liberty that non-discrimination acquires the force to counter the power of discrimination along multiple, intersecting axes. Is liberty, then, the Siamese twin of non-discrimination?

THE ROAD FROM DISCRIMINATION TO ATROCITY The first part of article 21 of the Indian constitution speaks of the right to life. In this project, I focus primarily on the second 18

Article 15, emphasis added. For a detailed analysis of this constitutional fragment, see chapter 10, ‘Sex Discrimination Jurisprudence in India’. 19 Naz Foundation and Others v. Government of NCT of Delhi and Others 2009 (160) DLT 277.

Introduction

19

part, the question of liberty and its relationship to discrimination. However, the right to life and its relationship to discrimination is of critical significance to the arguments presented here. In the first instance, in its simplest, everyday forms, discrimination is an infringement of the right to life with dignity. Through practices of segregation, seclusion, negative stereotyping, exclusion, and chronic mistreatment, the dignity of the person being discriminated against is whittled down and forced to disappear. At the other end of the continuum, the right to life is endangered, literally, through the annihilation of difference: collective violence is an important facet of discrimination. This annihilation happens along each of the axes specified in article 15. The derogation of the right to life (‘contained’ in the legal category of ‘atrocity’) is in fact a curtailment of the exercise of the right to liberty: for instance, its exercise by subaltern castes that have been disallowed this right well into the constitutional era. The derogation begins with an episode of collective violence, and travels, along with the survivors, to the end of the road to justice, disabling claims as and when they arise. And that, too, is a part of atrocity and its complex inverse connections with liberty, life and non-discrimination. It is important to mark the history of large episodes of violence in post-colonial India, episodes that speak of the critical need to look at the road that connects discrimination to atrocity. In the case of discrimination against dalits, instances of collective violence have occurred at Kilvenmani (44 dalits burnt alive in Tamil Nadu in 1968), Belchi (14 dalits burnt alive in Bihar in 1977), Morichjhanpi (hundreds of dalit refugees massacred by the state in Sunderbans, West Bengal, in 1978), Karamchedu (six dalits murdered, three dalit women raped and many more wounded in Andhra Pradesh, 1991), Melavalavu (an elected dalit panchayat leader and five dalits killed in broad daylight in full public view, 1997), Kambalapalli (six dalits burnt alive in Karnataka, 2000), and Jhajjar (five dalits lynched near a police station in Haryana, 2003) (Teltumbde 2008: 11). To illustrate this point in some detail, I will present here a brief account of the road to justice in a specific episode of collective violence that occurred in the state of Andhra Pradesh. Around noon on 6 August 1991, in the village of Tsundur, a mob of 400 persons

20

Tools of Justice

belonging to the upper castes is believed to have attacked dalits in the most brutal manner,20 killing eight persons and throwing the bodies into the Tungabhadra Drain Canal. A key eyewitness was shot dead by the police within days of the massacre. Some of those assaulted survived. What triggered this attack was trivial, as in the case of the attack on dalits in Karamchedu six years previously — an altercation between youth of both communities in a cinema theatre in the village, to which the people from the dominant caste took exception. Clearly, however, the trigger had little to do with the genesis of the collective violence or its precipitation. It had deeper structural roots that had to do with shifts in patterns of dependence, education, employment, and acquiescence to the caste order. There was national and international outrage at the attack. The dalit movement offered unstinting support in the immediate aftermath of the attack, as did other peoples’ movements. The special court in Tsundur convicted over 50 persons accused of the murderous attack on dalits — 21 were found guilty of murder and sentenced to imprisonment for life. The decision came 16 years after the attack, in what is the first major case in Andhra Pradesh to be brought under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.21 ‘The struggle of man against power’, says Milan Kundera, ‘is the struggle of memory against forgetting.’ The first site that marks the entry to the main village today is an elevated ground with nine mud graves, marked ‘Raktakshetram’, at the central crossroads. This is the place where the victims of the 1991 attack are buried, serving as a grim, daily reminder of the barbarity to all those living in the village — those who lived through the violence and the generation that has been born since — and all visitors. The government’s decision to allow the burial of the victims here on 10 August 1991 had met with stiff opposition from the highest quarters outside 20

The reality of the violence was so gruesome that the doctor who performed the postmortem committed suicide soon after. It was widely believed that he had killed himself because he was unable to cope with what he had seen. 21 State (Sub Divisional Police Officer, Tenali) v. Modugula Sambi Reddi and 218 Others Sessions case No. 36/1993, in the Court of the Special Sessions Judge-cum-IV Additional Sessions Judge, Guntur, 31 July 2007.

Introduction

21

the village. It is not the lush green fields, the idyllic natural beauty that surrounds Tsundur that stays in the mind. In fact, the violence of that beauty is chilling. The quiet, still faces of those who have lived with the reality of the violence, their quiet acknowledgement of moral support from visitors, and the apparently unobtrusive, yet grave, defining presence of Raktakshetram, rips through the placid, seductive landscape and interrupts coherent thought. For the dalit people of Tsundur, however, it has been a long, arduous and painful struggle to wrest justice from a hostile system in a hostile society. Besides coping with the brutality of the attack and continuing to live in the same place with the consequences and the memories of the violence, they have had to devise strategies at every stage to clear the obstacles from the road to justice. The first major struggle was to bring the special court created under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, to Tsundur. In cases where people who have suffered enormous loss are required by the court to recount their loss in terms that are completely alien to them, terms that do not take into account the trauma involved in the experience and its retelling, the physical location of the court becomes vital in reassuring survivors or in disempowering them. Dalits in Tsundur wanted the special court to be set up in the village itself, and fought a legal battle in the high court to have that demand accepted, because, predictably, the accused resisted the move. There is no doubt that the moral courage and conviction of the witnesses, survivors and, indeed, of the entire dalit community in the village, was strengthened by the reassuring presence of the court in their midst. The physical location of justice was no longer the distant town; participating in or even merely witnessing the proceedings no longer involved travel, time and cost; most importantly, deliberations over justice happened at the site of loss. The second major battle had to do with the appointment of the prosecutors. Generally, human rights lawyers have been reluctant to represent the government in a state known for its scant regard for the rule of law, especially in matters of state violence. The appointment of a special public prosecutor with a demonstrated commitment to human rights in this case was an important step

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towards victory —one that was unsuccessfully challenged and opposed by the accused. This result underscores the importance of the presence of human rights advocates in prosecutorial offices in cases of collective, structural crime. The final hurdle arose when the accused petitioned the high court, opposing the appointment of a judge to the special court on the grounds that since he belonged to the dalit community, he would be biased against the accused. This was an inversion of all official assumptions about the objectivity and neutrality of the judge in the justice delivery system. Even while the matter was being heard in the high court, by a remarkable coincidence, the judge was administratively transferred out of the special court. The problems and consequences of delays in the commencement and completion of trials in criminal cases have been discussed and deliberated upon at great length in Indian legal scholarship. Tsundur demonstrates the painful and difficult consequences of delay in cases of mass crime and atrocities perpetrated against poor, socially and politically vulnerable communities that are the target of discrimination. Sixteen years is a long time. An entire generation did not live to experience the outcome of the trial. But even for those who did, the struggle between the memory of loss and the imperative of survival from day to day cannot be forgotten. Living as they did in the same village, with the people and the monuments that marked their loss — the families of those accused of the assault, the cinema theatre that had been the immediate trigger (later converted into a school), the graves, the stupa of Anil Kumar who was shot dead, the streets, the fields, the canal, indeed the village itself — the dalits of Tsundur have had to tread the fine balance between memory and survival for a decade and a half at enormous personal cost.22 Mass struggles for justice have been critical to enlarging the possibilities of justice itself. Nowhere is this more evident than in the case of Tsundur. Keeping the case alive is a challenge that requires legal acumen as well as a commitment to the annihilation of 22

As the special public prosecutor in this case, B. Chandrasekhar, observed in a personal conversation, the dalits of Tsundur have also had to bear the burden of balancing the ‘national’ concern/focus against their local struggle to keep their faith against all odds from day to day.

Introduction

23

caste.23 In the face of atrocity, apart from mass protest, prosecutions need to be kept alive and effective; this needs an enormous outlay of time, intellectual and physical energy and material costs over a long period, undergirded by the moral commitment to annihilate discrimination. And justice itself is located simultaneously at plural levels — the ‘victory’ in the court of trial is both the culmination of a struggle and the beginning of the delivery of justice. The massacres of dalits at Tsundur, Melavalavu and Khairlanji are attempts to police castes into subjugation and into acquiescence with a discriminatory social order. These were not spontaneous outbursts of anger and rage on the part of dominant castes at the sight of ‘untouchable’ castes ‘trespassing’ beyond the prisons of untouchable locales — a problem that will be examined in some detail in chapter 6. They were, rather, the culmination of an ‘open conspiracy’ to stamp out any assertion by dalits of the right to liberty and the right to non-discrimination. As K. G. Kannabiran argues, in this and in cases of collective violence against minorities more generally, traditional criminal jurisprudence on conspiracy needs to be reviewed. In the case of ordinary crimes of murder and assault, however brutal these might be, conspiracy has to be established through the careful examination of circumstantial evidence. The expression of conspiracy in structural violence, on the other hand, is open and part of public morality. The denial of the conspiracy angle by courts for the most part (for instance in Tsundur, Melavalavu and Khairlanji) is also a part of the dominant ideological apparatus that denies liberty, life, freedom, and justice in the same breath (K. G. Kannabiran 2008: 382–408). An excerpt from the trial court judgement in the Melavalavu case illustrates this problem: There is no evidence of the words to the effect that they would kill all Scheduled Caste people or that they would kill the deceased. No concrete and direct evidence that the accused had made any gesture by visible action to the deceased. No reliable materials on the side of the prosecution 23

In this case, Jaladi Moses in Tsundur (who lost two brothers in the massacre) and advocates K. G. Kannabiran (who represented the prosecution in the high court every time the accused appealed on one ground or another) and B. Chandrasekhar (the special public prosecutor) stayed focused on the trial, pushing it through at every stage.

24

Tools of Justice that all the accused joined together and conspired openly or secretly to kill Scheduled Caste people at large. No individual or exclusive enmity or motive on the part of the accused towards the deceased except the displeasure on changing the panchayat board into reserved category. The attack could also have been for other situation or circumstance necessitating the attack. The accused could not have prior intention or prior motive to commit the offences that too due to misunderstanding upon the reserve category and consequent election.24

And yet, an examination of each case of mass assault registered under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act points to the ‘criminal meeting of minds [that] is writ large on the evidence brought on record’.25 In the Tsundur case, the memorandum filed by the families of the victims in the High Court of Andhra Pradesh cites ‘the fact that persons from four villages gathered at one time and place, that they were armed with deadly weapons, that they moved in unison according to a self-evident plan to attack the Scheduled Caste people.’26 This statement points to the commission of an offence under section 149 of the Indian Penal Code, a section that was not applied by the trial court even though there were convictions for eight murders and other acts of violence. A cursory look at the legal statistics in the aftermath of the violence against Christian dalits and adivasis in Kandhamal in 2008 points to the critical significance of mapping the different levels at which discrimination interlocks with atrocity. In the Kandhamal case, 832 complaints were registered by the police out of a total of 3,232 filed by victims; 26 murder cases were registered under the Indian Penal Code although between 75 and 123 people had been killed. Cases for which trial has commenced have made tardy progress (Uma and Grover 2010: 93). These statistics also point 24

Trial in the Court of District and Sessions, Salem, Tamil Nadu, Sessions Case 10/2001. Date of judgement 26 July 2001. 25 Memorandum of Criminal Revision against S.C. No. 36/1993 on the file of the Special Sessions cum IV Additional Sessions Judge, Guntur, Camp at Tsundur, 2007, between Mandru Tulasamma and two others and Modugula Sambi Reddi and 219 others. 26 Excerpt from the Memorandum of Criminal Revision against S.C. No. 36/1993 on the file of the Special Sessions cum IV Additional Sessions Judge, Guntur, Camp at Tsundur, 2007 between Mandru Tulasamma and two others and Modugula Sambi Reddi and 219 others.

Introduction

25

to the urgency of laying out the broad contours of constitutional morality informed by interpretive strategies that might help craft an effective resistance to public morality through and outside courts of all jurisdictions. The next section dwells on the form that such interpretive strategies might take.

INTERPRETIVE STRATEGIES The focus on a progressive and purposive interpretation of the fundamental right to non-discrimination and the right to liberty, as distinct from human rights (Arendt 1976: 290–302) — which are, in fact, a subset of fundamental rights rather than vice versa — leads to the expansion and extension of protections to classes that have been progressively denied these rights. What are the strategies that might allow for an enlargement rather than abridgement of protections? How might the creative articulations of constitutional morality by courts of different jurisdictions, ranging from trial courts to constitutional courts, be sustained, expanded and developed? And how may we sift out and eliminate the possibilities of reductionist, moralistic readings that subserve the interests of public morality? Courts in India have, at their most radical moments, delineated key constitutional concepts that are immediately relevant here. I outline the extended possibilities of three such concepts below.

Hostile Environments The concept of hostile environments, detailed in the context of sexual harassment at the workplace in Visakha,27 is especially relevant to an understanding of the complex interconnections between discrimination and the curtailment of liberty. The argument that hostile environments infringed on women’s right to work and imposed unfair conditions on them was central to the judgement in Visakha. While the specific gendered implications of this decision are discussed in fair detail in part III of this book, the relationship between hostile environment and discrimination will be discussed 27

Visakha and Others v. State of Rajasthan and Others (1997) 6 SCC 241.

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Tools of Justice

here as offering a possibility of broadening our understanding of systems of discrimination. The use of the concept of hostile environments in the context of learning spaces has been elaborated in fair detail with reference to race and sex, particularly in the United States. In 1997, the Supreme Court of India used the term to delineate the problem of sexual harassment in the workplace. In the United States, and in India post-Visakha, the concept is applicable to closed (or bounded) environments, such as classrooms and closed learning spaces like campuses, and workplaces that are spatially bounded — generally, spaces where the person engaging in intimidating conduct is in close, daily proximity to and interaction with the person being intimidated. The guidelines issued by the Supreme Court in Visakha reflect this as well. However, the legal history of sexual harassment at the workplace in India has a specificity that bears reiteration. In Rupan Bajaj,28 the first case of this kind that came up before the Supreme Court, and which I believe laid the ground for Visakha, although the issue was undoubtedly one of workplace harassment, the site of the offence was an official social gathering outside the work setting, not a bounded workplace. Yet Bajaj was obstructed at every stage from seeking legal redress in a case involving public sexual humiliation. When she did secure justice, one media report observed: It somehow makes the law of the land look grotesquely odd and incongruous that a man who has done signal service to the country by ridding a state of the dread and oppression of terrorism should have to spend five months in jail for a minute’s exuberance provoked by the charms of an attractive working woman.29

The lead article in another newspaper was more censorious of women. According to this view, women are expected to use ‘finely tuned, discreet social mechanisms for coping with importunate intrusions on the individual body’.30 28

Mrs Rupan Deol Bajaj and Another v. Kanwar Pal Singh Gill and Another 1996 AIR (SC) 309. 29 Editorial, Deccan Chronicle, 8 August 1996. 30 Swapan Dasgupta, Indian Express, 10 August 1996; emphasis added. For a detailed discussion on sexual harassment at the workplace in India, see Kannabiran and Kannabiran (2002).

Introduction

27

These media reports take us to the core of the idea of hostile environments as an indispensable weapon of discrimination. By curtailing liberty, hostile environments entrench discrimination and guarantee impunity to all expressions of public morality, ranging from derogatory speech and expression to collective violence. The pre-history of Visakha complicates this situation somewhat. The petitioners from Visakha, a women’s group, went to court seeking protections for women at the workplace after Bhanwari Devi was sexually assaulted by dominant-caste landlords because of her work in the government campaign against child marriage in Rajasthan. The workplace in Bhanwari’s case was the village where she lived and worked. It was not a closed, bounded space. What she was subjected to was not harassment but sexual assault. The hostility arose not only because she was a woman, but because she was a dalit woman. Moreover, the hostility was not confined to her village alone but spread along lines of caste dominance, permeating village, administrative and judicial spaces. Ironically, while we have the Visakha guidelines in place, and sexual harassment has been recognized as a form of gender-based discrimination in the workplace, Bhanwari has not secured redress.31 How may we expand the idea of hostile environments so that it speaks to the convergence of discrimination with the loss of liberty across the field, not limiting it to gender-based discrimination alone? For instance, in the case of the disabled, can the concept of hostile environment be applied to contexts marked by the absence of routine, barrier-free access and of non-verbal communications — environments that promote the routinization and normalization of indirect discrimination against persons with disabilities? Can we use it to address the enclavement of non-tribals in scheduled areas and the constant and overbearing presence of the forest bureaucracy in those areas? Or forced segregation and exclusion, especially of Muslims post-Ayodhya? All these situations constitute forms of hostile environment that entrench discrimination through the curtailment of liberty.

31

A detailed discussion of this case is presented in chapter 11.

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Analogous Grounds One interpretive strategy that has been used in Canada and South Africa, and more recently in India in the Naz Foundation case,32 has been to map analogous grounds of discrimination. Acknowledging that unspecified grounds could work to actively disadvantage people who bear certain inalienable characteristics either temporarily or permanently, in a manner that impacts negatively on their dignity, courts in South Africa and Canada have recognized unspecified or analogous grounds of discrimination. These analogous grounds could arise from one or a combination of biological attributes, relational aspects of human life, and/or expressive and religious dimensions of humanity, or any other grounds that impair human dignity. Sexual orientation was seen in Naz Foundation as a ground analogous to sex. Disability and HIV status are other grounds that are analogous. Where persons are members of de-notified tribes that are not scheduled tribes, being a member of a de-notified tribe would constitute an analogous ground. While these tribes have been parcelled out into the scheduled castes and other backward classes (OBC) categories, with the smallest proportion in the category of scheduled tribes, their common and specific experience as de-notified tribes, endorsed by the National Commission for De-notified Tribes, would bring them within the protection afforded by analogous grounds.

Articulating the Inarticulate Disability serves as a metaphor for marginality and exclusion. The defining matrix, the disabled body, is rendered completely invisible even while it constitutes the inarticulate founding premise for the theorizing and understanding of ‘social disability’. Viewing the progressive articulation of discrimination from this stand-point inverts completely the chronology of the development of rights internationally and nationally, where disability rights figure last. In the Indian constitution, disability emerges as a criterion after article 15(1) has run its course, leading to the question of whether it can be read within 15(1) at all. 32

Naz Foundation and Others v. Government of NCT of Delhi and Others 2009 (160) DLT 277.

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In the case of the disabled, discrimination is embodied, that is, the ‘infirm body’ is the locus of discrimination. The language of incapacity and impairment disables the articulation of a right, pushing disability out of the social and into the ‘natural’ (read physical/mental) world. This places a direct restraint on constitutionalism, as demonstrated by rule 12 (regarding general qualifications) of the Andhra Pradesh Judicial Services Rules currently in operation: ‘No person shall be eligible for appointment to the service unless . . . (iii) He is of sound health and active habits and free from any bodily defect or infirmity making him unfit for such appointment.’33 The development, through stages and chronology, of generations of rights then gets inverted in this framework. Viewed from this perspective, the ‘infirm body’ (infirm on two counts: disability and gender) then ‘contains’ the entire spectrum of discriminations. This has implications for our understanding of notions of belonging and of the textures of pluralism. Recovering disability from its ‘newly discovered’ position and restoring it as the founding premise of discrimination is a theoretically and politically productive move. Further, not just the individual body but the social body as a whole is implicated in the creation of hierarchies of the body. Thus, the individual body reflects the fissures and exclusions of the social body and provides the rationale for social divisions and inequalities. In this context, pluralism offers a different level of belonging and a different technology of social cohesion. If pluralism bridges distances and recognizes difference, then pluralism itself is to be understood in terms that are distinct when the indices it addresses are rooted primarily in the individual body, and when they are rooted in the social body.

33

The Andhra Pradesh Civil Services Code (compiled by Padala Rama Reddi), Hyderabad: Asia Law House and Panchayat Publications, 2003, vol. 3, 8th edn, pp. 713–40; see p. 724 (emphasis added).

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PLURALITY, PLURALISM AND BELONGING Questions of plurality and its relationship to citizenship are central to the present project. The existence of a stunning diversity, of plurality; the ever-increasing proportions in which classes are identified and excluded from access to the public domain; the shrinking of democratic spaces even as people’s movements are on the rise, push us to think of questions of citizenship and belonging anew: If citizenship relates to the participatory dimension of belonging, identity relates to the ways in which people define themselves and each other. . . . Identities are narratives . . . that . . . are contested, fluid and constantly changing but are clustered around some hegemonic constructions of boundaries between ‘self ’ and ‘other’ and between ‘us’ and ‘them’ and are closely related to political processes. Belonging is about emotional attachment, about feeling ‘at home,’ and . . . about feeling ‘safe’. (YuvalDavis et al. 2006: 1–14)

In a plural context, the politics of belonging is situated along three intersecting axes. At the temporal level, historical, political and economic developments have an immediate bearing on the contemporary politics of belonging. At the spatial level, although some developments, for instance the growth of neo-liberal markets, have a global impact, this is not homogeneous across regions, countries, and peoples within countries: globalization has a different impact and different consequences at each of these levels. Third, the politics of belonging is situated intersectionally. The facts of intermeshing social locations and uneven distribution of power along lines of gender, class, caste, religion, ethnicity, or race, make for clearly distinct experiences of belonging. The ‘politics of becoming’ framework (Connolly 1996; Minow 1996) enables an understanding of collective struggles against oppression and discrimination based on experiences of belonging in plural societies. The politics of becoming occurs, in Connolly’s words, ‘when a culturally marked constituency, suffering under its current social constitution, strives to reconfigure itself by moving the cultural constellation of identity/difference then in place’

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(Connolly 1996: 255–56). It is a paradoxical politics by which ‘new cultural identities are formed out of old energies, injuries and differences’ (ibid.: 261). While it is in motion, placing new identities onto the cultural field, the politics of becoming also changes the contours of established identities, thus bringing in its wake disturbance, distress and disruption, throwing into peril the stability in which dominant constituencies seek comfort. The politics of becoming in this moment of definition engages actively and comparatively with a number of different constituencies, shaping a regulative ideal in the process and never actually becoming completely conclusive or exclusive, or even completely synchronized with these other constituencies. The constitutive tension between suffering and cultural possibility opens out the field of public discourse in unimaginable ways (ibid.: 274). Extending this argument somewhat, Minow (1996) suggests that the idea of the politics of becoming could be more usefully probed through a thematic exploration. She identifies three themes, the ‘we’, the ‘chronic’, and the place of ‘prior experience’. The politics of becoming clearly presupposes a community of belonging, a ‘we’. Despite the fact of multiple identities, there is a solidarity of location in the context of social suffering that quite clearly separates the ‘we’ from the ‘not we’, so that even while reinventing the ‘we’, the politics of becoming keeps sight of location, of belonging. In this process, the building of the constituency of belonging shatters the hitherto unquestioned foundations of location and puts in place as yet unimaginable ones. There is something about suffering that is chronic, as is the isolation that suffering imposes. Yet, Minow (1996) points out, it is only in moments of crisis, when there is a sharp break with the past and the future, that the chronic gets foregrounded as something deserving of attention. In the case of persons with disabilities (discussed in more detail in part I of this book), a crisis could be triggered, for instance, by the sudden discovery of prolonged incarceration of the sane; by death in a fire because of the practice of chaining people with psychiatric disorders; by the pregnancy of a young woman with intellectual disability because of persistent sexual assault in a state facility. What deserves attention far

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more than the crisis, however, is the chronic condition. In these instances, the chronic condition is represented by the incarceration of those with psychiatric disabilities, or the lack of care and the routine infliction of harm in private institutions for persons with psychiatric disabilities and in state facilities for the intellectually challenged. Such conditions can only be addressed through a complete inversion of established ways of thinking, acting and organizing resources that keep conditions of suffering chronic. In Connolly’s words, some of the most difficult cases arise when people suffer from injuries imposed by institutionalized identities, principles and cultural understandings, when those who suffer are not entirely helpless, but are defined as threatening, contagious or dangerous to the self assurance or truth of these identities and when the sufferers honor sources of ethics inconsonant or disturbing to these constituencies. (Connolly 1996: 255)

It is necessary in dealing with the chronic to steer clear of the charity mode (‘an ethics of help for the helpless’ [ibid.]) and develop a ‘political ethos of critical engagement between interdependent contending constituencies implicated in asymmetrical structures of power’ (ibid.). This is, in fact, the essence of the right to nondiscrimination and the right to liberty. Since people build on what they know, Minow suggests that the crafting of prior experience in a way that enhances the possibility of responsiveness, collective redress and openness to difference, may prove enabling in confronting suffering and transforming society (Minow 1996: 283). ‘What experiences can be planted’, she asks, ‘so that people relate new expressions of suffering to a pattern of responsiveness? Why not cast for a broader we . . . ? Why not realize the idea that a society progresses when misfortune becomes viewed as an injustice?’ (ibid.: 284). Minow, however, sees the ‘we’ and, by extension, the construction of prior experience, as contained within a ‘collective, national experience’ (ibid.: 285; emphasis added). This does not allow for the possibility that the ‘collective’ experience could be other than ‘national’; that the national — to the extent that the term evokes sentiments of citizenship — is not necessarily coterminous with territory; that

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in its mildest expressions it could undermine fundamental notions of territoriality; and, finally, that the casting of the broadest possible ‘we’, since it keeps sight of location and is mindful of memory, could shatter every received notion of belonging in a society. Both Connolly (1996) and Minow (1996) proceed on the fundamental assumption that plurality constitutes a condition for the possibility of a politics of becoming and of moving towards a better, more ethical, collectively responsive form of being. While a moral code is indispensable, Connolly seems to argue, it must interweave with and be tempered by an ethos of critical responsiveness that will enable it to navigate between ‘interdependent and discordant dimensions of ethical life’ (Connolly 1996: 263). However, it has often been the case (and this is particularly evident in the case of disability, as we shall see in the first part of this book) that ideas of pluralism do not preclude practices that are exclusionary and violently hegemonic. As Butler argues, plurality is saturated with power (see Butler and Spivak 2007). Plurality may provide the thread that strings together different groups and their diverse experiences into a single coordinated system. However, practices of dominance, hegemony and exclusion are tied to social location within this system. These practices cohere through (and tend to be masked by) the prism of plurality. Exclusion, and the consequent systemic and systematic violence, is a necessary condition for the politics of becoming. By definition, then, such a politics, with its assertion of different axes of belonging, is distinct from ‘being’, which is solid, hegemonic, ascribed; being seems to disintegrate but constantly re-congeals in new forms without fundamentally new content. The politics of becoming is a self-conscious movement — a reinvention of the ‘we’, to echo Minow (1996) — towards the goal of belonging better somewhere else. It interrogates the foundations of culture and solidarity, transgresses every notion of territoriality and ‘integrity’, in order to arrive, not at a different level of being in the same space at the same time in a different yet recognizable way, but towards a different politics of belonging. This transgression of territoriality and integrity is extremely significant because it obstructs and fragments the re-solidification of being.

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The politics of becoming/belonging, then, is an essentially enabling, fundamentally transformative process that forges a larger community of belonging beyond national, regional or politicoideological borders. It merges within itself the histories of oppression as well as those of resistance, creating new forms of solidarity and shared citizenship. It forces upon states a public accountability outside of ‘internal’ spaces, howsoever conceived, and ruptures old, comfortable ways of thinking about ‘difference’, ‘discrimination’ and ‘liberty’ within the framework of the constitution, by reframing the problem of constitutionalism. The question now before us is: how may we understand nondiscrimination and liberty in the body politic and in relation to the state, in the context of pluralism, central to which is the struggle for as well as the resistance to the hegemonic exercise of power?

QUEERING THE NORM Homosexuality, lived out freely and fearlessly, places before the individual and society a real set of imperatives, challenges and opportunities: to put reason and humanity before fear, habit and prejudice; to test our unexamined assumptions regarding some of the basic elements of human life. . . . Nobody, one has to remind oneself relentlessly, is too old, or too fragile, to be made to shed the habit of discrimination. (Sen 2007: 15)

The primary objective of this work is to displace the certainties around, and re-examine the meanings of, discrimination and liberty. Foucault’s description of the ‘norm’ as not explicitly codified, and as distinct from the ‘rule’ or the ‘principle’, is a starting-point. Briefly, the norm, which distributes individuals along a continuum from abnormal to normal, arises from the social practices of a social group. It is, therefore, constitutive of the individual’s subjectivity and is articulated through the human sciences rather than through legal institutions (Golder and Fitzpatrick 2009: 43n43). The problem of tackling discrimination through law is that discrimination is masked by multiple normativities that intersect and congeal, making it difficult to actually trace its trajectories. However, it is this very difficulty that makes it imperative to open

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out judicial discourse especially, and examine the ways in which normativity enforces and entrenches the status quo, often disabling the rights to non-discrimination and liberty. This book will examine the implications of able-normative constructions for an understanding of disability rights; those of dominant-caste normativities for an understanding of dalit and adivasi rights; of majoritarian normativity for an understanding of minority rights; and androcentric heteronormativity for an understanding of gender-based rights and rights of sexual orientation. A central aspect of the problem of normativities is their interlocking, which produces a condition of concentrated power and hegemony that silences articulation and distorts it, or informs one form of domination with the technologies of power of another. Also critical is an understanding of convergence and intersection between the body politic/civil society and the state, and the structuring of private spaces by these multiple normativities, bolstered by state practice.

TOLERANCE AND DISCRIMINATION The relationship between tolerance and discrimination needs to be unpacked in order to comprehend the implications and the habitations of discrimination more completely. How may we map the modalities of talk about tolerance in relation to discrimination and the denial of liberty? Tolerance discourse articulates the claims of women and minorities — religious, caste, ethnic, and sexual — to equal political and cultural citizenship on behalf of hegemonic powers. This is evident, for instance, in the impatience, the patronizing and the reluctance with which injury is acknowledged (or not), and in the development of the ‘language of appeasement’ that mars public discourse (Davis 1996: 50; Jacobsohn 2003: 55), of which judicial discourse is a part, even while offering or seeming to offer protection. Further, a majoritarian normativity uncritically (and perhaps unwittingly) absorbs the idea of India as essentially Hindu, even while underscoring the non-negotiability of secularism as a core constitutional value:

36

Tools of Justice Throughout ages endless stream of humans of diverse creeds, cultures and races have come to India from outside regions and climate and contributed to the rich cultural diversity. Hindu religion developed resilience to accommodate and imbibe with tolerance the cultural richness with religious assimilation and became a land of religious tolerance.34

At its core, tolerance as a political discourse involves ‘the marking of subjects of tolerance as inferior, deviant or marginal vis-à-vis those practicing tolerance; and a justification for sometimes dire or even deadly action when the limits of tolerance are breached’ (Brown 2006: 13–14). It is this aspect of tolerance discourse that is immediately relevant to an understanding of discrimination and the loss of liberty. Brown observes that tolerance is not legally or doctrinally codified, and therefore cannot be commanded, ‘because its legitimating goodness is tied to virtue, not to injunction or legality’ (ibid.: 12). According to her, the legal codification of tolerance necessarily recedes as the purview of formal equality is expanded (ibid.). However, this formulation leaves out of the reckoning the purview of non-discrimination. Tangential to Brown’s observation, I argue that articles 15 and 17 of the Indian constitution displace the discourse of tolerance in a manner that foregrounds the right of the subjects of tolerance to a life free from discrimination, thus divesting the dominant majority of its power. In other words, an intersectional reading of articles 15, 17, 21, and 23 of the Indian constitution points to the transmutation of tolerance from a free-floating virtue whose exercise rests with the dominant, to a defining aspect of constitutional morality, embodied in the justiciable right to non-discrimination for all those at the margins who experience routinized intolerance.

POWER AND VIOLENCE ‘Power’, says Foucault (1980: 94), ‘is not something that is acquired, seized, or shared, something that one holds on to or allows to slip away; power is exercised from innumerable points, in the interplay of nonegalitarian and mobile relations.’ Since ‘there is no power 34

S. R. Bommai and Others Etc. v. Union of India and Others Etc. 1994 AIR (SC) 1918, para. 118; emphasis added.

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without potential refusal or revolt’ (Foucault 1994: 324), power relations and their methods are best understood, Foucault argues, through a close look at resistance as a ‘chemical catalyst’ (ibid.: 329). He suggests that it is most productive to analyze power relations through the ‘antagonism of strategies’ (ibid.), for instance, uncovering the meaning of sanity through an investigation of insanity, or, more generally, understanding legality through the field of illegality. The exercise of power and force is central to the problem of discrimination and the denial of liberty. Following Foucault, I suggest that we can understand fully the meanings of equality only through a careful investigation and analysis of discrimination and the negation of liberty. Violence and force are at the core of discrimination, and in fact constitute the key instruments that distinguish it from inequality. Since the practices of discrimination and the power relations embedded in them are revealed through resistance to such practices, ‘in order to understand what power relations are about, perhaps we should investigate the forms of resistance and attempts made to dissociate these relations’ (Foucault 1994: 329). Resistance to power — insurgency — takes place at several levels, just as power is exercised in various locations in similar and different ways simultaneously. This approach allows us to ask, for instance, in what ways uncontrolled power is exercised over people’s bodies. How may we map the closeness/proximity of the source of power to the subjects, and its legitimation through regimes of knowledge? (ibid.: 320–31). Of critical significance to this project is a delineation of the techniques of power and the contestations that destabilize it. Golder and Fitzpatrick (2009: 71) mark the idea of the duality of the ‘law’ as distinctive in Foucault’s elaboration of the law, where the law is both on the side of the norm and receptive of resistances. If we develop this idea of the mutability of law, what then are the ways in which the law might disrupt itself through practices of insurgent governmentality?

INTERPRETING THE CONSTITUTION This appeal does not involve any question of constitutional importance but, that is not to say that it does not involve any question of importance.

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Tools of Justice Some questions which arise under the ordinary civil and criminal law are of a far-reaching significance to large segments of society which have been traditionally subjected to unjust treatment. Women are one such segment. ‘Na stree swatantramarhati’ said Manu, the law-giver: The woman does not deserve independence. . . . To the Prophet is ascribed the statement, hopefully wrongly, that ‘Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly.’35

The history of constitutional interpretation in India, for the most part, reveals a preoccupation with established modes of reasoning that provide for ‘ameliorative measures for the downtrodden’ without dislodging the status quo. Several chapters of this book will explore this aspect in some detail. This preoccupation is first visible in Champakam Dorairajan,36 but also in A. K. Gopalan.37 In an odd sense, this tradition of equivocation in constitutional jurisprudence reflects the discourse of ‘transfer of power’ from the British empire to the Republic of India, rather than the ‘overthrow of colonial rule’. The continuities in the transfer of the power of adjudication need to be interrogated by placing them within the context of the disruption of that power embodied in the process of constitution-making. The constituent assembly, in recognition of the fact that the constitution was being introduced in an unequal and discriminatory society, debated and drafted the constitution with the explicit purpose of dislodging the status quo. Ambedkar’s brief reference to constitutional morality as opposed to public morality frames this aspect for us, as does his concern that the constitution must provide protection against social boycott to different people and classes. What should be the trajectories of an intellectual history of constitutionalism given India’s specific historical experience? For instance, going back to the quotation at the beginning of this 35

Justice Chandrachud, Mohammed Ahmed Khan v. Shah Bano Begum 1985 AIR (SC) 945, para. 1; emphasis added. 36 The Champakam Dorairajan case is discussed in greater detail in chapter 5. See State of Madras v. Champakam Dorairajan & State of Madras v. C. R. Srinivasan AIR 1951 SC 226. 37 For a detailed analysis of the A. K. Gopalan case, see K. G. Kannabiran (2003). A. K. Gopalan v. State of Madras 1950 AIR (SC) 27.

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section, if the constitution affirms equality, non-discrimination, dignity, and liberty irrespective of social location in a context that is plural and unequal, what is the corpus of intellectual signposts available for courts to draw on in imagining these rights? Can a constitutional court take the view that Manu is a lawgiver? What is the function of such situated reiteration? The invocation of Manu, especially in cases involving the derogation of the rights of Muslim women, points to the entrenchment of Hindu moralism in constitutional jurisprudence, exacerbating the disarticulation of the rights of minorities in a plural society.38 Constitutional interpretation is of critical significance in interpreting the character of secular democracy in India. The Supreme Court has been unequivocal in rejecting the views that secularism is part of the preamble and not of the constitution, and that political parties may profess religious beliefs as long as they do not attack other religions:39 Secularism is a part of the basic structure of the Constitution. The acts of a State Government which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution.40

Also important is the manner in which constitutional courts articulate the question of constitutional morality in the context of discrimination based on religion and genocidal violence. Writing on the decision of the Supreme Court in the case of contempt of court against Zahira Sheikh, a survivor of the Gujarat massacre, Baxi draws attention to the Court’s inimitable prose [which] suggests that judicial decisionmaking must somehow ‘balance’ considerations regarding ‘public interest 38

Zahira Habibullah Sheikh and Anr v. State of Gujarat and Ors (2006) 3 SCC 37. Rejecting the argument of Ram Jethmalani in S. R. Bommai and Others Etc. v. Union of India and Others Etc. 1994 AIR (SC) 1918, para. 97. 40 S. R. Bommai and Others Etc. v. Union of India and Others Etc. 1994 AIR (SC) 1918, para. 91 (VIII). 39

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Tools of Justice in the proper administration of justice’ over the constitutional rights of the accused [here a Muslim woman witness–survivor of genocidal violence]. If so, one may well ask whether the languages of constitutional rights serve any or no ‘public interest’? (U. Baxi 2006: 8)

In its classic form, I would argue, constitutional jurisprudence depoliticizes the reading of non-discrimination. To echo Wendy Brown, ‘depoliticization involves removing a political phenomenon [the writing of the constitution] from comprehension of its historical emergence and from a recognition of the powers that produce and contour it’ (Brown 2006: 15). This eschewing of power and history in the representation of its subject results in the representation itself providing a truncated ‘ontological naturalness or essentialism’ that then goes on to inform the entire field of constitutional jurisprudence. The distinction between constitutional morality and constitutional moralism is an important one. Brown argues that while both moralism and morality might constitute their identities by distancing themselves from power, they are not equivalents (Brown 2001: 22). We may use this argument to understand the contrast between the moralism of constitutional interpretation (constitutional law) and the Ambedkarite formulation of constitutional morality. Constitutional jurisprudence on non-discrimination provides an immediate demonstration of the fact that morality ‘persistently risk[s] devolving into moralism’ (ibid.: 22). Moralism is ‘an impoverished substitute for, or reaction to, the evisceration of a sustaining moral vision’ (ibid.: 23), and ‘tends to be intensely antagonistic toward a richly agonistic political or intellectual life’ (ibid.: 30). The present study attempts to return history and politics to constitutional hermeneutics, and also suggests that interpretation is not the exclusive preserve of constitutional courts but, importantly, may be crafted by people’s movements in their exercise of a dispersed sovereignty. Expressed through the desire for self-determination in the struggles of critical regionalisms, this sovereignty vests people’s movements with the power to use the framework of constitutional morality to fight discrimination. For

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the moment, we need only remind ourselves of the preamble of the Indian constitution: We, the People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation; In Our Constituent Assembly this twentysixth day of November, 1949, do Hereby Adopt, Enact and Give to Ourselves This Constitution. (Emphases added)

This is to be interpreted as an affirmation that the people of this independent country ‘were going to constitute a state in which . . . concepts of justice, equality and liberty . . . would remain secure. They would be protected and safeguarded’ (K. G. Kannabiran 2003: 39).

SOURCES AND METHOD This book seeks to establish the jurisprudential connection between liberty and non-discrimination, an idea that has its origin in my involvement with the struggles of peoples’ movements that have challenged and continue to challenge discrimination. The understanding of discrimination offered here draws on the framework of the constitution, and ranges from the inarticulate constitutional index of disability to the hyper-articulate constitutional index of gender. Between these two indices lie the indices of caste, tribe and religion. All three, I would argue, figure as mis-articulate indices that mask discrimination through discursive strategies that are deflective even while seeming to redress it. Opening this field out to scrutiny has meant using an eclectic approach to method, structure and sources. The structure of this project is internally diverse; there is no common structure that runs through all the chapters and parts.

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The sources used here are varied and interdisciplinary. The main body of the project is organized into three parts. The first, focusing on disability, consists of three chapters that look at the social construction of disability, the jurisprudence on disability, state policy, sources of intellectual history on disability, and the question of liberty as this arises in case law. The negations, inarticulations and elisions that mark the constitutional discourse on disability set out the terms for a more general articulation of non-discrimination under article 15 of the constitution. Part II consists of five chapters, three on caste and one each on tribe and religious minorities. The chapters on caste explore at length, first, the possibilities of an insurgent sociology of caste in India, one that would contextualize aptly the problem of discrimination and loss of liberty drawing on sociological, anthropological, historical, and literary sources; second, the problem of discrimination with specific reference to reservation; and third, the question of liberty as foregrounded by the constitutional category of untouchability, which is studied through an examination of government orders and the report of a judicial commission. The chapter on tribe looks at questions of self-determination and sovereignty in relation to rights to land (settled or nomadic), and poses these as central to the understanding of liberty. The land rights question is examined against the background of government reports on the adivasi question that point to a systemic and systematic inequality, raising the presumption of discrimination. The chapter uses case law, government reports as well as the annual reports filed by state governments to the governors on the administration of Schedule V areas; it also draws on oral testimonies by adivasi leaders on their experience of the law in Schedule V areas in Andhra Pradesh. The chapter on religious minorities, with a focus on Muslims, uses the report of the Sachar Committee as its point of departure. It moves on to focus on the issue of article 15 rights as expressed in the debate on reservation for the Muslim backward classes in Andhra Pradesh and the case in the Supreme Court. It concludes with the problem of liberty as foregrounded in the genocidal violence against minority Muslims in Gujarat in 2002.

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Part III focuses on sex-based discrimination. The first of four chapters in this part maps the past and contemporary histories of discrimination against women. The second chapter looks at constitutional jurisprudence on discrimination based on sex, while the third focuses on the problem of sexual assault as loss of liberty. The fourth chapter raises the question of the need to rethink the category of sex as contained in the constitution. These four chapters on gender-based discrimination use historical sources, extensive case law review, reports of commissions of inquiry, independent reports of research, policy documents and media reports. The effort to use a plurality of sources points towards the existence of multiple locations of the law in action, and to the need to span the entire range in order to grasp the complexity of the problem and its solutions. The focus on plurality and pluralism, therefore, is not one that is contained within the subject of the research alone, but is one that must encompass the locations of intervention in relation to the subject — the subject here being not the individual or collectivity, but the problem of discrimination and the loss of liberty. I have had to be selective regarding the specific cases/episodes that serve to illustrate the arguments presented here. There is, of course, a wealth of cases and materials and a disturbing array of incidents of mass violence that are immediately relevant to this project, each of which merits serious consideration. They do not all find a place in this discussion only because a project as vast as this must be faced with difficult choices; omissions may not translate into the adoption of an ideological standpoint in this instance.

CONCLUSION: THE HABIT OF DISOBEDIENCE It is now necessary to understand the exact distinction between aggressive Civil Disobedience and defensive. Aggressive, assertive or offensive Civil Disobedience is non-violent, willful disobedience of laws of the State whose breach does not involve moral turpitude and which is undertaken as a symbol of revolt against the State. . . . Defensive Civil Disobedience, on the other hand, is involuntary or reluctant non-violent disobedience of such laws as are themselves bad and obedience to which would be inconsistent with one’s self respect or human dignity. (Gandhi, cited in Gauba 1946: 24)

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Gandhi’s idea of civil disobedience is central to the workings of constitutional morality, an idea developed by Ambedkar during the era of constitution-making in the 1940s, specifically in the context of aggravated and violent discrimination against the castes situated at the bottom of the Hindu social order. The concept of constitutional morality, largely forgotten, was resurrected in 2009 by the Delhi High Court in a landmark decision decriminalizing consensual sexual intercourse among adult lesbian, gay, bisexual, transsexual, and transgender persons, heralding a new order of intimacy and placing this order within the sphere of constitutional morality.41 The recall by a constitutional court in effect redefined the publics by straddling the public realms of caste and the private realms of relationship, bridging these realms by using article 15(2) of the constitution, which explicitly proscribes practices of spatial segregation. Both these ideas, civil disobedience and constitutional morality, I argue, have been foregrounded in practice by social movements across the country in their theorizing of discrimination and the violence of normal times. The idea of liberty is an intrinsic part of the articulation of non-discrimination in these locales. While the problem of intersecting identities has often been confronted and voiced in the practice of politics, the resolutions are more complex. This theorizing that is evident in the literature and the politics of organizing has yet to make significant inroads into jurisprudence, creating a disjuncture between the people’s imagination of what a court or justice should be and what these in fact are. Courts are, for the most part, locked into ‘path dependency’, a term used by economists to refer to the phenomenon of being locked into bad choices even when better alternatives are available in principle: ‘it is easy to stick to a path that has already been taken, because making a switch requires strong political will and investment of significant intellectual and other resources’ (Baruah 2008: 18). The struggle before us, then, is to dislodge constitutional patriotism (with the distortions, reductionisms, ritual adherence, and 41

Naz Foundation and Others v. Government of NCT of Delhi and Others 2009 (160) DLT 277.

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mystifications endemic to patriotism) and put in its place constitutional commitment (U. Baxi 2004), which consists of a revisioned constitutional law that draws important lessons from subaltern or insurgent constitutionalism. For the present purpose, this simply means the radical will to realize the goals of liberty and nondiscrimination. In the ultimate analysis, the present project attempts a sociological imagination of the field of constitutional morality, focusing on its keystones — liberty and non-discrimination.42

42

I borrow the term ‘sociological imagination’ from C. Wright Mills (1959). Ecological sciences have used the keystone species concept to designate species that support life forms that are disproportionately large relative to their abundance. See Payton et al. (2002: 6).

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PART I MAPPING DISABILITY DISCRIMINATION IN INDIA

Introduction The three chapters in this part of the book examine the discourse on disability in the Indian context. While disability-based discrimination is the subject of special legislation, the constitution is silent on this form of discrimination, all cases being read within the ambit of equality before law and equal opportunity. The treatment of persons with disabilities in Indian society, however, has historically been discriminatory; practices of discrimination against disabled persons have taken unparalleled forms in India and have provided the language and the medium for the articulation of disabilities in the social sphere. I open the discussion of discrimination and the negation of liberty in this book by unpacking the constitutionally inarticulate field of disability-based discrimination. I do this in the hope that this route offers unanticipated possibilities for understanding the fundamental bases of discrimination, and may have unexpected outcomes in terms of an understanding of constitutional morality. Chapter 1 examines the jurisprudence on disability through an analysis of case law on disability in India, looking at criminal justice, equality of opportunity, and questions of custody and consent. While the case law on disability is recent and not very extensive, especially in comparison to the existing case law on the other indices of discrimination, a careful reading might foreground the theoretical/conceptual bases for the marginality of disability rights jurisprudence to the larger discussions of non-discrimination in India. Central to this exercise is an examination of the construction of corporeal normativities and their proliferation through the constitutional interpretation of non-discrimination. Chapter 2 takes a critical look at policy and legislation on disability-based discrimination, setting out the signposts of official concern for and articulation of disability. This chapter is largely

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descriptive, detailing policy and programmatic commitments to addressing the constitutional goals of equal opportunity and nondiscrimination, and the ambiguities thereof. The detailed assessment in chapter 2 lays the foundations for chapter 3, which deals with the argument regarding the philosophical basis for the ideas of non-discrimination and personal liberty. It makes the case for a radically new approach to constitutionalism that springs from the question of ability, as this is theorized in philosophy and in the practice of the disability rights movements in India.

Chapter 1

Trends in Disability Rights Jurisprudence Article 326: Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage: The elections to the House of the People and to the Legislative Assembly of every state shall be on the basis of adult suffrage that is to say, every person who is a citizen of India and who is not less than eighteen years of age . . . and is not otherwise disqualified under the Constitution or any law made by the appropriate Legislature on the ground of . . . unsoundness of mind . . . shall be entitled to be registered as a voter at any such election. — Constitution of India, 1950 (emphasis added) Article 41: Right to work, to education and to public assistance in certain cases: The State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. — Constitution of India, 1950 (emphasis added)

What is the constitutional position on disability in India? Apart from the two specific provisions just quoted, the fundamental right to life provides the guarantee of life and liberty to all persons resident in India. Article 21 of the constitution of India protects the right to life and personal liberty, which are inclusive of the principles of inherent dignity and individual autonomy for all persons resident in India. Article 21, together with article 14, the right to equality before law, provides the conditioning environment for specific laws and policies that uphold fundamental rights for different classes of individuals. Article 38 directs the state to secure a social order that promotes the welfare of the people. Article 39 enjoins the state to protect the health and strength of workers, men and women, and ensure that children are not abused, that citizens

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are not forced by economic necessity to enter avocations unsuited to their age or strength, that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 47 directs the state to raise the level of nutrition and the standard of living and to improve public health. While these are general provisions that offer protections and form the basis for state policy impacting all people regardless of abilities, there is a double negation of the rights of persons with disabilities in the constitutional scheme: first, the absence of disability as an explicit ground of discrimination under article 15(1); second, the bar on voting rights for persons with any psychosocial or intellectual disability, described by the encompassing term ‘unsoundness of mind’. These negations, taken individually, have specific impacts; but in concert they have far-reaching implications. They mean that the denial of rights of democratic citizenship — rights that are expressed through adult suffrage (not ‘universal adult suffrage’, as has hitherto been assumed) — cannot be brought within the meaning of discrimination against persons of ‘unsound mind’. Nor does the constitution define the attributes of unsoundness of mind, considering that it is a critical, indeed indispensable, political right that is being denied. This omission, I suggest, renders ‘unsoundness of mind’ into a fluid category that shifts constantly, whereby the identification of persons of ‘unsound mind’ becomes part of an exercise of power by the state, sometimes in concert with families and communities. Moreover, if ‘unsoundness of mind’ is a homogenizing construct, the first negation, namely, the absence of disability in the constitution and the refusal of constitutional courts to bring it within the meaning of discrimination under article 15, further truncates fundamental freedoms for all persons with disabilities. The denial of political voice has immediate and serious consequences for the right to liberty of persons of ‘unsound mind’. This is an aspect of the constitutional abridgement of rights that we will revisit at different points in this and the following chapters of this part of the book. Apart from article 326, quoted at the beginning of this chapter, the seventh schedule (article 246) places ‘lunacy and mental

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deficiency, including places for the reception or treatment of lunatics and mental deficients’, on the concurrent list. The language of ‘deficiency’, ‘lack’, ‘impairment’, and ‘bodily defect’ stalks official discourse on disability rights. It is necessary, therefore, to first unpack the construction of disability in official discourse, before moving on to examine the articulation of constitutional rights, non-discrimination, liberty, and the problems thereof. Social contract theory, argues Nussbaum (2006), imagines the basic structure of society as composed of ‘free, equal and independent’ citizens who are fully cooperating members of society leading complete lives. Disability, then, within social contract, is handled as an afterthought, one that necessitates ‘accommodation’ and the removal of ‘barriers’. The erection of barriers itself, however, is a matter not of volition, but of foundational exclusions, of inarticulate premises that structure consciousness and architectural design. For the present, however, we may simply mark the clearly discernible disjuncture between the treatment of persons with disabilities other than intellectual and psychosocial disabilities, on the one hand, where the focus is on equal opportunity as distinct from non-discrimination, and persons with intellectual and psychosocial disabilities, on the other, where protections and special measures tend to take the form of custody, while political rights are constitutionally denied.

PROBLEMATIZING ABILITY There are different ways of looking at disability and positioning it in the context of law. The discourse on disability in India, it appears, focuses on a biomedical approach that measures disability against an able-bodied norm. For a person to be brought within the category of the ‘disabled’, it must be certified medically that that person suffers from not less than 40 per cent of any of the listed forms of disability, either singly or in combination. Being included in this category brings such a person under the umbrella of state protection/custody and/or largesse.1 Recognizing that employers 1

‘Disability’ under section 2(i) of the Persons with Disabilities Act, 1995, is defined as blindness, low vision, leprosy-cured, hearing impairment, locomotor disability, mental

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might have an aversion to the idea of employing persons with disabilities, the legislation attempts to regulate this aversion by providing incentives to employers of the disabled under section 41 of the Persons with Disabilities Act.2 It is in the structure of the relief itself that the inarticulate ground of discrimination is evident. Whereas reservation is a part of the right against discrimination for any of the stated grounds of discrimination under article 15, in the case of disability, reservation is framed in the language of tolerance. Incentives are the medium through which tolerance is fostered, and discrimination is left unaddressed in any substantive manner, leaving public morality firmly in place. This biomedical approach was challenged with the ratification of the United Nations Convention on the Rights of Persons with Disabilities in 2008. Around the time of the adoption of the convention by the UN in 2006, the deliberations on the National Policy on Disability Rights and the 11th Five-Year Plan in India marked a similar shift in policy towards the social model of disability. Policy now straddled, as it were, the biomedical and social domains of knowledge on disability. However, the fundamental assumption about the dichotomy between ability and impairment is common to both the biomedical and the social approaches to disability. The contradictions in law, jurisprudence and policy with respect to equality (the idea of non-discrimination not yet having been articulated in the case of persons with disabilities) can be understood only if we begin to unpack these assumptions and reformulate the ‘problem of disability’. In doing this, I draw on the work of Minae Inahara, who contests ‘the binary categorical system which defines disability in opposition to an able-bodied norm and suggest[s] that the retardation, and mental illness — certified by a medical authority to be not less than 40 per cent. Having identified the person with disability through the biomedical validation of essentialized attributes, positions in public employment that may be offered to such persons are then identified and a reservation of 3 per cent distributed among the different categories of disabled persons under section 33 of the act. 2 I echo the title of Wendy Brown’s work on tolerance (2006). However, the idea of managing or regulating aversion with specific reference to persons with disabilities goes back to Jacobus tenBroek’s (1966) work. Speaking of public attitudes to persons with disabilities, he refers to the ‘public aversion to the sight of them and the conspicuous reminder of their plight’ (ibid.: 842).

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disabled body is a multiplicity of excess which undermines this able-bodied norm’ (Inahara 2009: 47). Critical to this argument is the idea that the able-bodied norm is illusory: all those labelled disabled, female, child, aged, obese, or homosexual, and all those who suffer from chronic illness or are sick, weak, vulnerable, or frail for any of a host of reasons, are set against a norm that is unattainable by definition. To cite instances from the Indian scenario, the single constitutional provision that speaks explicitly of disability, article 41, addresses the state’s commitment to providing public assistance in cases of ‘unemployment, old age, sickness and disablement, and in other cases of undeserved want’. Labour laws reproduce this conflation of disability with health and age-related incapacities by referring not to disability but to ‘continuous ill health and disablement’ (Vasanthi 2007). And yet, labour is a many-splendored thing, with disability sitting quite easily with manual work, provided the performance of manual work is conceptualized and organized without assuming an able-bodied norm in terms of output or the design of work-enhancing implements;3 further, disability must not be seen in a relation of mutual exclusion with mental/intellectual labour. That the able-bodied norm is physical, and therefore also sexually coded, is driven home by accounts of women who seek the dissolution of arranged marriages on the ground that the husband is ‘impotent’, a descriptor of homosexuality.4 That the norm is male, while self-evident, is also interestingly reflected through a crooked mirror that shows women unable to bear a male child as ‘deficient’. The male able-bodied norm is defined also through the politics of the womb, where femininity is constructed through the capacity to bear children, so that any claim to femininity must fall short absent this capacity. Sameera, a transgender person who identifies herself as female, observed at a meeting of disability rights activists that 3

A different conceptualization of manual work was in fact formulated in fair detail by a large group of persons with disabilities trying to work with the National Rural Employment Guarantee Scheme at the National Institute for the Mentally Handicapped in Hyderabad, Andhra Pradesh, in January 2006. 4 I draw here on my experience, since 1991, of providing legal counselling to women at Asmita Resource Centre for Women, Secunderabad.

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she was the most severely disabled of all because she lacked the organs necessary for creation (srushti).5 The discourse on ‘sexual deformities’ however is discussed at length in the context of sexual orientation in Chapter 12. The able-bodied norm is set outside of lived experience, with everybody striving to reach up to it for varying periods in differing degrees during a lifetime; or, finding the norm un-performable, simply being framed as its Other. The attainment of this goal or the failure thereof does not in any way reflect capacity or capability or ability; nor is there any fixity to the attainment, which is transient and ephemeral by definition. While there is no doubt that the loss of the effective use of a limb or the sharp decline in physical strength in the elderly creates bodily impediments to functioning, there are ways of getting around the obstructions, of not seeing them as obstructions, of organizing tasks differently, and changing the way in which we are oriented to our immediate environment. The mastery of an inability, or compensating for it through bodily moves, makes ability itself fluid and malleable. This is the case with most physical disabilities as well. As Inahara puts it so aptly, ‘the complexity of disabled ability does not fit into able bodied notions of ability’ (Inahara 2009: 56). Further, the moment we attempt to demarcate the disabled body, we realize that no body is fixed and perfect, and that the diversity of abilities and disabilities challenges the logic of sameness in the able-bodied understanding of ability. It is also important to recognize, however, that there are some impairments (profound multiple disabilities, for instance) that cannot be compensated or mastered in the same way as some others. What are the specific ways in which inclusive strategies for persons with multiple disabilities and carers can rupture the monolithic construction of the able-bodied norm? What is striking about the case law on disability is the inability of public authorities, who measure disability in percentiles against the able-bodied norm and then fix attributes and incapacities to each measure, to comprehend that what they label as ‘disability’ refuses to be contained within the attributes they ascribe to the 5

State-level disability rights workshop organized by the non-governmental organization MORE in Madanapalle, Andhra Pradesh, April 2003.

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label. Instead, the disabled spill out of the confines of disability to merge with ability, disabled ability matching able-bodied ability, throwing the norm into crisis. The norm, however, is quickly recovered, and the measure restored, through the observation that although X suffers from disability, s/he is as at ease with the tasks at hand as an able person. In the case of persons of ‘unsound mind’, the case law, although very limited, reveals the ways in which unsoundness of mind, often a transient condition, is fixed despite medical certification to the contrary (i.e., despite the declarations from the keepers of the able-bodied norm). This fixing of a shifting and nebulous condition invites tunnelling consequences in the law that herd such persons into prison, obliterating the distinctions between ‘insanity’ and ‘sanity’, between degrees and forms of ‘insanity’, between ‘mental incapacity’ and ‘insanity’, between the ‘criminally insane’ and ‘non-criminally insane’, and between the ‘criminal’ and the ‘mentally ill’. Law expresses itself through policy that directs executive action. Law also surfaces through the minutiae of ‘informal law’ or custom, to which may be added the realm of popular representation — writing, visual media, etc. — that operate as standard- or normsetting practices. Traditions of isomorphism cut through the entire field. On the other hand, historically, assertions of ability by the disabled and resistance to stereotyping cut through this entire field as well. We will examine cases with respect to physical disability and mental illness in order to understand the workings of the law, but also, importantly, to understand the construction of disability and the able-bodied norm by the courts and the state.

EQUALITY OF OPPORTUNITY ‘Equality is not degraded or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit.’6 We may begin with a re-reading of these lines. What they seem to 6

Justice Krishna Iyer in Dr Jagadish Saran & Ors v. Union of India 1980 2 SCC 768.

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say is that the able-bodied norm that is responsible for the disablement of the disabled needs to be overcome in the interest of the general good, which includes preserving and caring for the diversity of abilities that make for a plural society, and in the interest of merit, which may well be located outside the able-bodied norm. This reading is no doubt outside the normative parameters of judicial deliberations, but it is precisely to dislodge some of the secure assumptions about disability that we shall take a close look at legal contestations and arguments. In a case that goes to the heart of the matter, so to speak, 2 per cent reservation was provided for ‘handicapped persons’ in all services under the Uttar Pradesh government. The following instruction was added as a limitation: The physical disability should not be of the nature, which may cause interference in discharge of duties and obligations attached to the concerned service. Accordingly if the service is as such that it require [sic] continuous use of eye, then in such case reservation cannot be given to the blind persons. In the same manner if some services specifically involves the hearing faculty then no reservation can be given to the deaf persons in such services and in a service where the use of a particular organ of the body is to be used then the person disabled of that particular organ cannot be given reservation in that service.7

The problem lies not so much in the setting out of an ‘eye for an eye’ or ‘an ear for an ear’ approach, but in the able-bodied imagination of what tasks require an eye or an ear or a limb, what tasks are suitable for the disabled, and in what ways they may be ‘accommodated’. The Supreme Court’s insistence that the state government provide an opportunity for employment to the person with disability in this instance ends with the observation that ‘the State Civil Service . . . is a large enough service which can easily accommodate physically handicapped persons in suitable posts.’8 A circular issued by the Government of India in 1986 set out the degrees of deviation from the able-bodied norm that would be accommodated in the banking sector: ‘1. BL — Both legs affected 7 G. O. No. 43/90/66-Apptt. 4 dated 18 July 1972; cf. Daya Ram Tripathi v. State of UP & Anr 1986 Supp SCC 497. 8 Daya Ram Tripathi v. State of UP & Anr 1986 Supp SCC 497; emphasis added.

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but not arms; 2. OS — One arm affected (R or L); 3. OL — One leg affected (R &/OL); 4. MW — Muscular weakness and limited physical endurance.’9 Given the nature of the job of a probationary officer in a bank, involving dealings in cash, account management, signature verification, and transactions with customers, and the diversification of tasks consequent on the liberalization of the economy, it required ‘greater alertness, presence of mind and maximum utilization of all his/her physical and mental facilities [sic].’ Therefore, the bank argued, this job was not identified for ‘blinds’ by the government.10 The positioning of sighted persons with physical disabilities as closer to the norm of alertness and ‘mental capacity’, and the distancing of the ‘blinds’, constructs lack of vision or sight as impaired comprehension, using the norm of comprehension through sight as equivalent to mental alertness and capacity. The standing committee set up by the Ministry of Welfare to identify jobs for the disabled in the public sector observed unequivocally that ‘it would not be possible to generalise that blind persons can do most jobs as we have found for those with locomotor and hearing disabilities.’ The report then goes on to mark the shortfalls of blind persons against the norm: To compensate ‘reading deficiency’, readers’ allowance can be provided to blind employees to enable them to engage a reader. Similarly, to compensate for ‘writing deficiency’, the blind employee should be required to know typing. Adequate knowledge of typing should be prescribed as an essential qualification for blind employees for public employment. Where mobility may also be one of the main ingredients of a job it is difficult to compensate blind employees for this ‘deficiency’. The Committee would also emphasise that the blind employees should be fully responsible for the duties assigned to them, despite the provisions of reader’s allowance and typing skill.11

9

Amita v. Union of India 2005 (13) SCC 721. Amita v. Union of India 2005 (13) SCC 721. 11 National Federation of Blind v. Union Public Service Commission 1993 AIR (SC) 1916. See also Swadesh Chandra Majumdar v. Chief Operating Manager, Calcutta Tramways Company Ltd Case No. 636/Com-2009. http://www.hrln.org/hrln/court-orders/DRI_order_Swadesh_ chandra_majumdar.pdf (accessed on 24 August 2010). Here, an employee was assigned light duties owing to low vision and was then retired on ‘medical grounds’. 10

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Very clearly, the blind are the Other — what the able-bodied are not. The other striking aspect of the discourse on disability is the problem that ‘sightlessness’ poses to the imagination of the sighted. In a nutshell, the able-bodied are not ‘deficient’ and therefore need not be compensated. But, interestingly, they are also not deficient and therefore need not possess additional skills like typing. There is an inversion here of the dominant assumption that disability is possessed of deficiency, which includes a diminished capacity to acquire the skills necessary for efficiency. Instead, deficiency necessitates a higher acquired skill on the part of the disabled. And the language of ‘deficiency’ marks the exclusion of those who cannot read and write without assistance. This framework allows no space for literacy skills or languages of competence that are measured differently. What is even more interesting is the description of the lawyer arguing the case for the National Federation of the Blind: Mr. Rungta — (himself visually handicapped) has argued his case with utmost clarity. Mr. Rungta was fully conversant with all the relevant annexure to the petition. He referred to the relevant pages in the bulky paper book with perfect ease. We did not feel even for a moment that the case being argued by a visually handicapped lawyer. Mr. Rungta’s performance before us amply proves the point that the visually handicapped persons can perform the jobs entrusted to them with equal efficiency.12

While forcing the state to open up public employment to the visually challenged, the Supreme Court situates itself in the ablebodied norm so as to determine ability and capability, which in an important sense does not dislodge the discriminatory basis of such an assessment. The domain of activity and contestation are both constructed in terms of a ‘normality’ that is predetermined. The assessment of ability and efficiency (distinct terms that collapse together in this framework) is made on the basis of the ease with which a person with disability negotiates a ‘normal’ environment. That this assessment is itself deeply discriminatory has not yet begun to enter the account of disability rights jurisprudence. 12

National Federation of Blind v. Union Public Service Commission 1993 AIR (SC) 1916; emphasis added.

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In 2001, the Delhi High Court found that, with respect to providing employment opportunities to persons with orthopaedic and visual disabilities, ‘not-withstanding clear, unambiguous and laudable objectives sought to be achieved by a decision [of the University of Delhi], . . . it remains only on paper because of apathy, lack of will and lackadaisical approach of the authorities who are supposed to implement such decision.’13 Despite a resolution, adopted in July 1994 by the Executive Council of the University of Delhi, to provide 3 per cent reservation without relaxation of required qualifications to ‘blind and orthopaedically handicapped candidates’, no college had actually moved in this regard till 2001. This inaction was despite the detailed guidelines provided by the expert committee constituted in 1999 by the Ministry of Social Justice and Empowerment, Government of India. The committee’s guidelines identified posts, set out criteria for the relaxation of standards where candidates with disabilities who met the general standard were unavailable, and recommended that the 3 per cent reservation need not limit the inclusion of persons with disabilities, but must only be the minimum below which appointments must not fall.14 Yet the court found that there was no dearth of persons with disabilities who not only met the general standard but excelled it as well, yet again throwing into sharp contradiction its own delineation of disability as ‘handicap’ or ‘deficiency’: The petitioner, who is a handicapped person, as she was born with congenital blindness, has not allowed this disability to disable her. Even without any vision or proper vision since birth, the petitioner not only pursued her studies but proved to the world at large that what a normal student could do she could do the same equally well or even better. This is clearly demonstrated by the testimony of her academic record.15

What was the measure of ability? Was it dependent on specialized training, or was it dependent on being ‘able-bodied’? Could, 13

Pushkar Singh and Others v. University of Delhi and Others 2001 (90) DLT 36. Pushkar Singh and Others v. University of Delhi and Others 2001 (90) DLT 36. 15 Smt. Shruti Kalra v. University of Delhi and Ors 90 (2001) DLT 262; emphasis added. 14

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for instance, persons with disabilities who were trained in physical education be disqualified on the immutable grounds that ‘a physically disabled person could not perform this job’? At what point must the assessment of ability be made? The court held that, the candidate having received the requisite training and acquired the formal qualification necessary to meet the general standard of the job, the government (in this case both the ‘benefactor’ and the violator) could not at a later stage declare unsuitability. Training institutions must determine suitability prior to selection for training.16 This is not, however, only a question of discourse. It speaks to the way in which public institutions, public employment, and indeed the entire public domain are organized outside of and in opposition to the entire diversity of disability and also the entire diversity of ability. For instance, rule 12 of the Andhra Pradesh Judicial Services Rules states: ‘Rule 12: General Qualifications: No person shall be eligible for appointment to the service unless . . . (iii) He is of sound health and active habits and free from any bodily defect or infirmity making him unfit for such appointment.’17 This rule barred candidates with disability from appearing for the examination till as recently as 2003. It is, therefore, hardly surprising that there is virtually no representation of persons with disabilities in the judiciary at any level. The collapsing together of ‘sound health’, ‘active habits’ and ‘bodily defect or infirmity’ is typical of the able-bodied construction of disability.18 The 16 Government of NCT of Delhi v. Bharat Lal Meena & Surinder Singh 100 (2002) DLT 157 (DB). 17 Andhra Pradesh State Judicial Service Rules, G. O. Ms. No. 2207, Home (Personnel A), dated 4 November 1962. Published in the Andhra Pradesh Civil Services Code (compiled by Padala Rama Reddi), Hyderabad: Asia Law House and Panchayat Publications, vol. 3, 8th edn, 2003; pp. 713–40; see p. 724. 18 According to the Constitution of the World Health Organization, ‘Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity. . . . The extension to all peoples of the benefits of medical, psychological and related knowledge is essential to the fullest attainment of health. . . . Governments have a responsibility for the health of their peoples which can be fulfilled only by the provision of adequate health and social measures.’ Basic Documents, 45th edn, Supplement, October 2006, p. 1. http://www.who.int/governance/eb/who_constitution_en.pdf (accessed on 16 August 2011).

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expulsion of disability from the very conceptualization of work, labour, governance, and justice ensures that the standard-setting norm is able-normative; this norm is then applied jerkily, in varying degrees, to persons with disabilities, in a back-and-forth movement that does not add up to a new or radically different standpoint. The second aspect of official discourse on disability has to do with the specific reliefs awarded by the court in cases where the provisions of the Persons with Disabilities Act, 1995, have been infringed. In the Dalip Kumar decision,19 the court upheld the primacy of the Persons with Disabilities Act as lex specialis over general legislation. In 2007, the Kerala High Court had, similarly, ruled in Bharat Sanchar Nigam Limited v. Chief Commissioner for Persons with Disabilities that the commissioner was entitled to investigate grievances regarding deprivation of rights of persons with disabilities.20 Several cases, including Secretary (Education) and Others v. Mukesh Chand,21 and Baljeet Singh v. Delhi Transport Corporation (Delhi High Court, 2000),22 reinforced the basic authority of the Persons with Disabilities Act, ensuring that those individuals whose rights had been violated had access to effective remedy. In the decade of the 2000s, the courts also imposed sanctions on institutions that neglected to comply with legislation protecting the rights of the disabled.23 Not all rulings have been as supportive of the rights of persons with disabilities, however. In Sunil Raosaheb Narke v. Air India and Another,24 the Bombay High Court ruled in favour of the petitioner, but neglected to impose sanctions and dismissed the case with only an advisory in favour of the rights of the disabled. Further, 19

Dalip Kumar v. AIIMS Delhi High Court 2008 (unreported judgement). http://www. hrln.org/issue.php?id=6&pil=1&pilid=109 (accessed on 3 December 2008). 20 Bharat Sanchar Nigam Limited v. Chief Commissioner for Persons with Disabilities 2007 (2) KLT 797. 21 Secretary (Education) and Others v. Mukesh Chand CASE NO WP(C) No. 2869 of 2003. 22 Baljeet Singh v. Delhi Transport Corporation 83 (2000) DLT 286. 23 Secretary, Primary and Secondary Education Department, Bangalore and Others v. Nagaveni M. C. and Another 2008 (1) Kar LJ 53; Pushkar Singh and Others v. University of Delhi and Others 2001 (90) DLT 36. 24 Sunil Raosaheb Narke v. Air India and Another 2006 (1) CLR 717 (Bombay High Court).

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in the case of Ratheesh Babu G. v. University Grants Commission,25 the Kerala High Court did not rule in favour of requiring the state government to earmark reservations for persons with physical disabilities in certain categories of government service. The courts have in most cases upheld the right to education for persons with disabilities. The Delhi High Court, in the case of Dr Kunal Kumar v. Union of India & Others,26 observed that a person suffering from colour vision deficiency is not completely blind. It noted the absence of any condition in the admission rules or regulations of the Medical Council of India debarring a candidate with colour blindness from admission to the medical course. With respect to the right to work, Indian courts have, in general, consistently insisted on the enforcement of the provisions included in the Persons with Disabilities Act, upholding a comprehensive ‘right to work’. However, while the Persons with Disabilities Act protects the right of those who have developed a disability to continue as an employee at the same establishment in a position of equal benefits and pay, thereby protecting their right to work, other labour laws (like the Industrial Disputes Act and Workmen’s Compensation Act) at best award compensation, and at worst provide for complete termination of service without any payment. Since such provisions in these laws remain intact even after the passage of the Persons with Disabilities Act, 1995, the status of the right to work remains uncertain (see Vasanthi 2007). Judgements like Shree Satish Prabhakar Padhye v. Union of India and Ors 27 have upheld certain aspects of the right to employment (like the continuation of service even after the development of a disability), and confirmed their applicability to private establishments as well as the public sector. Where a person already holds a position and suffers disability consequent on appointment, however, the entitlement to the position is protected despite the inability to carry out the tasks specified for that position — as in the case of a lower division clerk who 25

Ratheesh Babu G. v. University Grants Commission W. A. No. 1347 of 2004. Dr Kunal Kumar v. Union of India & Others CW No. 4608/2002. See also http://www. disabilityindia.org/colorBlindness.cfm (accessed on 13 October 2011). 27 Shree Satish Prabhakar Padhye v. Union of India and Ors 2006 (1) CLR 455. 26

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was unable to type due to the loss of his right arm during surgery.28 Similarly, when army personnel sustain injuries while on casual leave, they are not only treated as having been on duty, but are also entitled to disability pension, which is ordinarily available to personnel who suffer disabilities attributable to military service.29 There is also a view that emerges in the court around this time, that disability cannot result in a general disqualification from appointment in a particular sector; however, the requirements of each post must be stated and the person with disability accommodated after a rational assessment.30 No law or policy has a clearcut statement that prohibits discrimination against persons with disabilities in matters relating to marriage, family, parenthood, and to relationships on an equal basis with others. Especially with regard to persons with psychiatric and intellectual disabilities, the plethora of cases of divorce on grounds of insanity, with few exceptions,31 finds support in religious personal laws. Was the Persons with Disabilities Act, 1995, limited to prospective application? More generally, could enactments in furtherance of the 28 Narendra Kumar Chandla v. State of Haryana and Others 1995 AIR (SC) 519. Similarly, the courts have ordered that alternative employment be provided where disablement has occurred in the course of employment. See Jaswant Singh v. State of Punjab (1996) 10 SCC 570; and Baljeet Singh v. Delhi Transport Corporation 83 (2000) DLT 286. The entitlement to continuation in employment with alternative employment is also available if disablement occurs not in the course of employment, but due to natural or other causes: Kunal Singh v. Union of India (2003) 4 SCC 524. Where serious disablement occurs in the course of employment, rendering the person unable to carry out the work, employment on compassionate grounds — with relaxation of qualifications if necessary — should be provided to the wife, along with full retirement benefits to the person concerned: Uppala Venkat v. South Central Railway & Ors 2003(5) ALD 263. For a similar case, see also University of Rajasthan v. Surendra Kumar Goyal (2003) III LLJ 475. The term ‘disability’ does not appear in labour laws in India, like the Industrial Disputes Act (IDA), 1947, the Employees’ State Insurance Act, 1948, the Factories Act, 1948, and the Workmen’s Compensation Act, 1923. These legislations provide for termination of services, industrial safety and compensation or insurance for injuries received in the course of and out of employment. For a detailed discussion see Vasanthi (2007). 29 Lance Dafadar Joginder Singh v. Union of India and Others 1995 (3) SCC 232. 30 Nandkumar Narayanrao Ghodmare v. State of Maharashtra & Ors (1995) 6 SCC 720, where the appellant, although selected for the public service commission, was denied appointment on the ground that he was colour-blind. He demonstrated that only five out of the 35 jobs available required perfect vision. The court directed that he be appointed in one of the remaining 30 jobs. 31 Anima Roy v. Prabodh Mohan Roy AIR 1969 Cal 304.

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social welfare commitments of the state be limited by the argument that the act could not be applied in a retrospective manner? In the case of a workman who was retired prematurely in 1994 after he had been disabled in the course of employment in a state-run concern, the Delhi High Court held that although the act came into force in 1997, he would still be entitled to relief, since ‘any statutory enactment incorporating a welfare measure particularly for the weaker sections of society has to be given full effect’: The Statement of Objects and Reasons of the Act clearly indicates that the Act is enacted inter alia to create barrier free environment for disabilities and to remove any discrimination against person with disabilities in the sharing of development benefits. It is also stated that the Act seeks to make special provisions of the integration of persons with disabilities into the social mainstream.32

The case of Ravi Arora brings to the fore the crux of the problem faced by persons with disabilities in the field of employment — in this case, public employment of the most prestigious order, the civil services of the country. In fact, this case backslid from the National Federation of the Blind case cited earlier, with the court forced into a repetitive jurisprudence rather than one that demonstrated a progressive development of the principle of nondiscrimination. An employee in the non-gazetted services in the government, Arora took the civil services mains examinations (CSE) to enter the gazetted services in 2000. He qualified but failed to get through the interview. No adverse report was given him regarding his medical test at this time. In 2001, he qualified again, was ranked and declared successful in 2002. However, he appeared again in 2002 in the preliminary examination to improve his rank. By this time, he had received a communication that he had failed the 2001 test owing to an adverse medical report 32

Delhi Transport Corporation v. Sh. Harpal Singh and Anr 105 (2003) DLT 113. Similarly, the Delhi High Court held in 2003 that an applicant for the post of peon in the Life Insurance Corporation be considered for the job although he had progressive dementia that would worsen with the passage of time. Here again, the court stressed the need to ensure equal status for persons with disabilities through affirmative action. LIC of India v. Chief Commissioner of Disabilities & Anr 2003 (67) DrJ 136.

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on his ‘substandard vision’. With respect to his writing the mains in 2002 as a low-vision candidate, notwithstanding the doctor’s certificate, he was informed that myopia did not fall within the official definition of low vision. He secured a court order to write the examination, alternatively seeking to quash the order of CSE 2001 declaring him medically unfit. After writing the mains 2002, he realized that he had not been appointed for a second time, not because he had not qualified, but because suitable posts for candidates with visual disabilities had not been identified. Arora’s statement to the court is poignant: ‘It is shocking and surprising for me that I am neither a normal candidate (as per Department of Personnel and Training) nor a disabled candidate (as per UPSC).’33 The definition of ‘disability’ cuts across a very wide range of physical, mental and social disabilities, many of which might coexist with sound health and ability. This throws into question the homogenizing of disability and its opposition to the able-bodied norm evident in the judicial discourse on physical disabilities.

CRIMINAL (IN)JUSTICE, SOUND MINDS AND THE IDEA OF LIBERTY ‘Personal liberty is one of the most precious rights of a human being and it cannot be allowed to be smothered by bureaucratic or judicial inadequacy or inefficiency.’34 The Criminal Procedure Code (CrPC) sets out the guidelines for fair trial, which is a constitutional guarantee. More importantly, it prescribes, down to the last detail, the procedure to be followed by courts of trial if a person is to be denied the right to life and personal liberty under article 21 of the constitution. In doing this, it also sets out the broad parameters for the safeguarding of personal liberty. There are, however, ambiguities in the provisions that deal with ‘unsoundness of mind’ that could be interpreted in a range of very different ways. A wealth of case law is available on the question of insanity, especially concerning persons accused of a serious 33

Ravi Kumar Arora v. Union of India and Another 2004 (111) DLT 126. The court ordered his appointment with full retrospective benefits on the 2001 order. 34 Veena Sethi v. State of Bihar 1983 AIR (SC) 339.

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offence (Dhanda 2000: 79–180). My concern here is both more specific and more general. Specifically, I am concerned with the relationship between discrimination and the loss of liberty: how does ‘unsoundness of mind’ make persons thus classified more vulnerable to incarceration? How does it dis-able defence against custody both during periods when unsoundness of mind prevails, and after sanity returns? How does unsoundness of mind become a justification for the judicial rationalization of degrading forms of punishment, namely, prolonged incarceration? My more general focus is on the linkages/intersections in the discrimination–liberty problematic. Sections 328 to 339 of chapter 25 of the Criminal Procedure Code prescribe the procedure in relation to ‘accused persons of unsound mind’. In summary, these provisions require that a magistrate, if necessary, shall determine through a medical examination whether an accused is of unsound mind, record the fact, and postpone proceedings. A court or magistrate during a trial may also try the fact of unsoundness of mind and postpone the trial. When the trial is postponed, the accused may be released on bail, on ‘sufficient surety’, or may be detained in safe custody, with detention in a lunatic asylum being in accordance with the provisions of the Indian Lunacy Act, 1912. The trial may be resumed ‘at any time after the person has ceased to be of unsound mind’ (section 331, Criminal Procedure Code, emphasis added). When a person is acquitted on the grounds that s/he was of unsound mind at the time of commission of the offence, the judgement shall state clearly whether s/he committed the offence or not. If the offence was found to have been committed by the accused, s/he will be detained in safe custody after acquittal, or be delivered to any relative or friend of such person (sections 335 and 339, Criminal Procedure Code; emphasis added). There is no prescribed time limit for postponement. Between postponement and the resumption of trial, the accused may be released on surety of safe conduct, or may be detained in the safe custody of a jail or a mental hospital. The discretion available to courts and executive authorities in these provisions is wide and amenable to amplification even through a strict reading. It is this piece of procedure that we will examine in the present section to

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understand the meanings of custody and incarceration for persons found to be of ‘unsound mind’. The case of Veena Sethi v. State of Bihar35 is extremely significant because it sets out the terrain of legitimate illegality, and the meanings of incarceration and loss of liberty for persons declared to be of ‘unsound mind’. The case is about 16 men who were held in prison because at the time of their admission they were ‘of unsound mind’, but who continued to be in custody for periods ranging from 25 to 35 years despite having been cleared for release by psychiatrists. It was a letter dated 15 January 1982, addressed by the Free Legal Aid Committee, Hazaribagh, to one of us (Bhagwati, J.) . . . which drew the attention of the Court to the atrociously illegal detention of [16] prisoners in the Hazaribagh Central Jail for almost two or three decades without any justification whatsoever. . . . [They were] of unsound mind at the date when they were received in the jail and barring two out of them, are still rotting in jail.

Of these 16, six — Sadal Chamar, Khedu Bhattacharya, Mohamadin, Kali Singh, Ambika Lal, and Jagannath Mahto — were examined by a psychiatrist a year before the case came up for hearing in the Supreme Court, and were found to be of ‘unsound mind’. We cannot in the circumstances order their release, because having regard to the mental condition of these prisoners, it would not be in the interest of the society as also in their own interest to set them free. It does not appear from the record as to whether there is anyone prepared to take care of them and hence it would not be desirable to release them, because if released in the present condition, they would not be able to secure proper medical treatment and would not even be able to look after themselves. It is indeed unfortunate that most of these prisoners have been in jail for over 25 years and it is a matter of shame for the society that these prisoners have had to be detained in jail because there are not adequate institutions for treatment of the mentally sick. We are told that there is only one institution in the State of Bihar for treatment of lunatics and persons of unsound 35

Veena Sethi v. State of Bihar 1983 AIR (SC) 339. All citations in the following pages refer to this case, unless otherwise indicated.

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The line of argument adopted by the court is very interesting, because it gives voice to the inarticulate premises that have historically provided justification for the incarceration of the mentally ill. In jurisprudential frameworks, mental illness is generally conflated with criminality, especially in terms of consequences: a condition of morbidity and an act of volition with respect to the commission of a crime invite the same treatment, even when the condition of morbidity is in fact a mitigating circumstance in fixing criminal liability. The resulting situation is paradoxical. A person of ‘unsound mind’ accused of committing a crime cannot be held criminally liable, and cannot be sentenced to imprisonment or death. And yet, a person who is of ‘unsound mind’, whether or not s/he is accused of committing an offence, and whether or not s/he is acquitted on the grounds that s/he did not commit the offence or on the grounds that s/he did, is held in custody for an entire lifetime, in the manner in which s/he would be if s/he were sane and had been convicted for a capital offence. On review, the Supreme Court justifies the obliteration of this important distinction, affirming that ‘unfortunate’ and ‘shameful’ as it may be, a jail is better than a ‘lunatic asylum’, and if these persons cannot be treated, they must be locked away. This despite the court’s recognition of the fact that ‘the practice of sending lunatics or persons of unsound mind to the jail for safe custody is not at all a healthy or desirable practice, because jail is hardly a place for treating those who are mentally sick.’ The mentally ill, by the logic of this argument advanced in 1983, have no inherent right to personal liberty. What of the mandatory sentence these six persons would have served had they been convicted of an offence? Section 428 of the Criminal Procedure Code provides for setting off the term served during trial against the sentence awarded, and section 433A provides for remission or

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commutation to a period of 14 years in prison even in cases where life imprisonment or the death penalty has been awarded. Since these prisoners had already spent 25 years in prison, the court directed the state government to drop the cases pending against them ‘as it would be purely academic to pursue these cases’. Having dropped the cases, and having taken note of the 25-year prison term that had already been served, did the court then order them to be set at liberty? On the contrary, it ordered them to be retained in custody till it was established medically that they were no longer mentally ill. The court’s engagement with reference to these six persons was, therefore, to use its own terms, ‘purely academic’; but this would imply that academic exercises are disengaged by definition, a sweeping and untenable generalization. This is, in fact, an early instance of the practice of jurisprudential dissociation, a strategy devised by constitutional courts in India to circumvent providing critical protections to vulnerable communities against discrimination and loss of liberty, even while acknowledging in unequivocal terms, in the same case, that it was the duty of the court to protect the fundamental rights of every citizen: The rule of law does not exist merely for those who have the means to fight for their rights and very often for perpetuation of the status quo which protects and preserves their dominance and permits them to exploit large sections of the community but it exists also for the poor and the downtrodden, the ignorant and the illiterate who constitute the large bulk of humanity in this country.

Gomia Ho, Bhondua Kurmi, Hiralal Gope, Raghunandan Gope, Francis Purti, Gulam Jileni, Kamal Singh, and Hira Lal were the eight other prisoners in this case that the court was concerned about: The cases of these prisoners disclose a shocking state of affairs involving total disregard of basic human rights. They constitute an affront to the dignity of man and it is surprising, indeed shocking to the conscience of mankind, that such a situation should prevail in any civilized society. What meaning has the rule of law if the poor are allowed to languish in jails without the slightest justification as if they are the castaways of the society? (Emphases added)

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A careful look at each of these people to whom the court is trying to do justice would be useful at this juncture. Gomia Ho was convicted on 26 March 1945 for an offence under section 304 of the Indian Penal Code (IPC) — culpable homicide not amounting to murder. He was sentenced to rigorous imprisonment for a period of three years and ordered to pay a fine of ` 100; in default, he was to undergo rigorous imprisonment for a further period of six months. While he was serving his term, in 1946, he attempted suicide. Although an offence was registered under section 309, he could not be prosecuted since he was incapable of making the defence, in the view of the civil surgeon who periodically subjected him to medical examination. In 1948, while he was in Hazaribagh Central Jail, and close to completion of his prison term, he was directed to be retained in ‘safe custody’ in the jail and given medical treatment, as he ‘appeared to be of unsound mind’. The medical examination on 25 December 1966 noted that Gomia Ho had regained his sanity, and correspondence regarding the need to release him went back and forth for six years, until 1972. In 1972, the Law Department directed the prison authorities to trace the ‘relatives of Gomia Ho who would be prepared to take delivery of him and to take care and custody and proper security’. The last reminder in Gomia’s case was sent in April 1974. In 1982, he was medically examined again and found to be sane. He had already spent 37 years in prison, having originally been convicted to three years’ rigorous imprisonment for committing an offence. Till 1966 at least he was insane and perhaps therefore not in a position to realise that he was in jail and we might sadistically say that insanity was perhaps a blessing for him but, since 1966 he was completely sane and fully conscious that he was detained in jail and he must have been wondering in helpless despair as to why he was kept in jail, deprived of his freedom and liberty, for well nigh 16 years. . . . [After release] he will be a stranger in his own land. He will perhaps hear for the first time after 35 years that his country became free from foreign bondage, though his own bondage in jail continued indefinitely and interminably.

Bhondua Kurmi was accused of an offence under section 302, IPC (murder). He was acquitted in 1956 because the sessions

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judge found him to be of unsound mind. After acquitting him, the judge directed that he be sent to the Hazaribagh Central Jail for medical treatment. Here, the acquittal itself is an act of jurisprudential dissociation, because the same judgement pronounces both acquittal and incarceration. Be that as it may, five years later in 1961, Bhondua was found to be sane upon medical examination. In 1969, for the first time, the superintendent of the prison requested the inspector-general of prisons to secure Bhondua’s release. For nine years thereafter, a controversy ensued among different departments of government about whether this prisoner was Bhondua Kurmi or Bandhu Mahter. And Bhondua Kurmi continued to be in custody — acquitted and sane — till the Supreme Court ordered his release in 1983 on the same terms as it ordered the release of Gomia Ho: journey expenses and one week’s maintenance to be paid by the state. The Supreme Court despaired yet again over how this was possible at all: Have we lost all regard for human values? Have we become so dehumanised that we are now oblivious to all human misery and suffering? Does a human being who is the highest creation of God and whom the Upanishads call Amrutsay Putraha ‘children of immortality’ mean nothing but chattel to us, simply because he is poor and ignorant and there is no one to fight for him. Must he be subjected to incarceration and privation without any reason or justification? One day the cry and despair of large numbers of people like Bhondua Kurmi will shake the very foundations of the society and imperil the entire democratic structure of our polity and if that happens, we shall only have ourselves to blame.

Hiralal Gope was remanded to judicial custody to stand trial for an offence under section 302, IPC, in 1963. In 1964, the magistrate stayed the criminal proceedings after finding him incapable of making his defence, and directed that he be placed under treatment at Darbhanga Jail. He was then transferred to Hazaribagh Central Jail, where no reports on his alleged insanity were available.36 When he was examined in 1982, he was found to be sane, 36

The Supreme Court Commission on the Hospital for Mental Diseases, Shahdara, found a general laxity in filing and reviewing medical reports on progress of treatment of the mentally ill under observation both by the magistracy and the institution. See Dhanda (2000: 41).

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after having spent 19 years in prison without trial. The criminal proceeding was quashed and his sentence set off under section 428, CrPC, in 1983 by the Supreme Court. Raghunandan Gope was charged with murder under section 302, IPC, having killed a person ‘in a fit of insanity’ in 1950. Finding that he was incapable of making his defence, the court ordered that he be held in custody till such time that he became capable of making his defence, after which the trial would resume. Thirtytwo years later, he was found to be sane on medical examination. Through three decades, not a single medical report had been filed on the status of his ‘insanity’, and his trial had not commenced. According to procedure, he could not be prosecuted for an offence committed in a fit of insanity. He was therefore held in judicial custody, without being prosecuted, for a term that far exceeded the term he might have served had he been sane and been convicted for the offence of murder. The Supreme Court’s exercise of jurisprudential dissociation in the case of Raghunandan is expressed in the reduction of a blatant derogation of a fundamental right to a ‘difficulty’, one that can only be reflected on in impersonal terms, and the responsibility for which cannot be fixed: The difficulty is that when a prisoner is lodged in Jail on the ground that he is of unsound mind, and therefore, required to be kept in safe custody, the custody becomes so ‘safe’ that the prisoner has no opportunity of ever getting out of it even though he has become sane and the raison d’etre of his custody has disappeared. (Emphasis added)

Francis Purti was remanded to jail custody in 1966 for committing an offence under section 302 (murder). After the case was committed to the court of sessions, he was acquitted on the grounds that he had been of ‘unsound mind’ at the time of committing the offence. He was detained in jail for medical treatment. Despite the stated requirements, no half-yearly reports on his mental condition were filed. Yet, in 1972, a communication to the effect that Purti was sane and could be released was sent by the superintendent of Hazaribagh Jail to the inspector-general of prisons. In 1983, Purti was still in prison, acquitted of criminal charges, and sane.

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Ghulam Jileni was sent to prison in 1968 with a reception order for medical treatment for insanity. He was not accused of any criminal offence. There was no record of any treatment. When he was examined in 1972, he was found to be sane. He continued to be held in custody until his release in 1983. Kamal Singh was charged with an offence under section 302, namely, murder; he was convicted by the sessions court, but acquitted by the high court and directed to be held in Hazaribagh Jail for treatment of mental illness in 1956. He was then sent to the Mansik Arogyashala in Kanke and returned to the jail after treatment with a certificate stating that he was sane. The case provides no details of when he was shifted to the mental health facility, how long he stayed there, or when he returned sane to jail. The first communication in this regard was from the superintendent of the jail in 1979. Kamal Singh, now declared sane, was required to name a relative who would be willing to take care of him, which he did. There are written records of the relative being identified. Communications were tossed about, from the Law Department to the sessions judge, Gaya, to the high court, Patna, to the Hazaribagh Jail, for four more years, until he was finally released in 1983. Hiralal was held in custody under section 302 (murder) for an offence committed in 1948. The trial had to be suspended because the judge found that he was incapable of making his defence. Halfyearly reports were submitted by the superintendent till 1953. After 30 years, when he was examined in 1982, he was found to be sane, there being no indication of how long he had remained in custody while sane. Six of the 14 men were retained in custody on orders from the Supreme Court in 1983, and eight were released by the court. For these eight prisoners, who had spent their entire lifetimes in custody with no justification whatsoever, the immediate relief they received from the Supreme Court was ‘freedom’, journey expenses and one week’s maintenance. No burden was placed on the state for the grossest derogation of the right to life and personal liberty, derogations that stretched from the foundational moment of the

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constitution to three decades later. The lifetimes of these 14 men tell the story of the impunity with respect to the mentally ill that is practised by society, bolstered by the state and legitimized by the judiciary. It is no accident that they were all poor, in all probability non-literate, in many cases men from adivasi, dalit–bahujan and minority communities — all factors that tie discrimination inextricably to the denial of life and liberty in the most literal and direct sense. It has been argued that the confinement of undertrials after they have regained sanity has been held to be an infringement of the right to life under article 21 in the Veena Sethi case (Dhanda 2000: 92–93). However, this is only a small part of the judicial position (and a minor one at that) because it is not reflected in the consequences determined by the Supreme Court. The equivocation in the delineation of the right to life in this case, through the language of misfortune, shame and derogation, on the one hand, and orders of continued custody or release with journey expenses and a week’s maintenance, on the other, points to the troubling elision of the principle of harm and the reparations that must follow. This, I would argue, is an important part of the inarticulate premise of exclusion as normal where persons with mental illness/disability are concerned. Mens rea cannot be established in the case of persons with intellectual disabilities or mental illness, and therefore there is no possibility of fixing criminal liability. Yet sentencing assumes criminal liability a priori, either through the argument about the propensity to cause harm or injury where the person confined is acquitted without a finding of ‘liability’, or through the argument regarding the proven capacity to cause harm where a person confined is acquitted with a finding of criminal liability. The confinement is inescapable. The frameworks of judicial deliberation at the peak of the public interest litigation era, we find, pitched the critical issue of denial of liberty in terms of misfortune, so that the remedy lay in mere release. The harm suffered through 19–35 years spent in prison, without trial, or after acquittal, or with no criminal charges whatsoever, while the subject of lament, remains just that. Yet another problem that this case draws attention to is a derogation of

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article 14, the right to equality, which implies that equality is established through the recognition of both similarity and difference. Several important differences are blurred in instances like Veena Sethi: the distinction between mental retardation (a developmental condition) and mental illness (which could be a transient condition); the distinction between undertrials whose trial has been postponed and persons who have stood trial and been acquitted on grounds of ‘unsoundness of mind’; between persons who are deemed incapable of making a defence and persons against whom there are no criminal charges; and, finally, between persons of ‘unsound mind’ and persons who are sane according to medical examination reports. This case cut across all these categories, with persons with varying degrees of ‘unsoundness of mind’, and persons with a past history of such a condition, all being denied the right to personal liberty by reason of that condition alone, by the combined might of the state, of which the judiciary is an important part. In the case of Sheela Barse v. Union of India,37 the court made a significant shift when it criticized as unconstitutional the widespread practice of housing women and children with mental and physical disabilities in jail for ‘safe custody’. It placed responsibility on the state governments to move them to an environment where they could receive proper care, medical treatment, and vocational training where possible. More than a couple of instances are known of torture in custody resulting in disabilities among undertrials and convicted prisoners: for example, blinding undertrial prisoners in custody,38 and subjecting women to sexual torture in custody, resulting in their becoming ‘mentally ill’. Meena was brought to India from Nepal by a Brahmin, who then abandoned her. She was sentenced to seven days in jail for vagrancy. She arrived (in Hissar Jail) in a fearful state, delirious, unable to walk, her rectum and vaginal area torn and bleeding. She had been kept in police custody for 22 days after her arrest and gang-raped every day. Under acute psychiatric 37

Sheela Barse v. Union of India 1986 3 SCC 632, vide order dated 15 April 1986. Khatri (I) and Others v. State of Bihar 1981 (1) SCC 623; Anil Yadav and Others v. State of Bihar and Others 1981 (1) SCC 622; and Khatri (II) and Others v. State of Bihar and Others 1981 AIR (SC) 1068. 38

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trauma from this experience, she was then handed over to the jail authorities in Hissar (R. Nanda 1981). Several cases have addressed the deeply inhumane conditions of many institutions established to provide care for persons with psychiatric disabilities. In Dr Upendra Baxi v. State of Uttar Pradesh,39 the Supreme Court ordered a medical panel to evaluate the inmates at the Agra Home. The report demonstrated that though a majority of the inmates had varying degrees of psychosocial disability, some had been released by the superintendent without being evaluated, and had not been provided any means by which to travel to their home-towns. The court recommended that psychiatric treatment be provided. In Rakesh Chandra Narayan v. State of Bihar,40 the Supreme Court found the conditions in the mental hospital near Ranchi to be inhumane, and appointed a committee to visit the site and submit a report about the establishment’s operations and standards of care. In the case of S. P. Sathe v. State of Maharashtra,41 the Bombay High Court regulated the administration of electroconvulsive therapy (ECT) to mentally ill persons after hearing of the conditions at the Institute of Psychiatry and Human Behaviour (IPBH) in Panaji, Goa. Patients at IPBH were reportedly given ECT without anaesthesia, a practice that could lead to general discomfort as well as bone fractures and dislocations. In addition, the IPBH neglected to obtain informed consent from the patients before administering the treatment. In Chandan Kumar Banik v. State of West Bengal,42 the Supreme Court criticized the inhumane conditions at the Mankundu Mental Hospital in the district of Hooghli, banned the practice of restricting patients with iron chains, and instead ordered drug treatment for them. In the Tamil Nadu asylum fire case,43 the Supreme Court ordered each 39

Dr Upendra Baxi v. State of Uttar Pradesh (1983) 2 SCC 308. The cases referred to in this section are only indicative, not exhaustive. 40 Rakesh Chandra Narayan v. State of Bihar (1989) SUPP 1 SCC 644. 41 Writ Petition No. 1537 of 1984, Bombay. www.cehat.org/humanrights/caselaws.pdf (accessed on 3 December 2008). 42 Chandan Kumar Banik v. State of West Bengal (1995) SUPP 4 SCC 505. 43 Death of 25 Chained Inmates in Asylum Fire in Tamil Nadu v. Union of India and Others 2002 AIR (SC) 979. This is also perhaps the first case that uses the term ‘mentally challenged

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state to undertake a survey of every institution offering psychiatric care to ensure that all were following the prescribed standards set out in the Mental Health Act of 1987. Whether persons with psychiatric disabilities are accused of an offence or not, the denial of personal liberty and the general denial of legal capacity take aggravated forms that do not necessarily depend on the specific capabilities of the person concerned in each case. The idea of care for the profoundly affected falls back on a contractarian approach to the enjoyment of social goods, where the assumption is that a person with psychiatric or intellectual disability is a social burden, incapable of any positive contribution to the social order. The only element measured is the capacity to cause injury to self or others — this injury could be physical, it could even be the disruption of a placid social exterior by the mere presence of such persons. What is left out of the account completely is an interpretation of injury or harm to the person concerned by public authorities and communities through degrading treatment, confinement and segregation. Also left out of the account, and this to my mind is the most significant aspect, is the injury or harm caused to the social fabric by the routinization and legitimation of practices of brutal and degrading treatment — discursive and physical — inflicted on persons through the medium of the government, legislature and judiciary. This is the first point at which norms of constitutional morality are traded for public morality, which then becomes the lens through which public authorities and community alike comprehend the realities of persons of ‘unsound mind’. The fact of a dominant consensus that incarceration is the most feasible way of dealing with mental illness and intellectual disabilities demonstrates the pervasiveness of discrimination under article 15. Further, this easy slippage into the realms of public morality in the case of persons with disabilities enables the interlocking of discrimination with the derogation of personal liberty along other indices as well. persons’ in place of mentally ill, lunatic, or insane persons, drawing a distinction between mental illness and mental retardation, as set out in the Mental Health Act, 1987.

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CONCLUSION ‘The victim Nandabai who belongs to the Bhil community was residing with her father, handicapped brother, and lunatic sister.’44 I have attempted in this chapter to map the construction of disability in judicial discourse and its consequences for our understanding of non-discrimination and liberty. The fact of discrimination against persons with disabilities continues to present a problem because of the deep entrenchment of able-bodied norms in the conceptualization of rights, in the articulation of nondiscrimination and liberty by courts, and in the constitution itself. The double negation of disability in the constitution has disabled the possibility of engaging in constitutional communication on disability-based discrimination and its intersection with the right to liberty for persons with disabilities. This negation has also resulted, importantly, in the denial of abilities and disabilities as measures of diversity in a plural society, thus curtailing the possibilities for plural politics. It may be argued that the Persons with Disabilities Act, 1995, does address the problem of discrimination against persons with disabilities, and is read effectively with article 14. Further, a seven-judge constitutional bench of the Supreme Court of India on reservation for the backward classes45 held that the spirit of articles 14 (right to equality) and 16 (right against discrimination in public employment) allowed for equality and affirmative action for persons with disabilities. However, we find on close examination that the definition of disability is wanting, and that it still does not enable a constitutional formulation on nondiscrimination. However, what provides an edge to the possibilities of articulation of disability rights is the idea of a constitutional articulation, which has the effect of moving disability from an inarticulate, depoliticized category to an articulate, political category on the 44 Kailas and Others v. State of Maharashtra Criminal Appeal No. 11/2011 (Arising out of Special Leave Petition [Crl] No. 10367 of 2010). Judgement delivered by Justices Markandey Katju and Gyan Sudha Misra on 5 January 2011. 45 Indra Sawhney v. Union of India 1992 SUPP (3) SCC 217.

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basis of which non-discrimination is to be guaranteed. It is theoretically possible to work with the idea of constitutional morality, and find ways of ‘wheeling’, ‘covering’ and ‘encircling’46 the double negation, finding new constitutional languages in the process. We need, then, to translate critical theoretical overtures into tools to get around the double negation that disables claims to justice on the ground.

46

I borrow these words from the poem by Lois Keith, ‘Tomorrow I’m Going to Rewrite the English Language’, in Keith (1995: 57); cf. Inahara (2009: 58).

Chapter 2

Recognition of Discrimination Based on Disability Disability need not be an obstacle to success. . . . It is my hope that . . . this century will mark a turning point for inclusion of people with disabilities in the lives of their societies. — Professor Stephen Hawking, ‘Foreword’, World Report on Disability (WHO 2011)

The inauguration of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2008 signalled the recognition of disability as a human rights issue. Research in different countries has also demonstrated the ways in which disability is a development issue as well, by mapping its bi-directional link to poverty. The World Health Organization’s World Report on Disability (WRD),1 prepared in response to a request of the World Health Assembly, affirms the work of disability rights advocates, and attempts to fill the knowledge and information gaps with respect to disability. Before addressing the Indian policy framework with reference to disability, a brief look at international advocacy and initiatives will help contextualize local concerns better. The lack of a standard measure of disability across countries makes definition, comparisons and statistical estimates of incidence a challenging task. Combining 2010 population estimates and 2004 disability prevalence estimates of the World Health Survey and the Global Burden of Disease, the WRD estimates that there are over a billion people, i.e., 15 per cent of the world’s population (including children), living with disability (WHO 2011: 29). 1

WHO 2011. See http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf (accessed on 18 August 2011).

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It is now understood widely that the environment determines a person’s experience of disability, either as a facilitator or as a barrier. But what do we mean by ‘environment’? The International Classification of Functioning, Disability and Health (ICF), which the WRD draws on, maps environmental factors that range from technological and built environment to emotional and psychosocial environments that influence active participation. Importantly, this classification makes a distinction between capacity and actual performance, the gap between which could be indicative of environmental barriers that need to be eliminated. Accessibility is a concern that cuts across different domains of environment, and must reach persons across disabilities. While it is acknowledged widely that accessibility standards are indispensable to inclusion and non-discrimination on grounds of disabilities, the achievement of such standards has been left largely to the goodwill of institutions, both state and private. The WRD observes, ‘Laws with mandatory access standards are the most effective way to achieve accessibility’ (WHO 2011: 175). Disability audits of public and healthcare services, of existing and proposed policy and of institutions and organizations, have pointed to practices of exclusion and indirect discrimination resulting from a lack of sensitivity to the needs of people with disabilities. A global survey in 2005 showed that of 114 countries, 37 had no training in place for rehabilitation professionals and 56 had not updated medical knowledge of healthcare providers on disability (WHO 2011: 110). Aggravating these barriers in the structural and systemic environment are mental barriers — negative stereotypes and the stigmatization of people with disabilities — that question the right to choice, to family life, adoption, and other such entitlements for persons with disabilities (ibid.: 6). While there is a general tendency to homogenize disability and flatten out the diversity of conditions and capabilities, ‘disability’ is in fact stunningly diverse and encompasses the child with learning disabilities, the injured soldier, and the elderly man with severely impaired mobility, not to speak of survivors of violence and the mentally ill.

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The distinction between disability and ill health is an important one. The WRD cites an Australian national health survey in which 40 per cent of people with severe or profound disability rated their health as good, very good or excellent (WHO 2011: 8). Yet, unarguably, ensuring the prevention of health conditions that lead to disability is a development concern. The World Health Survey cited in WRD points to attitudinal, physical and systemic barriers that impede the access of persons with disabilities to healthcare. The report draws on the findings of research conducted in Uttar Pradesh and Tamil Nadu that pointed to cost, lack of locally available services and transportation as the top three barriers to using health facilities (ibid.: 62–63). The financing of healthcare, making healthcare affordable and making medical equipment accessible to the disabled remain urgent concerns. The failure of service providers to communicate in appropriate formats or with sensitivity to the needs of disabled care-seekers might result, as it did in Zimbabwe, in the exclusion of the disabled from routine screening and counselling services (ibid.: 72). Care coordination, in this context, is extremely important, and short-term increases in service delivery costs are compensated by efficiency and effective delivery in the long term. The exposure of children to multiple risks, compounded by the fact of children who screen positive for high risk of disability being denied access to adequate childcare and nutrition, foregrounds the criticality of the family in providing care to children who are disabled and to those facing increased risk. A 2005 study by UNICEF estimated 150 million children with disabilities. Data from specific countries also suggests a higher risk of disability among children belonging to ethnic minorities (WHO 2011: 36). There is a sizeable enrolment gap between children with and without disabilities, with figures across Asia, Europe, Africa, and South America showing higher enrolment rates for non-disabled children across different age groups (ibid.: 207–8). School problems, the report found, revolved around curriculum, pedagogy, inadequate training of teachers, physical barriers, labelling, violence, bullying, and abuse (ibid.: 209).

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The denial of equality, dignity and autonomy to persons with disabilities lies at the core of disability rights as human rights. An important finding of the WRD is that persons with disabilities are at greater risk of being targeted by violence. In the United States, the risk is four to 10 times greater. Among the various forms of violence, a major concern is sexual violence, especially against intellectually challenged persons who are in institutional care. Even more serious is the legitimate incarceration of the mentally ill and the denial of fundamental rights under the constitution. This treatment is echoed in the Disability Rights International report on the mentally ill in Paraguay, which documented lifethreatening abuses and incarceration in dehumanizing conditions (WHO 2011: 146). In this regard, the Italian experience of deinstitutionalizing the mentally ill and equipping general hospitals to care for mentally ill patients, thus integrating mental healthcare with general healthcare, merits special mention. Although the coverage is far from adequate, the enactment of legislation and the drawing up of concrete plans of action supported by budgetary allocations and inter-sectoral professional services shows a way forward (ibid.: 106). This trend towards de-institutionalization has also been followed in some countries in Eastern Europe, notably Romania. Article 12 of the UNCRPD places an obligation on governments to put in place adequate mechanisms for effective, supported decision-making by persons with disabilities, ensuring thereby that such persons do not lose legal capacity on grounds of disability. The WRD finds large gaps in meeting support needs across the world. China, for instance, reported a shortage of personnel, and 30 countries (including Iraq, Madagascar, Mexico, Sudan, Thailand, and the United Republic of Tanzania) reported having less than 20 sign-language interpreters (WHO 2011: 140). The Disabled Children’s Action Group, set up in 1993 by parents of children with disabilities to address the needs of children from black and coloured communities in South Africa, is an example of how a mutual support group can actually change the contexts in which children grow up (ibid.: 143).

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The ratification of the United Nations Disability Rights Convention (UNCRPD) in 2008 has afforded an opportunity to persons with disabilities and human rights groups in India to use the commitments to international instruments as a tool for demanding compliance from the Indian government. This chapter, through a review of policy relating to persons with disabilities in India, examines the minute ways in which state policy might domesticate and depoliticize the question of rights. It explores how policy breaks down the question of rights for the disabled into a series of governmental moves that fall well short of the realm of insurgent governmentality, evading the need to act on this issue with urgent responsibility even while seeming to address the problem on the face of it. Disaggregating policy commitments helps open out the inner recesses of discrimination that remain untouched even while we witness a reluctant and disjointed awakening to disability issues in the administrative apparatus of government. The 10th Five-Year Plan (2002–07), for instance, proposed the ‘Composite Plan for the Disabled’, to be incorporated in the budget of all the concerned ministries/departments, but this proposal has remained confined to the plan document.2 The National Handicapped Finance and Development Corporation (NHFDC) is also showcased by the government as a major step towards promoting economic and development activities by persons with disability.3 At the time that such policy measures are being put in place, disability-based discrimination has not yet acquired constitutional status. The measures have been put in place essentially through the compliance of the state to part IV of the constitution, i.e., the directive principles of state policy. There is recognition, therefore, that disability is an index of marginality that must have a claim to equality under article 14; further, supports from international conventions and agreements find articulation in the preamble to the Persons with Disabilities Act, 1995. Thus, ‘protective legislation’ exists along with ‘national policy’ as well as plan documents; 2 3

See http://www.ncpedp.org/policy/pol-res02.htm (accessed on 3 December 2008). See http://www.nhfdc.org/site/scas_schemes.aspx (accessed on 3 December 2008).

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however, the measures, while certainly ameliorative and in furtherance of state responsibility, lack political edge. The absence of disability as a ground of discrimination under article 15, and the failure to apply this article to disability through creative interpretation, are perhaps the reasons for this. In the case of disability alone, of all the grounds of discrimination, we see a clear disjuncture between articles 14 and 15. The common argument in equality jurisprudence in India is that article 15, the right against discrimination, is an aspect of article 14, the right to equality. The flip side of this argument, then, should be that wherever discrimination is established through wide-ranging evidence, even if the ground of discrimination is unspecified in article 15, the application of article 14 would imply the direct relevance of article 15. While substantive equality is established in the case of other grounds through articles 15(3), 15(4) and 15(5), in the case of disability, it could be established through an intersectional reading of article 15(1) and 15(2) with the substantive equality provision of the Persons with Disabilities Act, 1995. There is, however, a refusal by courts to extend the reach of article 15 to disability.4 In making the case for a consideration of disability as a ground of discrimination under the constitution, as I have suggested in the previous chapter, it is necessary to examine the slew of policy measures and engagements that are focused on this specific question.5 These point in the direction of deeply entrenched practices of exclusion, marginalization and dispossession, along with the grounding of power in the domain of ability and, importantly, the construction of disability within a hegemonic, able-normative framework. It is the detailed consideration of policy, then, that provides the justification for the consideration in the law — not statute but constitution — of disability as a measure of plurality and as an analogous ground of discrimination. I would argue 4

The Andhra Pradesh State Human Rights Commission refused to consider arguments for disability as a ground of discrimination under article 15, in a case that sought reservation in local bodies for persons with disabilities that I represented on 22 April 2009. 5 The possibility of looking at disability as an analogous ground of discrimination will be examined in greater detail in the next chapter.

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that while the definition of analogous grounds may hinge simply on whether characteristics are immutable and produce inequality, the empirical validation of that ‘immutability’ (itself produced by hegemonic forces that freeze and homogenize plurality) is necessary for an evidence-based consideration of analogous grounds. It is to this range of evidence that we will now turn.

THE PROBLEM WITH POLICY ‘Seventy five per cent of persons with disabilities live in rural areas, 49 per cent of the disabled population is literate and only 34 per cent are employed.’6 India is a signatory to the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific Region, 1997. India is also a signatory to the Biwako Millennium Framework for Action towards an inclusive, barrier-free and rights-based society. India was part of the negotiations around the UN Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities. The Persons with Disabilities Act, 1995, was adopted to give effect to the Proclamation on the Full Participation and Equality of People with Disabilities in the Asian and Pacific region. The National Policy for Persons with Disabilities, 2006, was also adopted in furtherance of these international commitments. The policy aimed at realizing economic, social and cultural rights for persons with disabilities. The Protection of Human Rights Act, 1993, offers general protection to all persons resident in India against human rights violations. The National Human Rights Commission (NHRC) set up under this act is charged with the responsibility of protecting the human rights of all persons. However, with reference to persons with disabilities, it has interpreted this mandate primarily in terms of article 14, emphasizing equal access to education, employment and welfare.7 In the same tenor, the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full 6

http://socialjustice.nic.in/disabled/national%20policy-%20English.pdf (accessed on 3 December 2008). 7 For a more detailed discussion of policy and laws, see Mohit et al. (2006).

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Participation) Act, 1995, asserts the principle of equality of opportunity. The constitutional right of persons with disabilities to non-discrimination and liberty is thus flattened to equality. This liberal flattening out of discrimination into equality has other consequences for the construction of the community that must now be included and for the conceptualization of the remedies through which this inclusion might occur. Recognizing that the absence of family and/or community support poses a serious threat to the security of persons with disabilities, the National Trust Act, 1999, provides for the appointment of guardians and trustees, and attempts to foster the consciousness of care for such persons among families and communities. In an important sense, therefore, the National Trust Act works to dislodge public morality on disability, and to compensate the injury caused by such exclusion and neglect. The National Policy for Persons with Disabilities, 2006, specifically addresses the need to apply the constitutional vision to persons with disabilities.8 Having recognized this important and urgent need, what does the policy proceed to propose? Specifically, does the policy’s thrust present any shift whatever in method and reasoning from that adopted in the Persons with Disabilities Act, 1995? The definition of the person with disability under the 2006 policy includes ‘persons with visual, hearing, speech, locomotor and mental disabilities’. The policy proposes amendments to existing legislations that impact on persons with disabilities. It also prescribes proactive measures like incentives, awards and tax exemptions to encourage the employment of persons with disabilities in the private sector. Till this point, the national policy has echoed the assumptions of the earlier legislation. The policy then moves on to assert the principle of full participation and inclusion in more substantive and broad-based terms. Drawing on figures from the national census of 2001, which put the illiteracy rate among persons with disabilities at 51 per cent, the policy proposes a sector-wise strategy for inclusion and full 8

http://socialjustice.nic.in/disabled/national%20policy-%20English.pdf (accessed on 3 December 2008).

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participation. The proposed strategy includes: the use of crossdisability teaching methods, languages, communication, and assistive devices in educational institutions; the setting up of model schools for inclusive education, which would coexist with special schools for children with severe disabilities who require special environments; establishing adult learning centres, distance learning programmes and a national open school focused on broadening the base of formal education to persons with disabilities and addressing the educational needs of non-literate adults with disabilities; a similar initiative in the field of higher education; and modification in the design of machinery and implements at the workplace to ensure full workplace participation by persons with disabilities. The policy then goes on to recognize the impact of the social environment on disability, particularly in terms of access and full recognition. Social security measures for persons with disabilities and their families, and the creation of supporting infrastructure at the community level, are other areas addressed by the policy, which also details the specific measures in terms of public health, rehabilitation and assistive devices that enhance the potential of persons with disabilities to enjoy a better quality of life and to access information at all levels.9 These concerns foreground the aim of the policy to combat discrimination, although it does not explicitly state this, nor does the policy state that a constitutional amendment might be necessary to include disability within the framework of article 15. Herein lies a contradiction that remains silent, but nevertheless constitutes the inarticulate bedrock of disability-based discrimination. The right to barrier-free access and environments has increasingly been recognized as indispensable to the full participation of persons with disabilities in civil society. I would take this further, arguing that the mandatory provision of barrier-free access is an indispensable part of the constitutional guarantee of the right to personal liberty for persons with physical disabilities. While the 9

http://socialjustice.nic.in/disabled/national%20policy-%20English.pdf (accessed on 3 December 2008).

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creation of barrier-free environments is not articulated as an aspect of the right to personal liberty, it is acknowledged as a twin measure with ‘reasonable accommodation’, especially with reference to the progressive elimination of architectural barriers, provision of transport under the Integrated Education for Children with Disabilities scheme, and the modification of machinery and equipment to suit the needs of persons with disabilities in the workplace. Even prior to the adoption of a national policy for persons with disabilities, the ambulift cases highlighted the need for persons with disabilities to have dignified access to airplanes.10 However, the monitoring mechanisms that would measure the extent and effectiveness of these steps are not yet in place, nor are there any sanctions that would make the adoption of such steps non-negotiable. From its inception in 1881, the Indian population census provided some decennial data on ‘physical infirmities’. The census questionnaire of 1872, called ‘House Register’, included questions on physical disabilities using categories like ‘the blind, the deaf and the dumb’. This practice was discontinued after 1931. No attempt was made thereafter to collect information on disability through the censuses of 1951, 1961 and 1971. The UN’s declaration of the year 1981 as the International Year for Disabled Persons resulted in the 1981 population census attempting an enumeration through three categories that are telling in themselves: ‘totally crippled’, ‘totally blind’ and ‘totally dumb’.11 It was only in the 2001 census that the category of disability entered the official demographic picture in any meaningful manner. The lag between proposing measures and thinking through the operational elements of these proposals is, in a sense, an expected outcome of framing the problem of mobility and its resolutions outside of the framework of personal liberty. This is an approach based on the goodwill of the benevolent state rather than on the responsibility of a democratic republic towards a plural 10

Javed Abidi v. Union of India 1999 AIR (SC) 512. The terms used to describe disability reflect the ideological framework that determined the enumeration. Rama Chari, http://www.ncpedp.org/policy/pol-break03.htm (accessed on 3 December 2008). 11

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citizenry. This is evident in the reports on the implementation of policy put out from time to time by disability rights groups. Public institutions (notably courts) do not treat barrier-free access as mandatory, and do not see architectural barriers and the absence of reasonable accommodation as derogations of the right to liberty. The right to work, which includes the creation of assistive devices to enhance work capacity, the provision of physical access to enable mobility to and in the workplace, the development of collateral skills to make optimum use of productivity, and, importantly, the treatment of the worker with disability as an independent, autonomous worker with a right to livelihood, is conspicuously absent in the conceptualization of state policy and in the interpretation of the constitutional right to livelihood for persons with disabilities. This is evident in the scale and nature of service provision: 17 vocational rehabilitation centres run by the government for disabled people across the country; 30,390 clients admitted during 2003, but only 9,292 rehabilitated; and training in non-productive skills — spice-making, cane-weaving, candlemaking, block-printing, and the manufacture of stationery items — none of which can assure a viable livelihood.12 Available annual reports of the chief commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, or of the Ministry of Labour, provide no information on the status of implementation of reservations under the Persons with Disabilities Act between 2000 and 2004, in terms of the percentage of disabled persons employed in government services. While the live registers of employment exchanges are filled with several thousand applications from persons with disabilities, the government manages to place only about 4,000 disabled people every year in jobs through its employment exchanges. Apart from these, there are thousands of others who are underemployed, or do not have information about these employment exchanges, or find them unapproachable in terms of access, language, attitudes, etc. Many others are registered with private placement agencies.13 12

www.ncpedp.org/policy/pol-res02.htm (accessed on 3 December 2008). ‘Disabled People in India: The Other Side of the Story — April 2003 to March 2004’, prepared by Sakshi Broota, National Centre for Promotion of Employment for Disabled 13

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Further, the University Grants Commission (UGC), which initiated a plan in 1998 to promote higher education for disabled students, has succeeded in ensuring benefits for disabled students at only 30 of approximately 300 universities in the country. There are about 16 categories of professionals/personnel training in special education courses conducted for adults and children by the Rehabilitation Council of India.14 The lack of awareness on the part of state institutions about enabling state programmes for persons with disabilities speaks of the extent of inarticulation that disables the category of disability, and pushes it out of the realm of recognition as a form of discrimination.15

SOCIAL, CULTURAL AND ECONOMIC FIELDS Gender is a critical measure of diversity and of discrimination. While women are targets of discrimination, women with disabilities are more vulnerable, subjected as they are to multiple, intersecting discriminations. The 2001 census estimated that there were over nine million women with disabilities in India, constituting 3.5 per cent of the population. Some studies estimate that over 35 million women suffer disabilities in India. Others put the figure at 20 million, of which 98 per cent are illiterate, and less than 1 per cent can avail of healthcare and rehabilitation services. But these statistics are only the tip of the iceberg when it comes to gauging the level of neglect, isolation, stigma, and deprivation that characterize the lives of these women. The majority of women with disabilities in India suffer the triple discrimination of being female, being disabled and being poor. People (NCPEDP), 2005. www.ncpedp.org (accessed on 3 December 2008). 14 http://www.rehabcouncil.nic.in/faq.htm (accessed on 3 December 2008). 15 For example, only 50 per cent of the 119 universities reported being aware of the UGC schemes. The remaining 50 per cent did not know of any such schemes, the notable institutions among them being the National Institute of Mental Health and Sciences (Bangalore), the Indian Institute of Technology (Chennai and Kanpur), the School of Planning and Architecture (New Delhi), the Tata Institute of Fundamental Research, Lucknow University, and NALSAR University of Law (Hyderabad). http://www.aifo.it/ english/resources/online/books/cbr/incedu-india%20NCPEDP%20audit.pdf (accessed on 3 December 2008).

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The 11th Five-Year Plan considers, for the first time, the situation of women with disabilities in all its complexity, focusing on the need for an intersectional understanding of discrimination in order for policy to be effective. It also recognizes that women with disabilities have fallen through the gap between state policy and the voluntary sector. Alongside this, the document deliberates on the ways in which the gender-based division of labour places women with disabilities at an added disadvantage both at the family and at the community level, and recommends, for instance, financial assistance for childcare for two years for two children. The plan document provides a framework for future government and non-government action to strengthen the position of women with disabilities. It recommends, among other things, that women with disabilities should be included not only as beneficiaries of gender equity but also as fieldworkers and project facilitators, survey designers and field investigators, in projects with disability components, so as to enhance their visibility in highly positive roles and challenge the negative attitudes that reduce them to objects of pity and helplessness. Importantly, as with the other indices of discrimination set out in article 15, the 11th Plan document recognizes the importance of representation to the development of an effective voice against discrimination. It recommends a separate wing for women with disabilities in the Disability Commissioner’s office, as well as representation on the central and state coordination and executive committees. The rights of children with disabilities are addressed primarily, if not exclusively, through the medium of universal education, article 21A of the constitution of India. The National Commission 16

http://planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_rpwoman.pdf (accessed on 3 December 2008).

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for the Protection of Child Rights provides umbrella protection to all children. There is, however, no specific recognition of the increased vulnerability of children with disabilities. The only explicit statutory recognition therefore remains the Persons with Disabilities Act, 1995, which requires the state, under section 26, to ‘ensure that every child with a disability has access to free education in an appropriate environment till he attains the age of eighteen years’.17 At the level of policy, the ‘zero rejection policy’ of the Sarva Shiksha Abhiyan (SSA) and the special strategies in this programme to draw children with disabilities into the mainstream of education,18 aim at ensuring that every child with a disability is provided quality education in a learning environment best suited to his or her needs. The SSA proposes pre-integration programmes when needed as well as adequate in-school support. A report titled the Education of Disabled Children and Youth,19 however, enumerates the failures of the SSA to deliver these educational opportunities to children with special needs, and criticizes the ‘lack of clear vision at the policy level to meet the education needs of children with different impairments’. It notes that the annual report (2003–04) of the Ministry of Human Resource Development neglected to mention disabled children under SSA, and did not provide details on the numbers of children with disabilities enrolled in primary schools. A survey of 89 schools across the country found that a mere 0.5 per cent of the total number of students were those with disabilities, though the Persons with Disabilities Act recommends a reservation of 3 per cent of seats in institutions funded by the government. Eighteen of the schools surveyed acknowledged that they did not admit students with disabilities. Twenty per cent of the schools polled were not aware of the 1995 disability act at all. While girls comprised 41.6 per cent of the total student population, among children with disabilities, the 17

http://socialjustice.nic.in/pwdact1995.php?pageid=13 (accessed on 18 August 2011); emphasis added. 18 http://www.education.nic.in/Elementarynew/ssa/ssa_5.asp (accessed on 3 December 2008). 19 http://www.ncpedp.org/policy/pol-res02.htm (accessed on 3 December 2008).

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percentage of girls was only 33.20 What is striking in the case of disability, more than any other ground of discrimination, is the routinization of executive dissociation: the policy formulations and schemes announced are conspicuous in their non-implementation or under-implementation of plans and targets.This has far-reaching negative implications for the development of administrative law in relation to disability, and also normalizes the tyranny of state inaction against and indifference to discrimination and the harm it engenders. A United Nations study reports that 18 per cent of the population stands to benefit if public buildings or transportation systems are designed according to universal design principles of accessibility. Stepping out of exclusionary frameworks that see barrier-free access as special provisions, Sudhakara Reddy points out that accessibility features stand to benefit not only persons with disability but even older persons, children, pregnant women, and the sick.21 ‘Accessibility is not just about moving around freely but also a question of my dignity as it is a humiliating experience to be carried to my seat in the first floor office.’22 Among other measures, section 45 of the Persons with Disabilities Act, 1995, gives details of the provisions to make public roads accessible. The Ministry of Social Justice and Empowerment, which is responsible for the delivery of disability rights on a dayto-day basis, conducted access audits in four government buildings in Delhi over a whole year. The buildings included a railway ticket reservation centre, a coffee home, an electricity board office, and the Delhi airport — interestingly, not the legislative assemblies, parliaments, courts, and secretariats. Halting notifications and circulars are issued by different ministries, and these remain largely

20

http://www.indiatogether.org/2006/jan/edu-speced.htm (accessed on 3 December 2008). Cf. http://www.hindu.com/2008/12/02/stories/2008120258760300.htm (accessed on 3 December 2008). If incorporated in the preconstruction design, the project cost increases by a mere 2 per cent, whereas the cost could be considerably higher if access features are built in after the completion of projects. 22 L. Dinesh; see http://www.hindu.com/2008/12/02/stories/2008120258760300.htm (accessed on 3 December 2008). 21

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on paper.23 Some cities have introduced disabled-friendly buses or opened out one accessible transportation route. The need for public air transportation to provide the ambulift facility, and the need for a 50 per cent fare concession, are also recognized.24 The office of the director-general of civil aviation issued a GO stating that ‘under no circumstances, the airlines staff should treat persons with disabilities in a discourteous manner or insist on requirements, which are against the spirit of CAR [carriage of persons with disabilities]. They [were] also . . . directed to implement the CAR in true spirit by amending the Company’s procedure, wherever required.’25 These measures, too few and far between, do not set the norm in any manner whatsoever. Further, the absence of access is compounded by the absence of mandatory reporting on the measures adopted, as revealed by the shadow report on ‘Access to Transport and Built Environment’.26 The right to free speech and expression is a generic right that applies to persons with disabilities who are citizens of India. The Persons with Disabilities Act, 1995, places the responsibility on appropriate government and local authorities to facilitate full and free expression of this freedom through the introduction of flexibility in the examination system and the curriculum that will particularly benefit children with visual and hearing impairments. While all citizens have the right to freedom of speech and expression under article 19 of the Indian constitution, and while all 23

These include the annual report (2003–04) of the Ministry of Urban Development and Poverty Alleviation, which refers to notifications amending the unified building bye-laws to meet social environmental requirements. Among others, revised guidelines were issued by the Ministry of Tourism and Culture to simplify the procedure for classification of hotels and approval of hotel projects, whereby ‘new projects will be required to adopt environmentfriendly practices and facilities for physically challenged persons. And existing hotels being classified will need to conform to a phased plan for adding eco-friendly practices and facilities for physically challenged persons.’ See http://www.disabilityindia.org/Guidelines %20&%20space%20standards%20for%20barrier.htm (accessed on 2 December 2008). 24 Javed Abidi v. Union of India 1999 AIR (SC) 512. 25 Letter No. ADAT/MISC./2008-AT-1 to the Chief Commissioner for Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, dated 1 July 2008. 26 http://www.disabilityindia.org/Guidelines%20&%20space%20standards%20for%20barr ier.htm (accessed on 2 December 2008).

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citizens have the right to information, realizing this right depends on the provision of information and the enabling of speech and expression in diverse ways, including sign language, Braille, and the range of audio, visual, electronic, and print communication. There is, as yet, no recognition of the fact that special mechanisms must be in place in order to realize the fundamental right to speech of persons with disabilities. The National Policy for Persons with Disabilities, 2006, and the 11th Plan recognize the need to broaden access to information through the development of multiple communication methodologies and languages as well as assistive devices. Yet, the translation of these provisions into normal, standard practice has far from begun. Further, the absence of standard languages for the hearing-impaired obstructs the learning possibilities of children with hearing impairment, a problem that these children continue to face.27 While the constitution of India recognizes the right of all groups to conserve their ‘distinct language, script, or culture’, and the national policy states that ‘special care will be taken to make Sign language [and] Alternative and Augmentative Communications . . . recognized, standardized and popularized,’ some groups have raised concerns about whether all disabled individuals, specifically those in India’s visually challenged and hearing- and speech-impaired communities, have reasonable access to educational mat-erials and other communications in their language. Turning to the issue of awareness, the Broadcasting Corporation of India28 has as one of its primary objectives the promotion of positive images of ‘children, the blind, and the elderly’. State-run channels, however, do very little to create an enabling environment 27

After investigating the status of sign languages for deaf children in India, triggered by a petition of the Delhi Association of the Deaf regarding the absence of a standard sign language throughout the country, a report of the NHRC found that a child-centred sign language is an important element of the right to education, and recommended its development and popularization through collaborative action by the government, linguists, hearing-impaired persons, and interpreters. http://nhrc.nic.in/Publications/Disability/ Chapter06.html (accessed on 3 December 2008). 28 http://mib.nic.in/informationb/media/actsrules/1990.htm (accessed on 3 December 2008).

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for persons with disabilities via the media. Here, as well, it is independent film-makers who focus on the issue of disabilities with sensitivity and commitment. The promotion of awareness on issues of disability, an important part of the portfolio of the Ministry of Social Justice and Empowerment, occupies a marginal position in the public space and exists only in episodic fashion, not as a systematic or concerted campaign. One of the main prerequisites for independence for persons with disabilities is an effective housing policy, one that entails nondiscriminatory public works programmes and non-discriminatory building codes. The National Trust Act, 1999, strives to enable persons with disabilities to live independently and be included in their communities. Provisions for achieving this goal are contained within the Persons with Disabilities Act, 1995, which states that governments and local authorities should work to offer affirmative action schemes as well as ensure the accessibility of housing, public facilities and transportation. Read together, these acts provide a broad framework for protecting the right of persons with disabilities to live independently. The provision of effective housing, like most provisions with respect to persons with disabilities, is tagged to systems of incentives that commoditize and commercialize a basic need, the person(s) directly affected being excluded from setting the terms of the contract. The state sets the terms, and the builder/company/ institution/employer complies in varying degrees depending on the volume of the incentive. Non-compliance does not invite any penalty because the right against discrimination is not an explicitly stated right; equality is interpreted in formal terms, with special provisions being dependent on budgetary allocations and availability. The development of the right to housing as part of the right to life has not yet been articulated in India with reference to the right of persons with disabilities to adequate housing. The National Policy for Persons with Disabilities does establish the need to ‘ensure equal opportunities for sports, recreation and cultural activities’. State policy is supportive of the need for individuals with disabilities to participate in sport, recreational and leisure activities, and includes provisions designed to encourage the

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development of special recreation centres and ensure accessibility to all public places. However, the situation on the ground remains mixed. Persons with physical disabilities are unable to enjoy leisure activities on an equal basis with others as long as transportation systems and public buildings continue to lack barrier-free access, a problem that has not been addressed on a consistent basis by the government. Even while organizations and establishments like the Wheelchair Sports Federation of India, the Indian Blind Sports Association and Special Olympics Bharat provide opportunities for physically and mentally differently-abled athletes to participate in sporting activities, no institutional spaces are available to coach elite differently-abled athletes in India, leaving a gap in the attainment of the goals outlined in state policy. While laws and policies are in place — for instance, to promote research and development, encourage availability and use of universally designed goods, services, equipments, and facilities, create new technologies, including information and communications technologies, and develop mobility aids, devices and assistive technologies suitable for persons with disabilities — these are not supported by the provision of accessible information about these technologies to persons with disabilities. The Persons with Disabilities Act focuses merely on the prevention and detection of disabilities. The provisions require that the appropriate government and authorities take steps for the prevention of occurrence of disabilities. Rehabilitation measures for persons with disabilities in state policy have included: 1. Physical rehabilitation, which involves early detection and intervention through counselling, medical treatment, provision of aids and appliances, and the development of rehabilitation professionals. Attention has been concentrated on physical rehabilitation using community workers and centres at the district level, and involving a wide array of institutions and agencies in the manufacture and supply of aids and equipment routed to communities through the government.

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2. Educational rehabilitation, which has focused on the spirit of article 21A of the constitution of India guaranteeing education as a fundamental right, and section 26 of the Persons with Disabilities Act, 1995, according to which free and compulsory education has to be provided through various schemes to all children with disabilities up to the minimum age of 18 years. Schemes include education through an open learning system and open schools, alternative schooling, distance education, special schools, home-based education wherever necessary, the itinerant teacher model, remedial teaching, part-time classes, community-based rehabilitation (CBR), and vocational education. Despite policy statements, however, 25 million children with disabilities under 18 depend on special schools, whose number was estimated at 3,000 in 1999, and on a small number run by nongovernmental organizations. As Ammu Joseph points out, ‘there is no official commitment to the right of the challenged child to access the “normal” school system.’ Joseph poses pertinent questions that are yet unanswered: ‘Under the circumstances, how many differently abled children are deprived of education, how do they spend their childhood and what are their future prospects? What is more, what are the implications for the country and society of this nondevelopment of valuable human resources?’29 3. Economic rehabilitation, which includes employment in government establishments with provision for 3 per cent reservation; wage employment in the private sector; and selfemployment with financial support from the government and financial institutions. There is a policy to ensure that at least 25 per cent of the total beneficiaries of state-initiated rehabilitation are women. There is also recognition that rehabilitation for women with disabilities must importantly include provision of short-stay facilities, hostels and homes. However, child support continues to be hampered by biases. Childcare support services are limited to two children for a 29

http://www.indiatogether.org/2005/dec/ajo-mediawdd.htm (accessed on 27 April 2010).

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period not exceeding two years.30 In recent years, although government reports point to tangible steps to help provide employment opportunities and vocational training to those with disabilities, advocacy groups have raised doubts about the efficacy of some of these efforts. Questions have also been raised about the wage gap that often exists between the able-bodied and persons with disabilities. Finally, the problem of political participation is a complex one where persons with disabilities are concerned. The Election Commission issued a directive in 2005 to the chief secretaries of all states and union territories to construct permanent ramps in each public building containing a polling station, so as to ensure that persons with physical disabilities could exercise their right to vote. In the case of mental disabilities, on the other hand, the constitution of India and the Representation of People Act, 1950, actively prohibit persons with intellectual disabilities or mental illness (no distinction is drawn between the two) from participating in political life by voting or contesting elections. This rupture, within the text of the constitution itself, of constitutional morality on the critical aspect of discrimination underscores the significance of a dynamic interpretation that takes note of the changing fields of politics that foreground radically different conceptions of rights, conceptions that might well spill beyond the text of the constitution, and yet are contained in its spirit. In the present case, if we were to go by a strict application of the constitution, persons with disabilities have no right against discrimination, and a significant section have no political rights either. Herein lies the paradox: to anticipate my argument hereafter, the strict application of the constitution in this specific instance is itself a violation of constitutional morality. 30 http://planningcommission.nic.in/plans/planrel/fiveyr/11th/11_v2/11v2_ch6.p (accessed on 3 December 2008).

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CONCLUSION The volume of policy initiatives and official reports on schemes for the regulation, monitoring and inclusion of persons with disabilities across life spans and across forms of disabilities points to the recognition of disability as a ground of discrimination both by the executive and the legislature. A careful look at the sectors across which interventions are spread and the allocation of resources, both material and administrative, reveals the layers of encrustation of discrimination based on disability in the social fabric. The sectors in which there have been targeted interventions to combat discrimination — education, employment, access, and enumeration, to name the most significant — are also sectors where similar interventions have been made with respect to the other grounds enumerated in article 15 of the constitution of India. The argument has been advanced in courts that while disabilitybased discrimination can be redressed through recourse to article 14, the reach of article 15 is specific to the enumerated grounds and therefore cannot be extended to include disability. Is it theoretically possible to keep disability out of the purview of article 15? How may the problem of discrimination be framed in this theoretical vacuum? The final chapter in this part of the book revisits the constitutional framework with respect to disability.

Chapter 3

Interpreting Disability Rights The ‘social construction’ of disability refers to the way an able-bodied conception of disability magnifies its consequences. The social construction of disability assesses and deals with disability from an able-bodied perspective. It includes erroneous assumptions about capacity to perform that come from an able-bodied frame of reference. It encompasses the failure to make possible or accept different ways of doing things. It reflects a preoccupation with ‘normalcy’ that excludes the disabled person. — Dianne Pothier, ‘Miles to Go’ (1992: 526)

CONSENT, CUSTODY AND MENTAL HEALTH Consent means, very simply, ‘unequivocal voluntary agreement’. Where persons with disabilities are concerned, and this is especially true of persons with profound intellectual disabilities, the issue of consent is often tied to the issue of custody. Therefore, in looking at the consent–custody problematic from a disability rights standpoint, it is important to examine the many resonances of both terms. It is also important to recognize that both consent and custody are deeply embedded in law and are the wellsprings from which justice is either denied or delivered. It is useful to restate the problem before moving into a consideration of one very important recent case where the issue of consent and/or custody was foregrounded. The intersections between state, family and society are critical, especially in the denial of individual volition. This denial is expressed in myriad, horrific ways, with states and often families as well participating in and justifying the denial of active choice in decision-making. Differently-abled women, for instance, continue to suffer violence in families and communities, with little recourse

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to redress. The fact of disability compounds their experience of disadvantage and disentitlement. The forced hysterectomies of mentally challenged women in state-run institutions in Pune are but an illustration.1 Located as it is within the ‘abnormal persons approach’, the institutional apparatus of the state denies rights and obscures that denial in the name of care or protection for ‘dependent’ people. What is the place of care in the conception of justice for persons with disabilities, especially the profoundly disabled? The need for good care for the asymmetrically dependent would focus on support for life, health and bodily integrity, stimulating the senses, imagination and thought in the process. The need for good care for the caregiver is reflected in the need for social and institutional arrangements that allow for caregiving as a real choice, enabling it and providing every support that it requires, ranging from the cultural/emotional to the economic (Nussbaum 2006: 168). We see, however, that in the case of the profoundly disabled, there is a conflation of care with custody and a troubling convergence of will between the state and civil society: state-run institutions arrogate to themselves absolute control over women’s sexuality, and private community-based institutions bind mentally challenged persons in chains, as witnessed in the home in Tamil Nadu where several people died as a result of a fire from which they could not escape. If control over sexuality is the quintessence of the right to bodily integrity and personal liberty, how may we understand the negation of the very existence of sexuality and sexual expression for persons with disabilities? A comparison between women and persons with disabilities is relevant at this point, if only because the consent–custody problematic determines the degree of autonomy for women and persons with disabilities in profoundly similar ways. Whereas, for women, we are pushing for rights in relationship, for persons with disabilities we have not yet begun to push for rights to relationship. Sajid, in a powerful statement made before the Independent Peoples’ Tribunal on the World 1

http://nhrc.nic.in/Publications/Womens.pdf (accessed on 5 December 2010).

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Bank, spoke of the need to constitute the individual person with disability as a household unit for purposes of access to employment guarantee, because nobody comes forward to marry a person with disability (Menon-Sen and Kannabiran 2010: 121). Women with disabilities have found themselves married off in haste to already married men, impotent men, or to the elderly, living the rest of their lives in violent homes. As Andalamma, a 70-yearold physically challenged woman, said at a public hearing in Hyderabad in March 2004, she spent her entire life like a kite, flying where the string led her in the direction of the wind, with no space to express her will or desires. Discourses around sexual desire, sexuality and conjugality have been central to the constitution of the public domain. These include the discourses of heterosexuality as grundnorm, discussions of interpersonal and sexual conduct in relationships, of the shifts in structures of feeling and emotion, of love, fidelity and caring. There have been debates on consensual unions, resistance to ritual as primarily a mechanism of alienation, and the contemporary reclaiming of heightened ritual as a vehicle of belonging. Discourses of conjugality include the relocations of the language of love from ‘extra-marital’ contexts to marital conjugality, and the redefinition of conjugality from marriages without love to egalitarian, intercaste/inter-community, monogamous conjugality (self-respect marriages, as they were called), and from there to the current constructs of caste, class and community endogamy as completely ‘consensual’ (the arranged love marriage). Marriage has been reinscribed from the context of an extended/joint family that could be patrilineal, matrilineal or bilateral, to nuclear, patrilineal, monogamous marriage as the norm. There are the conflicts between the demands of public life and ‘familial’ obligations for women in marriage, the reinscription of the ideal mother and mother-inlaw through representation and law, and so on. A significant part of this process has consisted in reinscribing the deployment of sexuality and the deployment of alliance at different moments in subcontinental history. Through it all, however, sexual desire on the part of the woman with disability has remained unarticulated. Drawing a distinction

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between the ‘male gaze’ and the ‘stare’, Anita Ghai observes: ‘If the male gaze makes normal women feel like passive objects, the stare turns the disabled object into a grotesque sight. Disabled women contend not only with how men look at women but also how an entire society stares at disabled people’ (see Menon 2007a: xxxiii). Malini Chib speaks of the interlocking of sexism with disabilityphobia. Non-disabled women’s conjugal relationships with men with disabilities (relatively common) can be explained by recourse to discourses of care that are harmonious with constructions of femininity. But masculinity is thrown into social awkwardness at having to cope with a woman with disability; therefore, it is rare to find women with disability in conjugal relationships with nondisabled men. This question of relationship and desire is not even rhetorically conceded to intellectually challenged persons, who must become disgendered, even while they are vulnerable to sexual assault. ‘Off with the uterus,’ says the state and family; ‘abort,’ says the state in its role as parens patriae. We turn from the question of liberty to the question of life itself. If productivity is defined, from the standpoint of the male, non-disabled person, in terms of ‘autonomous’, ‘independent’ engagement with social and economic forces, it is a simple step from there to constructing an index of dispensability along a scale of bodily deviance. We must remind ourselves that the Nazi destruction of ‘lives not worth living’ bound the destruction of the mentally ill and the handicapped on the one hand with Jews, homosexuals, communists, and gypsies on the other. The killing of more than 70,000 patients in 130 German hospitals up to August 1941 served as a rehearsal for the subsequent killing of other communities. Ethnic and physical deviants, Robert Proctor argues, were linked through a logic that traced inferiority to deficiencies in their physical bodies, which were seen to be living parasitic lives as distinct from productive lives (Proctor 1995: 170–96). These horrific times echo in our present in episodes of gross violation against persons with disabilities, especially the mentally ill and the intellectually challenged in India. What are the specific protections in place to safeguard life and liberty, and what are the specific ways in which the law alienates

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liberty from citizenship in the case of persons with disabilities in India? The justification for the forced hysterectomies of women with intellectual disabilities in a government facility in Pune in 1984 was that they were vulnerable to assault, and should therefore at least be protected against pregnancy. This position spoke to concerns of security against violence and exploitation of women within mental health facilities. Exactly this theme is repeated two and a half decades later, in 2009, in the case of Suchita Srivastava and Anr v. Chandigarh Administration.2 Here, a 19-year-old intellectually challenged woman in a state facility was subjected to persistent sexual assault by male staff. It cannot be argued that she did not resist, or that she consented, because her disability and total dependence on the facility disabled any possibility of her registering resistance; consent is absent by definition in a condition of custody. The absence of consent is evident in the finding of the expert group constituted by the high court, which found that ‘she did not volunteer for sex and did not like the sexual act.’ I would argue that it is this locking in of consent with custody that creates the possibility of the lack of basic security in a facility for women with profound disabilities. The matter is forced into the open only when the victim begins to show signs of pregnancy, because the prospect of motherhood in a disabled woman sets into motion another spiral of the consent and custody problematic. The Chandigarh government sought the permission of the high court to terminate her pregnancy, because not only was the victim ‘retarded’, she was also an orphan who had no parents or guardians to care for the child. When resources are scarce and the requirements of full-time care conflict directly with the imperatives of livelihood and survival, women with disabilities are especially vulnerable to their families. On a more general level, in societies where women are oppressed and bound down by constricting norms and values, women with disabilities are further stigmatized. A central feature of this stigma, as Goffman has demonstrated, is the denial 2 Suchita Srivastava and Anr v. Chandigarh Administration 2010 (1) CHN (SC) 96. All references to this case in this section are from this source.

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of individuality to women with disabilities (cf. Nussbaum 2006: 191). In the case under discussion, the expression of individuality is extremely interesting because it throws into crisis the value nexus in which motherhood and pregnancy are rooted: ‘As per her mental status, she is incapable of making the distinction between a child born before or after marriage or outside the wedlock and is unable to understand the social connotations attached thereto.’ These ‘social connotations’ attached to child-bearing in or out of marriage, or even the social responsibilities that marriage itself entails in a patriarchal, patrilineal society, are fundamentally alien to all women across class, caste and community, whether disabled or not, as they are determined outside of the parameters of women’s autonomy, self-determination and exercise of free choice. While some women might cope, the capacity or willingness to cope with an adverse situation does not necessarily imply reasoned comprehension and agreement. At the base, therefore, a pregnant woman either desires or does not desire a child: whether she comprehends the value of wedlock; whether she comprehends the positive worth of a male child and the shame of a female child; whether she can tell the difference between the emotion a pregnant woman raped within marriage might experience and the emotion a pregnant woman raped outside marriage might experience — these factors are not exactly dependent on the woman’s mental status alone, and neither are her emotions in any of these fact situations entirely unambiguous and clear. So it is then possible for any woman to have ‘no particular emotions on account of the pregnancy alleged to have been caused by way of rape/unwilling sex’, and yet say ‘she is happy with the idea that she has a baby inside her and looks forward to seeing the same.’ In this respect, the victim in the present case cannot be so clearly set apart from any other woman who is not intellectually challenged but is in a difficult/vulnerable position. ‘She has grossly limited perception about bringing up a child and the role of an ideal mother’: this response too can scarcely be interpreted, as the high court did, as the particular incapability of a person who is dependent on care to provide childcare or form family relationships.

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In this situation, when the welfare state takes responsibility for providing care and sustenance to women who lack familial and community supports, and even for providing shelter and basic necessities to women with disabilities, the state adopts a contractarian approach to care by attending to needs in a narrow and arbitrarily uneven fashion: ‘the entire encounter with such a person is in terms of the stigmatized trait [based on the belief ] that the person with the stigma is not fully or really human’ (Nussbaum 2006: 191). While standing in for family and donning the mantle of guardian in the case of this young woman, the state draws a line beyond which it will withdraw from its constitutionally defined role. A pregnant woman with intellectual disabilities already in the care of the government must conjure up a family or a guardian (other than the state) who will help in the care of her child when it is born, or forfeit her right to motherhood. In other words, the ‘care’ that is provided by the state, its discharge of its role as parens patriae, does not include either providing security against assault or helping in childcare. The decision to terminate pregnancy is one that can be taken by the state, her ‘legitimate’ guardian. Consent and choice are anathema to custody, even where the custody is ‘safe’ and predicated on ‘welfare’. However, since the state lacked the statutory basis for proceeding with the abortion,3 it sought orders from the high court. As this was a complex issue, the court asked for an expert body to be constituted to go into the advisability or otherwise of termination of pregnancy, keeping at the centre the ‘best interests’ of the victim. After examining her medical condition (including a psychiatric assessment) and her sociability (especially in terms of social supports and her understanding of societal values), the expert group recommended that her consent was essential for termination of pregnancy. And yet, the high court went with the state government and ordered the termination of pregnancy. When the case went up for appeal in the Supreme Court, the right of the woman to carry the pregnancy through term was upheld, applying the ‘best interests’ principle: 3

The Medical Termination of Pregnancy Act authorizes abortion in cases of women suffering from ‘mental illness’, but does not mention ‘mental retardation’ as a ground for abortion. Both these conditions are clearly distinct in fact and in the law.

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It is important to note that the Court’s decision should be guided by the interests of the victim alone and not those of other stakeholders such as guardians or society in general. It is evident that the woman in question will need care and assistance, which will in turn entail some costs. However, that cannot be a ground for denying the exercise of reproductive rights.

It is useful at this point to recall Martha Nussbaum’s delineation of the capabilities approach, which simply specifies some necessary conditions for a decently just society, in the form of a set of fundamental entitlements of all citizens. Failure to secure these to citizens is a particularly grave violation of basic justice, since these entitlements are held to be implicit in the very notions of human dignity and a life that is worthy of human dignity. (Nussbaum 2006: 155)

Wherefrom does the notion of dignity spring? Discourses that romanticize motherhood elevate the biological to the level of the sublime — that which must not be repudiated. In the very act of elevation lies the ultimate entrapment of women within their bodies: because the biological is the sublimely social, women must acquiesce to their confinement self-consciously. It is not enough to consent or desire to bear a child, but it is necessary to be capable of consenting, capable of expressing desire responsibly, capable of comprehending the sublimation of the physical. The light-andshadow plays in this argument, which the government adopts as well in this case, in fact indicate the inseparability of physical needs from social needs, especially in the provision of care. This points us to another aspect of Nussbaum’s argument: that rationality and animality are thoroughly linked in the capabilities approach: The capabilities approach sees the world as containing many different types of animal dignity, all of which deserve respect and even awe. . . . rationality is not idealized and set in opposition to animality. . . . Sociability, moreover, is equally fundamental and equally pervasive. And bodily need, including the need for care, is a feature of our rationality and our sociability; it is one aspect of our dignity, then, rather than something to be contrasted with it. (Ibid.: 159–60)

The claim to support, in this view, emanates from the very dignity of a person’s human need, not from an assessment of that person’s productivity, however defined.

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REPRESENTING ABILITY An epileptic . . . a leper . . . a madman, a blind man, they should all be excluded . . . an impotent man . . . a club footed man — all these are to be strenuously excluded. . . . Whatever any of these looks upon at an offering into the fire, a giftgiving ceremony, a feast, or an offering for the gods or ancestors goes wrong. . . . If there should be present a cripple, or a one-eyed man, or a person with too few or too many limbs, he also should be led away from that place, even if he is one of the donor’s menial servants. (Doniger and Smith [The Laws of Manu], 1991: 60, 69)

We turn now to culturally situating the idea of disability rights within the larger field of non-discrimination by exploring the meanings of disability, the terrains it inhabits, the strategies of incarceration it evokes, and the possibilities it offers for thinking differently about discrimination, pluralism and liberty. The purpose of this section is to provide a context for judicial and legislative interpretation — constitutional interpretation — in India. Although the concern with the old, the infirm and the disabled is as old as the constitution at least, writings from a critical disabilities perspective are only now beginning to inform human rights movements, and have not yet begun to inform constitutional jurisprudence in the subcontinent. Indian literature has largely seen disability as the consequence of endangering prenatal conduct on the part of the expectant mother, or as a penalty for wrong-doing in a previous birth, or as the result of a curse. Disability has been associated with criminality both somatically and behaviourally. The shadow-sites of society are seen as inhabited by those who rupture societal proprieties and smug comfort zones: the hump-backed maid Manthara who was responsible for Rama’s exile in the Ramayana is an instance. Disability is associated with ineffectuality, a weak mind implicit in a ‘weak’ body: the case of the blind king Dhritarashtra, who was unable to rein in his wild sons (a hundred of them), in the Mahabharata is illustrative. But these are only two of a range of depictions. Epics, folktales and stories are replete with references to persons with disabilities. Chittraju Govindaraju, speaking specifically

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of Telugu literature, classifies classical literary references to disability into the following: disfigured sages (virupa munulu), strange gods (vichitra devatalu), ugly demons (vikrita rakshasulu), and malformed humans (vikala manavulu) (Govindaraju 2006: 38). Ashtavakrudu was born with eight deformities. His father, the one-footed Sujata, taught his disciples and made them work without respite night and day. Observing this from his mother’s womb, Ashtavakrudu chided his father for driving his disciples too hard, inviting the father’s wrath: ‘You have spoken abnormally about learning. So may you take birth with eight deformities.’ (‘Neevadhyayanambunaku vakranga balikitivi gavuna nenimidi vankaralu sarirambuto janmimpu.’) Later, the father, in pursuit of wealth, loses a wager with a scholar in the court of Janaka and is confined under water by him. Ashtavakrudu, a scholar, learning of his father’s fate from his mother, wins the wager in Janaka’s court and frees his father. To cite other instances, Anurudu was born without legs, because his mother, curious to see her child and impatient, broke the egg before term. Cursing her to a life of slavery for causing him to be born without legs, Anurudu became the charioteer of the sun god Surya. Ekalavya, a low-caste in a world where caste determines access to learning, but exceptionally skilled in archery, gifts his right thumb to his teacher Dronacharya. The sacrifice or willing renunciation of ability reflects differently on the idea of capability itself. We may also cite the case of Gandhari, wife of the blind king Dhritarashtra, who spends her life blindfolded — an act that has been interpreted variously as the devotion of a chaste wife, or as a refusal to fulfil the functions of wife and queen in a marriage not of her making (Volga 2004). Either way, the disability is an act of renunciation or repudiation of capability/ability. From a very cursory look at texts from the Hindu traditions alone, we find a range of ways in which disability is articulated, from proscriptions in the Manusmriti to epic accounts of valour, capability for good and evil, and renunciation. For our present purposes, what is significant is the fact that none of the mythological accounts of disability–abnormality portray disability within the paradigm of infirmity/incapacity. Exclusion is the tenor of the

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Manusmriti quoted in the epigraph to this section, but the stories are stories of individual volition. This presents a complete contrast to contemporary portrayals of disability in India (including in the constitution), where disability is constructed as infirmity, ‘weakness’ and morbidity. In stark divergence from the mythological and folkloristic evidence of a popular imagination that vested presence, voice and liberty in those who are different, we now witness, well into the sixth decade of the constitutional era, the persistence of an absolute invisibility of disability and complete silence around it. The invisibility and silence are compounded by exclusion, in terms of both discrimination and the derogation of the right to liberty.

QUESTIONS FOR JURISPRUDENCE By 2020, it is envisioned to have a society which is truly inclusive and egalitarian, where every individual, including persons with disabilities, have equal opportunities for access to the services they need in order to develop to their full potential. Further, the vision is to have a society where all categories of disabled persons are valued and respected as equal citizens and partners in the development and progress of the society, beginning from their families so that they are no longer looked upon either as burdens or liabilities or as targets for pity and charity. After all, a just society is measured by how it treats its most vulnerable citizens and supports their empowerment.4

How do we trace the intellectual history of disability rights in India, and what are its connections, resonance and intersections with the trajectories of the other indices of discrimination? This chapter and the two preceding it have looked for and unpacked the different layers in the articulation of disability, as a means of better understanding the basis for the contemporary realities of the differently-abled in India. This project is central to thinking through an agenda for a transformative constitutionalism. In attempting to restore to ability its place in the architecture of diversity and discrimination, we would need to step out of the dungeons that incarcerate mind and body, untie the chains that 4

http://www.planningcommission.nic.in/reports/genrep/bkpap2020/30_bg2020.pdf (accessed on 3 December 2008).

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confine people at one end of the continuum of ability, and build bridges and pathways that help them traverse freely across the continuum and open their lives and minds to absorb the lives and minds of others who are unlike them. We need to interweave the idea of liberty (the freedom to move around, the freedom to know, the freedom to choose, the freedom to be) with the idea of nondiscrimination: We share this earth with a staggering array of life forms, each essential in its own way. Saying we are interconnected isn’t a platitude, it’s a fact. We exclude at our peril. Just ‘not excluding’ may save us from great harm. Self-interest alone may be reason enough to do it. But inclusion is much more. Inclusion revels in the variety the earth contains and celebrates life for its own sake, not for what it saves us from. It’s a wonderful world, unpredictable and full of surprises. . . . Little girls, spotted owls and people with disabilities enrich our lives in ways we cannot begin to fathom and those of us lucky enough to be ecologists in the particular ecosystems they inhabit can make grateful lists of rocks they have disintegrated and nitrogen they’ve created from thin air. But that’s a bonus. Like the rest of us, they’re here because they’re here. They don’t need to justify their existence. For just as ‘every cubic inch of space is a miracle,’ so every species is a keystone species. ( J. Chopra 2010)

It is useful to examine tolerance and its limits in the context of disability (Brown 2006). Although Brown herself does not look at disability as a measure of identity, and hence as a target of tolerance discourse, doing this helps us understand the sudden rupture between the entitlement to liberty (translated as barrierfree access) of the physically challenged and the lack of it for the intellectually challenged. It can perhaps be argued that intellectual disability challenges the very idea of tolerance and, therefore, is ousted even from the position of marginality. Butler’s observations on the jettisoning of the marginalized into a state of statelessness are extremely relevant to an understanding of this problem of the clear and present disentitlement of the intellectually challenged in India from citizenship rights (see Butler and Spivak 2007). It is not accidental that a thesis on non-discrimination uses as its starting-point the one index of discrimination that does not find explicit mention in the equality code of the constitution of India.

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Article 15 reads, ‘the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ This is a profound illustration of Nussbaum’s reiterated position that existing societies do not include persons with disabilities as citizens on the basis of equality with other citizens. It is an even more profound illustration of Inahara’s argument that, because each socio-cultural norm requires a category of those who fail to comply with it, its ‘Other’, and such exclusion is essential to the whole manoeuvre and maintenance of the socio-cultural system, it is important to disrupt the fixed and disembodied subjectivity of those labelled disabled in order to dislodge the norm that produces vulnerability and discrimination (Inahara 2009: 54). Or, as Chopra puts it: Disability is . . . ‘The Last Frontier’ in the battle against discrimination and injustice. . . . Although we speak of tolerance and diversity, many of us are uncomfortable with people with disabilities making choices in their lives, distressed by the idea of them having sexual relationships and appalled by the vision of them bringing more people like themselves into the world. ( J. Chopra 2009)

The core question that begs urgent consideration is: what are the ways in which this exclusion — discursive, substantive and cognitive — shapes our reading of the constitution as a moral and ethical vision? How does this exclusion affect our reading of the moral resources of the constitution? How does this constitutional indifference to diversities in disabilities and disabled abilities rupture our reading of constitutional morality? If there is a broad agreement that the constitution recognizes and affirms the moral rights possessed by citizens, the question that the discourse of ability foregrounds is: what does such recognition and affirmation entail? In the absence of absolute recognition to all, can it be argued that the constitution sets out the parameters for foundational exclusions of entire classes as well? This conclusion is inevitable if we follow the historical logic of constitutional interpretation on non-discrimination in India, which suggests that article 15 prevents discrimination only on explicitly stated grounds, taken singly, and not in combination. Disability, it may then be argued, would be covered by article 14, ‘equality before

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law’, which in this case becomes reduced to a formal equality protection, unsupported by substantive equality protections through the medium of non-discrimination embodied in article 15. This is indeed an anomaly given the inseparability of the condition of disability from the substance of article 15: ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ Article 15(2) states that ‘no citizen shall . . . be subject to any disability, liability, restriction or condition with regard to — access to shops, public restaurants, hotels and places of public entertainment; or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.’ Articles 15(3), 15(4) and 16(4) of the constitution establish a very positive role for the state. They encourage the introduction of special measures in favour of women, children, scheduled castes and scheduled tribes, and other members of socially and educationally backward classes. In attempting a purposive interpretation of article 15 as a complete protection against discrimination, we could move back and forth in trying to locate the situation of persons with disabilities. To attempt an inverted reading may be the most productive approach. Statistics and policy measures taken by the government bear testimony to the fact that concern for persons with disabilities does not merely span the reach of article 41: Right to work, to education and to public assistance in certain cases: The State shall within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. (Emphasis added)

Official concern for disability, as we saw in the previous chapter, far outweighs the concern for unemployment, old age and undeserved want. Further, this concern is not contained within the ‘sickness and disablement’ paradigm, where disability, rather than constituting a founding condition, is articulated as a consequence (disablement) of other circumstances — employment, old age, sickness, etc. As this section has demonstrated, the state’s

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concern with respect to disability, even despite its woefully inadequate proportions, is in the spirit of articles 15(3) and 15(4), rather than in the spirit of article 41. The Persons with Disabilities Act, 1995, clinches this argument further. The recognition of exclusion necessitates the adoption of special measures as justiciable state responsibility and the exercise of due diligence to prevent discrimination. This takes us one step up, to article 15(2). No citizen shall be subjected to any disability, liability, restriction, or condition with respect to access to the public domain. This clause resonates particularly strongly with the practices of untouchability, and its relation to article 17 (on the abolition of untouchability). However, in guaranteeing ‘barrier-free access’ to persons belonging to the scheduled castes and scheduled tribes, under articles 15(2) and 17, the constitution recognizes that barrier-free access is a fundamental right. More importantly for our present argument, the refusal to grant barrier-free access as a fundamental right is discrimination within the meaning of article 15. Once this possibility is set out, the reach of barrier-free access spans out beyond socio-physical access alone. We can take, for instance, the draft statute (currently under discussion) titled the Rights of Persons with Disabilities Bill, 2011. Section 2(iv) says: ‘“Barrier” means any factor that impedes, prevents or obstructs the full and effective participation, of persons with disabilities in society. This will include attitudinal, communicational, cultural, economic, environmental, institutional, political, religious, social and structural obstructions.’5 An intersectional reading of articles 15(2) and 17 with the right to personal liberty under article 21 places the articulation of the right to non-discrimination for persons with disabilities outside the webs of constitutional inarticulation and disaggregation, leading to a far more nuanced understanding of the idea of constitutional morality. As Ambedkar observed, our people are yet to learn what constitutional morality entails. Finally, we return to the point at which we began our examination of the question of disability: the double negation of disability contained in the constitution. It is possible, I argue, to 5

http://socialjustice.nic.in/pdf/report-pwd.pdf (accessed on 19 August 2011).

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negotiate significant shifts away from the constitutional negation by mapping a framework of constitutional morality that challenges hegemonic normativities and the marginalities they spawn. This negotiation, importantly, must not be a move away from the field of article 15, but rather one that takes us to the core of article 15. From an inarticulate, conditioning premise — the keystone premise ( J. Chopra 2010) — of constitutional philosophy on non-discrimination, through the strategy of purposive, reflexive interpretation by constitutional courts in India, disability can perhaps turn around into an articulate, vocal premise that makes non-discrimination a non-derogable, non-negotiable right, not dependent any more on the ‘limits of [the state’s] economic capacity and development’. This would mean a constitutional amendment along the following lines: Article 15(1) amended to include disability would read: ‘(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, disability or any of them.’ Sub-clause (6) would need to be introduced in article 15; this would provide for reservations and mandatory compliance to special provisions: ‘(6) Nothing in this article shall prevent the state from making special provisions in favour of persons with disabilities.’ Corresponding amendments are necessary in article 16 of the constitution. The 13th schedule introduced into the constitution would list disabilities, which could be expanded or changed from time to time in the manner prescribed for the existing schedules. The radical shift from inarticulation to an assertive articulation of a new framework for constitutionalism comes about through the practice of politics: disability becomes a measure of discrimination through the politics of disability rights: A very recent and a radical new development is the intervention of disabled people themselves in the social construction of disability. This perhaps is occurring for the first time in human history. It has contributed

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to a process away from negative definitions of disability, as indicating abnormality and impairment to a positive definition that first and foremost asserts essential humanness, understood around notions of human rights and community life, of the disabled that they share with all others, and then within this shared framework identifies special features that make disabled people different from others. (Mohit et al. 2006: 12)

This idea is immediately relevant to an understanding of resistance to social exclusion in societies where ‘ability’ is not a standard measure of difference. It points to new ways of thinking about disability rights that must inform courts, governments and communities alike.

PART II DISCRIMINATION AND THE STANDARD MEASURES OF DIVERSITY

Introduction This part, consisting of five chapters, will look at discrimination based on caste, tribe and religion. The three chapters on caste (chapters 4, 5 and 6) will examine in turn the sociological and historical scholarship on caste, the jurisprudence on caste-based reservation as emblematic of discrimination based on caste, and the constitutional category of untouchability as the quintessence of the problem of liberty where the caste system is concerned. In drawing the connection between discrimination and liberty, these three chapters map the linkages between discrimination, exclusion and atrocity, or, in constitutional terms, between articles 15, 17 and 21. Chapter 7, which examines the question of tribe, will focus on the problem of discrimination as expressed through the medium of relations with land and forest in the case of tribal communities. It traces the expression of liberty through rights to land and forest, and the denial of liberty as expressed through the language of ‘encroachment’. Chapter 8 examines the minority question, with a focus on Muslim communities. Specifically, it examines the relationship between discrimination, collective violence and segregation as expressions of the loss of liberty. All five chapters raise the question of pluralism within each of these broad categories and address the problem of the power of homogenizing discourses that freeze and stigmatize identities.

Chapter 4

Contextualizing Jurisprudence on Caste No! It was not like that at all. It was different as all truths are from the tales that get told. Who tells the tale and who it is told to Oft shape the truth — Vasanth Kannabiran, ‘Menaka’, unpublished poem (2008)

Caste has been central to debates around entitlements and constitutionalism in India for six decades. The period since independence has also witnessed shifts in policy emphasis, jurisprudence and politics around the issue of caste. Parallel to occupying the judicial and public domains, caste has also been a major preoccupation within the discipline of sociology. While a comprehensive review of all the major theoretical formulations and empirical/ethnographic research is outside the scope of the present exercise, it is necessary to evolve a theoretical framework for understanding caste-based discrimination constitutionally. Traditionally, while the constitution speaks of a different moral and philosophical order, constitutional courts have fallen back on sociological analyses of caste that completely evade questions of violence and discrimination. Neither older writing that rigorously interrogates the commonsense of caste, nor the growing literature in recent times that documents disparities and discrimination from interdisciplinary perspectives, has influenced the jurisprudence on caste. My concern is limited to remedying this disjuncture through tracing a brief intellectual history of constitutionalism that goes beyond the letter of the constitution to the sources of its spirit. How may we understand discrimination based on caste? What are

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the ways in which practices of discrimination have been theorized or described in canonical sociological literature? How may we rebuild the ‘sociological corpus’ on caste in order to better understand the experience of violence and routine disentitlement that marks the experience of those at the bottom of the hierarchy? This chapter aims to set out the context for the discussion of judicial discourse and judicial action on discrimination and the loss of liberty in the two chapters that follow. In doing this, I also suggest a possible way of reconstituting the sociology of caste, moving back and forth between the historical and the sociological, foregounding the dalit experience, anti-caste philosophies and international debates on non-discrimination. The effort is to build a different commonsense of caste that can serve as the foundation of jurisprudence, sociology and social movements alike. The first signpost in the discussion on caste is Ambedkar’s writing. From his large oeuvre, I have drawn on one essay, which in my view is a sociological classic, ‘Castes in India’. Alongside Ambedkar, I attempt a comparative reading of M. N. Srinivas, underscoring the undertones of the violence of caste discipline that are embedded in his accounts but never brought to the surface. A careful reading of Srinivas, I suggest, tells us the story of discrimination and the loss of liberty in caste societies. The next section examines some of the key arguments on caste-based stratification that are relevant to an understanding of non-discrimination and liberty. Anti-caste worldviews have a long history on the subcontinent, as has anti-caste resistance, the next signpost in this chapter. While the material contexts of caste shift, the philosophical foundations of resistance to discrimination remain relevant. They provide a history of ideas of non-discrimination that powerfully counter the linear histories of caste as an ancient institution that has deep roots in Indian history. The modern resistance to caste during colonialism draws heavily on these older philosophies, even while shaping the arguments against caste within the context of modernity, and particularly in relation to colonialism and racism. The chapter moves from a consideration of the early resistance to caste, to the resistance during the period of modern state formation under colonialism that shapes the experience of the postcolony. Even while the social reform and anti-caste movements of

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the early twentieth century grappled with the realities of untouchability and discrimination, the realities of racism in a colonial society and the African-American experience of chattel slavery provided the possibility of understanding caste in broader terms, as evident from Jotiba Phule’s Gulamgiri, for instance. Debates on whether caste is race or not go back to the early twentieth century. Anthropologists spoke of caste as race, or refuted racial origin theories, while people like Phule mapped the kinship of experience between castes and races that had been subjected to slavery and collective violence. This dual resonance of the caste–race debate rises to a crescendo in the context of anti-caste resistance at the dawn of the twenty-first century, 50 years after the constitutional protections were put in place. And yet the lineage of sociology remains pristine and sterile, free of the influence of the experience of oppression that Phule and contemporary dalit movements documented. For us in India, this scenario has an added dimension. Apart from figuring in the international human rights debate on whether caste discrimination constitutes discrimination based on race, the important question, and a relatively simple one, is: is caste a ground analogous to race? How does discrimination knit in with the loss of liberty in the context of race, and is this experience comparable to caste? Finally, I return to a discussion of caste and law as a prelude to the consideration of cases and administrative law in the chapters that follow.

AMBEDKAR AND THE SOCIOLOGY OF CASTE One should marry a woman whose virginity is intact, endowed with the auspicious marks, not previously wed by another, dear to one’s heart, of the same varna, not a sapinda, younger than oneself, not diseased, not from the same pravara or gotra, possessing a brother . . . . (Yajnavalkya Smriti, I.52–55; see Chakravarti 2006: 28)

India, according to Ambedkar, is distinctive with respect to the unity of its culture that has evolved over centuries of constant contact and mutual intercourse between groups of various stocks that make up the peoples of India. Yet, he goes on, caste

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presents a theoretical and practical problem, because it splits up the already homogeneous unit that Indian society is (Ambedkar 2002a: 242–43). In order to begin to understand caste, he says, it is necessary to look at what different scholars have written about this institution, including Senart, Nesfield, Risley, Ibbetson, and Ketkar. Senart’s focus on the idea of pollution as central to caste is not productive, because the general belief in purity is tied to priestly ceremonialism in societies generally, and the caste system is no different. Nesfield’s emphasis on the ‘absence of messing’ between members of different castes as key to the understanding of caste, in Ambedkar’s view, mistakes effect for cause, because social intercourse (of which messing is part) is limited in a system that consists of self-enclosed units. What might later have developed into a religious injunction or acquired a prohibitory character was originally only ‘a natural result of caste, i.e. exclusiveness’ (ibid.: 244). Risley and Ibbetson, says Ambedkar, ‘[made] no new point deserving of special attention’ (ibid.: 256). The trouble with Western scholars, according to Ambedkar, was that they tended to identify nuclei around which castes have formed — occupation, tribal survivals, new beliefs, cross-breeding, and migration (Ambedkar 2002a: 255). They also tended to draw on their own historical experience, resulting in an overemphasis on the role of colour in the caste system. In general, Ambedkar finds that European scholars of caste ‘have taken caste very lightly as though a breath had made it’ (ibid.: 261). Ketkar, on the other hand, he suggests, advanced the study of caste significantly, perhaps because ‘not only is he a native, but he has also brought a critical acumen and an open mind to bear on his study of caste’ (ibid.: 244; emphasis added). Ketkar spoke of the prohibition of intermarriage and membership by autogeny as the two critical characteristics of caste. He was, according to Ambedkar, the only scholar who defined caste in its relation to a system of castes, and focused on the fundamental characteristics, leaving out of account secondary or derivative ones. However, Ambedkar perceives a slight confusion in his formulation, because ‘if you prohibit intermarriage the result is that you limit membership to those born within the group’ (ibid.: 245).

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What are the key elements of Ambedkar’s sociology of caste? Ambedkar believed in a deep cultural unity, which had been parcelled out into the bits that are castes. To begin with, there was one caste; the others were formed through imitation and excommunication (Ambedkar 2002a: 261–62). Caste did not have a divine or religious origin. Existing practice was merely codified by Hindu lawgivers. Since caste did not have scriptural origins, it did not need to be justified or rationalized on the grounds that it was ordained by the shastras (ibid.: 255). To elaborate this further, Ambedkar describes Indian society as characterized by an elaborate custom of exogamy, which prohibits marriage between sapindas (blood kin) as well as sagotras (of the same class). The rules of exogamy are so rigid that any infringement or violation invites rigorous penalties. Over this exogamous society is overlaid the principle of endogamy. There is a difference between racial or tribal endogamy, where the universe is large and coterminous with cultural homogeneity, and caste endogamy, where a homogeneous population is split into mutually exclusive units within which the principles of both exogamy and endogamy operate in all their rigidity. This ‘superimposition of endogamy on exogamy means the creation of caste’ (Ambedkar 2002a: 246; emphasis in original). Clearly, however, it is far from easy to reconcile the principle of endogamy with the principle of exogamy. For this to be possible, there must be in place complex rules of marriage that take account of the difficulties in maintaining an even sex ratio among persons of marriageable age from marriageable groups within a caste: ‘the problem of caste, then ultimately resolves itself into one of repairing the disparity between the marriageable units of the two sexes within it’ (Ambedkar 2002a: 247; emphasis in original). Imbalances in the sex ratio arising from the death of a spouse within a caste — ‘surplus women’ and ‘surplus men’ — are dealt with in one of three ways:1 a surplus woman may be burnt on her husband’s funeral pyre. This is not a very easy proposition and not always possible, 1

Not dealing with them would mean leaving the caste open to the menace of immoral conduct.

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in which case she may be subjected to enforced widowhood. This is not easy either, because she may still be attractive enough to threaten the morals of the group. The second solution then lies in enforced widowhood, with the widow being stripped bare of anything that might be construed as a source of allurement (ibid.: 248). A surplus man cannot be burnt on the funeral pyre of his wife ‘simply because he is a man’, and a person who wields authority ‘as a maker of injunctions’ (Ambedkar 2002a: 249; emphasis added). Nor can he be condemned to celibacy, because he is an asset to the group. The only way balance can be maintained with reference to a surplus man is to find him a wife from girls below the marriageable age, so that the balance in the marriageable cohort is not disturbed. Sati, enforced widowhood and girl marriage are the three mechanisms through which endogamy and, by extension, caste, are preserved and perpetuated (ibid.: 250–51). Debunking the theory of the religious and textual origins of caste and the central role attributed to Manu, Ambedkar asserts that caste existed long before Manu, whose role was limited to codifying existing rules and preaching them (Ambedkar 2002b: 292–99).2 Nor were the Brahmins responsible for imposing the caste system on the non-Brahmin population. Comprising essentially a class system, the Brahmins enclosed themselves, and the others followed the logic of ‘the infection of imitation’ (Ambedkar 2002a: 257). Following Gabriel Tarde, Ambedkar suggests that the tendency towards enclosure among the non-Brahmin castes follows two laws of imitation. First, imitation flows from the higher to the lower, the source of imitation enjoying prestige in the group; second, the extent and intensity of imitation varies in proportion to distance, understood in its sociological sense. In Tarde’s words, ‘the imitation of the nearest, of the least distant, explains the gradual and consecutive character of the spread of an example that has been set by the higher social ranks’ (cited in ibid.: 258). In the context of caste society, those castes situated ‘nearest to the Brahmins have imitated all three customs [sati, enforced widowhood 2

Ambedkar asserts that the only route out of caste towards the realization of his utopia lies in the simultaneous annihilation of caste and the destruction of the Hindu religion, both of which are mutually reinforcing. See Ambedkar (2002b: 292–99).

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and girl marriage] . . . whereas those furthest off have imitated only the belief in the caste principle’ (ibid.: 259). Finally, exclusion presupposes the existence of excluded groups; castes can therefore exist only in the plural number. Further, since enclosure and endogamy face the perennial threat of violation or innovation, both of which must be punished, the definitions of offences and prescription of penalties, especially excommunication, ensure the formation of new castes (Ambedkar 2002a: 260–61). The themes in Ambedkar’s early essay anticipate contemporary debates in the anthropology of law and human rights. Such themes include, for instance, the assertion that caste is a product of social relations and does not have divine origins; interest in the comparative context of ‘ideas of pollution’; the situation of the analysis of caste endogamy–exogamy within larger anthropological discourses on marriage practices; the integration of concerns of social reform into the anthropological project; the relationship between social practice and the rise of philosophies around those practices;3 the place of the individual as distinct from classes in Indian society; the interrogation of the bases of Western scholarship on caste; and the situation of the theoretical analysis of caste within a constitutional framework after independence: To leave inequality between class and class, between sex and sex which is the soul of Hindu society untouched and to go on passing legislation relating to economic issues is to make a farce of our Constitution and to build a palace on a dung heap. (Cited in Omvedt 2008: 28)

The fulcrum of Ambedkar’s argument is that castes are born and thrive through the use of gendered violence, patriarchal relations within castes and exclusionary processes between castes. Membership within the caste is controlled and regulated through practices such as sati, enforced widowhood and girl marriage. In a radical departure from the reform position, Ambedkar’s articulation of these issues ties the question of the annihilation of caste to the rejection of women’s subjugation within caste. There 3

‘At all times, it is the movement that is the most important; and the philosophies grow around it long afterwards to justify it and give it a moral support’ (Ambedkar 2002a: 252).

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is a further complexity in his argument. The anti-social spirit, in Ambedkar’s view, which pushes a group to protect its own interests by shutting out other castes, ‘is as much a feature of the different castes in their isolation from one another as it is of nations’ (Ambedkar 2002b: 269). Read with his assertion that man enjoys impunity in caste society because ‘as a maker of injunctions [he] is most often above them all’ (Ambedkar 2002a: 249; emphasis added), already in Ambedkar we have a gendered reading of sovereignty, echoed eight decades later in Agamben’s observation on the impunity enjoyed by the sovereign, who, ‘having the legal power to suspend the validity of the law, legally places himself outside the law’ (Agamben 1998: 15). This radical formulation of the farreaching theoretical and practical implications of the caste–gender complex was completely lost to sociology till very recently. It can scarcely be forgotten that at the time M. N. Srinivas and other sociologists were writing, the cornerstone of the democratic norm embodied in the constitution was that Indian society must reorder itself on the basis of a vision of justice that is shared by all its members. Ambedkar recognized that the task was far from simple: So rigorous is the enforcement of the Social Code against the Depressed Classes that any attempt on the part of the Depressed Classes to exercise the elementary rights of citizenship only ends in provoking the majority, to practice the worst form of social tyranny known to history. It will be admitted that when society itself is a tyrant, its means of tyrannising are not restricted to the acts which it made do by the hands of its functionaries and it leaves fewer means of escape penetrating much more deeply into the details of life, and enslaving the soul itself. (Ambedkar, cited in Thorat and Kumar 2008b: 42)

And yet, one can easily discern a disjuncture, in Srinivas’s writing, for example, between the normative order and conceptions of justice, a disjuncture he is conscious of but unable to comprehend, much less to account for theoretically: The claims which the Brahmins made for themselves and their view of the caste hierarchy are understandable, but not so the fact that many scholars, Indian as well as foreign, have regarded them as representations

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of the historical reality. One wonders how many dominant peasant castes in rural India had even heard of the rules governing the different varnas or, having heard of them, paid heed to them. One is also at a loss to understand how people living in villages were made to obey the rules or punished for violating them. Even today, with all the facilities and resources at the disposal of the Government of India, it has been found very difficult to ensure that the rights which the Indian Constitution confers on the Harijans are actually translated into practice in India’s 560,000 villages. (Srinivas 1977: 5; emphases added)

Speaking about imitation as a key process in caste formation, Ambedkar’s and Srinivas’s formulations seem strikingly similar (notwithstanding the fact that Ambedkar is speaking essentially of caste formation and Srinivas of caste mobility).4 But this similarity does not penetrate the surface. While echoing Ambedkar’s argument in almost startling fashion, Srinivas’s description of Sanskritization in the language of imitation and positive aspiration speaks of the possibility of different models — Brahmin, Kshatriya, Vaishya, and Shudra (Srinivas 1977: 7) — the panchama (the fifth order of untouchables) eloquent in his absence. This narrative masks a process predicated on the systemic and systematic use of violence and exclusion against dalits especially. According to the varna model, the Harijans or Untouchables are outside the caste system and contact with Harijans pollutes members of the other four varnas. But if economic, social and even ritual relations between the castes of a region are taken into account, Harijans are an integral part of the system. They perform certain essential economic tasks in agriculture, they are often village servants, messengers and sweepers, and they beat the drum at village festivals and remove the leaves on which people have dined at community dinners. (Ibid.: 3–4; emphasis added)

The bald observation that ‘in the varna scheme, Harijans pollute’, negates any possibility of theorizing caste violence, especially untouchability as the bulwark of violence. It is at this point, too, that post-colonial scholarship on caste that focuses on the ethnography of pollution stands in stark contradiction to the concerns of justice 4

While Srinivas labours over the varna–jati debate, Ambedkar in his ‘Annihilation of Caste’ dismisses the chaturvarnya (four-varna) thesis (see Ambedkar 2002b).

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and the law, especially as embodied in article 17 of the constitution, which provides the political framework for analyses of untouchability.5 Further, the empirical fact that exclusion based on the appropriation and debasement of labour and the forced performance of degrading forms of labour are critical components of the violent subjugation of the ‘untouchable’ castes is twisted in Srinivas’s account to suggest inclusion rather than its opposite. This is, in fact, a regression from Ambedkar’s analysis of the place of labour in the caste system: [The] caste system is not merely division of labour. It is also a division of labourers. . . . it is an hierarchy in which the division of labourers are graded one above the other. . . . This division of labour is not spontaneous, it is not based on natural aptitudes. . . . this stratification of occupations which is the result of the caste system is positively pernicious. . . . [It] is not based on choice. . . . It is based on the dogma of predestination. Considerations of social efficiency would compel us to recognize that the greatest evil in the industrial system is not so much poverty and the suffering that it involves as the fact that so many persons have callings which make no appeal to those who are engaged in them. . . . There is a constant desire to evade and escape from such occupations which arises solely because of the blighting effect which they produce upon those who follow them owing to the slight and stigma cast upon them by Hindu religion. (Ambedkar 2002b: 263–64)

Joan Mencher, one of the few early anthropologists of caste to look at Ambedkar’s work, observes that, whether or not this organization of labour could be called slavery, it is certain that those at the bottom of the caste hierarchy suffered extreme economic privation (1974: 472). She draws support from the work of Irfan Habib in northern India during the Mughal period: there were those who were absolutely indigent in the fullest sense, the landless labourers. Members of the depressed castes not only undertook work considered abhorrent by the caste peasants, such as tannery, scavenging, etc., but were also in a large measure agricultural workers. . . . 5

Srinivas’s statement on the problems of interdisciplinarity, and his assertion that his is ‘only a social anthropologist’s view of social change in modern India’, does not really address the question of the social location of the anthropologist, which is critical to the theorizing of caste. See his ‘Author’s Preface to 1977 Reissue’ (Srinivas 1977: vii–viii).

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Thus Chamars and Dhanuks who had their own prescribed occupations, worked as agricultural labourers. . . . The Caste System seems to have worked in its inexorable way to create a fixed labour reserve force for agricultural production. Members of the low castes, assigned to the most menial and contemptible occupations, could never aspire to the status of peasants holding or cultivating land on their own. (Habib 1963: 120–22)

In a context in which people in general are denied volition, the stratification of occupations places dalit–bahujans in a particularly vulnerable position, a vulnerability rooted in the caste system. Ilaiah looks at dalit–bahujan conceptions of labour in the context of the absence of private property as an asset and a medium of creativity: ‘Dalitbahujans are the most hard-working people in village society. For them it is their labour power that is property. If the Dalitwaadas had disengaged themselves from the labour process, the village economies would have collapsed long ago. . . . They take life as a struggle’ (Ilaiah 1996: 118–19). Force and exclusion underwrite Ambedkar’s account of imitation as a process intrinsic to caste formation. In Srinivas’s account, force is deployed to resist imitation, whereas, in Ilaiah, force is advocated as a means of pushing dominant castes into adopting the ways of the dalits. With Srinivas, especially, violence and force figure in pseudo-nominal terms, where the details of the treatment accorded to dalits are mentioned merely as a matter of academic as distinct from humane interest. This is in sharp contrast with the structural, constitutive terms in which violence is foregrounded by Ambedkar. While Ilaiah does take note of the structural impact of violence and attempts to map the route to a ‘de-casteized’ society, his analysis masks completely the ways in which patriarchal control structures social relations within caste, even in dalit–bahujan society. Yet, the strength of Ilaiah’s essay lies in its attempt to resurrect Ambedkar’s utopia through an inversion of Srinivas’s argument. The assumption that the lower castes imitate the upper castes despite being constantly beaten down by the latter by itself does not describe the whole truth. And perhaps a consideration of this different world is where a theory of imitation should take us — a praxiologically more productive endeavour than being trapped, as we have been for generations, in the painful ethnography of caste dominance.

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Very early on, Ambedkar offered us a multilayered, counterhegemonic reading of caste that laid the ground for a public sociology of caste that was in perfect consonance with a purposive constitutional jurisprudence of non-discrimination. A careful reading of writings on caste underscores the fact that standpoint is critical in the understanding and theorizing of caste.

WHAT IS CASTE? Very briefly, caste is a hierarchical, hegemonic and exclusionary ranking of social groups, found predominantly on the Indian subcontinent. Of Portuguese and Spanish origin, the word casta in the early sixteenth century embraced several meanings, one of which was ‘purity of blood’. By the eighteenth century, it designated two levels of groups in the subcontinent: the jatis, numbering roughly about 3,000 or more, loosely grouped into four varnas, systematically elaborated in the Brahminical scriptures of the Vedic period (Dharampal-Frick 1995: 86). Views on caste vary. There are those who see it as a predominantly religious system, others who view it as merely social and economic, and yet others who see in its elaboration the spiritual essence of the Hindu faith. Some view the aspect of discrimination as a mere aberration, several others see it as the centre-point of Brahminical tyranny, some see it as the Indian equivalent of community. Kosambi examines caste not only in terms of its religious characteristics and internal dynamics, but, more importantly, in terms of its intersections with class: India has a unique social division, the (endogamous) caste system. Caste is class at a primitive level of production, a religious method of forming social consciousness in such a manner that the primary producer is deprived of his surplus with the minimum coercion. This is done with the adoption of local usages into religion and ritual, being thus the negation of history by giving fictitious sanction from ‘times immemorial’ to any new development, the actual change being denied altogether. To this extent and at a low level of commodity production, it is clear that an Asiatic Mode did exist, reaching over several stages; at least, the term is applicable to India, whatever the case elsewhere. (Kosambi 2002: 59; emphases in original)

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Berreman places inequality and the denial of privilege at the centre of his discussion of caste: ‘The human meaning of caste for those who live it is power and vulnerability, privilege and oppression, honour and degradation, plenty and want, reward and deprivation, security and anxiety’ (Berreman 1991: 88). This is a view that comes across powerfully in Omprakash Valmiki’s Joothan and in dalit creative writing generally, which provides sociological analyses of the caste system that interrogate seriously the mainstream academic genre of the sociology of caste. In the Brahmin construction, which is elaborated in the Hindu dharmashastras as part of a tradition of universal law, caste has its origin in the varna system, constituted by four orders: Brahmin (priests), Kshatriya (warriors), Vaishya (traders), and Shudra (artisans, workers, peasants, and the like). Of these, the first three are the dvija (twice-born, ‘clean’) castes, whose men are entitled to initiation into Hinduism. A fifth order, the panchama, comprising the slaves who perform menial chores (cleaning villages, washing clothes, in general engaged directly in production and connected closely to organic life), was included later. The main features of caste as embodied in varna, M. N. Srinivas recounts, are a single, all-India hierarchy, which is clear and immutable and consists of the four varnas, with the fifth ‘literally “beyond the pale” of caste’ (Srinivas 1977: 3). Relations between castes are expressed in terms of purity and pollution (Dumont 1970). Hindu theological ideas like samsara (the cycle of birth and death), karma and dharma are woven into the fabric of caste, although the extent of their spread is not known. There are hundreds of jatis, which are endogamous groups that can be clustered roughly around the four varnas. Although ‘Harijans or untouchables’ fall outside the varna system, they are integrated at the level of the region through the performance of economic tasks (Srinivas 1977: 3–4). While Brahmins occupy a position of dominance in scriptural descriptions and in the work of Brahmin scholars, Srinivas suggests that several sources of dominance operate locally, vesting power, authority and prestige in non-Brahmin castes as well. There are known instances of kings having the power to raise the status of castes in their kingdoms and the sole authority to ratify the expulsion of persons from castes (ibid.: 39).

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In this context, Srinivas argues that Sanskritization is the process by which a ‘low’ Hindu caste, or tribal or other group, changes its customs, ritual, ideology and way of life in the direction of a high, and frequently, ‘twice-born’ caste. . . . Sanskritization is generally accompanied by, and often results in, upward mobility for the caste in question; but mobility may also occur without Sanskritization and vice versa. However, [it] results only in positional changes in the system and does not lead to any structural change. (Srinivas 1977: 6)

The sources of Sanskritization could be varna-based, or based on landownership and local dominance, or on political power. The methods adopted could centre on dress, speech and diet, or occupation, or intermarriage, especially hypergamy. One of the functions of Sanskritization is to bridge the gap between secular and religious rank (ibid.: 27). Of the two distinct tendencies inherent in the caste system, ‘imitation of the ways of the higher castes is one’ (Srinivas 1977: 14; emphasis added).6 It is not necessarily the highest caste that is imitated, but the one that is in closest proximity (ibid.). However, Sanskritization is not an easy, smooth process: The elders of the dominant caste in a village were the watchdogs of a pluralistic culture and value system. Traditionally, they prevented the members of a caste from taking over the hereditary occupation of another caste, whose interests would have been hurt by an inroad made into their monopoly. (Ibid.: 14)

Vivek Kumar argues persuasively that ridicule emanating from texts and honed through dominant usage serves as a powerful tool of control and exclusion, as these lines from Tulsidas’s Ramcharitmanas demonstrate: ‘Shudra, ganvaar, dhor, pashu, naari, / Yah sab taran ke adhikaari’ (‘Shudras, villagers, the ill-mannered, animals, women, all these deserve beating’) (Kumar 2005: 525). However, the watchdogs served another important purpose as well, which is left implicit and unexplored in Srinivas’ account: 6

The similarity of this statement to Ambedkar’s is striking.

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The story is told of a man who tried to wear his dhoti and his moustache in the style of the upper caste and he was forcibly shaved and under pain of beating ordered never to attempt this again; Members of a lower caste who wore the sacred thread were beaten by the Kshatriyas and made to pay a collective fine; Violence was used against ‘exterior Harijan castes’ for violating eight prohibitions, which included not wearing ornaments, not covering the upper body, not using sandals, umbrellas or flowers in the hair. (Srinivas 1977: 15–16)

Sayings like ‘Chappal par Chamain chale, sandal par Dhobiniya,/ Hai mor Rama badal gail duniya’ (‘The Chamar women walk in slippers, the washerwoman in sandals, Oh my Rama, the world has changed’) reinforce and legitimize the subjugation of the dalit castes through building a commonsense of exclusion (Kumar 2005: 525). Finally, we may return to Srinivas’s opening statement: Sanskritization seems to have occurred throughout Indian history and continues to occur. . . . [It] is not confined to any particular section of the Indian population and its importance, both in the number of people it affects and the ways in which it affects them, is steadily increasing. (Srinivas 1977: 1)

Within this framework, women and slaves figure as subjects. Women are considered fickle and unchaste by nature, so that their sexuality, bodies and minds must be reined in by the ‘dharma’. The Manusmriti epitomizes this view. In Manu’s view, ‘the name of the brahmana should have a word for auspicious, of a kshatriya for strength, the name of a vaishya for wealth, and the name of a sudra should breed disgust’ (Buhler 1964: II: 31). Uma Chakravarti points out that the most striking part of Manu’s formulation is the concentration of privileges at the top and disabilities at the bottom, most evident in the quantum of punishment, which increases as one moves down the caste order (Chakravarti 2006: 11). Evidence from the eighteenth century points to the vulnerability of all women, irrespective of jati, to enslavement for infringement of moral codes. The most important function of the caste system, in Kosambi’s view, was:

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to prevent the worker, the ´su-dra, learning the use of weapons and from learning to read and write. He had no share in the culture of his age and country. He could not resort to armed revolt. There remained no way for him to keep his traditions alive, if indeed he had had any in the pre-Aryan days; no means of expressing his agony or communicating extensively with his fellow sufferers: no escape except through religion. Even a change of rulers did not bring about a change of caste. The Brahman relieved the warrior caste of the need of constantly policing the state to prevent an armed uprising. The benefits of an extensive helotage were obtained without Spartan efforts. (Kosambi 2002: 758)

The panchamas, the untouchable castes, have been ghettoized for centuries in vadas (colonies), enslaved in perpetual bondage to the other four varnas. The additional implication for women of these castes has been sexual slavery. Yet the history of untouchability is complex and far from settled, as Prabhati Mukherjee points out. Although there was a constant conflict between the Aryas on the one hand and the dasa/dasyu, rakshasa, asura, or pani on the other, with the former making repeated attempts to subjugate the latter, no clear evidence of untouchability is available from the early phases of the Rig Vedic period. The following phase saw a clearer crystallization of the social organization of the Aryas and the emergence of hierarchical divisions in the form of the four-varna society. While unequal power is certainly reflected in this phase, Mukherjee argues that there is no ‘open condemnation or clear rejection of any group’ (Mukherjee 1988: 87). The last phase, which extended from about 800 B.C. to A.D. 200–400, ending with the period marked by the Manusmriti, saw the emergence of the Brahminical theory of miscegenation, varna samkara. This system, again, did not treat all children of mixed unions uniformly, instead proposing an elaborate gradation depending on the relative caste status of the father and mother. According to some sources, only Chandalas were considered untouchable around the fourth or the fifth centuries A.D. Others hold that family and village slaves were included under untouchables (ibid.: 95). The use of the word asprsya (literally, ‘untouchable’) first occurs in the Visnusmrti, composed probably around the sixth century A.D. This text calls for any member of

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these castes who deliberately touched a member of a higher caste to be put to death.7 However, this proscription against physical contact did not extend to sexual relations between upper-caste men and untouchable women. Sexual labour was regarded as part of the physical labour provided by slave women and appropriated by the upper-caste owner or master. On the specific targeting of Chandalas in the earliest sources on the caste system, Mukherjee poses some pertinent questions: The problem remains why the candalas alone and not others were victimized. Why were they condemned so strongly and why such strong hatred was expressed about them? And why did they face all-round deprivation? Ritually they were impure (asuci) and unholy (amedhya). One must not talk, touch or even look at them. Their sight, touch and physical presence polluted food, fire and scriptures. They had separate wells for their own use and one paid only half of the prescribed fines for stealing their animals. The candalas were like animals, lowest and worst of all human beings. Only with identification marks from the king could they enter the village during the day but on no account during the night. They could be easily recognized by their distinctive dresses and identification marks. Still the problem remains on what grounds were the candalas made pariah? Or condemned so strongly? (Mukherjee 1988: 102)

Sundar Sarukkai adopts a phenomenological approach to this problem of untouchability, and argues that for Indian philosophers, touch is not about contact (which is a relation) but is a quality that inheres in the object. This means that the untouchable manifests the sense of ‘untouch’ within the person. This means that the person is untouchable whether or not the person comes in contact with another person. (Sarukkai 2009: 41)

The interrelationship between natural and moral concepts in Hinduism, Sarukkai argues, implies that the skin becomes the map of character and moral disposition, and touch becomes primary to any act of expulsion or proscription. The real site of untouchability for Sarukkai is the person who refuses to touch the untouchable 7

Dumont cites the twentieth-century instance of a Chandala appearing before two Kshatriya girls; the girls had to wash their eyes and the Chandala was beaten for such indiscreet appearance (Dumont 1970: 52).

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(ibid.: 43). Through a process of supplementation, ‘not wanting to be touched’ transmutes into ‘refusing to touch’, i.e., from being touched to touching, and the burden of carrying untouchability shifts from the Brahmin to the ‘untouchable’ (an adjective that becomes a noun in the process). Reading Sarukkai along with the extract from Mukherjee just reproduced points us to the many notions that are nested within the idea of untouchability — negation, impossibility, injunction, impurity, distance. The crux of the issue is that an ‘untouchable’ is a touchable entity that should not be touched (ibid.: 43). While untouchability is an entire system of signs, behaviour, conduct, and spatial arrangements, authority is expressed, importantly, in non-verbal ways, ‘which are paralinguistic in character and operate as kinesic and proxemic systems under the sign respectively of gestures and body movements and that of distances in space and time’ (Guha 1983: 55). These could operate variously as status markers within homologous relations and between hierarchically placed entities — castes, wife and husband, son and father, and tenant and landlord, for instance. I would suggest that the grammar of ‘bodily automatism’, to use Guha’s phrase, reached out from caste into family, reflecting the entire structure of authority in the caste system: ‘When we passed by higher caste people, we crouched so that one hand touched the ground; we walked by in that position, so that our faces were toward the ground’ (cited in ibid.: 56). With few exceptions, the caste system is patrilineal and patrilocal. Evidence seems to indicate the brief coexistence of patrilineality, patrilocality and egalitarian gender relations in the early Rig Vedic period. Historical evidence also points to extremely fluid social groups, with shifting occupational statuses and widely varying dietary practices among the four varnas: Shudra kings and Brahmin military commanders, beef-eating Vedic Brahmins, and so on ( Jaiswal 1998). Formal education, however, remained the preserve of the Brahmin. Endogamy (specifically the absolute proscription of upper-caste women from engaging in marital or other sexual relationships with lower-caste men), ritual purity, commensality, and slavery defined the caste system.

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ANTI-CASTE WORLDVIEWS Anti-caste visionaries, over a millennium, have posited utopias that draw on non-Brahmin traditions, rejecting inequalities, ritualism and obscurantism, and celebrating freedom. The idea of nondiscrimination as indispensable to the experience of liberty is at the core of these traditions. Gail Omvedt observes that ‘intellectual activists and leaders of the subaltern castes . . . envisioned an earthly utopia, and sought to use reason to achieve it’ (Omvedt 2008: 18). Arguing that all societies contain elements that are in conflict and contradiction, as well as elements that are disparate, she situates her mapping of the dalit–bahujan enlightenment within the material foundations of these contradictions by caste for at least 3,500 years (ibid.: 20). In Omvedt’s view, the non-Brahmin/anticaste movement, because it posited a caste-free utopia based on democracy, equality, reason, and progress, represented the true enlightenment in India (ibid.: 26). The Buddhist tradition engaged in a trenchant critique of caste. Anti-Brahminism as a way of thinking, Uma Chakravarti observes, has a long ancestry. The Jataka stories are particularly expressive of this: According to the Setaketu Jataka, a famous teacher had a brahmana pupil who was very proud of his high caste status. One day he saw a chandala and, fearing that the wind after striking the chandala’s body would proceed to strike against his own body and pollute him cried out, ‘curse you, ill-omened chandala! Get to leeward immediately,’ and he quickly went windward himself. The chandala however was too quick for the brahmana and stood so that the wind would pass his body on the way to the brahmana’s body and he thus defied the brahmana. The chandala then offered a ‘deal’ to the panic stricken brahmana to end his ordeal. If the brahmana could defeat the chandala in philosophical debate he would change his location. The proud brahmana accepted the offer as he believed that no one, specially a chandala, could defeat him in the philosophical debate. The chandala’s question, however, was so well formulated that the proud brahmana could not answer it and had to accept his defeat and publicly acknowledge the superiority of the chandala’s intellect. (Chakravarti 2006: 92–93)

This story also illustrates Sarukkai’s observation that the metaphysics of Buddhism negates the metaphysics of untouchability (Sarukkai 2009: 42).

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From around the late fourteenth century, radical sants brought to people a message that stood in stark contrast to Advaita philosophy, a message that denounced rituals and Brahminical proscriptions, instead proclaiming equality between all men and women. The kinship and affective ties of the people with god was expressed in collective ecstasy and collective dining (Omvedt 2008: 34–35). Basava (A.D. 1106–67/68), the founder of Veerasaivism, was a Brahmin who tore off his sacred thread, rejected Brahminism — ‘Our Cannayya, the untouchable is my father, and our Kakkayya, the tanner, is my uncle’ (Schouten 1995: 52) — and disregarded class, caste and sex in forming his community of believers: What does it mean which background do you have? He who wears the linga of Siva is well born! Should we inquire about background among the devotees, after the castes have been mixed? This is the saying: Who is born in the caste of Siva’s lore, free from rebirth is he; Uma his mother, Rudra his sire, and verily the Siva fold his tribe, so I will take the leftover at their place and I shall give my daughter to them, for I believe in your devotees, O Lord of the Meeting Rivers. (Ibid.: 50)

His community wore the linga (the phallic symbol of Shiva) on their bodies and proclaimed their freedom from temples: The rich will make temples for Siva. What shall I, a poor man, do? My legs are pillars The body the shrine, the head a cupola of gold. Listen, O lord of the meeting rivers, Things standing shall fall, But the moving ever shall stay. (Ramanujan 1973: 49–50)

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The songs of radical bhaktas (leaders of the bhakti movement) were freedom songs that inspired because they carried an intellectual message that gripped the body and the mind through ecstatic music. The element of rebellion was embodied in the poetry (Omvedt 2008: 76). Namdev (1270–1350) sang: They saw the whole world flock around me And the great Brahmanas seethed with rage. They called me a Sudra, they beat me and chased me away. What should I do, my Father? But suddenly the world was filled with wonder, a miracle happened unsurpassed. The temple doors swung open for Namdev, the bhakta. And slammed shut in front of the Pandits. (Ibid.: 67)

Namdev opened the way for the great bhakti tradition of Maharashtra, which included women and men from all castes, ‘including Gora the potter, Savata the gardener, Kanhopatra the prostitute’ (ibid.: 83). Namdev’s maid-servant Janabai and the ‘untouchables’ Chokhamela, his brother Banka, their wives Soyra and Nirmala and a son, Karmamela, were also encompassed within his movement. Chokhamela cries out in pain, Run, Vithu, don’t be slow; The badwes are beating me, As if I’ve done some sin . . . They are cursing the Mahar, Saying he’s polluted the god. (Ibid.: 85)

His son Karmamela is rebellious and bitter: You have made us low caste: Why don’t you understand the fact, O god of gods? Our whole life: spent in scrounging for leavings. Have you no shame? You ate rice and curd in our house: do you dare to deny? Says Cokha’s Karmamela, why have you given me this life? (Ibid.: 84)

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‘Chokhamela and Janabai’, says Omvedt, represent the beginning of a unique tradition of varkari experience of the divine, in which the god comes to share their life and even labour. From this period on . . . the god becomes a weaver, a gardener, a maidservant, a cobbler, a potmaker, a cobbler forced into bondage. (Ibid.: 84)

With Kabir, a weaver by birth, the opposition to caste inequalities, especially untouchability and pollution, became strident: Pandit, look in your heart to know. Tell me how untouchability was born — untouchability is what you made so . . . We eat by touching, we wash by touching, from a touch the world was born. Says Kabir, only he’s untouched who has no link with Maya. (Cited in Omvedt 2008: 99)

Ravidas (1450–1520) was a Chamar, a cobbler by birth, whose work involved carrying dead cattle around Banaras: A family that has a true follower of the Lord is neither high caste or low caste, lordly or poor. The world will know it by its fragrance. Priests or merchants, labourers or warriors, halfbreeds, outcastes, and those who tend cremation fires — their hearts are all the same. He who becomes pure through love of the Lord exalts himself and his family as well . . . No one equals someone so pure and devoted — not priests, not heroes, not parasolled kings. As the lotus leaf floats above the water, Ravidas says, so he flowers above the world of his birth. (Ibid.: 104–5)

The Satnami sect, founded by Ghasidas in the late 1700s, drew its following from the Chamars of Chattisgarh. Ghasidas was reported to be a man ‘of unusually fair complexion and rather imposing appearance, sensitive and silent, given to seeing visions, and deeply resenting the harsh treatment of his brotherhood by the Hindoos’ (Dube 1998: 39). In establishing a new sect,

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Ghasidas forbade idol worship, preached Satnam — the formless maker of the universe — and instructed his followers to abide by a code of social equality. The abolition of the divine hierarchy was accompanied by a rejection of the priest and the introduction of new concepts of sacred time (ibid.: 45). Surviving several attempts on his life by angry upper castes, Ghasidas died at the age of 80 in 1850, the Satnampanth having grown to a membership of 250,000 (ibid.: 40). The opposition to Brahminical Hinduism was central to the construction of this sect, an opposition that drew its logic both from ritual and from material life: Over most of India the term Hindu is contrasted with Muhammadan but in Chattisgarh to call a man Hindu conveys primarily that he is not a Chamar. . . . A bitter and permanent antagonism exists between the two classes, and this the Chamar cultivators carry into their relation with their Hindu landlords by refusing to pay rent. The records of the criminal courts contain many cases arising from collisions between Chamars and Hindu, several of which have resulted in riot and murder. (ibid.: 57)

The early twentieth century witnessed a resurgence in bhakti among urban untouchable groups in Uttar Pradesh. The sudden increase in demand for domestic workers, retainers, and sanitary and conservancy workers, consequent on the expansion of the colonial bureaucracy in towns and the expansion of sanitary infrastructure and municipal services, saw large migrations of Mehtars, Bhangis, Chamars, Doms, and other similarly placed castes into urban towns. Gooptu (1993) argues that, while they did not have access to privileged employment or complete freedom from caste distinctions in the cities, urban occupations helped them undermine direct caste subordination at work. The idiom of their selfassertion was bhakti, encapsulating as it did the message of social equality and the denial of caste distinctions. Members of these communities wore necklaces of beads, added the names of their gurus to their own names and reconstituted caste panchayats in urban neighbourhoods. Many of these panchayats were named after bhakti gurus, for instance, the Ravidas Chamar Panchayats. Gooptu observes that the Adi Hindu ideology, formulated in the 1920s, was a particular articulation of twentieth-century bhakti,

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in which the central assertion was that Adi Hindu rulers had been subjugated by Aryan conquerors and reduced to servile labour. Swami Acchutanand (1879–1938), a prominent Adi Hindu leader, argued that Aryan invaders had subjugated the original Indians and imposed Vedic Hinduism on the Adi Hindus, and deprived them of their bhakti religion. Highlighting the selfimage of the Adi Hindus as good, honest, truthful, and simple folk, the movement resisted the link drawn by the caste system between ritual status and the performance of menial occupations, in the process presenting the caste system as an alien imposition that must be challenged (ibid.: 277–98). The violence of the upper castes and processes of exclusion coexist with a utopia, a whole different world that dalit–bahujan intellectuals have built, as Gail Omvedt demonstrates. Later, Phule, Iyothee Das, Pandita Ramabai, Ambedkar, and Periyar demonstrated that there is no need to reinvent India; what has to be done is to turn to the India ‘invented’ by or envisioned by its dalit-bahujan intellectuals and leaders . . . the Bali Rajya of Phule, the Begumpura of Ravidas, the Dravidastan of Periyar, the ‘Buddhist commonwealth’ of the Sakya Buddhists of Tamilnadu. (Omvedt 2008: 31)

MODERN RESISTANCE TO THE CASTE SYSTEM The modern critique of caste has its origin in the work of Jotirao Phule and Savitribai Phule in Maharashtra in the nineteenth century, E. V. Ramaswami Naicker ‘Periyar’ in Tamil Nadu, Ayyankali in Kerala in the early twentieth century, and B. R. Ambedkar in the mid-twentieth century, to name only a few figures. Gandhi condemned social exclusion and practices of untouchability, but did not extend this to a fundamental critique of Hinduism itself, as these others did. And yet the critique of untouchability struck at the very base of the caste system, eroding caste-supremacist ideologies in the process. In Travancore, the Pulayas, Pariahs and Kuravas, despite conversions to Christianity, suffered the worst disabilities and were considered the ‘slave castes’. The earliest movement among them

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was the breast cloth rebellion, which reached its peak in the 1850s. In 1859, Shannar Hindu women were allowed to cover their breasts, provided they did not do so ‘in the manner of the upper castes’ (Velayudhan 1993: 116). By the early twentieth century, Ayyankali, born into a Pulaya family of serfs, built up a systematic resistance to the caste system. This resistance included wearing the upper cloth, turban and vest, violating the separate teacup system in tea shops by breaking coconut-shell teacups, setting up schools (kudipallikudam) for Pulaya children, fighting for their right to education by organizing agricultural workers to strike if education was not allowed to their children, and fighting for temple entry and the right to walk on roads (ibid.: 118–21). Phule and his associates founded the Satyashodhak Samaj (Truth Seeking Society) in 1873. The overarching themes of Phule’s addresses at the meetings of the samaj included the character and unity of the labouring classes, the unequal division of labour between women of different castes, and the vital contribution of peasant women to production. Phule established the first school in all of India for shudratishudra (today, dalit) girls in 1848, following it up with another school for girls of all castes in 1851 (Deshpande 2002a: 3). His seminal work, Gulamgiri (Slavery), juxtaposes the situation of the shudratishudra with the Negro slave in America: This system of slavery, to which the Brahmins reduced the lower classes is in no respects inferior to that which obtained a few years ago in America. In the days of rigid Brahmin dominancy . . . my Sudra brethren had even greater hardships and oppression practiced upon them than what even the slaves in America had to suffer. . . . This is even true at the present time. . . . the Sudra . . . is so far reconciled to the Brahmin yoke, that like the American slave he would resist any attempt that may be made for his deliverance and fight even against his benefactor. (Phule 2002b: 31–32)

Resisting the widely held notion of a golden, Vedic, Aryan period that declined as a result of decadence within and Muslim invasion from without, Phule instead spoke of a golden age in pre-Aryan India that was destroyed by the Aryan invasion, resulting in slavery (Omvedt 2008: 166). We may also cite here Tarabai Shinde’s Stree Purusha Tulana (A Comparison between Women and Men), part of the

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Satyashodhak tradition, which confronts Brahminical patriarchy as well as patriarchy within non-Brahmin castes (Shinde 1994). In mapping a non-Brahmin worldview through the self-respect movement launched in 1925, Periyar stood the caste system on its head: In our country no one is spared the horrors of untouchability, unseeability, unspeakability and unapproachability. It is customary for a caste to consider the one below it [in the hierarchy] to be untouchable and unseeable, whereas the same caste is viewed as untouchable and unseeable by the caste above it. Besides this, today, all these castes are together considered untouchable and unapproachable by the caste that rules us — the European caste. Thus the abolition of untouchability does not merely imply the progress of the panchamas, or the mere doing away with the cruelties they currently endure. This philosophy of abolition desires to do away not only with the cruelty all of us experience, but also to cleanse us of the degradation and horror we carry within ourselves. (Geetha and Rajadurai 1998: 288–89)

The new social order, samadharma (equality), would emerge only through a radical transformation of structures of feeling and material conditions. This would immediately free women and Adi Dravidas (dalits) from caste-bound traditions, create a moral ground for women to exercise choice and consent in matters of both marriage and sexuality, and eliminate the priesthood and the chanting of Vedic hymns in marriage solemnities (ibid.). Ambedkar, an intrepid advocate of formal rights for the untouchables, belonged to the untouchable Mahar caste. He coined the word ‘dalit’ (literally, ‘the downtrodden’) to designate untouchables as a political entity. Ambedkar spoke of the caste system as one of graded inequality, a system of hierarchies built on notions of relative superiority and inferiority, with the dalits occupying the last rung in the system and thus bearing the brunt of a cumulative domination by all the other castes.8 During the 8

Dalit is both a noun and an adjective that can be used equally in the masculine, feminine and neuter genders. It means burst, split, broken or torn asunder, scattered, crushed, or destroyed.

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struggle for independence in the early part of the twentieth century, Ambedkar’s concerns centred on finding ways in which independence could bring freedom to the oppressed. As an architect of the Indian constitution, he instituted constitutional safeguards for the depressed classes in independent India against exclusion (social boycott) and active discrimination by upper-caste Hindus who constituted a majority. Significant among these provisions was the right to non-discrimination and substantive equality through reservations in education and employment. In general, the early twentieth century witnessed the consolidation of resistance to the caste system in different parts of British India.

THE CASTE–RACE ANALOGY At the time that the resistance to caste practices was gaining ground, colonial ethnography had reached its peak in the subcontinent. Ideas about the racial dimension of caste were derived from European interpretations of Indian society, beginning with William Jones in the eighteenth century. Bayly, for instance, points out that many pre-independence ethnographers from Britain portrayed India as a composite social landscape in which only certain peoples, those of superior ‘Aryan’ blood, had evolved historically in ways which left them ‘shackled’ by a hierarchical, Brahmanically-defined ideology of ‘caste’. At the same time large numbers of other Indians — those identified in varying racial terms as Dravidians, as members of ‘servile’ classes, aborigines, wild tribes, and those of so-called ‘mixed-racial’ origins — were portrayed as being ethnologically distinct from this socalled Aryan population, and were not all thought to belong to a ranked Brahmanical caste order. (Bayly 1995: 170)

Jaffrelot observes that the British administration propagated these categories in society so that ‘gradually, Non-Brahminism and Dravidianism coincided and the low castes looked at themselves as forming an ethnic category’ ( Jaffrelot 2003: 152). In 2001, the debate on the exact relationship between caste and race reached a crescendo. Dalits from the Indian subcontinent stormed into the World Conference against Racism (WCAR) at Durban, pushing debates on caste and untouchability out of the

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narrow confines of ‘insider debates’ within the subcontinent onto an international forum. This event held within it the possibilities of alliance-building and international advocacy in unprecedented ways.9 This alliance-building had a history. In 1873, Jotiba Phule had dedicated his work Gulamgiri to: the good people of the United States as a token of admiration for their sublime disinterested and selfsacrificing devotion in the cause of Negro Slavery; and with an earnest desire, that my countrymen may take their noble example as their guide in the emancipation of their Sudra Brethren from the trammels of Brahmin thralldom. (Phule 2002a: 25)

It was this legacy that the dalits drew upon in the Durban process in tracing their kinship along lines of race.10 Apart from the provisions in favour of non-discrimination in the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination adopted in 1965 defined racial discrimination as any distinction, exclusion, restriction or preference, based on race, colour, descent, national or ethnic which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.11

In 1996, the Committee on the Elimination of Racial Discrimination (CERD) stated that the Convention on the Elimination of Racial Discrimination does not refer only to race, but that ‘the 9 The dalit question had been discussed in the UN’s Sub-commission on Promotion and Protection of Human Rights since 1996. The proceedings were largely closed. See Thorat and Umakant (2004: xiii–xxxv). 10 Although this was not a legacy that was stated, beyond invoking Phule as a forefather of the anti-caste movement, the influence of Phule’s writings on dalit movements and anticaste ideologies is so pervasive that this connection is self-evident. 11 Article 1.1, International Convention on the Elimination of All Forms of Racial Discrimination. http://www2.ohchr.org/english/law/cerd.htm (accessed on 28 August 2011).

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situation of the Scheduled Castes and Scheduled Tribes falls within [its] scope.’ It further observed that despite legal safeguards provided to members of these groups, ‘the relative impunity of those who abuse them point to the limited effect of these measures’ (cited in Thorat and Umakant 2004: vii). The shift from the consideration of race alone to looking at analogous systems of discrimination led to CERD general recommendation 29 in 2002: Strongly reaffirming that discrimination based on ‘descent’ includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status which nullify or impair their equal enjoyment of human rights, ... Strongly condemning descent-based discrimination, such as discrimination on the basis of caste and analogous systems of inherited status, as a violation of the Convention, Recommends that the States parties, as appropriate for their particular circumstances, adopt some or all of the following measures: I. Measures of a general nature 1. Steps to identify those descent-based communities under their jurisdiction who suffer from discrimination, especially on the basis of caste and analogous systems of inherited status, and whose existence may be recognized on the basis of various factors including some or all of the following: inability or restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation, including in housing and education, access to public spaces, places of worship and public sources of food and water; limitation of freedom to renounce inherited occupations or degrading or hazardous work; subjection to debt bondage; subjection to dehumanizing discourses referring to pollution or untouchability; and generalized lack of respect for their human dignity and equality.12

The Indian government, however, persisted in its view that descent in the convention referred specifically to racial descent. It responded to the query with respect to untouchability by citing 12

General Recommendation No. 29: Article 1, paragraph 1 of the Convention (Descent), 11 January 2002. http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f0902ff29d93de59c1256c6 a00378d1f?Opendocument (accessed on 28 August 2011).

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legislations as evidence of justice and non-discrimination on the ground. The Indian government has consistently refused the UN Special Rapporteur on Racism and Racial Discrimination permission to ‘evaluate the situation in cooperation with the government and the communities concerned’ (cited in Divakar and Ajai 2004: 11). The official position is cited in the New Encyclopaedia Britannica: On balance, the evidence that the Indian caste system is racial in origin and that India is or was a racist society is unconvincing. Race and caste are mentioned separately in the Indian Constitution as prohibited grounds for discrimination. They are not considered to be interchangeable or synonymous. The principal architect of the Indian Constitution was Dr. Ambedkar, a Dalit. He certainly knew the distinction between race and caste. If the concept of caste was included in race, there was no reason to mention them separately. (Sorabjee 2004: 47)

Deliberating on the kinship between caste and race means not just remapping the field of caste in the new context of race, but looking at discrimination and the negation of liberty through the prism of analogous systems. This creates a multilayered field for deliberation, with interest, relation and assertion attaining new and more effective possibilities both within the country and within the international arena of the WCAR (see Fitzpatrick 2001). Take for instance the following statement, which represents the stand of the National Campaign for Dalit Human Rights: The term Dalits refers to the people of South Asia who were outside the pale of the hierarchical caste system, and, therefore, deemed outcastes. Regarded as the most marginalized of the castes in society, they were and are still considered polluted and assigned the occupations deemed too defiling for other castes to do. . . . Born into her or his caste, a Dalit could not hope to escape her or his low social status. . . . Conceived more broadly, the term Dalit could be extended to communities, which suffer discrimination on the basis of descent and occupation. This would include such communities as the Burakumin in Japan, Osu in Nigeria, Roma-Shinti (gypsies) in Europe. . . . Considered in this broad term, that is, those that suffer discrimination based on descent and occupation, would constitute the single largest discriminated community on the globe today. (Divakar and Ajai 2004: 4)

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Apart from theoretical frameworks to understand the modern history of caste, the focus on practices of forced labour akin to slavery (bonded labour) has made it easier to navigate the argument about caste as race. More importantly, however, this single issue has bound the dalit experience with the experience of peoples of African descent in slavery. The Commission on Bonded Labour appointed by the Supreme Court estimated that, in the state of Tamil Nadu alone, there were 1.25 million people in bonded labour in 1995. This was despite the legal prohibition of bonded labour by the Bonded Labour (Abolition) Act, 1976, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This estimate was cited in the Anti-slavery International’s submission to the Working Group on Contemporary Forms of Slavery of the United Nations Economic and Social Council Commission on Human Rights in 2000 (ibid.). The contentious terrain of deliberations around caste and race have not been confined to the space of the WCAR alone. Caste in India has been a major sociological concern that has straddled both colonial and post-colonial academes. Like other realms of subcontinental realities (criminal law, for instance), scholarship on caste in post-colonial India drew on colonial scholarship in deeply problematic ways that informed state policy and pre-empted any rupture that might have been caused by the deliberations in the constituent assembly or by proactive legislations. There were, as a result, two separate streams of governmentality on the caste question. The first related to the implementation of anti-untouchability provisions both as law and as policy (a stream influenced considerably by the Ambedkarite formulation); the second related to the production of official knowledge regarding reasonable, theoretically tenable and legitimate articulations of caste (a stream influenced by ‘standpoint-free sociology’). The second stream, while discussing in great ethnographic detail the realities of microsystems of caste in different pockets of the country, or in the different scriptures, leaves out of the reckoning any theorizing of violence that this ethnography throws up. In a textbook illustration of analogous entities, Dumont offers us the best sample of this:

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The literature [of the dharma or religious law] . . . shows the transition from . . . occasional or temporary impurity to the permanent impurity of certain human groups. The laws of Manu say, ‘When he has touched a Candala, a menstruating woman, an outcaste, a woman who has just given birth, a corpse . . . he purifies himself by bathing’. Here the occasional impurities are identified with that of the ‘outcaste’ and Candala, who is none other than the old prototype of the Untouchable. There is another list in the same book. . . . ‘A Candala, a domestic pig, a cock, a dog, a menstruating woman and a eunuch must not look on Brahmans while they are eating.’ . . . the animals mentioned feed on refuse and filth. . . . the Candala is relegated to the cremation grounds and lives on men’s refuse. (Dumont 1970: 52; emphasis added)

For Phule, as we saw earlier, this same reality demonstrated the enslavement of the shudratishudra and women by the Brahmins. For anti-caste activists, this is a violent demonstration of social exclusion and the most vicious expression of apartheid/segregation. Further, post-colonial ethnographic accounts of caste focused on the microsystems of caste without mapping the microphysics of power and social exclusion. These accounts also resisted as theoretically untenable any comparisons of caste with race. The genealogy of this resistance to caste-as-race formulations may be traced to the colonial ethnographic project, which was without doubt deeply problematic with respect to questions of racial classification and enumeration. Beteille, writing in the context of the Durban process, argued that not only was the linking of caste to race ‘scientifically nonsensical’ (Beteille 2004b: 52), it was also ‘bound to give a new lease of life to the old and discredited notion of race current a hundred years ago’ (ibid.: 51; emphasis added). However, from the debates generated by dalit groups in the country, it is clear that they were tracing their genealogy not to European scholarship on caste/race but to the legacy of Phule, which anticipates the jurisprudence of analogous grounds of discrimination by almost a century. Another aspect of the resistance to the caste-as-race formulation locates the debate within north–south politics, making a clear distinction between ‘internal’ and international issues. Dipankar Gupta argues that by taking caste to the UN, Indians were merely ceding

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knowledge advantage to the West on one front after another — beginning with the economic, then flowing on to the political and now we need tips on how to handle cultural discrimination as well. . . . How do the enthusiasts who want to go to the Durban conference imagine that international agencies will help fight caste in India? Have they thought this through? Will the UN sanction a bombing raid on Delhi? An economic embargo? Or . . . provide intellectual and strategic direction, as if we haven’t had enough of that already. (Gupta 2004a: 53–54; emphases added)

Gupta then goes on to hold the government responsible for ‘washing a whole lot of dirty linen’ — poverty, leprosy, AIDS, Kashmir — in front of strangers, so that it lost the right to argue that caste was an ‘internal’ matter. Beteille, on the other hand, has no objection to discussing things in an open forum, he himself having done so at numerous conferences, ‘but the discussion should be in good faith’ (Beteille 2004a: 65; emphasis added). Radhakrishnan charges the dalits with the ‘political appropriation of the caste system’, arguing that ‘their existential problem cannot be isolated from that of the rest of society’ (Radhakrishnan 2004: 60). The crux of the dalit intervention, which provides a counterpoint to these arguments, is that social exclusion cannot any more be an ‘internal’ matter; it has to be settled and accounted for in full view of the world, drawing on the constitutional framework of the absolute non-negotiability of fundamental rights, especially the rights to liberty and non-discrimination. A third set of arguments relates to affirmative action, reducing the demand for affirmative action to a ‘game of numbers and proportionate representation. It does not employ reservations to uproot caste identities in public life, but rather to perpetuate it’ (Gupta 2004b: 82). Interestingly, what is demonstrated yet again by such arguments is the kinship of caste and race, refracted in this instance through the prism of reactions against affirmative action, echoing the debates in the United States particularly. Finally, the debate foregrounds the question of the authentic voice. Gupta argues that only the victims of untouchability can speak about it. Yet he also observes that, having transcended the oppressions of caste through mobility, ‘ex-untouchables’ only want to move on, not continue to be identified as untouchables. Who

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will speak, then? Those who espouse the cause of the dalits — for the most part dalit intellectuals and activists — do not ‘belong’ to that experience because they have tasted the fruits of liberalization and economic success. They also do not belong, by this argument, because mobility and amnesia are essential to the fact of belonging for a dalit — the compulsion to Sanskritization, Srinivas would say. Untouchability, therefore, cannot lead to ‘Mandalism’ (a pejorative allusion to the unequivocal demand for reservations). Dalits who press for proportionate reservation in education, employment and politics fall within the ranks of the ‘imposters’ (not the genuine sufferers) because they persist with their caste identities. Claiming representation, this argument goes, entrenches caste rather than uproots it. And, after all, caste is about belonging, not just for dalits but also for those above them in the social hierarchy. The circle of the second stream of governmentality referred to earlier is complete. Violent exclusion is argued out of the theoretical scheme of caste through sociological acrobatics, a process that uncovers for us the collusions between the production of knowledge, processes of dominance and hegemony, and the conferring of legitimacy in governance. The counter-production of knowledge therefore becomes critical to the destabilization of hegemonic knowledge: Untouchability produces repulsion in the minds of non-Dalits at the very sight, approach and touch of Dalits. The Dalit touch for them brings impurity and defilement. There being no biological differences either in terms of the skin colour or the body structure between Dalits and non-Dalits, the knowledge of caste identity becomes a pre-condition of discrimination. (NFDW 2003; emphasis added)

Evidence of violent exclusionary practices may be found in the experience of the Chakkiliyar caste, who could light a fire in their homes only if there was a dead animal in the village. At all other times they had ‘to survive, much like slaves, on the crumbs that fell off the table of those who happened to be their masters’ (ibid.). The rationalization of these practices is located, in stark contrast to the ‘spiritual’ Brahminical frameworks, in the material conditions of village life. The dominant castes ensured the removal

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of defilement and environmental pollution through allowing the Chakkiliyars to consume carcasses. Another aspect of the dalit experience of violence is the segregation of entire villages based on untouchability: what has been termed ‘hidden apartheid’ (International Dalit Solidarity Network 2000: 10). ‘Untouchables’ may not cross the line dividing their part of the village from that occupied by higher castes. They may not use the same wells, visit the same temples, drink from the same cups in tea stalls, or lay claim to land that is legally theirs. Dalit children are frequently made to sit in the back of classrooms, and communities as a whole are made to perform degrading rituals in the name of caste. (Human Rights Watch 1999)

How does gender figure in this entire discourse around caste and race? While gender has been central to the constitution of the caste system, it began to be theorized only much after the major, mainstream formulations were already in place. In the excerpts from Dumont cited earlier in this chapter, we may observe very specific ways in which women’s experiences and bodies are structured into the caste order. Indeed, bodies are gendered by caste very specific ways, reproductive capacities being central to this definition. The menstruating woman, the new mother and the widow, as also the eunuch, are equally sources of pollution in the Brahminical schema. In modern India, gender within caste society is defined and structured in such a manner that the ‘manhood’ of the caste is defined both by the degree of control men exercise over women and the degree of passivity [and complicity] 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. (Kannabiran and Kannabiran 1991)

Spaces, both domestic and public, are similarly structured along lines of caste and gender. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, recognizes the gendered nature of caste experience, especially for dalit women. In the definition of atrocity, therefore, it makes explicit mention of

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the kinds of violence to which women may be subjected. Sexual assault, non-consensual contact using the position of dominance, and the practice of stripping and parading women naked, are acts that fall within the meaning of atrocity in the law. Women’s movements, dalit struggles and the struggles of tribal peoples have demonstrated to us the power of the biographies of those who have suffered/survived violence in its most extreme, persistent, pervasive forms. These testimonies of suffering are social texts that can become tools for change. Take, for instance, Sulochana’s testimony regarding the massacre of dalits by Kammas in Karamchedu in 1985: My name is Sulochana. At that time I was about 13 or 14 years old. I am now telling you about a problem that arose 19 years ago. We were from Karamchedu. We are madigas. I had been married six months at the time. This was in 1985. The day was July 16. At about 3 or 4 o’clock, I went towards the drinking water pond in the madiga palle. Seenu, bathed his calf, drew water from the pond and fixed the fodder for his calf. Then he washed the bucket and threw the water back over the steps into the pond. Seeing this Kunti Chandraiah asked him, Ayya, why are you washing the bucket into the pond? Seenu abused Chandraiah, you madiga fellow, who are you to ask me to throw the fodder to the side, and saying this he kicked him. Seeing this, Suvartha who had come to draw water, asked why he was kicking Chandraiah. He was furious. Who are you madiga whore to say anything to me, and he raised his foot. Suvartha blocked it with her water pot and he grazed himself with his watch in the scuffle, causing a minor bruise. He then went into the village yelling, ‘I am bleeding because a madiga whore hit me . . .’. I went to the canal to wash clothes at 6 in the morning. At the kalva people were saying, ‘there! they are descending on the madiga palle.’ . . . We all ran together toward the fields. There is a small hillock there. From the top we could see the entire village. All of us turned back and looked at the village. There were people running and people chasing them armed with spears, knives and axes. On the side of the Karamchedu–Chirala road, some people were chasing the crowd in tractors and motorcycles. Around us at a distance we could see four or five groups of people — each group had twenty to twenty five men surrounding one person and attacking him with weapons. I later learnt that my husband was killed by one of these groups. We did not know where to go. . . . Behind us, the attackers chased our people, and killing anyone they got hold of, they reached us. Seeing this we scattered in different directions. Three of four kammas ran towards me. They had

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huge sticks in their hands. They chased me and attacked me with the sticks. I kept getting thrown up and down with their blows. When I tried to raise my head after a fall, I got a blow on my forehead. Streams of blood flowed down my face and clothes. I lost consciousness. They abused me, and asked me what my family name was. Then they brought the other five women who were with me and made us stand in one place. One of the men said, let’s put dried leaves and twigs and set fire to them. One went to fetch the twigs while the others asked each other for matches. Nobody had matches. While this was happening, they suddenly saw some of our men at a distance. They left two men to guard us and went off chasing those men. The men who were guarding us said, ‘this is not the way. We should take these whores to our women and ask them to kill them and throw them into the canal.’ They then drove us towards the village, abusing us all the way, showing us the bodies on the way and telling us who was killed where. Tella Muthayya was hanging half inside and half outside the canal. Those behind us said, this fellow too has gone, and kept moving. Ahead some people were attacking Tella Moshe. They had stuck a spear into his stomach and were turning it. We neared the village. Seeing the police on the banks of the lake, the men behind us ran away. . . . After many years I was told that the case had been dismissed. Our elders told us that the judge in the High Court was not convinced of the facts and had dismissed the case.13

How do we step out of the conceptual webs of untouchability in order to represent the lived experience of untouchability in terms both of oppression and of the everyday resistance to it? Bama offers us an incisive analysis of the experience of caste through her autobiographical account in Karukku: ‘Wherever you look . . . caste discrimination stalks us at every nook and corner and drives us into a frenzy. . . . Because Dalits have been enslaved for generation upon generation . . . they have reached a stage where they themselves, voluntarily hold themselves apart. This is the worst injustice’ (Bama 2000: 24–25). Kancha Ilaiah suggests a comprehensive re-centring of knowledge around the experience of dalit society: 13

Testimony of Smt. Sulochana at a public hearing in Hyderabad in March 2004 (in Telugu). Translation by the author. Karamchedu Massacre Cases: In the court of the Sessions Judge, Guntur, Sessions Case No. 80/86, 80/87, 22/88, SC No. 114/88; In the High Court of Andhra Pradesh, Criminal Appeal Nos 1112/94, 1113/94 and 33/98; In the Supreme Court of India, Criminal Appeal Nos 356-358/1998, Special Leave Petition (CrL Nos 3788-3790 of 1998).

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Dalitization requires that the whole of Indian society learns from the Dalitwaadas. . . . It requires that we look at the Dalitwaadas in order to acquire a new consciousness. It requires that we attend to life in these waadas; that we appreciate what is positive, what is humane and what can be extended from Dalitwaadas to the whole society. (Ilaiah 1996: 116–17)

Dalit–bahujan society is built around the group of ‘untouchable’ houses where collective living and human needs are core concerns. While there may be contradictions, these are not antagonistic. Human relations are built around labour that operates under extremely exploitative conditions. Despite a hostile, oppressive environment, hope and sharing characterize the common experience. With private property being outside their realm of experience, even distribution rather than exclusive possession and accumulation of property is the norm among dalits. Ideas of creativity and knowledge systems are closely tied to productive processes and artisanship, agriculture and animal husbandry. The disjuncture between mental and physical labour that typifies Brahminical society is absent in dalit–bahujan societies, where the two constantly reinforce and enrich each other. Social intercourse tends towards greater parity, with widow remarriage, easy man–woman relations and divorce being quite common; parity is also connoted in speech and forms of address as well as in intergenerational conduct.

TRACING THE CONNECTIONS BETWEEN CASTE AND LAW Anti-discrimination jurisprudence in India focuses primarily on caste-based discrimination through the twin prisms of reservation and the ban on untouchability. While article 15 of the constitution of India, discussed in the previous chapters in the context of disability, refers to various grounds on which discrimination may occur, caste occupies the largest space in the judicial imaginary and in the public discourse on discrimination. The pervasiveness, resilience and malleability of caste as an institution that disciplines social conduct through multiple strategies of exclusion, segregation and atrocity; the invention/reiteration of the traditions of caste violence; and the commonsense of dominance in an ‘upper caste’-normative society — these are the aspects that shape this

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discourse, even though, praxiologically, courts armed with the constitution are meant to upstage this social order. The task before courts is far from easy: We must begin by acknowledging first that there is complete absence of two things in Indian Society. One of these is equality; on the social plane, we have in India a society based on privilege of graded inequality which means elevation for some and degradation of others. On the economic plane, we have a society in which there are some who have immense wealth as against the many who are living in abject poverty. On the 26th of January, 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. . . . We must remove this contradiction at the earliest possible moment, or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.14

Looking at the problem of discrimination, I argue that untouchability is the form that the loss of liberty takes in the context of caste-based discrimination. But, while untouchability (and its corollary, ‘atrocity’) represents moments of crisis and conflagration in the form of frequent, heightened forms of discrimination, the ground for this is laid by the everyday denial of access to education, employment and equal participation — in politics, for instance. Reservations are meant to set the balance right, by providing a guarantee of access to castes placed at the greatest disadvantage in the social order. Both the protection against untouchability and the guarantee of reservations for the scheduled castes aim expressly at uprooting public morality and putting constitutional morality in its place. These protections aim at removing what Ambedkar refers to as the contradiction between the political declaration of equality and the societal validation of socio-economic discrimination. In attempting to understand the basis of the constitutional standpoint on non-discrimination on grounds of caste, therefore, it is necessary to trace its intellectual history. This chapter has attempted to explore the philosophical, social and historical foundations on which anti-discrimination guarantees were imagined and framed in the constitution. 14

B. R. Ambedkar, quoted by Justice Krishna Iyer; cited from the judgement of J. Krishna Iyer in State of Kerala v. N. M. Thomas and Others 1976 AIR (SC) 490.

Chapter 5

The Caste System, Justice and the Law Law is neither a divine revelation nor a scientific discovery. It is a wholly human creation that includes the contribution of those who claim to study it and who cannot remain blind to the values implied by their interpretations. Every society must develop a vision of justice that is shared by all its members . . . and this is what the legal framework provides. — Alain Supiot, Homo Juridicus (2007: xx) The concept of caste has defied a coherent definition at the hands of jurists or sociologists. — J. Desai, K. C. Vasanth Kumar and Another v. State of Karnataka 1

The overview of the caste system and of the meanings of untouchability provided in the previous chapter laid out the context within which jurisprudence on caste discrimination needs to be located and understood. The sociological analysis of the caste system demonstrates the inseparability of the fact of discrimination from practices that derogate the right to life, dignity and bodily integrity. In the law, however, although the constitution of India provides protection against both discrimination and the derogation of life, each of the rights guaranteed is disaggregated and interpreted in a manner that is sterile of context. That jurisprudence on caste draws upon and relies heavily on the sociology of caste is evident from the following excerpts: Though according to sociologists and Vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it became rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later 1

In K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495, para. 4.

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over-burdened with considerations of purity based on ritual concepts, and that led to its ramifications which introduced inflexibility and rigidity. This artificial growth inevitably tended to create a feeling of superiority and inferiority and to foster narrow caste loyalties.2 A caste is a horizontal segmental division of society spread over a district or a region or the whole State and also sometimes outside it. Homo Hierarchicus is expected to be the central and substantive element of the caste system, [which] differentiate it from other social systems. The concept of purity and impurity conceptualises the caste system. Louis Dumont asserts that the principle of the opposition of the pure and the impure underlies hierarchy, which is the superiority of the pure to the impure, underlies separation because pure and the impure must be kept separate and underlies the division of labour because pure and impure occupations must likewise, be kept separate. There are four essential features of the caste system which maintained its homo hierarchicus character: (1) hierarchy; (2) commensality; (3) restrictions on marriages; and (4) hereditary occupation. Most of the caste are endogamous groups. Intermarriage between two groups is impermissible. But ‘Pratilom’ marriages are not wholly unknown.3

This chapter will examine the jurisprudence on caste discrimination, by which term is meant practices that undermine articles 14, 15 and 16 of the constitution, especially article 15. The possibilities of an intersectional analysis of the constitutional guarantee against caste discrimination will be explored. The primary aim here is to trace the interlocking of juridical meanings of discrimination with the rights to life and personal liberty, thereby using the constituting power of the constitution to posit possibilities for a dynamic interpretation of non-discrimination in the law. Such a reading is relevant in the context of the increasing scale of exclusionary violence against a series of marginalized groups in India, and the lack of specific, explicit protections in the foundational blueprint for law. Where explicit protections do exist, interpretative methods are exclusionary, so that the protection is negated in its very assertion in the law. 2

Justice Gajendragadkar in M. R. Balaji and Others v. State of Mysore 1963 AIR (SC) 649. Justice Desai in K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495, para. 22. The sociologists quoted in this paragraph are I. P. Desai, Louis Dumont and Ghanshyam Shah. 3

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The theoretical history of the constitutional view of discrimination and the right to liberty, I would argue, relies centrally on Ambedkarite philosophy and must be understood in that context. Ambedkar’s writings, in turn, are located within the larger contexts of colonialism, social reform, anti-caste movements, and the struggle for independence. Each of these contexts generated different articulations of the questions of discrimination and the derogation of the right to life, as we saw in the previous chapter. In looking at constitutional jurisprudence on discrimination, therefore, we will look for the basis of this jurisprudence in the intellectual history of ideas about freedom on the subcontinent — freedom from colonial rule, freedom from caste, freedom from sexual subjugation, freedom from disability, and freedom from religious majoritarianism. Once we set up signposts for understanding discrimination per se, the application of this theoretical paradigm to any form of discrimination, irrespective of differences in context, chronology or form, would prove productive. The central question guiding the present study may be reiterated: what has been the contribution of Indian social philosophers to anti-discrimination theory and jurisprudence? Articles 15(2) and 17 of the constitution of India address the crux of the philosophy of the caste system: untouchability and social exclusion. In Ambedkar’s view, the problem of untouchability was central to the articulation of fundamental rights, because untouchability put the rights of citizenship — including the rights to personal liberty, personal security, private property, equality before law, liberty of conscience, freedom of opinion and of speech, freedom of assembly, representation in the country’s government, and the right to hold office under the state — far beyond the reach of untouchables (Thorat and Kumar 2008b: 17). Any attempt on their part to exercise these rights of citizenship provokes the majority to practise the worst forms of social tyranny, leaving virtually no room for escape (ibid.: 42). This tyranny is bolstered by its theological foundations, and in its expression is both literal and notional: ‘untouchability in its notional sense persists even when untouchability and its literal sense has ceased to obtain. . . . the test of untouchability must be applied in its notional sense’ (Ambedkar 2008b; emphasis added).

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The cases on discrimination brought before the courts under articles 15 and 16 of the constitution, as these pertain to the category of caste, refer almost entirely to education and employment. Cases that come under article 15(2) (and article 17) are essentially cases decided under special civil rights legislations,currently the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. These latter cases have more often than not been conceptually and procedurally separated from ‘non-discrimination’ jurisprudence in constitutional courts, a strategy of jurisprudential dissociation that has proved counterproductive to understanding claims to reservations under articles 15(4) and 15(5). I argue that articles 15 (the right against discrimination), 16 (equality of opportunity in public employment), 17 (ban on untouchability), and 23 (prohibition of human trafficking and forced labour) to the extent that they apply to caste discrimination, share a common theoretical/conceptual basis. From this common platform, then, there is the need to decide on several levels of reliefs and remedies, which are necessitated by the constitution’s recognition of the fact of discrimination as taking the specific and generic forms alluded to in articles 15, 17 and 23. Decisions pertaining to the grant of such reliefs might be procedurally separate and distinct, depending on the specific forms assumed by discrimination based on caste. To name two, there are atrocities that attract articles 15(2), 17 and 21, and entitlements to special provisions that attract articles 15(4), 15(5) and 16(4). A juridical separation need not be conflated with jurisprudential dissociation. Indeed, it must not, because the common objects and reasons of the provisions are then lost through such conflation.

THE FIRST HURDLE: CHAMPAKAM DORAIRAJAN AND THE RIGHTS OF BRAHMINS Champakam Dorairajan petitioned the Madras High Court in 1951, immediately after the constitution came into force, challenging the reservation of seats in medical colleges in Tamil Nadu as being a violation of the rights of Brahmins in the state under articles 14, 15(1) and 29(2) of the constitution. In the absence of

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an express provision favouring reservation akin to article 16(4), the petitioners argued, no exception to article 29(2) was permissible.4 On June 7, 1950, Srimathi Champakam Dorairajan made an application to the High Court of Judicature at Madras under article 226 of the Constitution for protection of her fundamental rights under article 15(1) and article 29(2) of the Constitution and prayed for the issue of a writ of mandamus or other suitable prerogative writ restraining the State of Madras . . . from enforcing . . . the notification or order generally referred to as the Communal G.O.5

The argument of the State of Madras was that having regard to the provisions of article 46, the State is entitled to maintain the Communal G.O. fixing proportionate seats for different communities and if because of that Order, which is thus contended to be valid in law and not in violation of the Constitution, the petitioners are unable to get admissions into the educational institutions, there is no infringement of their fundamental rights.6

Before looking at the complexities of the arguments presented and the legislative outcome of this case, it is pertinent to look at the legislative history of the communal government orders (GOs) in Tamil Nadu, from which this measure of the government drew its validity.7 In order to understand the Champakam Dorairajan case and view it in perspective, it is important to take a brief look at the history of communal representation in Madras Presidency 4

Article 16(4): ‘Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.’ Article 29(2): ‘No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of state funds on grounds only of religion, race, caste, language or any of them.’ 5 State of Madras v. Champakam Dorairajan & State of Madras v. C. R. Srinivasan AIR 1951 SC 226. 6 State of Madras v. Champakam Dorairajan & State of Madras v. C. R. Srinivasan AIR 1951 SC 226. 7 ‘G.O. No. 2208, dated June 16, 1950, laying down rules for the selection of candidates for admission into the Medical Colleges substantially reproduces the communal proportion fixed in the old Communal G.O.’ State of Madras v. Champakam Dorairajan & State of Madras v. C. R. Srinivasan AIR 1951 SC 226.

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(Geetha and Rajadurai 1998: 168–73). The objective of the Justice Party in introducing and campaigning for communal representation was to increase the access and presence of non-Brahmins in government, proportionate to their presence in the population. This was found necessary because, till the introduction of communal representation, Brahmin men had had an exclusive presence in and hegemony over the services. The passing of the communal government orders marked a high point of achievement for the justice ministry. The Madras government issued the first communal GO in September 1921. While, on the one hand, the British used this measure to check the increasing Brahmin presence in the services, non-Brahmin members of the services on the other hand saw in it an opportunity to redress their miniscule presence in the provincial administration. Between the assumption of office in early 1921 and the passing of the GO in late 1921, the Justicites were involved in protracted discussions and negotiations in the face of an ‘unconvinced, rancorous and obdurate Brahmin public opinion’ (Geetha and Rajadurai 1998: 169). Notably for our purposes, the Justicites opened their argument by pointing to the state of the judiciary in Madras: Since judges of the Madras High Court had the power to appoint district munsiffs and since these judges were invariably Brahmins, in several instances they had appointed men of their own caste as district munsiffs. As if this were not injurious enough to non-brahmin interests (and pride), men like K. Srinivasa Iyengar, Law Member in the Governor’s Council, justified such appointments on the ground that Brahmins were preferred, because they were far more efficient than others. (Geetha and Rajadurai 1998: 169)

Two resolutions on communal representation were moved by O. Thanikachalam Chetty in the Madras Legislative Council. The first asked that a standing order be issued to make appointments in the public services and give preference to non-Brahmins, including Christian, Muslim and depressed classes, for a period of seven years till a proportion of 66 per cent among those earning over ` 100 per month and 75 per cent among those earning less than

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` 100 per month was reached. The second resolution demanded that all appointments in the secretariat be made from only among non-Brahmins, so that equality between Brahmins and nonBrahmins was reached within a period of three years. While this might be a drastic step, Chetty remarked that the secretariat was a ‘fortress within a fortress’ into which non-Brahmins could never otherwise gain entry (ibid.: 171). The second communal GO of 22 August 1922 demanded that lists of appointees by caste in various departments be submitted to the council, so that progress with respect to non-Brahmin recruitment could be analyzed. The communal GOs pointed to the need to integrate social concerns with politics. They have served as a reminder to successive generations that the essence of democratic practice in an unequal society consists in measures that are uneven and necessarily subversive of dominant interests. Geetha and Rajadurai observe that Sir Sankaran Nair perhaps understood the import of the GOs best. Addressing the non-Brahmins, he said: So far as the non-brahmans are concerned . . . we have no spiritual gospel of our life as the basis of our government. . . . We want the Government to attend to our material interests. We want sufficiency of food, we want all opportunities for education and room for development along our lines. (Cited in Geetha and Rajadurai 1998: 173; emphasis in original)

On re-examining the case, it appears that there are two routes to interpreting the issues raised in Champakam Dorairajan. The first is through looking at original legislative intent and engaging in a purposive interpretation of the statute in conjunction with the constitution. The purpose at the core of a text, according to Barak, is the values, goals, interests, policies and aims that the text is designed to actualize. . . . The purpose . . . is a normative concept. It is a legal construction. . . . it is not a fact. The author of the text formulated the text. The interpreter of the text formulates its purpose. (Barak 2007: 89)

This route to interpretation holds the possibility of looking at the impugned GOs against the backdrop of the debates around the first two communal GOs and the social realities they were contesting. This construction of purpose could actualize the values and

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goals of the text, harmoniously with the values of the constitution, by reading the reservations as part of the spirit of the protections guaranteed in articles 14 and 15, and explicitly embodied in 16(4) with reference to the right to equality of opportunity in employment. The second route to interpreting the issues in this case is the route that was in fact taken by the judiciary, resulting in a series of anomalies and disjunctures that continue to disable discussions on the operationalizing strategies for achieving equal opportunity in a sharply unequal society. The first of these anomalies was the admission by the court that the GO constituted discrimination against Brahmins under article 29(2). Interestingly, article 29, which was formulated for the ‘protection of the interests of minorities’, was first interpreted both by the Madras High Court and by the Supreme Court as safeguarding the interests of Brahmin Hindus in the Champakam Dorairajan case. This is an issue that has not been deliberated on in this case, although it formed the crux of the rationale for striking down the GO. How was 29(2) pressed into service in this case? What was the scope of 29(2) at that foundational moment when the constitution was adopted? The minorities sub-committee of the constituent assembly had deliberated on the guarantee of protection to the cultural and educational rights of minorities, and had recommended the following to be included as a fundamental right: ‘No minority, whether of religion, community or language, shall be deprived of its rights or discriminated against in regard to the admission into State educational institutions, nor shall any religious instruction be compulsorily imposed on them’ (Rao 1968: 272). This clause with respect to admission in educational institutions, through several drafts, remained an explicit protection for minorities. When this article, draft article 23, came up for consideration before the constituent assembly, Thakurdas Bhargava recommended the substitution of minority with the more inclusive term ‘citizen’ and the removal of the term ‘community’. Explaining his position, he pointed out that the unwarranted impression that the majority was being discriminated against must be avoided; further, as ‘community’ was a term with no specific applicability, caste, race,

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language, or religion would better serve the purpose (ibid.: 277). Although the amendment to this article was adopted without a debate, the contestation is one that ripples through debates on minority rights in post-independence India. Clearly, Bhargava’s argument is echoed in Champakam Dorairajan’s petition and in the court’s acceptance of it. Yet the anomaly remains that the title of article 29 explicitly designates it for the protection of minorities. Neither in terms of caste status nor of religion could Brahmins in Madras state in the early 1950s claim minority status. The route to a purposive interpretation, which was available owing to the disjuncture between the title and content of the article, was foreclosed by courts at both levels in favour of the protection of the majority. Second, a plain reading of the GO leads to the inference that the reservation of seats in professional colleges of higher education was made with reference to the proportionality principle: mandatory seats being reserved for each class as part of the right against discrimination for those who might be denied such access in the normal course of recruitment. The documented history of access to public employment in the state proves that this was in fact the case. In the scheme in question, Brahmins, backward Hindus and Harijans were allotted the same number of seats — two each, which constituted 14 per cent. The only group allotted more seats, six, was non-Brahmin Hindus, presumably because it was a numerically larger class including several castes. The third anomaly, which the court recognized but did not deliberate on, was the fact that Champakam was not a deprived applicant but someone who was petitioning for the group rights of Brahmins, despite individually being assured of a seat reservation in case she applied: From the affidavit filed in support of her petition, it does not appear that the petitioner had actually applied for admission in the Medical College. She states that on inquiry she came to know that she would not be admitted to the College as she belonged to the Brahmin community. No objection, however, was taken to the maintainability of her petition on the ground of absence of any actual application for admission made by her. On the contrary, we have been told that the State had agreed to reserve a seat for

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her, should her application before the High Court succeed. In the peculiar circumstances, we do not consider it necessary to pursue this matter any further. But we desire to guard ourselves against being understood as holding that we approve of a person who has not actually applied for admission into an educational institution coming to Court complaining of infringement of any fundamental right under article 29(2).8

It could, of course, be argued in hindsight that this was the precursor to the public interest litigation movement. However, the court’s stand on this issue epitomizes ‘jurisprudential dissociation’ on the crucial question of the maintainability of Dorairajan’s petition. A fourth problem arises from the enunciation of the principle of merit: ‘The learned counsel appearing for the State of Madras conceded that these two applicants would have been admitted to the educational institutions they intended to join and they would not have been denied admission if selections had been made on merits alone.’9

It is in this case that we witness the first appearance of the notion of ‘merits’, as a stand-alone, a-contextual ‘truth’. If these candidates had secured a score of 369/450, the question of merit would centre not around whether anyone who had secured less had been admitted, but around whether anyone from the same category who had secured less had been admitted. The central argument for reservations is that ‘merit’ is captive to social context and location, and needs to be freed from that context through the mechanism of reservation so that it is more accessible and ubiquitous. Ambedkar explains succinctly the logic of communal representation in the context of political representation, an explanation that is equally tenable in the context of education and employment: Communal Representation as a device to ward off the evil effects of the divisions . . . While communal electorates will be co-terminous with social divisions, the chief effect will be to bring together men from diverse castes who would not otherwise be mixed together into the Legislative Council. 8 State of Madras v. Champakam Dorairajan & State of Madras v. C. R. Srinivasan AIR 1951 SC 226; emphasis added. 9 State of Madras v. Champakam Dorairajan & State of Madras v. C. R. Srinivasan AIR 1951 SC 226.

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The Legislative Council will thus become a new cycle of participation in which the representatives of various castes who were erstwhile isolated and therefore anti-social will be thrown into an associated life. An active participation in an associated life, in its turn, will not leave unaffected the dispositions and attitudes of those who participate. A caste or a religious group today is a certain attitude. So long as each caste or a group remains isolated its attitude remains fossilized. But the moment the several castes and groups begin to have contact and co-operation with one another the re-socialisation of the fossilized attitude is bound to be the result. (Ambedkar 2008a; see Thorat and Kumar 2008a: 83–84)

Finally, the court summarily rejected the argument by the state that the directive principles should provide the conditioning environment for the actualizing of fundamental rights, in favour of express provisions.10 The potential for developing an expansive and inclusive jurisprudence of non-discrimination has thus been curtailed. The Constitution (1st Amendment) Act nullified the decision in Champakam Dorairajan, and contained the disruption effected by the case somewhat. However, the judicial reasoning developed in an incipient form in that case continues to provide the axiomatic basis, in the courts and outside, for the discussion of ‘protective discrimination’ (a contradiction in terms) and of reservations in education.

‘MERIT’, ‘FRAUD’, EFFICIENCY, AND THE INTERPRETIVE TIGHTROPE Equal opportunity is a hope, not a menace.11 ‘Efficiency’ is not a mantra which is whispered by the Guru in the Sishya’s ear.12

It is apt to begin this section with an account of the early beginnings of the merit argument, the flip side of Champakam Dorairajan, as this was enacted outside the courts at the same time that Champakam 10

Since 1983, there has been a partial reversal of this position. Justice Krishna Iyer in State of Kerala v. N. M. Thomas and Others 1976 AIR (SC) 490, para. 44. 12 Justice Chinnappa Reddy in K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR(SC) 1495. 11

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preoccupied the court and parliament. The Union Public Service Commission was established in 1950, which was also the year when it made its first recruitments. Achyutananda Das, a scheduled caste candidate, topped the written examination with a score of 613 out of a maximum of 1050. N. Krishnan stood second with 602 marks. Aniruddha Dasgupta was ranked far below with 494 marks in the written examination. In the interview, however, Krishnan secured 260 marks; Aniruddha Dasgupta, who had ranked lowest in the written test, scored the highest in the interview with 265; while Achyutananda Das, who had topped the written test, was awarded a mere 110 in the interview. This pushed him down to the 44th rank, while Krishnan ranked first in the batch, and Aniruddha was ranked way above Das as well. The same experience confronted the first scheduled tribe candidate, Nampui Jam Chonga from Assam, who qualified in 1954. While he ranked third in the written test, he secured only 160 in the personality test, and therefore barely made it to the civil services. This prompted A. K. Biswas, a retired dalit IAS officer, to comment: Notwithstanding their impressive performance in written papers, both Achyutananda Das and Nampui Jam Chonga could not impress the Personality Test Board. Both Dasgupta and Sengupta, on the other hand, proved the reverse that their personality impressed the Selection Board more than their pen could impress their examiners. (Biswas 1993)

In 2004, the Uttar Pradesh (UP) government decided against revealing any details of the social background of candidates to the interview board. The result was that Himanshu Gautam, a scheduled caste candidate, topped the UP Public Service Commission entrance examinations, with a staggering aggregate of 80 per cent.13 While the fact of deprivation results in lower overall performance levels, which necessitates the offsetting of disadvantage in order to equalize opportunity, the fact of discrimination is evident in the argument about merit in the reservation debates. This argument is based on flawed assumptions about the generically low performance levels of candidates belonging to vulnerable social backgrounds. It 13

INSIGHT, 1, 1 (September 2004).

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is against this discursive background that we need to re-examine the idea of merit. Ruling on a petition challenging the reservation of 68 per cent seats in professional colleges in Karnataka for the backward classes, the more backward classes, scheduled castes, and scheduled tribes, the Karnataka High Court took the Champakam Dorairajan ruling ahead, virtually skirting the Constitution (1st Amendment) Act, which introduced article 15(4). The court opposed the move to introduce reservation in higher education proportionate to population, which would be the effect of the order based on the Nagan Gowda Committee report. Instead, the court gave voice to the dominant class/caste argument that while the aspirations for education and betterment of the masses must no doubt be respected, ‘it would be against the national interest to exclude from the portals of our Universities qualified and competent students on the ground that all the seats in the Universities are reserved for weaker elements in society.’14 The concrete findings of the Backward Classes Commission that, in the states of Madras, Andhra, Travancore–Cochin, and Mysore, where reservation had been in vogue for several decades, there were no complaints of any lack of efficiency in the offices recruited by reservation, were dismissed by the court as being ‘plainly inconsistent with what is bound to be the inevitable consequence of reservation in higher university education’ (emphasis added). A fact was here juxtaposed to judicial anxiety. The impugned order did not provide for reservation of all seats; 32 per cent of the seats were placed in the open category. The contradictions posited between reservations and the national interest, between qualified and competent students and ‘weaker elements’, epitomize the upper-caste paranoia regarding their possible displacement from complete hegemony over formal education: ‘the interests of the community or society as a whole cannot be ignored in determining the question as to whether the special provision . . . contemplated by Art. 15(4) can be special provision

14

M. R. Balaji and Others v. State of Mysore 1963 AIR (SC) 649.

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which excludes the rest of the society altogether.’15 In a reversal of the logic of reservations as a social justice measure in favour of the excluded classes in Indian society, Brahmins and the upper castes in the first decade of the constitution found their position reaffirmed and more firmly entrenched at a time when social forces in a flux could have displaced them through a reconfiguration of the social order. At the level of constitutional interpretation, the Karnataka High Court held that 15(4) was an enabling provision that was enacted in pursuance of article 46 and the preamble: ‘it does not impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary.’16 ‘There is no doubt,’ the court asserted, ‘that Art. 15(4) has to be read as a proviso or an exception to Articles 15(1) and 29(2).’17 The Indian constitution, with the bifurcation of entitlements into fundamental rights and directive principles, evolved through interpretation into two streams, those of justiciable fundamental rights and non-justiciable directive principles. It took several decades to work through this interpretive tradition such that directive principles could impose, more and more directly, an obligation on the state to realize the entitlements of citizens. The argument of those who pushed for a radical and purposive interpretation of the constitution has been that directive principles should be interpreted in a manner that imposes immediate state obligation to perform rather than perpetual deferral. This early case suggests the opposite: that a fundamental right is merely an enabling provision, discretionary in character, and that it does not impose an obligation on the government. The shadow of Champakam Dorairajan looms over this case as well, in the references to 15(4) being a mere exception to 15(1) and 29(2). The concern for ‘merit’ was closely tied to the concern for ‘efficiency’, as evident in the reasoning in Balaji: It is true that in providing for the reservation of appointments or posts under Art. 16(4) the State has to take into consideration the claims of 15

M. R. Balaji and Others v. State of Mysore 1963 AIR (SC) 649. M. R. Balaji and Others v. State of Mysore 1963 AIR (SC) 649; emphasis added. 17 M. R. Balaji and Others v. State of Mysore 1963 AIR (SC) 649. 16

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the members of the backward classes consistently with the maintenance of the efficiency of administration. It must not be forgotten that the efficiency of administration is of such paramount importance that it would be unwise and impermissible to make any reservation at the cost of efficiency of administration. That undoubtedly is the effect of Art. 335. Reservation of appointments or posts may theoretically and conceivably mean some impairment of efficiency; but the risk involved in sacrificing efficiency of administration must always be borne in mind when any State sets about making a provision for reservation of appointments or posts. It is also true that the reservation which can be made under Art. 16(4) is intended merely to give adequate representation to backward communities. It cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other employees. In exercising the powers under Art. 16(4) the problem of adequate representation of the backward class of citizens must be fairly and objectively considered and an attempt must always be made to strike a reasonable balance between the claims of backward classes and the claims of other employees as well as the important consideration of the efficiency of administration.18

The court might acknowledge and validate the focus on the backward classes, as the Kerala High Court did in the case of Hariharan Pillai.19 However, the possibility of public employment having already been accessed by some members of these classes created a constitutional dilemma that pitted individual mobility against class entitlements. The privilege of access of a few individuals in a class was set off against the predicament of an entire class: It may be true to say that the Ezhavas, Muslims and the Latin Catholics belong to communities that are socially and educationally backward. However, the possibility of there being a section large or small in these communities who are advanced and who are not backward, socially, economically or educationally, cannot be ruled out. If there is such a section, no reservation can be made in favour of the members of that section.20

18

M. R. Balaji and Others v. State of Mysore 1963 AIR (SC) 649. This argument was reiterated and confirmed in C. A. Rajendran v. Union of India 168 AIR (SC) 507. 19 Hariharan Pillai (V.) v. State of Kerala (Represented by Its Chief Secretary) and Others 1967 (1) LLJ 766. 20 Hariharan Pillai (V.) v. State of Kerala (Represented by Its Chief Secretary) and Others 1967 (1) LLJ 766.

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By extension, the court went on to observe, this meant that sections within these groups who could not access education and employment should be given the benefit of reservation as well. Interestingly for our purposes, this means that the court is not against the principle of reservation. The problem lies rather in the rectitude of the procedure adopted in the identification of legitimate claimants. Through a strange twist in judicial reasoning, the preoccupation with ‘legitimate’ claimants shifted ground to the assertion that there is no justiciable right or constitutional duty to make reservations. This lay entirely within the province of executive discretion, which must be exercised in a manner whereby the provision in 16(4) does not ‘render nugatory’ the guarantee contained in 16(1).21 In effect, this was an interpretive reduction of substantive equality to formal equality, which negated the spirit of the constitution: Art. 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words, Art. 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the Services of the State.22

The right of scheduled castes and scheduled tribes to equal opportunity in public employment fell by the wayside in other ways as well. The Railway Board prepared a model roster designating the turns of reserved and unreserved vacancies, in order to give effect to reservations of up to 12.5 per cent for scheduled castes and 5 per cent for scheduled tribes. Here, however, is an explanation appended in a note:

21

T. Devadasan v. The Union of India and Another [1964] 4 SCR 680, cited in C. A. Rajendran. Article 16(1): ‘There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’; 16(4): ‘Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.’ 22 C. A. Rajendran v. Union of India 1968 AIR (SC) 507; emphasis added.

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If there are only two vacancies to be filled on a particular occasion, not more than one may be treated as reserved and if there be only one vacancy, it should be treated as unreserved. If on this account a reserved point is treated as unreserved, the reservation may be carried forward in the subsequent two recruitment years.23

This resulted inevitably in scheduled caste and tribe candidates being denied reservation even when it was their turn according to the roster, when single vacancies arose. To meet this charge, the Railway Board, in a letter dated 23 August 1971, notified that ‘if there is one post to be filled, selection should invariably be held for two posts, i.e., one actual and the other to cover unforeseen circumstances.’ For every reserved post filled, therefore, an additional unreserved one would be created, in effect pushing the proportion of reserved posts below the statutory limit.24 The Supreme Court, however, adopted a different route in this case, partially validating the government position as well as protecting the claim of the scheduled caste candidate. Since the Railway Board ran only two schools at Kharagpur and Adra, the reserved vacancy prior to the petition under review in Kharagpur was filled by an unreserved candidate, applying the rule on single vacancies. Subsequently, when the second vacancy arose in Adra, although it was for an unreserved post, and was a single vacancy, the court upheld the entitlement of the scheduled caste candidate to the post, disregarding the rule on single vacancies. The preoccupation with not creating a monopoly for the claimants of reservation expressed itself in a flat denial in cases where there was a single post available in a cadre. Here, reservation, if it was applied, fell foul of the law because of its interpretation as 100 per cent reservation.25 Predictably, therefore, the Chakradhar Paswan reasoning was revalidated by the Supreme Court in 1998 in the PGIMR case: 23

Arati Ray Choudhury v. Union of India and Others 1974 AIR (SC) 532. Arati Ray Choudhury v. Union of India and Others 1974 AIR (SC) 532. 25 ‘If there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage or for filling up a future vacancy in respect of that post. A reservation which would come under Article 16(4), presupposes the availability of at least more than one post in that cadre.’ Chakradhar Paswan v. State of Bihar and Others 1988 AIR(SC) 959. 24

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Any attempt of reservation by whatever means and even with device of rotation of roster in a single post cadre is bound to create 100% reservation of such post whenever such reservation is to be implemented. The device of rotation of roster in respect of single post cadre will only mean that on some occasions there will be complete reservation and the appointment to such post is kept out of bound to the members of a large segment of the community who do not belong to any reserved class, but on some other occasions the post will be available for open competition when in fact on all such occasions, a single post cadre should have been filled only by open competition amongst all segments of the society.26

Notably, in this reasoning, there is no mention of the fact that not reserving a single post even by rotation would mean keeping the post out of bounds for persons from classes that need reservation in order to enter education and employment. Reserving a single post would keep the post ‘out of bounds’ for members of a large segment of the population, but not reserving it means that it would be beyond the reach of the segment excluded from the open category. The meaning of equal opportunity moved centre-stage in the debate in the Supreme Court triggered by the N. M. Thomas case. Does equality of opportunity include the creation of special measures to ‘atone for the past neglect and exploitation’ of scheduled castes and scheduled tribes and to bring them on a footing of ‘real and effective’ equality with the more advanced sections of society?27 Can one read article 16(4) with article 46, which places an obligation on the state to promote the interests of the scheduled castes and scheduled tribes? Or, are compensatory measures necessary to enable members of the scheduled castes and scheduled tribes to secure ‘their due share of representation in public services’?28 Importantly, Justice Mathew observed, ‘equality of result is the test

26

Post Graduate Institute of Medical Education and Research Chandigarh v. Faculty Association and Ors 1998 AIR (SC) 1767. 27 Justice Khanna, State of Kerala v. N. M. Thomas and Others 1976 AIR (SC) 490, para. 22. 28 Justice Mathew, State of Kerala v. N. M. Thomas and Others 1976 AIR (SC) 490, para. 28.

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of equality of opportunity.’29 This observation was bolstered by the court by recourse to Chief Justice Marshall’s classic statement: ‘Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.’30 Rather than resort to legal realism and functional jurisprudence, Justice Krishna Iyer found it more productive, in thinking through reservations, to attempt answers to key questions that lay at the heart of the principle of equality, namely: What is the constitutional core of equality? What social philosophy animates it? What luminous connotation does the pregnant, though terse, phrase ‘equality of opportunity for all citizens in matters of employment’ bear? What excesses of discrimination are banned and what equalitarian implications invite administrative exploration? Finally, what light do we derive from precedents of this Court on these facets of Art. 16?31

For the first time, the judiciary, through the words of Justice Krishna Iyer, asserted that a harmonious construction of various provisions must be deployed to realize the goal of a casteless and classless society, ‘not in a magic instant but through careful striving’.32 The first level at which stress needed to be placed on harmonious construction, according to Justice Iyer, was the relationship between affirmative action and equal opportunity, or between articles 16(4) and 16(1): In a given situation of large social categories being submerged for long, the guarantee of equality with the rest is myth, not reality, unless it is combined with affirmative State action for equalisation geared to promotion of eventual equality. Article 16(4) is not a jarring note but auxiliary to fair fulfillment of Art 16(1). The prescription of Art 16(1) needs, in the living conditions of India, the concrete sanction of Art 16(4) so that those wallowing in the social quagmire are enabled to rise to levels of equality 29

Justice Mathew, State of Kerala v. N. M. Thomas and Others 1976 AIR (SC) 490, para. 29. McCulloch v. Maryland 17 U.S. (4 Wheat) 316, 421, quoted in 1966 (384) US 650, followed by Justice Brennan in Kazenbach v. Morgan 1966 (384) US 641. 31 Krishna Iyer, State of Kerala v. N. M. Thomas and Others 1976 AIR (SC) 490, para. 29. 32 State of Kerala v. N. M. Thomas and Others 1976 AIR (SC) 490, para. 30. 30

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with the rest and march together with their brethren whom history had not so harshly hamstrung. To bury this truth is to sloganise Art. 16(1) and sacrifice the facts of life.33

Justice Chinnappa Reddy reiterates this view poignantly in Vasanth Kumar: What is merit? There is no merit in a system which brings about such consequences. Is not a child of the Scheduled Castes, Scheduled Tribes or other backward classes who has been brought up in an atmosphere of penury, illiteracy and anti-culture, who is looked down upon by tradition and society, who has no books and magazines to read at home, no radio to listen, no T.V. to watch, no one to help him with his home work, who goes to the nearest local board school and college, whose parents are either illiterate or so ignorant and informed that he cannot even hope to seek their advice on any matter of importance, a child who must perforce trudge to the nearest public reading room to read a newspaper to know what is happening in the world, has not this child got merit if he, with all his disadvantages is able to secure the qualifying 40% or 50% of the marks at a competitive examination where the children of the upper classes who have all the advantages, who go to St. Paul’s High School and St. Stephen’s College, and who have perhaps been specially coached for the examination may secure 70, 80 or even 90% of the marks? Surely, a child who has been able to jump so many hurdles may be expected to do better and better as he progresses in life. If spring flower he cannot be, autumn flower he may be. Why then, should he be stopped at the threshold on an alleged meritarian principle?34

The concern with ‘drowsiness’ in the administration and the need to lift it to high levels of efficiency was not one that applied to the standards of performance of administrators from scheduled castes and tribes alone. This problem was Justice Krishna Iyer recalled from the days of Curzon was an attribute of the bureaucracy generally. Indispensable to the attainment of efficiency is a sense of belonging and accountability — representation of all classes being key to the feeling of the sense of belonging.35 Reading against the 33

Justice Krishna Iyer in Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented v. Union of India and Others 1981 AIR (SC) 298; emphasis added. 34 K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495. See also Justice Venkataramaiah’s judgement in the same case. 35 State of Kerala v. N. M. Thomas and Others 1976 AIR (SC) 490, para. 31.

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grain of article 335,36 in a sense, and inverting the parameters of constitutional jurisprudence on 335, Justice Iyer posited the impossibility of achieving efficiency through exclusion. Articles 15 and 16, by this argument, constituted the precondition for article 335.37 However, the matter of reservation was not as simple as it seemed, particularly the idea that merit and reservation occupied opposite ends of the justice seesaw. Take the question raised in Dharamveer Tholla.38 Can a candidate from a reserved category who secures admission in open category on the basis of ‘merit’ be counted against the quota meant for the reserved category, or will he be treated as a candidate in the general category? The Rajasthan Public Service Commission drew up category-wise merit lists with no reference to performance, so that candidates who had marks high enough to secure admission in the general category lost the opportunity because they were considered only in the reserved category, where, because of this interpretation, the performance levels were higher! Although the Supreme Court struck down this interpretation by the commission, this case is 36

Article 335: ‘The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.’ 37 Justice Chinnappa Reddy powerfully ripped the veil off the merit–efficiency argument: ‘The requirements of efficiency may always be safeguarded by the prescription of minimum standards. Mediocrity has always triumphed in the past in the case of the upper classes. But why should the so-called meritarian principle be put against mediocrity when we come to Scheduled Castes, Scheduled Tribes and backward classes? . . . From the protests against reservation exceeding 50 per cent or extending to promotional posts and against the carry-forward rule, one would think that the civil service is a Heavenly Paradise. . . . The truth is that the civil service is no paradise and the upper echelons belonging to the chosen classes are not necessarily models of efficiency. The underlying assumption . . . that the clear stream of efficiency will be polluted by the infiltration of the [scheduled castes, scheduled tribes and backward classes] into the sacred precincts is a vicious assumption, typical of the superior approach of the elitist classes. There is neither statistical basis nor expert evidence to support these assumptions. . . . Arguments are advanced and opinions are expressed entirely on an ad hoc presumptive basis.’ K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495. 38 Dharamveer Tholla v. State of Rajasthan and Others 2001 (34) LIC 1292.

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very significant in that it completely displaces the presumption of lack of merit among persons belonging to the reserved category that guides the discourse on reservations in India.

RESERVATION, UPHEAVALS, CONTESTATIONS The philosophers have only interpreted the world in various ways; the point is to change it.39 The Indian Constitution is a National Charter pregnant with social revolution, not a Legal Parchment barren of militant values to usher in a democratic, secular, socialist society which belongs equally to the masses hungering for a humane deal after feudal colonial history’s long night.40

How can the court bring about effective change in the face of arguments from enlightened members of dominant sections that reservations are not just unjust to the ‘unfortunate’ members of the open category, but also have disastrous consequences, like a greater incidence of operational calamities and wars on the streets? We have to consider seriously the social consequences of our interpretation of Art. 16 in the light of the submission of counsel that a vested interest in the caste system is being created and perpetuated by over-indulgent concessions, even at promotional levels, to the Scheduled Castes and the Scheduled Tribes, which are only a species of castes. ‘Each according to his ability’ is being substituted by ‘each according to his caste’, argue the writ petitioners and underscore the unrighteous march of the officials belonging to the SCs & STs over the humiliated heads of their senior and more meritorious brothers in service. The aftermath of the caste-based operation of promotional preferences is stated to be deterioration in the over-all efficiency and frustration in the ranks of members not fortunate enough to be born SCs & STs. Indeed, the ‘inefficiency’ bogie was so luridly presented that even the railway accidents and other operational calamities and managerial failures were attributed to the only villain of the piece viz., the policy of reservation in promotions. . . . And, Shri Shanti Bhushan, at one stage, helped the court realise the consequences of its verdict if it upheld the pampering package of promotional preferences by warning us of running 39

Krishna Iyer in Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented v. Union of India and Others 1981 AIR (SC) 298. 40 Krishna Iyer in Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented v. Union of India and Others 1981 AIR (SC) 298.

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battles in the streets, a sort of caste-war, against birth based ‘privileges’ for the harijan-girijan millions.41

Reviewing the social foundations of constitutionalism in India, Justice Krishna Iyer struck at the roots of these dominant perspectives by folding ‘constitutional patriotism’ into ‘constitutional commitment’ (see Baxi 2004): To recognise these poignant realities [of social injustice] of social history and so to interpret the Constitution as to fulfil itself, not eruditely to undermine its substance through the tyranny of literality, is the task of judicial patriotism so relevant in Third World conditions to make liberation a living fact.42

The fact, of course, is that the arguments against reservation, like the one that warned of social disturbances (fuelled by dominant sections) consequent on reservation, completely inverted Ambedkar’s reasoning on the indispensability of reservation. In his address to the constituent assembly, Ambedkar warned that the failure to transform the political democracy into a social democracy would throw the political democracy into peril: We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which this Assembly has so laboriously built up.43

The purpose of reservation is to ensure that ‘freedom, justice and equal opportunity . . . belong alike to bhangi and brahmin, prince and pauper.’44 This is only possible if the state fast-tracks the application of equalizing techniques in a result-oriented fashion, so that reservations applied fairly early on would gradually become redundant, and equal opportunity a reality. While lending immortality to reservation is to defeat its raison d’être, it can scarcely be forgotten that the constitution subserves the interests of the most 41

Justice Krishna Iyer in Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented v. Union of India and Others 1981 AIR (SC) 298; emphases added. 42 Justice Krishna Iyer in Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented v. Union of India and Others 1981 AIR (SC) 298. 43 Quoted by Justice Krishna Iyer in Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented v. Union of India and Others 1981 AIR (SC) 298. 44 Justice Krishna Iyer in Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented v. Union of India and Others 1981 AIR (SC) 298.

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vulnerable. The failure to integrate this concern into constitutional interpretation, Justice Iyer asserted, would result in the alienation of the common people from the institutions of justice.45 How would the court reconcile the claims to equalization and equality of the dalits (broken people) and the other castes who saw themselves as soshits (the oppressed) in the reservations era, respectively? While one group suffered socio-economic oppression, the other resisted reservation on the ground that it amounted to economic oppression and ‘reverse casteism’ by negating equality in employment. And it is true that there are disadvantaged sections within classes that are not backward, who must have access to guarantees from the state. In such instances, ‘it is the duty of the State . . . to discover other means of assisting them, means other than reservations under Arts. 15(4) and 16(4).’46 In the matter of reservation, there was a concern that ‘compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency’ be established, since they are ‘constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.’47

JURISTS, SOCIOLOGISTS AND THE CASTE ORDER At the dawn of independence Indian Society was a compartmentalised society comprising groups having distinct and diverse life styles. It was a caste ridden stratified hierarchical society. Though this is well accepted, the concept of caste has defied a coherent definition at the hands of jurists or sociologists.48 Judges who are entrusted with the task of fostering an advanced social policy in terms of the Constitutional mandates cannot afford to sit in ivory towers keeping Olympian silence unnoticed and uncaring of the storms and stresses that affect the society.49 45 Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented v. Union of India and Others 1981 AIR (SC) 298. 46 Justice Chinnappa Reddy in K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495. 47 M. Nagaraj and Others v. Union of India and Others 2006 (8) SCC 212; emphasis added. 48 Justice D. A. Desai in K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495. 49 Justice Pandian in Indra Sawhney v. Union of India 1993 AIR (SC) 477.

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The Vasanth Kumar judgement of 1985 is important because, unlike other judgements that present a ratio that then determines the course of action for government and public institutions, this case, heard by a five-judge bench of the Supreme Court, was meant to set out the guidelines for states to frame reservation policy, outside the imperatives and pressures of particular cases and individual petitioners seeking reliefs.50 Unusually, then, this was an opportunity for the court to set out in clear and unequivocal terms the path to the realization of constitutional objectives with respect to equality and non-discrimination. The unequal and discriminatory nature of caste was by then an established fact that required no reiteration. Nor was there any ambiguity about the necessity of reservations, which had also been established as indispensable to the realization of substantive equality.51 Justice Chandrachud set the tone for the court’s open and unconstrained deliberation on reservations by stating four concerns that have been emblematic of the equivocation on the matter of reservations in courts and in the academy, particularly sociology — the one social science that is pressed into service relentlessly by courts, and therefore must discipline its frameworks through the application of a sociology from below. These four concerns are as follows: Reservations for scheduled castes and scheduled tribes should continue for 15 years (i.e., till the 50th year of the constitution) without the application of a means test. The means test must be applied to the scheduled castes and scheduled tribes after this period. 50

Justice Chandrachud said in his opening statement: ‘We were invited by the counsel not so much as to deliver judgements but to express our opinion on the issue of reservations; which may serve as a guideline to the Commission which the Government of Karnataka proposes to appoint, for examining the question of affording better employment and educational opportunities to Scheduled Castes, Scheduled Tribes and other Backward Classes. A somewhat unusual exercise is being undertaken by the Court in giving expression to its views without reference to specific facts. But, institutions profit by well-meaning innovations. The facts will appear before the Commission and it will evolve suitable tests in the matter of reservations.’ K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495. 51 All the cases cited previously point to this fact.

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For backward classes to come within the purview of reservation, their situation must be comparable to the scheduled castes and scheduled tribes and they should satisfy the means test. There must be a five-yearly review that would provide the opportunity to rectify distortions and generate public debate on the impact of reservations.52 Justice Desai recognized that India was a ‘stratified and hierarchical society’, and began his judgement with a quotation from Marc Galanter about equality as a cardinal value in an unequal society (see Galanter 1984). In the same breath, however, the claim to reservation is described as a movement downwards (anulom) by those who had set out to move upwards (pratilom). This stood the constitutional enunciation of equality on its head. In terms of the constitution, reservation is an expression of the principle of nondiscrimination, and therefore a movement to a better, less unequal status. By characterizing claimants to reservation as putting social mobility in ‘reverse gear’ and as acting in accordance with principles of anulom (that is, in accordance with the hierarchical principles of social intercourse in caste society), Justice Desai already, through a rhetorical device, defeated the cardinal value of equality that he had set out to uphold. Therefore, although he acknowledged the fact of stratification and discrimination, he remained puzzled that neither jurists nor sociologists had actually found a grip on the ‘concept of caste’.53 This positing of an identity of subject-matter among jurists and sociologists blurred the distinction between the two in a critical manner. The interest of the judge in the ‘concept of caste’ is focused on discrimination, inequality and exclusion, whereas sociologists could and did afford themselves the luxury of studying caste, even untouchability, without so much as a glance at questions of violence, injustice and the loss of liberty that undergird relations in caste society. The judgement consists of a lengthy 52

K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495. K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495. Justice Desai cited I. P. Desai, Ghanshyam Shah and Louis Dumont in an attempt to ‘define’ caste, not in terms of discrimination, which is the judicial focus, but in terms of its essence and/or structure, which has been the focus of the sociological study of caste. 53

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excursion into the sociology of caste that simply describes caste without attempting an analysis, thus paving the way for a judicial leap from description to ‘sociological caution’ about the ‘dangers’ of reservation: the dangers that the benefits of reservation would be cornered by the creamy layer of these castes;54 that the vocal and politically powerful sections of these groups would use reservations to beat down those sections of the upper castes who were on par with them economically;55 that state patronage for preferential treatment would lead to the perpetuation of caste, not its annihilation. This last assertion merits careful consideration. Like in the opening paragraph of this judgement, Justice Desai inverted the constitutional logic of preferential treatment as an equalizer. While this could be a personal opinion, interpreting preferential treatment in this manner in a judgement on reservation also raises questions of method and underscores the need to map the technologies of constitutional interpretation. What preoccupied Justice Desai, however, was the misfit between the sociological and the jurisprudential. In an attempt to resolve the interpretive crisis that resulted from an engagement of constitutional with sociological interpretation, he invoked a debate on the subject between I. P. Desai (Desai 1984: 1106–16), Ghanshyam Shah (Shah 1985: 132–36), and Upendra Baxi (Baxi 1985: 426–28) in the Economic and Political Weekly in 1984–85. In the first article in this triangular debate, I. P. Desai argued in favour of abjuring caste as a unit for identifying socially and educationally backward classes, suggesting instead that the alternative must be based on the emergent secular logic centred on the individual as the bearer of rights: (1) The unit must be completely secular, (2) It must be in consonance with the new society that has emerged and is developing, (3) The new society is based on recognition of the individual as a citizen, and his rights and obligations are defined by secular political authority. (4) The class to which an individual belongs can be identified by the activity he engages 54 55

There is no reference whatsoever to the source of this judicial anxiety. There is no allusion to any evidence on which this statement is based, either.

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in for earning livelihood, and the social relations in which he enters in the course of his activity are governed by contract into which he enters of his free-will and which can also be annulled by the will of either party. (5) The backwardness of the class is to be judged by the existence or non-existence of various impediments in exercising the choice in selecting the activity for earning the livelihood and in entering into the contract. The impediments collectively characterise the backwardness of class. (Desai 1984: 1113)

Desai was driven by the concern that making caste the unit of identification of backwardness might result in legitimizing caste and the inequalities arising from it, instead of abolishing it as envisaged in parts III and IV of the constitution of India. It needs to be stressed that the directive principles of the Constitution of India envisages a society in which there will be no discrimination on the basis of religion and caste. The Constitution (Parts III and IV) . . . definitely enshrines the element of egalitarianism in it unlike any other state of political authority in the past in India. . . . If those unfavourably placed in respect [of economic and political power] are supported with a view to enabling them to compete with those favourably placed . . . it is in consonance with the principle and spirit of the Constitution. (Ibid.: 1110)

As Baxi observes, Desai’s insistence on situating the discussion on caste and backwardness within a constitutional framework was rare among sociologists: He [Desai] puts his faith in the directive principles of the Constitution. IP invokes his sociological understanding of the Indian Constitution as it exists today as an embodiment of historic conditions and contradictions as providing bases for legitimate claims for state power and action. And IP is among the handful of Indian sociologists who have attempted to understand the Constitution as an articulation of social contradictions. (U. Baxi 1985: 426)

Baxi extends Desai’s articulation of the issue of caste and equality. He points out that, in recognition of the subjective and objective bases of antagonistic class interests, Desai suggests a secular criterion for the identification of backwardness, positioning the constitution as the means of, or the agenda for, the transformation of the class in itself into the class for itself. The preamble notwithstanding, this

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entire discussion is situated in a context that is actively capitalist. Giving up the illusion of socialism, Baxi recalls, echoing Marx, is giving up the society that needs the illusion: the illusion, that is, of moving to an egalitarian order that is socialist in character. Further, argues Baxi, it is necessary to reckon with the contradictory character of state, law and administration, so fundamental to Marxian analyses of the relative autonomy of the state and law: If the state, law and administration are not inherently contradictory in their dynamic development, one cannot understand, let alone explain, the provisions for compensatory discrimination in the Constitution, the distinct reference to class (and not caste) in Article 15(4), the convolutions of the High Courts and the Supreme Court in interpreting the basis and quantum of reservations, and growing attempts at implementation at national levels contending with organised frustration at local levels of law–policy packages. . . . Those who counsel the state in exercise of its power overlook this contradictory character only by periclitating the emancipation of the oppressed. (U. Baxi 1985: 427; emphasis in original)

The problem of the class/caste contradiction remained unresolved theoretically. It is true, as Baxi argues, that ‘class’ and not ‘caste’ found a place in article 15(4) (U. Baxi 1985: 427). However, given the fact that the principle of reservation in the constitution is based on caste as the unit of consideration and on the recognition of the fact that caste is a source of discrimination, it can perhaps be argued that class in this instance is coterminous with caste in a secular, i.e., non-religious sense. Also, if class is ‘a division based on status, rank or caste’, as Justice Venkataramaiah points out in Vasanth Kumar, the reading of backward classes as castes for the purpose of reservation can scarcely be faulted. There is widespread agreement among jurists, sociologists and Vedic scholars (the third scholastic category invoked in this judgement) that caste is about status and rank or hierarchy. This is the point Justice Chinnappa Reddy made as well: Despite individual exceptions, it may be possible and easy to identify social backwardness with reference to caste, with reference to residence, with reference to occupation or some other dominant feature. Notwithstanding

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our antipathy to caste and sub-regionalism, these are facts of life which cannot be wished away. If they reflect poverty which is the primary source of social and educational backwardness, they must be recognised for what they are along with other less primary sources.56

It is this turn that witnessed the protracted debate on the meanings of caste that brought this interdisciplinary debate on the sociology of caste into the courtroom, with Justice Desai reiterating that the resolution to the knotty problem of delivering equality must be the joint endeavour of ‘jurists and sociologists’. Justice Chinnappa Reddy echoed Desai’s concern regarding the problem created by the diversity of caste locations within states or across the country for the identification of rights-bearers from among the backward classes. He recognized that courts were ill equipped to embark on this exercise: The question really is how to identify these backward classes to entitle them to entry through the doors of Arts. 15(4) and 16(4). And, the further question, naturally, is about the limits of reservation. We are afraid the courts are not necessarily the most competent to identify the backward classes or to lay down guidelines for their identification except in broad and very general way. We are not equipped for that; we have no legal barometers to measure social backwardness. We are truly removed from the people, particularly those of the backward classes, by layer upon layer of gradation and degradation. And, India is such a vast country that conditions vary from State to State, region to region, district to district and from one ethnic religious, linguistic or caste group to another. A test to identify backward classes which may appear appropriate when applied to one group of people may be wholly inappropriate and unreasonable if applied to another group of people. There can be no universal test; there can be no exclusive test; there can be no conclusive test.57

This observation also foregrounds the contradiction between state and law alluded to by Upendra Baxi. Be that as it may, the complexity of the Desai–Baxi debate eludes the court, possibly 56 K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495. When the Constitution (1st Amendment) Bill) was introduced to include article 15(4), Ambedkar referred to article 16(4) and said that backward classes are ‘nothing else but a collection of certain castes’ (Parliamentary Debates 1951, Third Session, part II, vol. XII at p. 9007; cf. Vasanth Kumar). 57 K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495.

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because, as Kannabiran observes, reservation was reduced in constitutional interpretation from a philosophical premise to a matter of quantification.58 In 1989, of 401 permanent judges and 31 additional judges of high courts in India, only six belonged to the scheduled castes and one to a scheduled tribe. In such a situation, does the constitution guarantee substantive equality in constitutional positions as well? Or are constitutional positions exempted from adherence to the principles of non-discrimination embodied in articles 15 and 16? Article 16(1) guarantees ‘equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State’ (emphases added). Clause (2) prohibits discrimination only on grounds of religion, race, caste, sex, descent, place of birth, or any of them, ‘in respect of any employment or office under the State’ (emphases added). Clause (4) permits the state to make ‘any provision for reservation of appointments or posts in favour of backward classes of citizens’ that are not adequately represented in the services under the state (emphasis added). A plain reading of this article would reveal that ‘appointment’ in clause (4) refers to ‘appointment to any office’ in clause (1). The interpretation of the Kerala High Court is different: Art.16 makes a distinction between ‘office’ on one hand, and ‘posts and appointments’ on the other. Art.16(1) guarantees that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to ‘any office’. But, Article 16(4), unambiguously states that provision for reservation, could be made for ‘appointments or posts’, and not any ‘office’. Principles of reservation do not extend to all offices.59

The court goes on to assert that article 217 (on the appointment and conditions of office of high court judges) is not controlled by article 16(4) of the constitution, and that article 16(4) does not create a right in a citizen or a duty in the government. It may be argued that it is necessary to act in good faith with reference to constitutional offices. However, to stretch this argument to the 58

K. G. Kannabiran, personal communication, 6 February 2010. The All Kerala Poor Aid Legal Association, Trivandrum and Others v. Chief Justice of Kerala, Ernakulam and Others 1990 AIR (KER) 241; emphasis added. 59

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point of asserting that, in the country that produced Ambedkar, reservation is not necessary to ensure the rise of people from the scheduled castes and tribes to constitutional offices, or that the principle of equality of opportunity does not apply to constitutional office, negates the principle of good faith itself. It is possible that the arguments or specific grounds raised in the petition in question were not maintainable, but the court’s disproportionate response to the petition points to a crisis in constitutional interpretation on reservation with reference to constitutional offices.

WHAT IS A BACKWARD CLASS? A group of persons having common traits or attributes coupled with retarded social, material (economic) and intellectual (educational) development in the sense not having so much of intellect and ability will fall within the ambit of ‘any backward class of citizens’ under Article 16(4) of the Constitution.60

By the early 1990s, the discussion had shifted from the need to eliminate discrimination based on caste, to identifying who the legitimate claimants for reservation were, apart from the scheduled castes and scheduled tribes. Did class in its plain sense mean caste? Was it different? How was the identification of backward classes to be carried out? Caste neither can be the sole criterion nor can it be equated with ‘class’ for the purpose of Article 16(4) for ascertaining the social and educational backwardness of any section or group of people so as to bring them within the wider connotation of ‘backward class’. Nevertheless ‘caste’ in Hindu society becomes a dominant factor or primary criterion in determining the backwardness of a class of citizens.61

In the definitions of ‘class’ and ‘caste’ that were cited from various lexical and anthropological sources by the court, caste was an ingredient in the definition of class, and vice versa. So, while caste and class were not completely coterminous, they shared significant attributes, in that both denoted stratified systems based on rank 60 61

Justice Pandian in Indra Sawhney v. Union of India 1993 AIR (SC) 477, para. 58. Justice Pandian in Indra Sawhney v. Union of India 1993 AIR (SC) 477.

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and inequality. Additionally, where caste was an ingredient in the definition of class, it was not exhausted by its religio-cultural attributes. It figured in the definition of class in a secular sense. On the other hand, while the connotation of class was no doubt an element in the definition of caste, the aspects of heredity and ascription (contributions from the anthropology of caste) informed the definition. Nevertheless, the fact that the two categories had significant overlaps and were certainly not mutually exclusive was evident in the definitions provided by the court. Class is variously defined as possessing any or all of the following attributes, among others: a division or order of society according to status; a rank or grade of society social rank; caste a social stratum sharing basic, economic, political or cultural characteristics and having the same social position; the system of dividing society; caste a number of persons or things ranked together for some common purpose or possessing some attribute in common; the order of rank according to which persons or things are arranged or assorted Caste, likewise, has been defined as: one of the several hereditary classes into which society in India has been divided from time immemorial; the system or basis of this division among the Hindus the division of society on artificial grounds; a social class any class or group of society sharing common cultural features a class or grade, or division of society separated from others by differences of wealth, hereditary rank or privileges, or by profession or employment, having special significance when applied to the artificial divisions or social classes into which the Hindus are rigidly separated also used to describe in whole or in part the social system that emerged at various times in other parts of the world62 62

Justice Pandian in Indra Sawhney v. Union of India 1993 AIR (SC) 477, paras 50–57.

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In the context of reservation, therefore, the definitional overlaps between caste and class can be used quite productively to describe the condition of backwardness. Ambedkar clarified this in the debates on the Constitution (1st Amendment) Act, 1951, when he said: ‘backward classes . . . are nothing else but a collection of certain castes.’63 Justice Pandian, while seeming to contest this statement, in fact affirmed it when he said: Unless ‘caste’ satisfies the primary test of social backwardness as well as the educational and economic backwardness which are the established accepted criteria to identify the ‘Backward class’, a class per se without satisfying the agreed formulae generally cannot fall within the meaning of ‘backward class of citizens’ under Article 16(4), save in given exceptional circumstances such as the caste itself being identifiable with the traditional occupation of the lower strata — indicating the social backwardness.64

A caste, if it satisfies the test of backwardness, is a backward class. This could be either through the demonstration of social, educational and economic backwardness, or through the performance of the traditional occupations of the lower strata in the caste order.

A BRIEF RECAP: ASHOKA KUMAR THAKUR The constitution bench decision of the Supreme Court in Ashoka Kumar Thakur v. Union of India and Ors provides us with useful insights into the history of reservations jurisprudence.65 The Constitution (93rd Amendment) Act, 2005, by which article 15(5) was inserted into the constitution, was challenged in the Supreme Court, as also the Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007), which provided for reservations for students belonging to the scheduled castes, the scheduled tribes and the other backward classes (OBCs) of citizens, in admissions to certain central educational institutions established, maintained or aided by the central government. 63

Cited by Justice Pandian in Indra Sawhney v. Union of India 1993 AIR (SC) 477, para. 59. Justice Pandian in Indra Sawhney v. Union of India 1993 AIR (SC) 477, para. 82. 65 Ashoka Kumar Thakur v. Union of India 2008 (6) SCC 1. 64

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Section 5 of Act 5 of 2007 provided for the increase of the number of seats in the open category to ‘compensate’ for those ‘lost’ to reservation. The core of the arguments challenging the reservations may be summarized briefly as follows. It was argued that admissions to educational institutions should be based purely on merit. The impugned act attempting affirmative action was to be treated as ‘suspect legislation’, unreasonable, arbitrary, capricious, and contrary to articles 14 and 21 of the constitution, and must undergo the tests of ‘strict scrutiny’ and ‘compelling state necessity’. The ‘creamy layer’ principle should be applied to OBCs as well as SCs and STs, the non-exclusion of the ‘creamy layer’ being illegal. The quota should not be a punishment meted out to unreserved categories. Minority institutions should not be exempt from the ‘common burden of reservation’ for SCs, STs and socially and educationally backward classes (SEBCs). Further, the OBCs had not suffered the indignities borne by SCs and STs, and therefore could not be treated on the same footing as the latter categories. Since the problem of backwardness was located in the arena of primary education, reservations were necessary only up till 10+2 (the level of higher school education), after which individuals from these classes would join the ranks of the forward by virtue of education. The provision of additional seats amounted to 100 per cent reservation, since the increase of seats to assure undiminished access to the unreserved category would match exactly the seats reserved. The arguments defending the reservations focused on a liberal interpretation of the constitution. They urged the court to consider the fact that provision for reservations for disadvantaged groups was being made 56 years after the coming into force of the constitution. In terms of the proportion of population, OBCs and SCs/STs comprised more than 27 per cent and 22 per cent, respectively. The proposed reservation was therefore not disproportionate to the comparative population figures. The concept of the ‘creamy layer’ could not be applied to SCs and STs, while, for OBCs, its application was restricted to the ambit of

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article 16(4), with specific reference to employment. Applying the ‘creamy layer’ principle to educational institutions would mean that the advanced castes would eliminate any challenge to their leadership in the professions and services. The argument went on to suggest that it was utopian to expect that by ignoring caste, it would perish, because the caste system played an important role in every conceivable activity of private life. Importantly, it was also argued that the primary objective of reservation was to bring about equality of status and opportunity in order to create a level playing field between different groups positioned differently on the social scale. The purpose of reservation was not poverty alleviation or universal education, which belonged to a very different set of issues. Both sides, however, acknowledged the intractability of caste and the difficulty of mapping its contours exactly. Should one look for vulnerability to atrocity? Was there a nexus between caste and occupation? Was education the solution to social exclusion? Did wealth bridge barriers between castes? What was the character of the class–caste nexus? Was it reasonable to assume a correlation between SEBCs and the disadvantaged castes? The issues that were discussed by the court in four separate judgements centred on: questions of the constitutionality of the 93rd amendment, especially in terms of its implications for minority and unaided institutions and its conflict with the provisions of article 15(4); the definition and identification of backward classes, especially the relevance of the method adopted in Indra Sawhney; the place of caste in the determination of backwardness; and, most importantly, the relevance of the troublesome concept of ‘creamy layer’ to reservations for both scheduled castes/tribes and socially and educationally backward classes. While all judges upheld the constitutionality of article 15(5), the chief justice observed that the question of whether any exemption granted by the provision violated the equality guaranteed by article 14 would only arise when the court was petitioned by an educational institution that believed that its fundamental right to equality had been violated by the exemption accorded to minority institutions. No institution had raised this argument

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on its own behalf. Justice Dalveer Bhandari, taking the opposite route, arrived at a similar conclusion. He severed the reference to unaided institutions, although no such institution had approached the court, ‘in the larger public interest’, arguing that the inclusion of unaided institutions contravened article 19 protections and therefore violated the basic structure of the constitution. On the central question of the definition of backward class and its identification, especially the validity of using caste to identify class, the Supreme Court reiterated that, after a string of cases starting with Champakam Dorairajan, it had arrived in Indra Sawhney at the position that caste could be the starting-point for determining socially and educationally backward classes of citizens. Any reference to the backward classes immediately brought the concept of the ‘creamy layer’ to the centre of the debate. Chief Justice Balakrishnan held that while the ‘creamy layer’ principle was not part of the general principle of equality, it had the limited and specific purpose of identifying backward classes entitled to reservation. It would have to be applied as the court was bound by the decision of the larger bench in Indra Sawhney. However, he observed, the scheduled castes and scheduled tribes were a separate class that could not be brought within the ambit of ‘creamy layer’ identification. Justice Bhandari, however, held a different view in the matter of the ‘creamy layer’ with respect to the backward classes. He observed that the principle of the ‘creamy layer’ emanated from the broad doctrine of equality itself. He expressed no opinion in the matter of scheduled castes and tribes, although he discussed it at some length. In a postscript to his brief judgement, Justice Raveendran, concurring with the judgement of the chief justice, raised and left open the question of whether members of classes that could access reservations, who got selected in the open competition field on the basis of their own merit, should be counted against the 27 per cent quota under an enactment enabled by article 15(5). He, along with Justice Bhandari, ruled that unfilled seats should revert to the general category. However, counting persons who

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gained admission in the open category against the quota would defeat the purpose of reservation, and would in effect decrease the quota below its stipulated level. Also, this measure would make the very principle of the ‘creamy layer’ redundant, directly contradicting the present stand of the court. The exemption of institutions listed in the schedule to Act 5 of 2007, the exemption of minority institutions, and now of unaided private institutions, goes against the spirit of equality and shrinks the space of entitlements for persons from vulnerable groups considerably. It is not so much a question of the measure of equality between institutions inter se that is critical in access to education, but the measure of equality between citizens differently placed, because it is citizens as members of groups (here, castes) who bear the brunt of discrimination and exclusion. After all, reservation is an inseparable part of the principle of non-discrimination, and no institution can be above or outside its ambit.

UNPACKING THE ‘CREAMY LAYER’ One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away by the top creamy layer of backward class or caste. . . . Are not the unreserved seats and posts snatched away, in the same way, by the top creamy layer of society itself? . . . How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself not bad? This is a necessary concomitant of the very economic and social system under which we are functioning. . . . This does not render reservation itself bad. But it does emphasise that mere reservation . . . is not enough to solve the problem of backwardness.66

The final section of this chapter will examine the concept of the creamy layer, which has stalked the discussion on reservation inside and outside courts. What is the genealogy of this concept, beyond the fact that a small section of dalit and adivasi people over the past two generations has managed at best to secure tertiary education and enter the professions and public employment? The 66

Justice Chinnappa Reddy in K. C. Vasanth Kumar and Another v. State of Karnataka 1985 AIR (SC) 1495. Justice Krishna Iyer in N. M. Thomas and Akhil Bharatiya Soshit Karamchari Sangh uncritically adopts the concept of the ‘creamy layer’. It is in Vasanth Kumar that this concept is problematized for the first time by Justice Chinnappa Reddy.

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crux of reservation rests on the fact of caste-based discrimination — that is, on grave social disabilities arising from caste status. The very formulation of the concept of creamy layer, an exercise in dominance, disaggregates discrimination and narrows its articulation down to economic status alone, thus distorting the realities of disadvantaged castes, dalits and adivasis. Second, and linked to the problem of the lack of definition, instead of enabling an understanding of a situation, as concepts should, the idea of the ‘creamy layer’ obstructs understanding by equating knowledge with stereotype. A powerful dominant stereotype is that dalits do not share benefits at the community level and therefore must be ‘ruled’ in this matter by the noninclusive public domain, of which institutions of justice are a part. Such discursive perpetuation of the stereotype also masks the unwillingness of dominant castes to share resources equally with dalits and adivasis, as evident in the fact of atrocities against these groups. In fact, this stereotype serves to divert attention away from the exclusionary practices of dominant castes. In the interests of non-discrimination, the concept of creamy layer must be tested for its general applicability. Let us deploy the concept of the creamy layer from the dalit and adivasi standpoint without fear or favour. What do we find? The entire public domain, in education, industry and employment, has been captured by the creamy layers of Indian society — the cream of the cream, the men of these classes — that seek to consolidate their intergenerational concentration of privilege by whittling down reservation claims, which are claims to non-discrimination, to a bare minimum and absolving themselves of any responsibility for the continuing oppressions that dalit communities face in contemporary India. In fact, there is a denial that such oppressions even exist. What we have, then, is the monopolizing of resources by the dominant creamy layers and the exclusion of families with just one generation of tertiary education and secure employment from access to reservation. This perpetuates inequality in the so-called open category as well, which, from the dalit standpoint, constitutes a 50 per cent or higher reservation for the dominant castes, a fact that few are willing to acknowledge.

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Third, the creamy layer argument furthers an anti-historical view of discrimination, by rejecting the relevance of the lived experience (past and continuing) of violent exclusion as the basis for reservation, thus turning the historical logic of constitutionalism on its head. The heightened visibility of the concept of creamy layer with reference to reservation goes hand in hand with the failure by governments and courts to provide justice to victims of gruesome violence perpetrated by the creamy layers of our society — Karamchedu, Chunduru, Melavalavu, Jhajjar — the list is long. How does one explain the unequal application of the concept? Or is the equality of the concept located in the fact of the denial of justice claims? The systematic denial of justice in the face of atrocities is linked inextricably to the whittling down of entitlements through the arbitrary application of undefined concepts. It is necessary not to lose sight of the totality of the dalit and adivasi experience across generations. This is an experience that continues well into the present, in the form of the performance of the most degrading forms of labour, the use of violence with impunity against these communities, and their daily struggles against discrimination once they enter public employment or tertiary education. The concept of the creamy layer obfuscates the fact of caste discrimination within institutions of education, employment and justice. It is assumed that once a person enters public employment, promotions are a matter of merit. Yet we have witnessed the systematic obstruction of promotional opportunities and normal career advancement routes for dalits even at the highest levels; even constitutional posts are known to have needed ministerial or presidential intervention before they were opened up to dalit people, not to speak of the ordinary employee in a government office. Reports abound about the ways in which dalits and adivasis in these public domains are obstructed from performing their routine responsibilities. In Teltumbde’s words, While the public sector — where dalits are accommodated owing to binding statutes (mandatory reservation) — has become a veritable graveyard of dalit aspirations, the corporate private sector stubbornly

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keeps them out. The reason given is familiar: dalits genetically lack merit. The truth is they have been wronged. It is an injustice no less grave in cumulative terms than what happened in Khairlanji. No dead bodies around. No postmortems for the living corpses of dalits in urban India. They just get buried deep down within the system, reduced to be lesser than what they are — the living dead. (Teltumbde 2008: 14)

Fourth, the ‘creamy layer’ is a concept that is applied to the other, not the self. Essentially, the creamy layer jurisprudence reveals that the architects of the concept and its proponents — both in the judiciary and in civil society — are principally from non–scheduled caste and scheduled tribe backgrounds, and are, therefore, outside the sphere of application of the concept. They apply the concept to describe the worlds of those unlike themselves, lives that reflect the consequences and costs of their own privilege. We are back then to the caste system of the pre-constitution era where the interpretation of the law is not a matter of deliberation or argumentation (to echo Amartya Sen), but is a matter of diktat: meanings are assigned and declared to be true. There are, of course, a few exceptions, even in the current debate, where votaries of the concept are not from dominant sections but from the very marginalized groups that are being ‘ruled’. Herein lies the irony: the participation of a miniscule number of dalits and adivasis in the propagation of the concept of creamy layer results in their own exclusion, a consequence that dominant votaries do not bear. These individuals from dalit/adivasi backgrounds, then, apply the concept to the self, and, by that token, exclude themselves as unworthy claimants of reservation. By their very presence in the spaces where this concept is propagated, they constitute the creamy layer that must be excluded. The effect is the loss of an opportunity for a critical mass to develop among dalit communities. The most effective way of ensuring this is by articulating a concept as vacuous yet as insidious as the ‘creamy layer’.

CONCLUSION In the spirit of our argumentative traditions, groups within dalit and adivasi communities have engaged in animated deliberation on

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the distribution of benefits. Notwithstanding the inconclusiveness of the debates, the fact remains that debate and contestation exist. The struggles of the Madiga Reservation Porata Samiti are an example. Yet, when the resolution of these claims is laid before the government, there is no attempt to resolve the issue, the major consideration being the political stakes of the dominant parties involved. What sets the processes of deliberation within these communities apart from the blanket declaration of the concept of creamy layer is that dalit groups in each state or region have engaged in political dialogue on this issue with a painstaking documentation of why, how and to whom benefits must be distributed in each sector in their particular contexts. More importantly, it is a debate between groups positioned similarly on the social scale, and subject to similar practices of exclusion by the dominant society. There is, in this debate, recognition of the realities of graded inequalities that fuel discrimination within oppressed classes as well.67 A diversity of responses to reservation exists within dalit and adivasi communities, and the need is felt to distribute privileges both at the individual and collective level. There is a difference between this contestation within dalit communities and the resolutions thereof, and the struggle by non-dalits to end discrimination against dalits. The consistency of dalit and adivasi engagement in resistance and deliberative politics, and their critique, sustained across several generations, of the systems that have oppressed them, resulted in 67 The deliberations on the issue of reservations according to internal categorization among scheduled castes in Andhra Pradesh may be found in the following reports and cases: Report of Justice Sri P. Ramachandra Raju, One-Man Commission of Enquiry into Certain Demands Made by a Section of Scheduled Castes for Categorization, Government of Andhra Pradesh, May 1997; Report of the National Commission on Scheduled Castes and Scheduled Tribes, August 1998; B. Narayana v. Government of Andhra Pradesh Writ Petition No. 12213 of 1997; Mallela Venkata Rao and Others v. State of Andhra Pradesh and Others Writ Petition No. 25810 of 1999; E. V. Chinnaiah v. State of Andhra Pradesh 2004(9) SCALE. For the Punjab case, where categorization has been allowed, reserving 50 per cent of the scheduled caste quota for Balmikis and Mazhabi Sikhs, refer to Kanwaljit Singh Sidhu and Others v. State of Punjab ILR Punjab and Haryana (1980) 2. I am indebted to the late Sri S. R. Sankaran for giving me copies of these records.

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the crafting of constitutional morality on reservation. The formulation of the idea of constitutional morality by Ambedkar in the constituent assembly drew on the resistance to the oppression of untouchability, as also on the recognition that, without special measures, the process of inclusion would remain an unattainable goal. The idea of liberty in this framework was closely tied to the idea of non-discrimination.

Chapter 6

Untouchability and the Right to Personal Liberty For millennia, the practice of untouchability has marginalized, terrorized, and relegated a sector of Indian society to a life marked by violence, humiliation and indignity. . . . Its practice is never fully defined, never fully explored and, thus, never fully understood. — Navsarjan and RFK Centre, ‘Understanding Untouchability’ (2010: 3)

An analysis of the caste system is central to an understanding of the law in India. The debates around caste in the courts have been confounded with the issue of reservations for the depressed classes; the debates around reservations have, in turn, become completely entangled with deliberations about the creamy layer. The reason why caste figures at all in courts, however, is that it is a source of discrimination. The history of the caste system, as we saw in the previous chapter, points to extremely persistent and violent practices of discrimination that necessitate special protections just so that people belonging to vulnerable groups can exercise the right to life and liberty. This, then, is the first linkage that must be established in the law: namely, what is the relationship between discrimination and the curtailment of liberty? Practices of reservation and the discourses of equality logically follow the establishment and entrenchment of the right to life and liberty, which non-discrimination guarantees. At another level, when we speak of the right to personal liberty in the context of the caste system, what are the qualitative attributes of such liberty? And how may the law take note of these attributes in its operation? Clearly, in speaking of the right of the scheduled castes to personal liberty, we are not speaking in the restrictive

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terms of personal autonomy alone. The idea of liberty needs to be spun from the visions of anti-caste philosophers, because the constitution itself is based on this philosophical foundation. It is only after we have enunciated this idea of liberty and its relationship to non-discrimination that we can contextualize the debate on reservations for the scheduled castes and scheduled tribes. In the absence of such an endeavour, the entire debate on equality and equal opportunity — jurisprudential and public — is destined to be trapped in a reductionist mode that continues to skirt the substantive issues at hand. While there may be a kinship between practices of reservation in India and affirmative action in the United States, attention to the specificity of context in the matter of reservations is critical. The twenty-first century opened with the demand by dalits that caste discrimination be covered by the Convention on the Elimination of Racial Discrimination (CERD), drawing parallels between untouchability and apartheid. This, I would argue, is both a politically and a heuristically useful comparison. The caste–race debate in the context of the Durban conference in 2001 has been discussed in fair detail in chapter 4. A point that merits reiteration at this point is that the comparison of caste with race enables an enlargement of the political kinship networks of dalits beyond the confines of caste in India to communities across the world resisting xenophobia, racism and racism-like discrimination. Conceptually, as well, this comparison opens out the possibility of looking at caste and race as analogous grounds of discrimination under international human rights jurisprudence, interlinking constitutional jurisprudence on non-discrimination on the basis of caste with radical traditions of jurisprudence on the question of race in other countries, like South Africa. Given the long history of resistance to caste on the Indian subcontinent, we could, after Baxi, argue that the resistance to caste ‘may be traced to a multicultural tradition of human rights that resulted decades later in the maturation of jus cogens of international law’, which delegitimated the legacy of the Enlightenment in unprecedented ways (U. Baxi 2002: 27). How might this genealogy impact on our contemporary reading of constitutionalism? Here, we will examine judicial

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discourse on untouchability and the testimonies of untouchability that have been presented to competent authorities in the hope of justice being delivered. Only through an examination of these materials, relatively unexplored till today, can we redraw the parameters of the discourse on non-discrimination. My central argument here is that articles 15(2), 17, 21, 23, and 24 of the constitution of India lay out the context for nondiscrimination. The practices proscribed in articles 15(2) and 17 provide the conditioning environment for social intercourse. Tripathi observes aptly that these articles in the constitution, contrary to the general trend of fundamental rights, prohibit discriminatory action not only on the part of the state, but also on the part of private individuals and social groups (Tripathi 1971: 161). Articles 15(2) and 17 resonate with Ambedkar’s demand for the annihilation of caste: I am convinced that [the line of least resistance] will be ineffective in the matter of uprooting Untouchability. The silent infiltration of rational ideas among the ignorant mass of caste Hindus cannot, I am sure, work for the elevation of the Depressed Classes. First of all, the caste Hindu, like all human beings follows his customary conduct in observing untouchability towards the Depressed Classes. Ordinarily, people do not give up their customary mode of behaviour because somebody is preaching against it. But when that customary mode of behaviour has or is believed to have behind it the sanction of religion, mere preaching, if it is not resented and resisted, will be allowed to waft along the wind without creating any effect on the mind. The salvation of the Depressed Classes will come only when the Caste Hindu is made to think and is forced to feel that he must alter his ways. For that you must create a crisis by direct action against his customary code of conduct. The crisis will compel him to think and once he begins to think he will be more ready to change than he is otherwise likely to be. The great defect in the policy of least resistance and silent infiltration of rational ideas lies in this that they do not compel thought, for they do not produce crisis. (Ambedkar 2002d: 362)

Echoing Ambedkar’s concerns regarding ‘notional change’, Tripathi underscores the fact that constitutional or legal provisions, while they may deal with individual delinquency, can hardly hold out against the power of dominant communities:

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Constitutional provisions to protect the dominated communities or groups will either not be made, or, even when made they will remain ineffective. Legal provisions cannot stand against injustice all by themselves. They must be invoked and operated by people endowed with a sense of justice and equality. The real strength of the principles of justice and equality therefore lies behind the constitutional and legal provisions in the hearts of men. . . . This requires a change of heart without which change in the text of the Constitution is neither possible nor enough. (Tripathi 1971: 185)

In a sense, then, my argument is that if we have understood the caste system and begun to deal with it in society and in the law, we can actually map the course of justice and non-discrimination on all counts in a manner that locates the possibilities of jurisprudence in the specific social and historical context of resistance to discrimination. This chapter will examine the foundations of the constitutional category of untouchability and will look at judicial, legislative and executive interpretations of this category with specific reference to Andhra Pradesh.

THE CONSTITUTIONAL CATEGORY OF UNTOUCHABILITY The definition of untouchability is a description of the various practices that constitute the ideology of untouchability. Fairly early on, Ambedkar observed that no exact, legal definition of untouchability existed, because it was a social concept embodied in custom, which varied from one region to another. In general, however, Ambedkar observed that the population of the village was divided into the touchables and the untouchables. The untouchables lived in quarters outside the village and were a poor, dependent and subject community of hereditary bondsmen: ‘In every village the Touchables have a code which the Untouchables are required to follow. This code lays down the acts of omissions and commissions which the Touchables treat as offences’ (Ambedkar 2002e: 325). Or, ‘the established order is the law made by the Touchables. The untouchables have nothing to do with it except to obey it and respect it’ (Ambedkar 2002f: 330). It is useful to recall here Ambedkar’s description of untouchability and its implications. The foundations must be the starting-point

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in the development of an anti-caste jurisprudence. It could, of course, be argued that Ambedkar was writing in the early twentieth century, at a time when practices of untouchability were rampant. To apply his delineation of the phenomenon to contemporary reality might be inappropriate. There are only two ways of addressing this possibility. The first is to look at recent testimonies of atrocity presented before courts and other public gatherings like citizens’ tribunals. The second is to look at testimonies of untouchability offered through the medium of creative writing, which is an important form of truth-telling that must inform the jurisprudence of non-discrimination. Here, I draw on an instance of the second kind of source, an autobiographical account of the experience of untouchability. Joothan, by Omprakash Valmiki, opens with an account of the segregation of neighbourhoods: Our house was adjacent to Chandrabhan Taga’s gher or cowshed. Next to it, lived the families of Muslim weavers. Right in front of Chandrabhan Taga’s gher was a little johri, a pond, which had created a sort of partition between the Chuhras’ dwellings and the village. . . . On the edges of the pond, were the homes of the Chuhras. All the women of the village, young girls, older women, even the newly married brides, would sit in the open space behind these homes at the edges of the pond to take a shit. Not just under the cover of darkness, but even in daylight. . . . there was muck strewn everywhere. The stench was so overpowering that one would choke within a minute. The pigs wandering in narrow lanes, naked children, dogs, daily fights, this was the environment of my childhood. (Valmiki 2007: 1)

What are the specifications, or ‘code’, to use Ambedkar’s word, to which ‘untouchable’ habitations and their inhabitants must adhere? 1. Untouchables must live in segregated quarters in the south (an inauspicious location) of the village, away from Hindu habitation, and must adhere to the rule of segregation. 2. Untouchables must observe distance pollution and shadow pollution. 3. No member of the untouchable community can acquire wealth, in land, cattle or any other form.

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4. No member of the untouchable community can build a house with a tiled roof. 5. No member of the untouchable community can put on a clean dress, wear shoes, put on a watch, or wear gold ornaments. 6. The names of members of the untouchable community must indicate contemptibility. 7. No member of the untouchable community can sit on a chair in the presence of a Hindu. 8. No member of an untouchable community can ride on a horse or a palanquin through the village. 9. Members of untouchable communities cannot move in a procession through the village. 10. Members of untouchable communities must salute Hindus. 11. No member of an untouchable community can speak in a cultured language. 12. Members of untouchable communities who come into the village at a sacred time, must not speak, because by doing so, they are held to foul the air of the Hindus. 13. No member of an untouchable community can pass himself off as a touchable. The duties of untouchables that go along with this code include carrying messages of events in Hindu houses to their relatives, often in far-flung villages; working in Hindu homes during marriages; accompanying the Hindu bride to her husband’s village; performing all menial jobs preparatory to the observance of festivals; and submitting the women of their communities to indecent fun. All of these duties must be performed without remuneration (Ambedkar 2002f: 324–26). The untouchables cannot hold land, because that would immediately put them on par with the touchable class: The result is that in most part, the Untouchables are forced to be landless labourers. As labourers, they cannot demand reasonable wages. They have to work for the Hindu farmers for such wages as their masters choose to

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give. On this issue, the Hindu farmers can combine to keep the wages to the lowest level possible for it is in their interests to do so. On the other hand, the Untouchables have no holding power. They must earn or starve. Nor have they any bargaining power. They must submit to the rate fixed or suffer violence. . . . When the agricultural season is over the Untouchables have no employment and no means of earning a living. . . . There is only one secure source of livelihood open to the Untouchables in some parts of the country. . . . It is the right to beg food from the Hindu farmers of the village. . . . This right to beg for food from the Touchables is now the principal means of livelihood for 60 millions of Untouchables in India. If any one were to move in a village after the usual dinnertime, he will meet with a swarm of Untouchables moving about the village begging for food and uttering the formula. (Ambedkar 2002f: 328–29)

Omprakash Valmiki offers us an account of this custom, but also describes the resistance to it. He picks up from Ambedkar’s idea that change will come only if thought is compelled through the creation of a crisis in the minds of the dominant castes: During a wedding, when the guests and the baratis, the bridegroom’s party, were eating their meals, the Chuhras would sit outside with huge baskets. After the baratis had eaten, the dirty pattals or leaf-plates were put in the Chuhras baskets, which they took home, to save the joothan sticking to them. . . . Sukhdev Singh Tyagi’s daughter was getting married. . . . The barat was eating. . . . When all the people had left after the feast, my mother said to Sukhdev Singh Tyagi . . . ‘Chowdhriji, all your guests have eaten and gone. . . . Please put something on the pattal for my children. They too have waited for this day.’ Sukhdev Singh pointed at the basket full of dirty pattals and said, ‘You are taking a basketful of joothan. And on top of that you want food for your children. Don’t forget your place, Chuhri. Pick up your basket and get going. . . . That night the Mother Goddess Durga entered my mother’s eyes. . . . She emptied the basket right there. She said to Sukhdev Singh, ‘Pick it up and put it inside your house. Feed it to the baratis tomorrow morning.’ She gathered me and my sister and left like an arrow. . . . After that day Ma never went back to his door. (Valmiki 2007: 9–11)

Addressing the question of the citizenship rights of untouchables, Ambedkar argued that the inferior position accorded to them, as a class, was maintained by every device the majority could summon: ‘This inferiority is the destiny not merely of an individual but of

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the whole class’ (Ambedkar 2002f: 330). And there are no rights, no equal rights, there is no justice, no liberty or fraternity, no democracy, and no escape from it all in one’s own generation or for the generations to come: ‘Once a Touchable, always a Touchable. Once an Untouchable, always an Untouchable. . . . Under it, those who are born high, remain high; those who are born low, remain low’ (ibid.). The republic is a republic ‘of the Touchables, by the Touchables and for the Touchables’, ‘an empire of the Hindus over the Untouchables’ (ibid.: 330–31). Starting with the Madras Removal of Civil Disabilities Act, 1938, legislations for the removal of social disabilities and for temple entry were passed in Mysore (1943 and 1948), Orissa (1946), the Central Provinces and Berar (1947), Bombay (1946 and 1947), the United Provinces (1947), West Bengal (1948), East Punjab (1948), Saurashtra (1948), Madhya Bharat (1949), Coorg (1949), Bihar (1949), Travancore–Cochin (1950), and Hyderabad (1358 Fasli). The constituent assembly debated the issue of untouchability at length in the course of drafting articles 15 and 17 of the constitution of India. The legislations just listed straddle the debates in the constituent assembly and the formulation of the constitutional protections, making the historical resistance to untouchability part of the legislative history of this constitutional category as well. The debates on these two articles are instructive. Munshi and Ambedkar drafted the non-discrimination provision separately. Munshi’s draft read: All persons irrespective of religion, race, colour, caste, language or sex are equal before the law and are entitled to the same rights and are subject to the same duties. Women citizens are the equal of men citizens in all spheres of political, economic, social and cultural life and are entitled to the same civil rights and are subject to the same civil duties unless where exception is made in such rights or duties by the law of the Union on account of sex. All persons shall have the right to the enjoyment of equal facilities in public places subject only to such laws as impose limitations on all persons, irrespective of religion, race, colour, caste or language. (Rao 1968: 182–83)

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Ambedkar’s draft was more precise and hard-hitting: Whoever denies to any person, except for reasons by law applicable to persons of all classes and regardless of their social status, the full enjoyment of any of the accommodations, advantages, facilities, privileges of inns, educational institutions, roads, paths, streets, tanks, wells, and other watering places, public conveyances on land, air or water, theatres or other places of public amusement, resort or convenience, where they are dedicated to or maintained or licensed for the use of the public, shall be guilty of an offence. (Ibid.: 183)

In order to ensure the realization of fundamental rights in a country like India, Ambedkar felt protections were necessary against untouchability and discrimination, which were practised on a vast scale and in a relentless manner. Members brought up the need to ensure protection on grounds of political creed, language, dress, and colour, all of which suggestions were dropped after debate. There was also a view that no institution should be allowed to be reserved for members of any given sect or community, and a debate on whether the word ‘public’ needed to be qualified further. Ambedkar responded to most of these queries: the word ‘shop’ was used in a generic sense to mean ‘any place where the owner is prepared to offer his services to anybody who is prepared to go there seeking his service’. ‘Place of public resort’ was used in a specific sense (not in the sense that it is used in the penal code) to refer to facilities that were maintained wholly or partly out of state funds, including burial or cremation grounds so maintained (ibid.: 183). With respect to the abolition of untouchability, addressed in article 17, Munshi wrote: ‘untouchability is abolished and the practice thereof is punishable by the law of the Union.’ Ambedkar’s draft, more general in its application and more specific in its delineation, said: ‘any privilege or disability arising out of rank, birth, person, family, religion or religious usage and custom is abolished’ (Rao 1968: 202). Jagjivan Ram and K. M. Panikkar observed that there was need to recognize the possibility of untouchability among Christians or other communities as well; some Christians suffered the same disabilities as Hindu untouchables. Panikkar explained this further:

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If somebody says that he is not going to touch me, that is not a civil right which I can enforce in a court of law. There are certain complex of disabilities that arise from the practice of untouchability in India. Those disabilities are in the nature of civil obligations or civil disabilities and what we have attempted to provide for is that these disabilities that exist in regard to the individual, whether he be a Christian, Muslim or anybody else, if he suffers from these disabilities, they should be eradicated through the process of law. (Ibid.: 202–3)

The definite legal meaning of the untouchability provision, Rajagopalachari observed, was that the law would not any more recognize practices of untouchability ‘as bringing into existence any right or disability’ (ibid.: 203). When the draft was adopted amidst shouts of ‘Mahatma Gandhi ki jai’, it read: ‘“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with law’ (Rao 1968: 205). The definition of untouchability was left to the statute that would be enacted in compliance with this article. However, Tripathi observes that even in the absence of legislation, article 17 ‘will have the effect of invalidating not only all laws, customs, usages, practices etc., directly or indirectly recognizing or encouraging the practice of untouchability, but even any sales, contracts, covenants or other private transactions having the effect of such recognition or encouragement’ (Tripathi 1971: 188–89). The Protection of Civil Rights Act, 1955 (Act 22 of 1955), was enacted ‘to prescribe punishment for the [preaching and practice of “untouchability”], for the enforcement of any disability arising therefrom and for matters connected therewith.’ Civil rights under this statute referred to any right accruing to a person by reason of the abolition of untouchability by article 17 of the constitution. The significance of this statute lies in the fact that it delineates the legal meaning of untouchability, which includes: preventing any person from entering any place of public worship that is open to other persons professing the same religion; preventing any person from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in or using the waters of any sacred tank, well, spring, or watercourse in the same

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manner and to the same extent as is permissible to other persons professing the same religion; enforcing social disabilities in the matter of access to or use of shops, public restaurants, hostels, rest houses, places of public entertainment, transport, or occupation of residential premises in localities; enforcing disabilities in the practice of profession, occupation, trade or business; obstructing the observance of social or religious custom, usage or ceremony, particularly taking part in processions; preventing the use of jewellery and finery; refusal of admission to any hospital, dispensary, educational institution, or hostel maintained from the general public funds; the refusal to sell goods or render services to any person at the same time and place and on the same terms and conditions applicable to other persons in the ordinary course of business; and obstructing persons from enjoying civil rights. This legislation also defines the term social boycott: the refusal to allow occupation of house or land; the refusal to enter into economic transactions; the refusal to perform or receive customary services; and abstention from social, professional or business relations, where such transactions, services and relations would ordinarily be maintained with such other persons. The last part of the definition of untouchability contained in the Protection of Civil Rights Act deals with unlawful compulsory labour: 7A(1) whoever compels any person, on the ground of ‘untouchability’ to do any scavenging or sweeping or to remove any carcass or to flay any animal or to remove the umbilical cord or to do any other job of a similar unlawful compulsory nature, shall be deemed to have enforced a disability arising out of Labour, deemed to be a practice of ‘untouchability’. . . . Explanation: for the purposes of this section, ‘compulsion’ includes a threat of social or economic boycott.

This section of the Protection of Civil Rights Act, an important part of the prohibition of untouchability contained in article 17, and the prohibition of forced labour under article 23 of the constitution, were reinforced further by the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993. As late as 2003, the Supreme Court directed all state governments to file

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affidavits on manual scavenging within government premises, after social action groups documented this practice extensively and placed the evidence before the court (Ramanathan 2010; Subrahmaniam 2010). Tying forced labour to untouchability, manual scavenging represents a convergence of discrimination with the negation of liberty — in this case, by the state — in an area where extreme stigmatization guarantees impunity to state and non-state actors alike. Sub-section (2) of the Protection of Civil Rights Act makes it an offence for anyone to deny another person of his or her own community the usual privileges of community membership, or to take part in excommunicating him or her for not practising untouchability. Drawing the crucial connection between untouchability and personal liberty, Tripathi observes that the law in India leaves little room for the practice of bigotry even within the home (Tripathi 1971: 191–92). How does untouchability problematize our understanding of the fundamental right to personal liberty? This is a question that has distinct resonances in different contexts. While legal scholarship in India has equated liberty with the right to personal autonomy, what is of relevance here is not the individual’s right to personal autonomy, but the right of individuals who are members of classes to the exercise of liberty and life in their fullest and most complete sense. In order to make sense of liberty, however, we must, after Orlando Patterson, look at the prior condition: namely, the condition of routine and customary denial of liberty that informs social consciousness in contemporary caste society even in the face of punitive legislation.

INSURGENT BUREAUCRACIES: THE S. R. SANKARAN GOVERNMENT ORDERS In looking at untouchability, our focus will be on Andhra Pradesh. The period between 1971 and 1977 saw the passage of a series of government orders that aimed at operationalizing policies of non-discrimination and the right to liberty through the systematic

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and planned removal of practices of untouchability through administrative fiat. A cluster of 136 GOs were issued by a single officer, S. R. Sankaran, with the sole objective of realizing article 17 of the constitution of India. Using the power of administrative law to effect social change, these GOs provide an unparalleled demonstration of the possibility of creative and insurgent administration: Government attach special importance to the speedy and systematic execution of the welfare and development projects for the benefit of the weaker sections in general and the SCs, STs and the BCs in particular. The speedy and efficient implementation of the programmes depend in no small measure on the total involvement of and the priority assigned by the district heads of departments entrusted with the execution of these programmes. Government wished to impress upon all heads of departments that the efficiency and the speed with which district officers implement these schemes and the involvement shown by them in the implementation of these programmes will hereafter form one of the major considerations in the matter of assessment of their work and their advancement in the career. . . . governments have also decided that special report should be sent by collectors on such officers who do commendable work in this direction as also those whose performances is below par to enable the heads of departments and the government to take appropriate action.1

In 1971, the Government of India forwarded to the state governments the observation of the Parliamentary Committee on the Welfare of the Scheduled Castes and Scheduled Tribes, proposing the reservation of 15 per cent of the houses built under the low- and middle-income-group schemes for scheduled castes and scheduled tribes.2 The Andhra Pradesh state government ordered the implementation of this scheme in the ratio of 12 to 3.3 District collectors were requested to make special efforts to see 1

Government of Andhra Pradesh, General Administration (Ser. C) Department, Memorandum No. 2153/Ser/763 dated 26 August 1976. 2 Government of India, Ministry of Works, Housing letter No. 28(8)/70, dated 19 June 1971. 3 Government of Andhra Pradesh, Planning and Cooperation (Housing I-I) Department, G.O. Ms. No. 489, dated 10 September 1971.

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that at least some houses for Harijans were constructed in the main village, as this would help in achieving social integration.4 Also, it was considered advisable to locate public institutions, as far as possible, either in Harijan localities and cheris5 or in close proximity to them: ‘the site allotted for communal purposes in the land acquired for Harijans for house sites should be considered for utilization for locating these public offices or institutions.’6 In consultation with the director of medical and health services, the government examined the feasibility of locating primary health centres, maternity and child welfare centres and sub-centres in the Harijanwadas. It decided in principle that this would be feasible if the Harijanwada was located within a distance of 5 kilometres from the main village. The scheme would improve social integration by making ‘forward community’ people go to the Harijanwadas.7 Where house sites were allotted, authorities were instructed to make sure that actual physical possession of sites was given simultaneously.8 It was widely acknowledged that even though statutory protections existed, the provision of access on the ground required planning and budgetary outlay. While housing was an important need, Harijans also needed access to burial grounds and pathways, for which the budget was meagre — one lakh rupees (` 100,000). On a request from the director of Harijan welfare, the utilization of eight lakh rupees from the allotment of ` 320 lakh for house sites was authorized for providing pathways and burial grounds for Harijans during

4

Government of Andhra Pradesh, Social Welfare (B2) Department, G.O. Ms. No. 57, dated 14 July 1976. Also Government of Andhra Pradesh, Employment and Social Welfare Department, Memo No. 5092/C1/75-1, dated 17 December 1975; Government of Andhra Pradesh, Social Welfare (C) Department, Memo No. 5292/C1/76-1, dated 5 August 1976. 5 Segregated hamlets of scheduled castes. 6 Government of Andhra Pradesh, Social Welfare (B) Department, G.O. Ms. No. 90, dated 25 August 1976. 7 Government of Andhra Pradesh, Medical and Health Department, G.O. Rt. No. 132, dated 24 January 1977. 8 Government of Andhra Pradesh, Social Welfare (C1) Department, Memo. No. 3719/ C1/76-1; Government of Andhra Pradesh, Social Welfare (C) Department, Memo. No. 3788/C1/76-1, dated 4 June 1976.

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1976–77.9 In the course of allotment of sites and acquisition of land for the same, complaints were received by the government that the lands of poor and marginal farmers were being acquired for allotment to scheduled caste persons. Cautioning the district administration to exercise discretion in this matter, since there was a possibility that the issue would get mixed up with village rivalries and factions, the government issued a directive that, as far as possible, ‘special care should be taken to ensure that lands belonging to small and marginal farmers are not acquired except where it is inevitable.’10 The assignment of lands to persons belonging to the scheduled castes depended on the acquisition of surplus land from landholders and the conversion of poramboke11 lands vested in the public works department (PWD) and village panchayats. The acquisition of poramboke was especially fraught with procedure, which delayed the assignment of these lands considerably. Cutting through procedure, the government decided that: (a) notification regarding conversion of poramboke could be limited to concerned villages and the practice of publication in the district gazette could be dispensed with; (b) where land was vested in the PWD, a time limit would be prescribed for receiving responses on the feasibility of conversion of lands, and if no reply was received within the stipulated period, the land would be released for assignment purposes; (c) the panchayats would no longer control poramboke land, which would now be controlled by the revenue divisional officer with powers of revision vested in the district collector; (d) restrictions on the collector for excision of land from poramboke were removed, with the government directing that collectors would ‘exercise unrestricted powers in a matter of excision of poramboke land and its conversion into ayan [assignable land] after satisfying themselves that sufficient land has been reserved for communal needs of the village subject however to the condition that the 9

Government of Andhra Pradesh, Employment and Social Welfare (C) Department, G.O. Rt. No. 393, dated 3 April 1976. 10 Government of Andhra Pradesh, Social Welfare (C) Department, D.O. Lt. No. 3273/ C1/76-2, dated 20 July 1976. 11 Unassigned land, for the most part uncultivable and used as the commons.

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rights in toddy trees are not disturbed’; and (e) as land required for communal purposes differed in extent from village to village, discretion regarding how much land to retain for communal use was vested in the collector.12 When the matter of separate and protected drinking water supply for scheduled caste localities was raised by the Andhra Pradesh State Harijan Conference in April 1976, the government noted that ‘the provision made in the plan for welfare of scheduled castes is only supplementary in nature and that the main thrust for their welfare should come from the general sector.’13 All departments were instructed to earmark 15 per cent of their plan provision for providing facilities and amenities to scheduled castes, which would include 15 per cent of the provision made for rural water supply and sanitation. Goods and artefacts produced by persons belonging to the scheduled castes often suffered from the absence of adequate markets and networks, since existing ones were monopolized by dominant groups. The opening out of channels for the marketing of finished goods was addressed through a circular sent out to all consumers’ cooperative central stores/super bazaars, directing them to purchase products from persons belonging to scheduled castes at reasonable prices and to provide good marketing facilities. At the time that the circular was sent out, some consumer cooperative stores had opened branches in scheduled caste localities; these outlets were requested to appoint only persons belonging to scheduled castes to run their branches in these areas.14 Similarly, the Small Farmers Development Agency Programme was instructed to adhere to the priority indicated by the Government of India in the allocation 12

Government of Andhra Pradesh, Revenue (P) Department, G.O. Ms. No. 87, dated 22 January 1975. Also Social Welfare (B) Department, Memo. No. 131/3354/B3/76-2, dated 16 September 1976; Government of Andhra Pradesh, Panchayati Raj (PanchayatsIII) Department, G.O. Ms. No. 647, dated 20 November 1975. 13 Government of Andhra Pradesh, Social Welfare (B) Department, G.O. Ms. 177, dated 16 November 1976; emphasis added. 14 Copy of circular Rc No. 25835/76 – H2 (c), dated 13 August 1976, from Sri T. Lakshma Reddy, IAS, Registrar of Cooperative Societies, Andhra Pradesh, Hyderabad, addressed to all the consumer cooperative central stores/super bazaars in the state, and copy marked to Secretary, Social Welfare Department, Hyderabad.

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of loans from financial institutions for the purchase of buffaloes: namely, that in providing loans to agricultural labourers and marginal farmers, care should be taken to ensure that 50 per cent of such loans were given to farmers from scheduled castes. Further, subsidiary occupation programmes like dairy, poultry, sheeprearing, piggeries, and fisheries should also ensure adherence to this norm.15 Debates on reservation in educational institutions focus on the monopolization of seats in these institutions by the affluent sections of the scheduled castes and scheduled tribes, i.e., the ‘creamy layer’, discussed in the previous chapter. However, in 1973, the Government of Andhra Pradesh found that a significant number of students belonging to the general category had produced false certificates in order to secure admission to institutions against seats reserved for students belonging to scheduled castes and tribes, thereby depriving the latter of their rightful claim. The education department of the Government of Andhra Pradesh issued an order setting forth guidelines for stringent action against students engaging in this form of malpractice: When reports are made regarding production of false caste certificates by the students, the Heads of Institutions should take immediate action to get the cases investigated through the Police and Revenue Authorities without delay. All such investigations and enquiries must be completed within a month. In all such cases, where enquiries reveal that if any of the students produced false caste certificates and secured seats reserved for scheduled castes and scheduled tribes, the heads of institutions concerned should cancel their admissions and debar them from the institution.16

If it was found that candidates from the general category secured other concessions, like scholarships, or admission into hostels run by the social welfare and tribal welfare departments, by producing false certificates, such concessions were to be cancelled immediately and the monetary value already enjoyed recovered. Further, it was 15

Copy of Circular Lr. No. 2284/S.F./II/76-1, dated 26 August 1976, from S. K. Pachauri, IAS, Dy Secretary to Government, addressed to all projects officers of Small Farmers Development Agencies, and copy marked to Social Welfare Department. 16 Government of Andhra Pradesh, Education Department, G.O. Ms. No. 1134, dated 16 November 1973.

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notified that such students would be debarred from admission into or expelled from any educational institution for a period of not less than one year.17 Similarly, it was found that vacancies reserved for scheduled caste and scheduled tribe candidates were being appropriated by candidates belonging to the general category through the production of false certificates. No clear policy was articulated by the government on how these cases should be dealt with. The social welfare department issued a GO to the effect that all such cases should be reported to the SC & ST cell of the Department of Social Welfare, and that prosecutions were to be launched simultaneously for offences punishable under section 182 and/or section 420 of the Indian Penal Code. Such candidates were to be placed under suspension pending the completion of prosecution, and dismissed from the service if the charges were proved.18 Alongside safeguarding the seats reserved for students from these vulnerable groups, it was necessary to create an enabling environment that allowed them to access equality of opportunity in education and public employment. This meant supplying nationalized textbooks free of cost from the primary to the high school level,19 ensuring through special steps the enrolment and actual attendance especially of children of 6–14 years,20 ensuring the proper administration and monitoring of the midday meal scheme by a committee constituted where possible by parents of scheduled caste children studying in the school,21 supplying two pairs of dresses to all boarders in government scheduled caste hostels,22 17

Government of Andhra Pradesh, Employment and Social Welfare (B) Department, G.O. Ms. No. 405, dated 13 June 1974. 18 Government of Andhra Pradesh, Employment and Social Welfare (SC & ST Cell) Department, G.O. Ms. No. 164, dated 15 September 1973. 19 An additional expenditure of Rs 18 lakh was approved towards this end in the year 1976–77, vide G.O. Ms. No. 488, dated 13 May 1976, Social Welfare (B1) Department, Government of Andhra Pradesh. 20 Government of Andhra Pradesh, Education Department, G.O. Ms. No. 141, Edn., dated 25 February 1977. 21 Letter from Sri P. Adinarayana, Director of School Education, AP, Hyderabad to the Secretary to Government, Education Department, AP, Hyderabad, L. Dis. No. 2714/B31/76, dated 9 July 1976. 22 Government of Andhra Pradesh, Social Welfare (E) Department, G.O. Ms. No. 73, dated 3 August 1976.

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reserving 20 per cent of seats in general hostels for scheduled caste students and 5 per cent for students from scheduled tribes, combining general and scheduled caste/tribe hostels wherever possible,23 and setting up pre-examination training centres with tuition waivers and free boarding to train scheduled caste and scheduled tribe candidates for the All-India Services Competitive Examinations.24 At another level, the government introduced schemes for vocational training — driving, village officers, stenography, typewriting, shorthand, and so on, for individuals from these communities.25 Upon a recommendation made at the State Harijan conference in April 1976, the government directed that lessons on the eradication of caste and untouchability should be included in the textbooks of classes VIII to X, and in language lessons in colleges. In addition, slogans on the eradication of untouchability were also to be included in textbooks and displayed in classrooms.26 Where scheduled caste persons had already completed their professional education, embarking on a professional career presented problems that were both financial and social. Law graduates from these communities, for instance, were very few and generally poor. Setting up a practice that could be sustained was a difficult proposition. The small number of lawyers from the scheduled castes also meant negligible numbers in the judiciary. Financial assistance of ` 15,000 per year was sanctioned for 10 law graduates from across the state of Andhra Pradesh, i.e., ` 1,500 per head towards enrolment fees and purchase of law books. The condition attached to this financial assistance was that in addition to his own practice, the scheduled caste advocate who received the aid should take up occasionally the cases of the scheduled castes in the 23

Government of Andhra Pradesh, Education ( J) Department, G.O. Ms. No. 1150, dated 29 December 1976. 24 Government of Andhra Pradesh, Social Welfare (B1) Department, G.O. Ms. No. 523, dated 26 May 1976. 25 Government of Andhra Pradesh, Employment and Social Welfare (B) Department, G.O. Ms. No. 118, dated 14 September 1976. Also Social Welfare (B1) Department, G.O. Ms. No. 3, dated 5 January 1977. 26 Government of Andhra Pradesh, Education (M2) Department, G.O. Ms. No. 1120, dated 18 December 1976.

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courts particularly in respect of untouchability cases, cases of harassment of scheduled castes etc, for at least a period of three years from the date of receipt of aid, whenever entrusted by the district collectors either free of charge or on concessional rates as decided by the district collector. The free service cases may be minimum so that the practice and earnings of the scheduled caste advocate will not suffer.27

The advocate-general was requested to include the names of qualified scheduled caste and tribe advocates for appointment as legal advisers to government companies and corporations.28 In government employment, where a higher qualification was a prerequisite for promotion, the government decided that scheduled caste and scheduled tribe employees from the non-gazetted category would be deputed for higher studies within the country, with full pay and allowances for a period not exceeding two years, once in the career span of the employee.29 Since matters concerning the scheduled castes, scheduled tribes and backward classes were dispersed across different administrative sections — magisterial, land assignment, education, employment, etc. — it became difficult to monitor the progress of action on specific government communications due to the lack of a coordinated, centralized system within the districts. The SC & ST cell in the secretariat at the state headquarters received such communications first, and coordinated action on them. In a memorandum issued to district collectors and superintendents of police, officers at the district level were directed to set up similar cells that would report to the collector or superintendent of police, who was entrusted with all matters relating to the scheduled castes and scheduled tribes. In addition to receiving all communications and referring them to the relevant departments, these cells would 27

Government of Andhra Pradesh, Social Welfare (B2) Department, G.O. Ms. No. 33, dated 7 July 1976; Government of Andhra Pradesh, Social Welfare (B) Department, G.O. Ms. No. 168, dated 29 October 1976. 28 Government of Andhra Pradesh, Social Welfare (SC & ST Cell-B) Department, Memo No. 912/SC & ST Cell-B/76-3, dated 3 December 1976; Government of Andhra Pradesh, Industries and Commerce (PE Cell) Department, Letter No. 3069/PE-Cell/76-1, dated 29 October 1976. 29 Government of Andhra Pradesh, Social Welfare (B) Department, G.O. Ms. No. 342, dated 30 August 1977.

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also be responsible for dispatching periodical reports and convening district-level committees to monitor the protection of civil rights at the local level.30 In 1976, panchayat samitis and zilla parishads were instructed to allocate 15 per cent of their general revenues to schemes benefiting the scheduled castes. The base year for earmarking the funds was 1963–64. These bodies were to clear the backlog within a period of five years from 1975–76. Of this 15 per cent, 5 per cent was to be made over to the Andhra Pradesh Scheduled Castes Cooperative Finance Corporation Ltd, and 10 per cent allocated to the direct implementation of schemes, with any unspent balances made over to the corporation at the end of the financial year.31 Guidelines were issued to panchayati raj bodies for the utilization of the 10 per cent. These bodies were directed to ensure expenditure on: construction of and repairs to drinking water wells or taps in scheduled caste localities; construction of pathways in Harijan cheris connecting them to the main village; construction of social welfare school buildings and supply of furniture; electrification of scheduled caste localities; implementation of schemes for imparting training to scheduled caste candidates: for instance, training them as village officers, or in motor-driving and tractor-driving; and development of plots assigned to house sites, through levelling of land, provision of drinking water facilities, sanitary amenities, internal roads, etc., in the lands acquired for scheduled castes.32 Given the proscription on intermarriage between castes, serious problems are faced by persons entering inter-caste marriages. The need was felt to establish a separate cell with a director ‘to look after the interests of inter-caste married couples and their children and solve their problems’ without delay. Non-statutory educational concessions were granted to these couples and their children. A government memorandum issued in July 1975 30 Government of Andhra Pradesh, General Administration (SC & ST Cell) Department, Memo. No. 4124/SC & ST Cell/74-2, dated 3 March, 1975. 31 Government of Andhra Pradesh, Panchayat Raj (Progs I) Department, G.O. Ms. No. 597, dated 22 June 1976. 32 Government of Andhra Pradesh, Panchayat Raj (Progs I) Department, G.O. Ms. No. 376, dated 17 May 1977.

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nominated the joint secretary to the government as the official in charge of Harijan welfare, and the director of Harijan welfare was designated to look after the problems of ‘inter-caste married couples’.33 The government also directed that, in cases where one party was a scheduled caste/tribe person, his/her name should be sponsored by the employment exchange on a priority basis, as a way of alleviating the hardship that these couples underwent, given that in most cases they were disowned by their families and relatives.34 The eradication of untouchability requires work at different levels: enforcement, positive measures, and the creation of enabling conditions. Most often, the different levels are interwoven through administrative fiat in the hope that this would lead to the notional change that Ambedkar dreamt of. Social status is indicated through naming, especially through the affixing of prefixes and suffixes to names. The government, finding that it was a fairly common practice to attach the suffix ‘gadu’ to the names of Harijan men, issued a memorandum that said: ‘The government direct that such suffix should be scrupulously omitted in all government records including birth registers hereafter.’35 In order to ensure that members of scheduled castes were allowed to draw water from public wells and enter hotels and places of worship without obstruction, the government directed that all the officers in the field including police officers, revenue officers, officers of the Panchayati Raj department, and extension officers in the blocks be held responsible to enable the members of scheduled caste community to draw water from the public wells in the villages and also make the scheduled castes use the hotels and places of worship on an equal footing with other caste people so that over a period of time this practice becomes common. Wherever the scheduled castes suffer from disability in this respect, the government officers while on tours in the villages should 33

Government of Andhra Pradesh, Social Welfare (B2) Department, Memo. No. 791/ B2/75-1, dated 25 July 1975; Government of Andhra Pradesh, Social Welfare (B3) Department, Memo. No. 24 (a) 4988/B3/76-1, dated 3 December 1976. 34 Government of Andhra Pradesh, Labour, Employment and Technical Education Department, G.O. Ms. No. 941, dated 27 August 1977. 35 Government of Andhra Pradesh, Employment and Social Welfare (B2) Department, Memo. No. 873/B2/74-12, dated 18 July 1974.

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persuade the villagers not to obstruct the scheduled castes using the public places. All the inspecting officers visiting the villages should make entries in their tour diaries about the practice of scheduled castes using the public wells, hotels and places of worship, in villages.36

Untouchability may escalate into heightened violence against members of scheduled castes and tribes. Members of dominant castes often resort to violent attacks against dalits to prevent the transgression of boundaries entailed by the resistance to untouchability practices or inter-caste marriages. Apart from the penal law coming into operation in such cases, the fact of the permanent disablement or death of breadwinners in dalit families is an issue that must be addressed with immediacy, through the immediate assignment, on a priority basis, of land, seats in schools and hostels for children of the affected families, suitable employment for one member of the family in a government or public undertaking without the mediation of the employment exchange, or maintenance allowance to the survivor in cases where no member of the family is capable of being employed. These were some measures contemplated by the government prior to the framing of the rules under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989, in 1995.37 While several orders and memoranda have been issued, a review of the implementation of the various schemes in each district showed a lack of uniformity in implementation, with large amounts of earmarked funds remaining unutilized in some districts. The chief secretary, in his memorandum, observed that the variation reflected a lack of interest on the part of the authorities concerned. As a check on the authorities at the district level, this memorandum states that the government have . . . considered the matter and direct that while assessing the work of the collectors, their performance in the 36

Government of Andhra Pradesh, Employment and Social Welfare (B) Department, G.O. Ms. No. 178, dated 16 November 1976. 37 Government of Andhra Pradesh, Social Welfare (SC & ST Cell A) Department, G.O. Ms. No. 199, dated 9 December 1976.

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implementation of the schemes for the benefit of the weaker sections shall also be taken into consideration and a mention of it will be made while writing the confidential reports on them.38

It was also found that when officers toured villages, they tended to conduct their deliberations in the main village, far away from the Harijan cheri. This made it difficult for the scheduled castes to discuss their problems with officials, and gave them the impression that they were being ignored. Collectors and heads of departments were instructed to communicate to officers up to the firka level the requirement that officers of all departments should visit Harijan localities during their tours to villages. These visits were to be recorded in the tour diary, which would be subjected to review with special reference to visits to Harijan cheris.39 Alongside administrative action, the government also recognized that: In the current social setting, many of the government servants may not have developed the appropriate attitude or motivation for analyzing, understanding and attending to the problems of scheduled castes and scheduled Tribes. This may not necessarily be due to any inherent bias but the result of absence of training and motivation. It is, therefore, considered that the introduction and implementation of proper training courses in this respect in various training institutions for government servants will bring about desirable improvements in the approach of government servants at different levels.40

A special officer in the Institute of Administration was assigned the responsibility of designing courses on the problems of scheduled castes and scheduled tribes, to enable better and more sensitive administration. A careful examination of the micro-practices of law, particularly its implementation, points in two directions. The first of these is 38

Copy of Memorandum No. 2049/Special-A/76-1, dated 31 May 1976, of the General Administration (Special-A) Department. 39 Government of Andhra Pradesh, Social Welfare (B) Department, G.O. Ms. No. 136, dated 4 October 1976. 40 Government of Andhra Pradesh, Social Welfare (B) Department, G.O. Ms. No. 116, dated 13 September 1976.

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a methodological direction, where an understanding of the law draws not merely upon legislation and jurisprudence, but also, importantly, upon the vast field of implementation effected by the bureaucratic apparatus of the state. A close examination of administrative law points us in the second direction, namely, the contours of discrimination as loss of liberty on the ground in the form of untouchability.

THE REPORT OF THE DR JUSTICE K. PUNNAYYA COMMISSION The single-member commission constituted by the Government of Andhra Pradesh, called the Dr Justice K. Punnayya Commission to Enquire into the Practice of Untouchability against the Scheduled Castes and Scheduled Tribes (hereafter the Punnayya Report), submitted its 2,000-page report to the government in the year 2000. The Punnayya Report begins with a detailed account of nationalist and Gandhian attempts at rooting out untouchability in rural Andhra, and recommendations for conciliatory practices to uproot this ‘evil’. This makes our own endeavour to locate the discussion on untouchability in foundational anti-caste philosophy immediately relevant. The substantive part of the report makes no distinction between untouchability and atrocity, although in the law these are two distinct categories: As early as in 1970, Memo No. 1786/SC & ST Cell/70-3, dated, 2-41970, GAD, Government of Andhra Pradesh directed all the Collectors to ensure that fullest protection is given to the SCs in the enjoyment of the lands assigned to them. Memo No. 1816/71-2 (SC & ST) dated, 0109-1971, GAD, was issued by Government of Andhra Pradesh stating that the Government have received many complaints of ill-treatment and harassment and beating up of SCs in various villages in the State. Collectors and Superintendents of Police are, therefore, requested to keep a special vigil and take suitable and prompt action in all such cases. In Memo No. 1299/SC & ST Cell/74-1, dated, 18th May, 1974, Employment and Social Welfare (SC & ST Cell) Department, Government of Andhra Pradesh issued instructions to all the Collectors and Superintendents of Police to keep a special vigil to take suitable and prompt action in all cases involving SCs and keep them under constant review. In spite of such clear

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instructions, several instances have come to the notice of the Government that no special attention is being bestowed on these cases. (Punnayya Report 2000: 392)

This section discusses the cases of untouchability in Andhra Pradesh that were placed before the Justice Punnayya Commission. In Srikakulam district, Golla Muthyalu and her two sons of the village Brahmana Therla in Palasa mandal stripped Thungana Damayanthi, a woman belonging to a scheduled caste in the same village, on 5 December 1999. In the village Sivvam of Veeraghattam mandal, Lakshmu Naidu beat Radhalu and his son Laxmu with a stick on 3 August 1998. Two days later, on 5 August 1998, the sarpanch of Sivvam village, Murali, beat Kinthali Ramulu, a person belonging to a scheduled caste. The sub-inspector of police, in an attempt to bring about a compromise between the Kapus and the scheduled castes, summoned both groups to the police station. Sixty persons belonging to the scheduled castes waited all day at the police station in vain. The following day, 2,000 Kapus led by Sarpanch Muralikrishna raided the SC colony, untethered their cows and allowed them to destroy the crops in the lands of the SCs. This was followed by a social boycott, where women from the scheduled caste were obstructed from drawing water from the well. In Gurandi ‘B’ village Bhamini mandal, 47 acres of land have been endowed in the name of Brundhavana Chandra Swamy Matam. There is no temple, however, and the idols are kept in a neighbouring village. Narvotham Goswamy of Parlakamodi of Orissa state is the matadhipathi (head priest) who, along with a few landlords, had occupied the lands. The 200 scheduled caste families in the village have no land, nor are they able to lease it. They put forth a proposal that they be allowed to lease the endowed lands, in return for which they would pay rent, construct a temple, and have the idols installed in their village. However, neither the district administration nor the police took note of their representations. When the dalits persisted in trying to cultivate the lands, the police intervened through the use of force and violence, seriously injuring 70 dalit men and women. Fact-finding missions

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were organized, and the collector suggested to the Punnayya Commission that the SC Finance Corporation should acquire the lands through an option and then lease it out to the dalits of the village. The solution proposed by the collector nevertheless left unaddressed the fact of the denial of liberty with respect to access to common agricultural land in the village, and the use of state vio-lence to actively obstruct access. The problem of denial of access, especially to temple lands, was also reported from the Vizianagaram and Visakhapatnam districts, where dalits were murdered by the landlords for demanding lease of temple lands. Elsewhere in the district, attempts were made to burn the sarpanch alive, dalit women were stripped and assaulted, sometimes in public, the SC colony was raided, dwellings were destroyed, and witchcraft accusations were made, resulting in violence. Innumerable instances of social boycott were reported, along with denial of access to village commons (banjar), obstruction of attempts by dalits to garland Ambedkar’s statue, and violence by the police at the behest of landlords, sometimes resulting in dalit deaths, both in custody and outside. Where the revenue administration did in fact grant banjar lands to dalits, as in Mulapeta village of Visakhapatnam district, the dominant castes forcibly entered the lands and either destroyed the crop or carried it away. There were occasions when the dalit families of an entire village were forced to take shelter in the police station for up to 10 days. In some instances, specific complaints were made by dalits against named persons belonging to the dominant castes in the village. These complaints ranged from accusations of lynching to sexual assault, as in Kondavaram and Chintada villages in East Godavary district. The police registered cases against those accused of offences, but did not make any arrests. In Chintada, in May 1999, the Kapus, led by the sarpanch, entered the house of Dasari Balamma, ‘caught hold of her hair and threw her down and tore her blouse and outraged her modesty’. Although her husband registered a complaint, the police refused to make any arrest. The couple then filed a private complaint, whereby the sarpanch was found guilty and sentenced to one year’s rigorous imprisonment plus a fine. The refusal to make arrests on the basis of complaints

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made by dalits is often accompanied by the readiness of the police to arrest dalits on the basis of counter-complaints filed by the dominant castes. ‘Though remedies under Sec 4 of POA Act are provided against such police officers, the SCs cannot invoke Sec 4 against the police officers’ (Punnayya Report 2000: 96). Resistance to untouchability often provides the grounds for violence against dalits by the dominant castes. Such resistance includes entering hotels when dominant-caste persons are also present, sitting in banks while waiting for financial transactions to be processed, celebrating festivals, observing Ambedkar Jayanthi — in general, the dalit claim to occupy an equal space in the public domain provides reason and justification for the perpetration of atrocities against them by the dominant castes. Krishna district reported some of the worst such cases of atrocity to the Punnayya Commission. These cases included instances of sexual assault against Pogula Jyothi, a hearing- and speech-impaired dalit girl from Sriramapuram, Venkataramana from Pydurupadu, Bharathi from Musunuru mandal, Nimmagadda Nagarathnamma from Singannagudem, and Gunturu Mariamma of Venuthuru Malli. Varikuri Suguna from Pydurupadu, Jhansi of the village Batla Venamarru and another woman from Doddavevarapadu died after being gang-raped by men of dominant castes. Dalit women from Gannavaram complained of constant harassment by the landlords of their villages, to the extent that they were afraid to go anywhere alone. While cases were registered, this was not done under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Dalit men — local leaders, farm servants, owners of telephone booths — were reported to have been killed, the accused being persons belonging to the dominant castes. ‘The land lords of the Vempalli village in Ghantasala mandal unauthorisedly and forcibly dispossessed 32 Dalits of Vempalli village, 2 Dalits of Kottapalli village and 3 Dalits of Mallayya Chittoor from their lands leased out to them by the Government’ (Punnayya Report 2000). Appeals to the revenue and police authorities for intervention did not yield any response.The municipal commissioner sanctioned the construction of 40 shoe-shops by dalits. However, when the dominant castes prevented the construction

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of these shops, no protection was provided by the government. In Thotapalli village, the dominant groups appropriated the burial grounds of the dalits to build their own houses. Ambedkar believed that the ‘Indian village is the very negation of a republic. If it is a republic, it is a republic of the Touchables, by the Touchables and for the Touchables,’ in which there was no room for democracy, fraternity, equality or liberty (Ambedkar 2002f: 330). Rapid urbanization and the rise of professional education, far from being an undiluted good, reproduced practices of untouchability. The Punnayya Report demonstrates that, tied as they are to the caste system, specific practices of untouchability might vary depending on locale. However, untouchability has far from disappeared, either from urban areas or even from institutions of higher education. The Students Federation of India (SFI), Vijayawada city, petitioned the commission that, in the Siddartha Engineering College and the Koneru Laxmaiah Engineering College in Vijayawada, SC and ST students were not allowed to sit on the front benches. They were provided rooms separately in the college hostels. G. Sujatha and two other female students, members of SFI, stated in their petition that the SC students resident in the hostels were subjected to ‘cruel ragging by the students with caste bias and therefore the SC girls are afraid of going to colleges’ (Punnayya Report 2000: 1014). Dalits residing in Rajupeta of Bandar municipality charged municipal authorities of discriminating against dalits in the pro-vision of public facilities in their colonies. Lacking basic sanitation, electricity and metal roads, children especially in SC colonies were more vulnerable to illness and disease. The dalit residents contrasted the lack of facilities in their colonies with the relatively better infrastructure in non-dalit urban poor neighbourhoods (ibid.: 1017). In the words of Bejjipurapu Anand and 34 others belonging to scheduled castes in the village Chennuru in Kankipadu mandal: though we are boasting of our development, we are ashamed of the caste based discrimination on the ground of untouchability. In our village, Dalits are not allowed to draw water from the public wells and separate glass system for SCs is being maintained in the tea stalls. Not only towards

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Dalits who are living in the villages but also towards the Dalits Officers or Teachers and Dalit students, discrimination based on untouchability is being practised in their village. Even the elected Sarpanchs and M.P.T.Cs are being ill-treated on the ground that they are SCs. In the village Manthena in Gannavaram Mandal, the caste based discrimination is being shown towards the SC officers, teachers and students and also towards Sarpanchs and M.P.T.Cs belonging to SCs. (Punnayya Report 2000: 1019)

In Guntur district, several individual cases of murders of dalits were reported from different villages, as also sexual assaults on dalit women. When members of the dominant castes involved in some of these incidents were warned by the police against indulging in violence, the result was a social boycott against dalits. In Prakasam district, the conflict revolved around access to lands: The lands of the Dalits of (1) Kalagondapadu and Chodavaram and Machavaram villages of Kanigiri Mandal, (2) of Velugonda village of Velugonda Mandal, (3) of Mettapalem, Lingamguntla, Rasheedpuram, Ummanapalli, Nallagonda, Vemulugutta, Nelaturu and Gollapalli villages of Hanumanthunipalem Mandal, (4) of P.C. Palli village in P.C. Palli Mandal, (5) Hanumajipalem of Inkollu Mandal, (6) of Eluruvaripalem in Chimakurthi Mandal, (7) Santhamaguluru village in Santhamaguluru, (8) of Nagireddipalem in C.S. Puram Mandal and (9) the lands of the Dalits in Ragavaram, Birududanarua, Chintalantla, Bondalapadu, Thippaiahpalem, Bhupatipalli and Vemulakota in Markapuram Mandal were forcibly occupied by the Caste Hindus. No action by the Revenue authorities or by the police to restore the lands into possession was taken. (Ibid.: 105)

Apart from issues relating to land, Guntur district also shares with other districts in Andhra Pradesh individual instances of rape, murder, battery, and other forms of violence, for instance, obstructing dalit youth from playing cricket or preventing them from residing in the proximity of Reddy homes. In Nellore district as well, the major conflicts centred around the occupation of the meagre lands of dalits by dominant-caste persons. A petition submitted to the Punnayya Commission listed 34 dalits who had been thus dispossessed, along with the details of the dispossession (Punnayya Report 2000: 108–9). Contesting elections against dominant-caste candidates was another major

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provocation, even though the dalit candidate lost the elections in both instances reported. The violence and battery inflicted on dalits in this district ranged from breaking their limbs, splitting their heads causing derangement, to rape, gang-rape and murder. A similar pattern may be observed in the violence in Chittoor district, with the addition that dalits were not allowed to worship in the village temple in Melantham. Inter-caste marriages and inter-caste relationships, especially between dalit men and women of the dominant castes, figure as the cause of violence in several districts. In Cuddappah district, dalits were required to stand when caste Hindus entered their localities. Pipers and drummers refused to provide their services during dalit celebrations, dhobis and barbers also refused their services, and Brahmins did not officiate at their weddings. Dalits were denied entry to bus-stops and bus shelters, and were not allowed to participate in village fêtes. Dalit workers had to work two hours longer than other workers. They were attacked if they refused to kill he-buffaloes. Elected representatives from dalit communities were not allowed to sit on chairs; dalits were not allowed into temples and hotels, to draw water from wells, or to ride bicycles in the main village. They were not allowed to break coconuts at the idol of the goddess in the village jataras (fairs). If, accidentally, any caste Hindu’s hand touched a dalit, turmeric water mixed in cow’s panchakam (urine) was sprinkled on their persons as a purification measure. B. Nagayya, the dalit superintendent of the Chekrayapet mandal revenue office, was beaten by persons belonging to the dominant caste, because he dared to question their unauthorized occupation of his mother’s lands, measuring 4.35 acres in S. No. 325/1 in Maddirevula village of Lakkireddypalli mandal (Punnayya Report 2000: 111). Obstructing access to land and destroying dalit houses were the major forms that untouchability and atrocities against dalits took in this district. In Kurnool district, a dalit anganwadi worker was murdered because she resisted sexual harassment by a dominant-caste man (Punnayya Report 2000: 112). Another worker was refused entry

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into a temple where the Janmabhoomi programme was being held, although participation in the programme was part of her official duties. The commission further observed that ‘raids on the Dalits of Madduru, Regadaguduru, Vempenta, Gudipadu and Avukulu, demonstrate that the Dalits are leading their lives in insecurity’ (Punnayya Report 2000: 113). Across the district of Kurnool, dalits are forced to remove carcasses and bury them, and to engage in extremely demeaning forms of labour. Any refusal to perform these tasks results in social boycott. When the dalits of Regadagudem petitioned for the assignment of lands in the unauthorized possession of landlords, the deputy superintendent of police filed charge-sheets against 206 dalits. In Ananthapur district bombs were hurled at dalits who were celebrating Ugadi in their neighbourhood. Dalits from 312 villages petitioned the Punnayya Commission that they were denied entry into temples, had to suffer ‘the two-glass system’ when they went to hotels in all these villages, were denied access to public wells and taps, were refused washing and barbers’ services, were denied entry into bus shelters, were obstructed from sitting on the rachabanda41 or from riding bicycles, were not allowed to organize processions, and could not participate in village festivals. Their problems did not stop here. They were not allowed to dress well or to wear new clothes, and had to remain standing in the presence of any member of the dominant castes. After they finished their day’s work in the fields, food was served to them either in their hands or on rocks nearby, and water was poured into their hands (Punnayya Report 2000: 276–77). Elected dalit mandal presidents, sarpanches or members of the panchayats were not permitted to sit on chairs alongside caste Hindu members in the meetings of these local bodies. In Chittoor district, while dalits were allowed into the Venkateswara Swami temple and the Sri Kalahasti temple after the Temple Entry Act came into force in 1939, the smaller temples in the district have continued to deny dalits entry. Attempts by 41

Meeting-point in the main village, usually the location of village assemblies.

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dalits to force their way into temples have been met with attacks by dominant castes. Apart from the denial of temple entry, the other forms of untouchability — denial of entry into public places, restrictions on mobility and dress, and denial of services — were also routinely practised in this district (Punnayya Report 2000: 304). Seventeen petitions from Chittoor district spoke of how dalits were obstructed from using or accessing burial grounds: persons belonging to the dominant castes either usurped and cultivated the lands belonging to the burial ground, or denied scheduled castes access to the footpaths leading to these grounds. In East Godavari, on the other hand, according to Justice Punnayya, the influence of the social reform movement in bringing about the eradication of untouchability was evident in the fact that representations from only 19 mandals out of 59 were presented to the commission (ibid.: 425). From Guntur district, with 733 villages in all, the commission received a total of 625 representations from 505 villages belonging to 57 mandals in the district. In Nalgonda, Kurnool, Khammam, and Krishna districts, the forms of untouchability reported were very similar to those reported from other districts. With regard to Mahaboobnagar district, Justice Punnayya wondered aloud whether the police machinery was doing anything at all to safeguard the civil rights of dalits under the constitution (Punnayya Report 2000: 1274). This is perhaps the first time that an official document lists atrocity as part of the practice of untouchability, or, rather, lists atrocity as the first and most critical part of the practice of untouchability. Up to this point, the discursive fields of untouchability and atrocity had been separate and distinct, although it is impossible to separate them conceptually. Apart from the aspect of atrocity, untouchability is reducible to three elements — the two-glass system, temple entry, and access to water — enforced by hoteliers, priests and village elders. Untouchability, then, according to this report, consists of four elements, split into two parts, with atrocity on one side and the other three practices on the other (although these three also come within the meaning of atrocity under the law).

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The solutions, likewise, are essentially two-fold: the application of the criminal law in the form of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, on the one hand, and the ritual observance of periodic intermingling under the watchful eye of the district administration on the other. But herein lies the paradox: how can intermingling be sustained in the face of atrocity? Can periodic intermingling under conditions of surveillance be deemed to be the exercise of the right to personal liberty?

CONCLUSION Untouchability is not a legal term. There is no exact legal definition of untouchability whereby it could be possible to define who is an Untouchable and who is not. Untouchability is a social concept which has become embodied in a custom and as custom varies so does untouchability. (Ambedkar 2002e: 332)

This brings us back to the point at which we began this exercise. First, however, we need to underscore the criticality of insurgent ethnography, or an insurgent sociology of caste. A study of 1,589 villages spread across 11 districts in the state of Gujarat attempted to formulate an ‘untouchability index’ that could measure and help comprehend practices of untouchability (Navsarjan and RFK Centre 2010). Building on Ambedkar’s view of caste as a system of graded inequality, this study set out 197 variables of untouchability, divided more or less evenly between vertical discrimination (nondalit against dalit) and horizontal discrimination (dalit against dalit). The 98 distinct variables grouped under vertical discrimination were clustered into eight categories. These included: water for drinking; food and beverage; religion; touch; access to public facilities and institutions; caste-based occupations; prohibitions and social sanctions; and private-sector discrimination (ibid.: 4). The identification of the variables and the manner of their clustering points to the significant interrelationship between the different variables, and necessitates an understanding of untouchability not as a single, isolated practice, but as a ‘combination of relevant practices’ (ibid.: 11).

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Looking at the micro-practices of caste that form the subjectmatter of both ethnography and anti-caste resistance, the significance of standpoint and its far-reaching implications are brought home in a quite startling fashion. The scope of article 17 is effectively mapped through this painstaking ethnography, extended from the sphere of vertical discrimination alone to the sphere of horizontal discrimination as well, signalling the ‘complex of disabilities’ that Panikkar alluded to in the constituent assembly. The validation of dominant sociology by the courts, and the affirmation of the ‘knowledge’ produced about caste that privileges the experience of the dominant castes, creates a crisis of constitutional interpretation, which has drawn on a dominant knowledge base to interpret insurgent protections. The knowledge base, however, is not merely sociological/anthropological but also experiential. The imbrication of these two kinds of knowledge produces a particular commonsense about caste discrimination and its ‘reasonable’ remedies; it is no accident that the representation of dalits in the judiciary has been negligible, and progress in this regard halting. Part of this dominant commonsense also truncates reservations for dalits by negating the claims of those who convert to Christianity, excommunicating them, in a sense, from justice claims that emanate from the Hindu social order — a punitive measure for daring to aspire to a life free of oppression. In this very negation is evident the relation between non-discrimination and liberty: the guarantee of non-discrimination on grounds of caste is denied to those who assert their freedom to step outside the confines of Hinduism. While reservation is denied to dalit Christians, is liberty guaranteed? It is here that we see a double negation: the denial of reservations to converts, and the concomitant denial of freedom manifested in the perpetration of atrocities against dalit converts to Christianity, as was the case in Chunduru discussed at length in the introduction. Courts and other judicial and quasi-judicial institutions, while they have stepped in at some crucial moments, are not spaces that uniformly safeguard the spirit of non-discrimination. The first step taken in Champakam Dorairajan demonstrates this sharp

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disjuncture between the constitution and the judicial reasoning. Interestingly, in the case of caste and tribe, the major interpretive conjuncture has been between administrative law and constitutional protections. There has been an effort to infuse constitutional morality into micro-environments through government orders and bureaucratic interventions, which in this instance have achieved an unparalleled insurgent jurisprudence. At this moment of return to the micro-practices of caste, it is not dominant knowledge production that informs standpoints, but rather the experience of those who suffer discrimination, along with the philosophy of non-discrimination fostered and honed by the intellectual history of resistance to discrimination. While this is, in a sense, a return to the ethnographic, the landing-stage is radically different. What I hope this journey from the sociology of caste, through the judicial debates on reservation, to the practice of administrative law and judicial documentation of untouchability, has accomplished is an insurgent historiography of the present in all its complexity. The immediate relevance of the argument against concepts like the creamy layer lies in the continuing, everyday derogation of the right of dalits to non-discrimination and liberty, evidence of which derogation is contained in the government orders and the report of the Punnayya Commission. The significance of the S. R. Sankaran GOs described earlier in this chapter and the Punnayya Report lies in the demonstration of the possibility of combating discrimination and the curtailment of liberty through state action firmly committed to constitutional morality.

Chapter 7

Adivasi Homelands and the Question of Liberty The framers of the Constitution took note of the fact that certain communities in the country were suffering from extreme social, educational and economic backwardness arising . . . on account of . . . primitive agricultural practices, lack of infrastructure facilities and geographical isolation, and who need special consideration for safeguarding their interests. — National Commission for Scheduled Tribes1

More than 500 scheduled tribes are notified under article 342 of the constitution of India.2 These adivasi communities are spread across the country, except in the states of Punjab, Haryana, Delhi, Pondicherry and Chandigarh. Central and north-east India have the largest concentrations of adivasi populations, the proportion being over 50 per cent in the states of the north-east, in Lakshadweep, and Dadra & Nagar Haveli. Of these, roughly 75 communities are described as ‘primitive tribal groups’ (PTGs) in official discourse, a description that is based ostensibly on habitat, economy and population size,3 but one that is also stigmatizing. The category of PTG, which initially listed around 50 tribes, has now expanded 1

National Commission on Scheduled Tribes (NCST), http://ncst.nic.in/index.asp?langid=1 (accessed on 6 July 2010). 2 342: ‘(1) The President may . . . by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.’ 3 NCST, ‘Socioeconomic Development’. http://ncst.nic.in/index.asp?langid=1 (accessed on 6 July 2010).

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to 75. Meena Radhakrishna argues that this increase in number, far from indicating a ‘discovery’ of more primitive tribes, in fact points to the sharp decline in population size, pushing them into this category (Radhakrishna 2009). In this chapter, I will examine the problem of discrimination in relation to scheduled tribes, and also with respect to non-scheduled nomadic and de-notified tribes that continue to be subjected to stigmatization by state and nonstate actors. Unlike any other category that finds mention in article 15, here is a cluster of groups that is identified on the basis of its racial characteristics and spatial location in a particular habitat with specific geographical attributes. These groups are sought to be protected in relation to their spatial location. Liberty, then, takes on a very distinctive resonance for persons belonging to tribes, who will be referred to in this chapter as adivasis. Nomadic and semi-nomadic tribes, as also pastoralists and tribes engaged in hunting, foodgathering and shifting cultivation, require the guarantee of the freedom to be on the move; the right to liberty must assure them of a mobile territoriality. Tribes living in areas notified under Schedules V and VI require the guarantee that they may remain in these areas without fear of eviction. Here, the right to liberty is expressed in terms of the freedom not to move. Persons belonging to tribes listed in the schedule who live in non-scheduled areas live with no nominal guarantee of the protection of their homelands, even though these might have existed for generations. In all of these cases, the right to liberty is expressed in terms of definitions of territoriality, of homelands that could be mobile or fixed, but confer particular identities on their peoples, and enable distinct livelihood practices. It is outside the scope of the present exercise to dwell at length on the complex history of expropriation of adivasi homelands, or the historical derogation of their right to liberty, narratives that present a deceptively seamless continuity from the colonial to the post-colonial periods. However, I will touch upon different aspects of this history in order to contextualize the argument regarding the rights to non-discrimination and liberty in the context of

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these communities. It is also important to provide a nuanced recapitulation of the adivasi question in order to rupture the construction of adivasi communities as archetypal victims living in a static, never-changing world, one that is constantly eroded by forces of industrialization, and that always returns nevertheless to its timeless state. Four issues are critical to an understanding of the right to non-discrimination and liberty where adivasi communities are concerned: governance, community, local economy, and land tenure (Fenelon and Hall 2008: 1874). This chapter will examine at length the question of liberty and non-discrimination in the adivasi context with specific reference to Schedule V areas. It will dwell on these four critical issues and draw on historical and anthropological literature where necessary, focusing on the constitutional question that is at the core of this work.

A RANDOM HISTORY In colonial India a sense of identity was imposed on [the peasant] by those who had power over him by virtue of their class, caste and official standing. It was they who made him aware of his place in society as a measure of his distance from themselves — a distance expressed in differentials of wealth, status and culture. His identity amounted to the sum of his subalternity. In other words, he learnt to recognize himself not by the properties and attributes of his own social being but by a diminution, if not negation, of those of his superiors. (Guha 1983: 18)

The situation of the adivasi peasantry is captured poignantly by these lines. The earliest recorded rebellions by adivasis against oppression speak of a politics of collusion between colonial rulers and local dominant classes. The Santhal rebellion of 1855 was targeted against white colonial administrators and indigenous landlords and moneylenders — against sarkar (the state), sahukar (the moneylender) and zamindar (landlord) (ibid.: 29). Relations of land have been at the core of the adivasi engagement with the law, in the cases of both peasant and non-peasant communities. The adivasi relationship to land has been characterized by a non-economic, community-based orientation directly opposed to the commodification of land and the conferment of

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individual titles introduced during colonialism. The apparently smooth, seamless transition in discursive and administrative practice from the colonial to the post-colonial state is itself deeply problematic, disrupted both by adivasi ideas of territoriality and by the constitution of the independent republic. Guha demonstrates the specific ways in which adivasi consciousness was rooted in notions of territoriality that nested in the intersection between the blood tie and the land, a territoriality that has been usually defined as ‘local’ in nature. Ironically, the term ‘merely local’ was used in colonial official discourse to describe adivasi resistance that spread over an area of up to 400 square miles, for instance, the Birsaite ulgulan (rebellion) at the end of the nineteenth century, or the Kol insurrection in 1832 (Guha 1983: 280). Guha’s account underscores the complexity of adivasi engagements with forces of dominance. The subjective determinations of uprisings, according to Guha, were made up of two categories of concepts denoting ethnic space and physical space, each of which again had a negative and a positive aspect depending on whether it sought to define the domain in terms of the otherness of the alien or in those of the self identity of the insurgents themselves. (Guha 1983: 280–81)

The adivasi term diku (the outsider) indicates both the ethnic and the class dimensions of the exploitation of the tribal peasantry. An anthropological study of the concept of diku conducted in 1967, for instance, showed that while the term referred to non-autochthones (Hindus, Muslims, Europeans, Marwaris, Biharis, Bengalis, etc.) and class enemies (capitalists, banias, moneylenders, rajas, zamindars, landlords’ servants), it also had a strong moral resonance. For the Munda, Oraon and Ho, diku meant ‘trouble-makers’. The semantic field of diku, if one were to construct it from this study and from Guha’s description of the term, includes connotations of malevolence, avarice and meanness as traits of character, and of the looter, deceiver or exploiter as modes of relations. The indigenous adivasi zamindar or oppressor is described as diku-ized because he assumes the habits of the oppressor (ibid.: 281–82).

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In asserting its own identity, the tribe uses a cluster of ideas relating to: ethnos, the ethnic space, which is always as large or as small as the tribe itself; the physical space embodied in the homeland, which indexes the spatial aspect of territoriality; and a sense of time, wherein the tribe looks nostalgically to the future for the recovery of an idealized past. The lament of the Mundas for the lost land encapsulates the notion of ethnos: The land given to us in the beginning [of creation] by Singbonga was snatched away by our enemies We shall assemble in large numbers with weapons in our hands The new sun of religion was born, the hill and valley were lit up The zamindars harassed and put us to trouble Birsa Bhagwan is our leader . . . We shall not be afraid of the monkeys We shall not leave the zamindars, moneylenders and shopkeepers [alone] They occupied our land We shall not give up our khutkhatti rights From leopards and snakes we reclaimed our land The happy land was seized by them O Birsa, our land is afloat Our country drifts away . . . The big enemy, the sahebs donning the hat Seized our land. (Guha 1983: 288)

And yet, as Guha argues, these sentiments were true not of the adivasi peasantry alone, but also of the peasantry generally: ‘The growth and consolidation of a colonial empire with its centralized bureaucracy, army and legal system . . . and above all the emergence of an all-India market economy did much to undermine the force of territoriality’ (ibid.: 297). This commonality of experience of the peasantry is as important as the specificity of the adivasi experience. In 1942, the Nizam of Hyderabad requested the well-known anthropologist Christoph von Furer-Haimendorf to report on issues relating to land alienation and exploitation. FurerHaimendorf reported that the majority of Gonds had been cultivating their lands on the basis of a system of tenure called

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siwa-i-jamabandi (that is, without revenue settlement) for many years. They were liable to eviction at any time, because the Gonds were not registered as pattadars (title-holders). From 1918 onwards, large numbers of Marathas, Kunbis, Banjaras, and Mathuras from the districts of Yeotmal, Nanded and Parbhani in Maharashtra had occupied Gond lands and pushed the Gonds, Kolams and Naikpods to the forest slopes. The adivasis cultivated mainly the light soils of the hill-tops, habitually allowing long intervals of fallow time between periods of cultivation as part of their agriculture cycle. When the reservation of forests came into force, the fallow lands of the Gonds, Kolams and Naikpods were taken over as government forest, and the tribes were evicted from these lands. Furer-Haimendorf recommended strongly that the rights of Gonds to their land be secured, and that this should be made a priority. This involved a reversal of the existing policy concerning the allotment of land. These events paved the way for a new legislation to prevent the alienation of lands from tribes to non-tribals. The Hyderabad Tribal Areas Regulation of 1359 Fasli (A.D. 1949) was published in the Government of Hyderabad gazette of 31 October 1949. When Furer-Haimendorf revisited the Adilabad area in 1960, he discovered that sahukars from various Andhra districts had appeared in the region as early as 1957 — almost immediately after the creation of the state of Andhra Pradesh. In his subsequent visits between 1976 and 1977, he found massive encroachments by outsiders on tribal lands (Furer-Haimendorf 1979). This wave of immigration reached its peak in the years between 1968 and 1977. It was then that many villages changed their character and the Gonds became an economically disadvantaged minority in localities where, only a generation ago, they had been the sole population. Furer-Haimendorf wondered how this could have happened despite strong legislations to prevent such alienation. An important part of the adivasi relationship to land has been the right of nomadic communities to move without restraint, through lands that for these communities are mobile by definition.

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The right to liberty should then bind communities and land together in a mutually sustaining mobility. The description of the Koravas offered by Meena Radhakrishna illustrates this mobility in a striking manner. An itinerant trading community, the Koravas traded in grain, salt, cattle, and bamboo between interior districts and the coastal areas in the mid-nineteenth century, reaching stocks to far-flung areas on bullocks and donkeys. The building of roads and railways made them redundant; famines wiped out these small traders and facilitated the rise of grain merchants who shared interests in common with the British administration; and the forest laws of the 1880s curtailed the Koravas’ access to forest produce. Between the 1850s and the 1890s, the Koravas declined from being an important itinerant trading community to being completely dispossessed. Their land was no longer mobile, and their own mobility was curtailed in the same sweep (Radhakrishna 2008b: 7–8). This dispossession was followed by the enactment of the Criminal Tribes Act, 1911, that enabled local governments to declare any tribe, section or class of people a criminal tribe, and to order close surveillance of a group so identified. The new law authorized preventive arrests of such classes of persons on a routine basis, and led to entire groups being sentenced to confinement for life in custodial settlements (Radhakrishna 2008b: 27–44). When land ceases to be mobile for itinerant communities, their mobility is translated into criminality: being itinerant on land that no longer belongs to them constitutes a property offence. This is perhaps the first manifestation of the language of ‘encroachment’, which constructed these communities as encroachers whereas their mobility had signified the very opposite: their lack of interest in property. Moreover, they were described in terms that rationalized their conscription to forced labour: [The] roaming habits of these criminal tribes . . . [and] their disinclination to own property . . . demonstrate that they have not reached the pastoral stage of life. . . . The best means, therefore, of reforming these criminal tribes is to engage them under loving supervision in mining work or in tea plantations of Assam. (Memorandum by landlords, 1915: see ibid.: 164)

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The constitution of India absorbed this categorization uncritically by introducing the entry ‘vagrancy: nomadic and migratory tribes’ in Schedule VII, article 246, item no. 15.4 British policy on cattle governance introduced the notion of ‘trespass’ in the 1860s, which severely curtailed the freedom of movement of the Lambadas, a community of nomadic pastoralists. Bhangya Bhukya details the processes by which the mutual interdependence of nomadic pastoralists and settled peasants was dismantled through the introduction of cattle trespass laws, the establishment of cattle pounds, the introduction of the practice of impounding cattle, the enclosure of grazing pastures, and state control over access to forests. Under this system, Lambadas who allowed cattle to graze freely invited the criminal charge of theft. Cattle-owners and communities of cattle-breeders and owners thus earned the label of ‘criminality’ and became ‘delinquent subjects’. Two facets of their liberty were curtailed thereby: first, through criminal cases against them, and second, through the restriction of their movements and the surveillance that went with it (Bhukya 2010). The Chenchus, described in official records as a ‘primitive tribal group’, were a forest-dwelling tribe sustained by a food-gathering economy. Although they had permanent dwellings in villages, they were a semi-nomadic people who traditionally followed a system of annual seasonal migration, following the seasonal availability of water and edible plants: As long as the Chenchus remained the only inhabitants of the upper part of the Amrabad plateau, their environment suffered no artificial change. The basic characteristic of their economy — reaping only that which nature provides — precluded any real interference with the natural conditions of their surroundings. (Furer-Haimendorf 1943: 15)

Furer-Haimendorf observes that these annual migrations could differ among villages in detail but not in substance (ibid.: 45–46). The Chenchu understood property in two ways: communally 4

Item 24 in the concurrent list, Constituent Assembly Debates, 20 August 1947. http:// parliamentofindia.nic.in/ls/debates/vol5p3b.htm (accessed on 20 July 2010).

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owned hunting and collecting grounds, and individual possessions including implements, clothes and cattle. However, Until quite recently the most valuable property of the Chenchus was the land on which they lived, but this has been taken over as ‘Reserved State Forest’ by the Forest Department, which recognizes no individual or communal ownership of the land, and the Chenchus are thus, at least theoretically, deprived of their old right. This development has revolutionized the legal status of the Chenchu and nowadays he is only tolerated, where he was once the undisputed lord. (Ibid.: 161; emphasis added)

In an unusual move, the Government of Hyderabad responded to Furer-Haimendorf ’s concerns and his findings about the social life and economy of the Chenchu, a community he described as endangered but not ‘primitive’. The state government decided to demarcate a Chenchu reserve that would free 100,000 acres of forest area in the Amrabad plateau from interference by government or ‘outsiders’. The Chenchu reserve came into force on an experimental basis for a period of five years. Demarcated by clear boundaries, 107,853 acres were constituted as a reserve under section 7 of Forest Act 1 of 1326 Fasli in part I of Jarida No. 40 dated 30 Shehrewar 1349 (1940). This project was undertaken after the government realized the misdirectedness of its welfare measures in initiating trade with the Chenchus in grain and cattle to improve their economy and dietary conditions. According to the rules for the Chenchu reserve, Chenchus living within the reserve would be free to follow their habits and inclinations and to extract, without payment, from anywhere within the reserve, all minor products needed for bona fide domestic purposes. An embargo was placed on auctions of minor forest produce (MFP), with a directive that the Forest Department would purchase MFP directly from the Chenchus at fixed rates. No non-Chenchus could live or settle in the reserve permanently, although the inspector-general of forests could give permission for stated periods to contractors and their personnel engaged in the exploitation of forest coupes. These contractors would execute special licences that barred the use of the forced labour of Chenchus. Where the latter wished to work, muster rolls would be maintained detailing wages, which would be paid in cash

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according to a schedule fixed by the inspector-general of forests. Chenchus had the right to graze their buffaloes and cattle free of charge up to a limit of two buffaloes, four cows and two goats per family. However, in recognition of communally owned livestock, it was declared that no grazing fees would be charged for the first five years. Lambadas bringing cattle to the forest to graze were to be prevented from troubling the Chenchus. All cultivation by Chenchus in designated areas within the reserve was to be free of charge for five years; no non-Chenchu was to be permitted to cultivate land in the reserve. ‘No banya will be allowed to deal with the Chenchus from the Reserve’ (Furer-Haimendorf 1943: 379). A dispensary and a medical officer would be within easy reach of the reserve, especially to treat Chenchus suffering from yaws and malaria: ‘The Forester in dispensing medicine to the Chenchus will act strictly in accordance with the orders given to him by the Medical Officer’ (ibid.). Chenchus living outside the reserve on Amrabad plateau would be permitted to settle in the reserve. They would be allowed to hunt with bows and arrows, but not with guns (ibid.: 378–80). The category of tribe, as is evident from the discussion so far, encompasses a diverse range of communities that fall in two broad groups in India: the nomadic and de-notified tribes, and the scheduled tribes of which primitive tribal groups or PTGs are a part. Reflecting on the history of the emergence of this category, Bhukya argues persuasively that during the colonial era, a range of disparate groups that lived for the most part in the more inaccessible hill and forest tracts, and survived largely from hunting and gathering or rudimentary swidden agriculture, were categorised by the British as ‘aboriginals’ or ‘early tribes’. They were distinguished by their clan-based systems of kinship and their ‘animistic’ religious beliefs. Sometimes, they were defined in terms of their habitat, as ‘jungle tribes’. In this way, a category was created, and a body of knowledge produced, about the so-called ‘tribes of India’. In the process, scattered communities were granted a unity that they had not hitherto possessed. (Bhukya 2008: 103)

The adjective ‘primitive’ is loaded with connotations and carries a semantic history of racism and colonization. The widespread use

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of this term in official discourse in post-colonial India, I argue, reproduces the complex webs of stigmatization and segregation that the label represented in the colonial context, not to speak of processes of colonization. Bhukya traces the primitivization of the adivasi to the early colonial Indological project, which identified specific adivasi communities as belonging to what were classified in colonial anthropology as the earliest races. The languages spoken by these communities were identified as belonging to the oldest family, the Austric group of languages. ‘These classifications of race and language in colonial census reports, monographs and ethnographic notes pushed adivasis to the bottom of the civilisational ladder’ (ibid.: 15).

OFFICIAL ACCOUNTS OF THE SITUATION OF ADIVASIS: A CRITICAL REVIEW According to the Report of the Expert Group on Prevention of Alienation of Tribal Land and Its Restoration (hereafter the Expert Group Report), the criteria for designating a community as a scheduled tribe include indications of primitive traits, distinctive culture, geographic isolation, shyness of contact with the community at large and economic and other kinds of backwardness. These criteria are not spelt out in the Constitution, but have become well established through precedents and usage over the years. (Expert Group Report 2006: 4)

This section will examine official documents with a view to identifying the indices of discrimination against tribal communities. There exists a large corpus of writings on the different aspects of adivasi societies; the detailed examination of this literature is beyond the scope of the present project. Principally, our concern here is to understand: the micro-practices of discrimination as evident from official statistics; the relation between these practices and the operative elements of the loss of liberty; and the location of adivasi communities in relation to the law in post-colonial India. To anticipate the arguments that follow, what is interesting about these official documents is that they are confessional and

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self-incriminating in nature. They detail the multitudinous ways in which the state continues to derogate the rights to nondiscrimination and liberty of adivasi communities. What are the jurisprudential implications of this disclosure, especially in relation to the administration of justice? In general, two operative concepts have been used to classify tribal communities: their ‘prior’ stage of economic development, and lower level in the economic structure (Sinha and Sharma 1977: 2). Communities seen as being in a prior, i.e., pre-agricultural, stage of economic development are classified as primitive communities. Settled agriculture is the benchmark against which these stages are measured. But there are other considerations as well: guilelessness, simplicity of disposition, engagement in subsistence livelihoods, and living in harmony with the natural habitat rather than in confrontation with it. The destruction wrought by a rapacious capitalism is increasingly under severe criticism as representing a backward and narrow vision of development. At this time, adivasi traditions involving the measured use of natural resources and practices of shifting cultivation that allow for the regeneration of land have been recognized as indicating an extremely sophisticated understanding of ecology and environment, and are becoming the benchmarks for sustainable environment strategies in the new millennium. The Expert Group identifies ‘capability poverty’, with specific reference to literacy and health, as indicative of a group’s or community’s progress. Regarding the index of literacy, which ‘denotes the internal capabilities of a race and the State of its human capital’ (Expert Group Report 2006: 21), the Expert Group finds the figures indicative of an extremely adverse situation, despite the special focus on the development of tribal people continuously since independence. All the five-year plans have had tribal subplan components, and commissioners for the scheduled tribes have reported expenditures under these heads. Yet the drop-out rates for students in classes I to VIII have exceeded 60 per cent in 17 out of 32 states, and are over 80 per cent in six states. There has also been a sharp drop in ST enrolment rates between classes I–V and VI–VIII across all states, averaging around 20 per cent (ibid.: 21–23).

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With respect to health, which is the second index of capability poverty identified by the Expert Group, the following account is telling: During the mid-90s there was an outbreak of gastroenteritis in the Adilabad district of Andhra Pradesh. . . . [A] report revealed that the tribal population in this district had no access to livelihood for several months before the outbreak, as a result of which they were unable to even fulfil the basic caloric requirements. The public distribution system was practically nonexistent and due to severe drought the forests could not be tapped for food sources. This was further compounded by lack of safe water supply. When the outbreak occurred the people resorted to private practitioners since the public health services were neither available nor responsive. It is only when the suffering and death caused by the epidemic was reported in the vernacular newspapers that the government sent a team to investigate the outbreak. (Baru 2004)

Witchcraft accusations, especially among adivasi communities in Jharkhand and Chhattisgarh, are tied closely to the increased incidence of diseases, unnatural deaths (e.g., death due to cholera, smallpox, drowning, falls caused by thunder and lightning), ill health, and the destruction of domestic animals and crops. In Tensar village, situated 20 km from Rourkela city in the state of Orissa, Nevni Ikka, a tribal woman, had gone to visit her neighbour Sukhi Ikka. As soon as Nevni entered her house, Sukhi’s daughter fell seriously ill. She lost her senses. Sukhi’s family were aghast and, within moments, Nevni had transformed from their lovable neighbour into a witch. The villagers were informed immediately. They gathered in Nevni’s house armed with lathis. She was beaten mercilessly and paraded naked for hours together in the village, in front of her children.5 One of the factors responsible for the persistence of and rise in witch-hunting practices is the large-scale, aggressive policy of privatization of health services being followed by state governments. The public health system has collapsed in many states as a result. Hundreds and thousands of families have lost members, mainly children, due to the increased costs of medicines and healthcare. 5

Dainik Bhaskar, 30 May 2004.

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The sections worst affected have been the tribal-dominated areas in remote and inaccessible parts of the country. Epidemics of malaria, diarrhoea, encephalitis, and other preventable diseases have taken a heavy toll. In the absence of any medical support systems, tribal communities rely on the local ojha, baiga or gunia (ritual practitioners) for magic spells to cure the sick; the power of these practitioners over the community increases as a result. Thus, a direct, inverse relation exists between the increasing ill health of adivasis in India and the increase in superstitions and dependence on traditional healers and practitioners of witchcraft. This is one of the major reasons why it is so difficult to break their hold over these communities. The figures for literacy — the inverse relation between enrolment and drop-out rates — like the indices of health and adverse health practices, I would argue, signal the povertization of tribal communities rather than a ‘capability poverty’ among them. The inability of mainstream governance to address pluralism adequately, and its failure to enable local institutions to operationalize diversitysensitive practices, most notably in education, has alienated adivasi communities from educational systems. Despite a plethora of programmes and welfare measures directed to adivasi communities, tribal rural poverty stood at 50.3 per cent in 1993–94. Recognizing that historically the main incursions into tribal areas had been effected by zamindars, land reform measures abolished the exploitative institutions of intermediaries and tenureholders. This resulted in the state acquiring 26 million hectares of wasteland. This has had an adverse impact on adivasi communities, because their access to land records has been negligible, and their access to the commons curtailed (Expert Group Report 2006: 65) by their redefinition as encroachers on government land, without their actually doing anything different from what they had done before land reform: The Zamindari interests merged with the superior government interests. The Government combined in itself the functions of both landlord and the State. The Expert Group noted during the course of their interactions in the field, that the indifferent attitude of the officialdom to the tribal cause has contributed to the rights of the tribal people being violated.

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The Expert Group also noted that the officialdom was capable of being as tyrannical to the tribal people as the zamindars had been. (Ibid.: 66)

The practice of non-tribals settling on tribal lands has a long history. The pattern of settlement of government land has been no different, as non-tribals were liberally settled on this land. This gives rise to serious concern, especially since the extent of tribal land is fixed. Any alienation in favour of non-tribals would therefore mean the active dispossession of adivasi communities. Further, the spread of non-tribal settlements results in the formation of nontribal enclaves within areas clearly designated and demarcated for use by adivasis (Expert Group Report 2006: 69), leading directly to the curtailment of the liberty of adivasis in their homelands. The Koneru Ranga Rao Committee found that, in Andhra Pradesh, up to 48 per cent of land is held by non-tribals in scheduled areas, despite land transfer regulations that prohibit the transfer of lands from tribal to non-tribal sections and between non-tribals. Statistics from the Ministry of Rural Development indicate that, with respect to land that has not been alienated, close to 400,000 claims were filed for the restoration of 8.5 lakh acres.6 Only 50 per cent of this land could be restored to adivasis. A correct picture would emerge if this fact is counted along with the land that has been alienated: Despite the progressive constitutional safeguards in force, great injustice has been done to the Tribals and the legal mechanism evolved to address the land problems has not been able to read the laws in the light intended and construe the adjudicatory and administrative principles accordingly and the administrative apparatus presently hinders rather than furthers the objective of the laws. (Koneru Ranga Rao Committee 2006: 56)

A close examination of cases filed by adivasi claimants for the restoration of their land reveals that while constitutional safeguards, enabling legislation and an elaborate machinery might be in place for the delivery of rights and entitlements to the scheduled tribes, it is commonplace to find inordinate delays in hearing and settling cases when the odds were in favour of the adivasi claimant, and 6

1 lakh = 100,000.

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quick adverse disposal when claimants failed to appear for a single hearing. Rampant corruption in restoration litigation worsened an already difficult situation, as did the costs of travelling to frequent hearings and of sustaining such litigations, costs that further impoverished adivasi claimants. These facts prompted the Expert Group to observe that ‘in this respect the restoration courts appear no better than “Kangaroo Courts” with the sheets of justice weighted heavily in favour of non-tribals’ (Expert Group Report 2006: 73).7 Speaking with anguish about the situation of adivasi communities in the scheduled areas of Andhra Pradesh, retired civil servant Girglani says: Thirty years after Haimendorf had asked the question, I had the same question to ask after I had recorded in my report submitted on 14th August, 2005. The atrocious grabbing of tribal lands in all the three scheduled areas of the state through ingenious subterfuges and even open and un-camouflaged devices that would make any conscientious observer scream in anguish, ‘Oh government, of the people, by the people, for the people, where were you? Where are you? Oh fighters for just cause, where were you? Where are you?’ (Girglani 2007)

It was argued earlier in the chapters on caste that, in the constitutional era in India, courts, irrespective of their specific jurisdictions, must base their jurisprudence on histories of insurgencies and a radical re-visioning of the social order. This argument bears reiteration at this point. The plurality of fields of formal (public) law, and the indispensability of a constitutionally driven process that permeates these multiple fields, is brought home very strongly in the case of litigation around land alienation in adivasi homelands. Even more significant to the present discussion, however, is the manner in which discrimination against and the stigmatizing of adivasi communities locks into the concerted denial of liberty through systematic dispossession effected by the combined might of the rural elite and the state. Forced displacement is a major issue in adivasi regions. Such displacement is often caused by the state, and now increasingly by private enterprises with the active collusion of the state machinery 7

Also Shakti v. State of Andhra Pradesh WP no. 7916 of 1997.

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(Agnihotri 2001: 54–67). Development projects across the country (Sardar Sarovar, Nandigram, Singur, and Polavaram, to name a few) have paid scant attention to the needs of entire villages populations who have been displaced. Coal-mining, the construction of dams, the building of wildlife sanctuaries, industries, and now special economic zones have posed the biggest threat to survival and livelihood, especially of indigenous adivasi communities. Displacement has meant not merely the loss of house or homestead, but also of land and natural resources that formed the basis of the economic survival of these communities. It has also meant a more deep-rooted dispossession in terms of the loss of community assets — schools, local institutions and infrastructure around which these communities have built their lives. The quantification of relief, rehabilitation or compensation always weighs the benefit in favour of the state and/or the multinational corporation who are the prime movers of large projects that involve the forced displacement of indigenous communities. The process of displacement is often traumatic, with entire communities being asked to leave their villages in the middle of the monsoon, or to demolish their homes themselves. The uprooting of people from their contexts is a process fraught with force and violence. In Ratnamala’s words: The roots of the tree go far below the earth. It can’t just be plucked out from one place and put into another. There is an environment, a climate, and the quality of the earth itself that is specific to every region. People similarly built their lives around the conditions that are specific to a particular region, and in relation to their environment. When they uproot themselves from these surroundings and re settle somewhere else . . . village communities are flung apart. . . . As a result of this women lose their entire communities of support — communities that they depend on in times of crisis, and in times of celebration. (Ratnamala 2008)

Ratnamala underscores the interconnections between the different fields of violence that congeal in the context of displacement. Tracing the gendered impact of displacement, she argues that even overt manifestations of family violence are triggered and exacerbated by forced displacement and the loss of livelihoods.

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In these times of loss and crisis, placing money in the hands of the men destroys entire communities: When there is land, there is work around cultivation, and there is a mutual interdependence both at the family and community level leading to a certain degree of stability in these communities. The moment money enters the picture the instability that typifies money begins to typify people’s behaviour as well. . . . Women bear the brunt of the violence that results from this anarchy. (Ibid.)

Even when a land-based rehabilitation policy is in effect, sometimes a cash compensation is disbursed instead, as with the Sardar Sarovar Project. This has undermined family survival and affected women’s position adversely. The cash, itself grossly inadequate, is given to the men, who, unable to purchase land with it, buy motorcycles or liquor instead. It is in the women’s interest, therefore, that displaced persons are given irrigated land with a minimum of 2 hectares per family, as this is the minimum required to sustain a family. Rehabilitation policy, as argued by displaced women in the Narmada Bachao Andolan, is biased against women, because single women are not seen as independent entities, while single men are. This difference is especially evident in the case of widowed and divorced women who are considered part of the extended family, while widowed or single adult men are treated on par with families. While development-induced displacement poses one set of questions in relation to adivasi entitlements, evictions from forests are a far more serious issue. The Godavarman case8 heralded a process whereby, in response to hundreds of petitions,9 the Supreme Court in its activist role issued a series of orders and set up a Central Empowered Committee that endorsed the removal of ‘encroachments’ from the forest within a short time span. These measures disregarded the fact that the issue of adivasi homelands in the forest had not been resolved. This move meant the eviction of adivasis from forests through the mechanical application of a cut-off date. ‘In a surreal twist of fate, India’s largest landowner 8 9

T. N. Godavarman Thirumalpad v. Union of India 2002 (10) SCC 606. There were 1,126 interlocutory appeals, mostly at the behest of the Forest Department.

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has metamorphosed overnight into prosecutor, jury and judge’ (Campaign for Survival with Dignity 2003: 4–5). The language of conservation deployed by the state has no space for traditional forest-dwellers who, through a process of arbitrary rule-making, get labelled as ‘forest encroachers’ or ‘poachers’ (ibid.: 5; Radhakrishna 2009), thus inviting criminal prosecution, and throwing the question of liberty into crisis. The Twenty-Ninth Report of the Commissioner for Scheduled Castes and Scheduled Tribes, presented to the president in 1990, summarizes the problem succinctly. The redefinition of the forests as state property, the creation thereby of a market-driven state monopoly over forests, and the establishment of a powerful forest bureaucracy, alongside the complete erasure of the adivasi from the administration of the forestscape, has created the conditions for an incessant confrontation between the state and adivasi communities over the use of land, livelihoods and the right to liberty in adivasi homelands (B. D. Sharma Report 1990: para. 32). The concept of ‘eminent domain’ has empowered the state, in its exercise of sovereignty, to wrest possession of any resource within its territorial jurisdiction and to set the terms of acquisition and compensation unilaterally. The utter inequality between the adivasi and the state weighs heavily against the possibility of adivasis negotiating the terms of acquisition of their lands. Based as they are on notional market value, compensation packages have not taken into account the replacement value of the land rights lost (Expert Group Report 2006: 78). This approach pays scant attention to the fact that the adivasi orientation to land is collective and community-based. When a community is dispossessed of its land, any compensation that is structured on the basis of individual titles must naturally fall far short of any assessment of replacement value. As Fenelon and Hall observe, among indigenous communities, land ‘is often sacred, rarely has direct economic value, and is usually held collectively, rather than in individual ownership. This orientation to the land is in direct opposition to how modern, capitalistic society approaches land, with direct economic values and individual title’ (Fenelon and Hall 2008: 1876).

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The acquisition of adivasi lands is justified by the state in terms of the larger public good. What is the public good? In so far as tribal Displaced Persons are concerned adding 1.33 millions [displaced] by mines to 6.32 millions by dams, 0.31 millions by industries and 0.45 millions by parks and sanctuaries the total comes to 8.41 millions. If we add to them 0.5 millions displaced by other projects in the tribal regions and assuming that half of them are tribal’s the total number of tribal displaced would come to 8.539 millions. This would be 40.9 percent of all DPs between 1951 and 1989. (Expert Group Report 2006: 90)

If one were to add to this figure the 1.65 million people displaced by the Sardar Sarovar Project alone, the total figure for tribal displaced persons (DPs) would be 9.81 million, or 47.6 per cent of the total persons displaced. Persons belonging to the scheduled tribes constitute just about 8 per cent of the total population of the country, but adivasis comprise 40 per cent of all persons displaced forcibly or involuntarily. Thus, the problem of discrimination against adivasis translates into a derogation of the right to liberty, a right that is rendered operative in this instance only through enabling the right to lawfully occupy homelands without threat of eviction or dispossession — the right not to move or be moved. The infamous Criminal Tribes Act, 1871, had placed several nomadic and semi-nomadic communities under permanent conditions of custody, ‘herding them into settlements and extracting hard labour from them in factories, quarries and plantations’ (EPW 2008). Although the law was repealed in independent India, a new enactment, the Habitual Offenders Act, 1959, asks the police to investigate a suspect’s criminal tendencies through examining whether his/her occupation is ‘conducive to a settled way of life’ (ibid.: 6–7). This has extended the loss of liberty through a vicarious legislative strategy. It is in the context of this loss of liberty, then, that constitutional protections like reservations must be imagined. The National Commission of De-notified, Nomadic and Seminomadic Tribes recommended that these groups be notified as a scheduled community and that 10 per cent reservation be allotted to them by removing the 50 per cent bar on reservations. This is but

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an example of the recognition of the connection between liberty and non-discrimination, a connection that did not receive the support of even the Ministry of Social Justice and Empowerment that hosted the commission. A majority of adivasi communities are forest-dwellers. The homeland issue for them, therefore, is not limited to land, but extends to their presence in the entire forestscape. The concerns of these communities, by extension, are not limited to livelihood and residence alone, but extend to issues of ecology, environment, conservation, regeneration, and knowledge systems that are part of the political economy of the forest. Because of their familiarity with forest life, they are easy targets of wildlife protection and forest conservation authorities and groups (Radhakrishna 2009). The central concerns that arise from the adivasis’ location in the forestscape, therefore, relate to governance, autonomy and selfdetermination, all issues that have been the focus of struggle: The struggle of women from Adivasi and other traditional forest dwelling communities has been about democratic rights to live in dignity, and freedom to pursue a way of life and livelihood that is centred on a complex relationship fostered over generations with the entire forest landscape. The ancestral plural relationship women hold with the forestspace, is depicted by how the space is used in multiple ways: shifting cultivation, grazing, food production, foraging for wild fruits, vegetables, tubers and medicines, saving seeds and breeds, collecting fuel wood, forest produce and materials to build homes, worshipping their ancestors and gods and a space to celebrate and mourn. It is these ‘productive’ and other ‘noneconomic’ interactions and relationship with the forest, that have been constantly contested, challenged and have come into direct conflict with the interests of the State since pre-independence, and have intensified in independent India. (Ramdas 2009: 65)

However, it is just this focus that poses a threat to the interpretation of sovereignty in relation to settlement by the neoliberal developmental state. And yet, it is that very autonomy of adivasi life-worlds — embodied in a sense in the adivasi slogan ‘maava naate maava raaj’ (‘our land, our rule’), and in Schedules V and VI of the Indian constitution that specifically protect adivasi homelands — and its illimitable possibilities in the present and future that provide us with the language, tools and strategies to

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counter a callous, hegemonic and violent sovereignty that persists in trying to limit the reach of the constitution (Fitzpatrick 2010).

THE MEANINGS OF STATE CUSTODY In Andhra Pradesh, the majority of wildlife sanctuaries are located in the forest regions belonging to the state. Conflict between tribes residing inside these sanctuaries and the Forest Department continues unabated. Through a twin strategy of custody, the state simultaneously locks them into the forest and ousts them from it. To elaborate this further: the Chenchus reside in the Nallamala forests, which straddle five districts including parts of Telangana, Rayalseema and Andhra. Chenchus have to walk nearly 20–25 kilometres from their pentas (hamlets) to reach the gate of the sanctuary, from there to access the main road. The gates close at 5 p.m., and if a Chenchu returns later than that, she is kept out (Kannabiran et al. 2010). The Chenchus are virtually fenced inside the reserve, and their movements are policed by the Forest Department, which has the ‘key’ to their homelands and territory. In a simultaneous move, the Chenchu community is forced to relocate outside the forest by the state, a dislocation that dispossesses the entire community. This has meant protracted conflict with the state on the critical question of liberty. The category of de-notified tribes comprises approximately 1,500 nomadic and semi-nomadic tribes and 198 de-notified tribes. These groups were traditionally pastoralists and hunter-gatherer nomads (shepherds and small game hunters like the dhangars, kuruba and pardhis), providers of community services (blacksmiths like the ghisadi, stone dressers like the vadars, transporters and salt traders like the banjaras, roof-thatchers like the chapparband) and entertainers (acrobats and jugglers like the dombaris, snake charmers like the madaris). . . . The most jailed and persecuted young men, the most unsafe girls and women, the perennially homeless, the beggars, the destitute, those caught in the worst forms of bonded labour, and the tiniest of labouring children are drawn from amongst these communities. Trafficking of adolescent girls and women from these social groups has become so normalized in the last half a century that prostitution is already seen to be a ‘traditional’ occupation of some of these communities, adding not only to the extreme

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stigma and social disadvantage suffered by these groups, but somewhat absolving the state from need for action. The people in question are drawn from nomadic communities . . . [some of which] came to be known as ‘de-notified tribes’. (Radhakrishna 2008a: 201)

The case of Budhan Sabar crystallizes for us the nexus between articles 15 and 21 of the constitution, especially with reference to de-notified tribes: On 10.02.98 at 4 p.m., Budhan Sabar and his wife Shyamali Sabar were going to visit a relative in Barabazar P.S. area on a bicycle. As they were buying ‘paan’, Ashok Roy, D.C. Barabazar picked Budhan up on a motorcycle and took him to Barabazar Police Station. . . . On 12.02.98 Barabazar O. C. produced Budhan at Purulia Court and took him back for further enquiries. On 16.02.98 Barabazar P. S. handed over Budhan over to Court and he was sent to jail custody. On 16.02.98 Monday evening Sreedhar Sabar [who was in jail] saw Budhan being dragged to jail. Budhan told Sreedhar that he has been further tortured. In fact, he could neither walk, nor talk properly. Budhan was put in a cell within (sic) other prisoners. On 17.02.98, after roll-call Sreedhar was asked to distribute tiffin, and go to gate. Budhan was asked to sweep the yard. Suddenly Sreedhar heard Budhan screaming, ‘Save me’. Sreedhar ran and found Budhan lying on the ground. A jamadar (jail police rank), with 3 ‘V’ marks on his uniform was beating Budhan with a stick. The jail police did not allow other prisoners to help Budhan. Budhan did not come for midday meal. In the evening it was said that Budhan hanged himself with his ‘gamchha’ or country-towel. According to Budhan’s wife, he did not have a gamchha with him on 10.02.98. According to Sreedhar Budhan did not have one either on 10.02.98 at Barabazar P.S., or 16th evening at Purulia Jail.10

Asoke Roy, the police officer who arrested Budhan, according to the petition, was responsible for killing Sabars, torturing them and framing false cases against them ‘just because Kheria-Sabars are a 10

Paschim Banga Kheria Sabar Kalyan Samity v. State of West Bengal & Ors W.P. No. 3715 of 1998. The police and jail officers were found guilty of torture in custody leading to death, and of several procedural irregularities in investigation and during arrest, after a second postmortem ordered by the Calcutta High Court revealed injuries that negated the claim of the jail authorities that Budhan Sabar had committed suicide by hanging. The state was directed to pay a compensation of ` 1 lakh to Budhan’s family and directed to initiate action against the guilty officers. I am indebted to Justice D. K. Basu for intense discussions on this very significant case, in which his intervention was crucial to the positive outcome.

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denotified primitive sub-tribe’. In his entry in the General Diary pertaining to the arrest of Budhan Sabar, Roy wrote: I interrogated accused Budhan Sabar thoroughly when he voluntarily disclosed that he along with Jagan Sabar, Kalipada Sabar, Paru Kirtan Sabar and others of one Akarbaid and neighbouring villages had committed dacoity at Balaji Bus about five months ago and sold the stolen articles [to] Kalipada Pramanick, Kartick Pramanick and others of Akarbaid.11

Even by Roy’s own admission, the people he apprehended on suspicion of having committed dacoity are all members of a denotified tribe, the Kheria Sabar. Liberty is not a condition of life, and life is not a guarantee for the Kheria Sabar in Bengal specifically, and for de-notified tribes generally. The fact that they were able, under the leadership of Mahasweta Devi, in this case, to secure compensation for Budhan’s wife, does not alter this basic negation of liberty.

CONCLUSION: STRENGTHENING LIBERTY AND NON-DISCRIMINATION THROUGH AUTONOMY I also maintain that the question of their assimilation should be decided by the leaders and representatives of the tribal people themselves. Let them decide that question. Our duty is only to provide them with the means of development, to give them the opportunities for their educational, cultural and economic development. If we provide these things for the tribal people, then I would consider that we have done our duty. And then let their own leaders decide whether they should merge with the rest of the population or remain as a separate entity.12

The complicity of successive governments at various levels in catalyzing land alienation in scheduled areas is well documented by the official mechanisms that we reviewed in the previous section. Adivasis today find themselves in the Supreme Court, pitted against the powerful lobby of the forest bureaucracy, which is 11

Paschim Banga Kheria Sabar Kalyan Samity v. State of West Bengal & Ors W.P. No. 3715 of 1998; emphases added. 12 Shri Brajeshwar Prasad, Constituent Assembly Debates, 1 September 1949. http:// parliamentofindia.nic.in/ls/debates/vol9p23b.htm (accessed on 20 July 2010).

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located at an insurmountable physical and social distance from them. They have nevertheless asserted their rights with a tenacity that has been their primary inheritance across generations, in stark contrast to the stereotypes in the popular imagination that construct them as ‘simple’ and ‘lacking in guile’, negative values from the standpoint of the metropole. In this concluding section, I will attempt to map the ways in which this narrative has already been ruptured, and will point to ways in which apparently unconnected moves might in fact hold the key to navigating the terrain of non-discrimination and liberty for adivasi communities. There are in the main three elements: the possibilities held by constitutional ambiguities in the crucial matter of definition; the nature of entitlement to land and thereby the possibilities for an understanding of sovereignty; and the possibilities for the realization of territorial autonomy through clearly delineated strategies of governance. The constitution recognizes the need for special protections for scheduled castes and scheduled tribes, in all matters ranging from education to political participation. Interestingly, the category of ‘tribe’ is not explicitly stated in article 15(1), but it is defined in article 366(25) in a circular manner: ‘“Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the Purpose of the Constitution.’ Article 15(1) states that ‘the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’ (emphases added). I suggest that protections for scheduled tribes against discrimination under article 15 are contained in the explicit protections against discrimination based on ‘race’ and ‘place of birth’. Paradoxically, while the debates in the constituent assembly focused on aboriginal tribes as being the original inhabitants (as evident in the opening epigraph of the introduction to this volume), there was no debate on the omission of ‘tribe’ from article 15(1), nor any later explanation in constitutional jurisprudence for bringing ‘tribe’ within the purview of article 15(1), despite the inarticulation. The constitutional identification of the adivasi in India draws from the twin tracks of colonial

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anthropology and colonial administration, and is simultaneously a racial and territorial identification. Histories of discrimination against the entire range of adivasi communities in India pointed to the racialization of these indigenous communities, and their classification in terms of ‘primitive’ culture and traits during colonialism, which led to a further aggravated colonization of adivasi peoples within the colony in the name of civilizing/protecting them. In other words, adivasi communities were twice-colonized within the British colony. As with projects of colonization generally this involved a clear territorial dimension–whether the territory was mobile or fixed, and whether the adivasi commons were agricultural, pastoral or forest. This historical experience leads in the constitutional era to periphrasis, with tribe being denoted by its semantic field of ‘race’ and ‘place’ of birth. In terms of land and sovereignty, article 244 of the constitution of India mandates the application of Schedules V and VI to states with adivasi homelands: The Fifth and Sixth Schedules constitute an integral scheme of the Constitution with direction, philosophy and anxiety to protect the tribal’s from exploitation and to preserve valuable endowment of their land for their economic empowerment to elongate social and economic democracy with liberty, equality, fraternity and dignity of their person in our political Bharat.13

State legislations like the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, strengthen the application of constitutional protections to adivasi homelands.14 Although, as we have seen in the foregoing sections, a major threat to the liberty of adivasi communities emerges from non-tribal enclavement in scheduled areas, the complicity of the state in divesting adivasi communities of control over land and resources is particularly evident in 13

Justice K. Ramaswamy in Samata v. State of Andhra Pradesh and Others (1997) 8 SCC 191. Section 3(1) of this regulation reads as follows: ‘3. Transfer of immovable property by a member of a Scheduled Tribe — 1(a). Notwithstanding anything in any enactment, rule or law in force in the Agency tracts any transfer of immovable property situated in the Agency tracts by a person, whether or not such a person is a member of a Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Scheduled Tribe or a society registered or deemed to be registered . . . which is composed solely of members of the Scheduled Tribes.’ 14

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cases like Samata, which challenged the authority of the state in awarding mining leases in scheduled areas to non-tribals. Samata is an organization based in Visakhapatnam that has mobilized adivasis on a range of issues, most importantly land and questions of the sovereignty of adivasi homelands. Undermining the land transfer regulation, the state, in this case, pushed for a limited, horizontal application of the definition of person that referred to the natural person (an argument accepted by the Division Bench of the High Court of Andhra Pradesh) and argued that it was authorized to issue mining leases in scheduled areas to non-tribal entities, since the state did not come within the meaning of ‘person’. The Supreme Court rejected this argument and offered an interpretation that bridged the gap between the horizontal and vertical applications of the responsibility to adhere to the law. In a sense, it disrupted the notion of the sovereign state standing outside the law by bringing the state within the definition of ‘person’. Instead, the court stressed the importance of interpreting a legislation in the context of its aims and objectives. It widened the amplitude of the provision, thus placing limits on the state’s sovereign powers in respect of adivasi homelands. The entitlement of adivasi communities to exclusive usufruct and collective ownership of land in scheduled areas, and their sovereignty in this regard, is a non-derogable constitutional commitment—an inalienable part of the rights to non-discrimination and liberty. How has the question of territoriality and autonomy translated into governance in scheduled areas? The Panchayats (Extension to the Scheduled Areas) Act, 1996 (Act 40 of 1996; hereafter PESA), a legislation related to tribal governance and political autonomy, is a landmark legislation that has been the focus and result of intense struggles and deliberations by adivasi rights networks across the country. In an important sense, the debates around PESA represent the culmination of the exercise in popular/transformative constitutionalism.15 This act is also of significance because it 15

This discussion is limited to the legislation and does not enter the debate around the rules framed by different states, which have in fact undermined the gains of the legislation. The argument here is that the legislation presents a possibility for the realization of the

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represents the mid-point between Schedule V of the constitution and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereafter FRA). The sub-committee appointed by the Ministry of Panchayati Raj to develop guidelines for PESA stated: ‘PESA is an integral part of the Constitution notwithstanding the “clerical” omission about its non-inclusion in the Book, “The Constitution of India”. Any system of governance in the Scheduled Areas that comprises the traditional habitat of the tribal people without PESA is nonest’ (Sub-committee on PESA 2007; see also Dandekar and Choudhury 2010). The act recognized that panchayats needed to be endowed with powers and authority in order to function effectively as institutions of self-government, notwithstanding the provisions of part XI of the constitution of India. Any provisions in state legislations that were found to be in contravention of PESA lapsed on 23 December 1997. Under PESA, the village is construed as the habitation(s)/ hamlet(s) that comprise(s) an autochthonous community — a selfgoverning space inhabited by people with shared traditions and customs. This recognition of the ‘village’ as a ‘living community’ is vital (Sub-committee on PESA 2007: 5). Registered voters at the village level constitute the gram sabha, which is responsible for: approving development plans prior to their implementation by the panchayat; identifying the beneficiaries of various programmes; certifying the utilization of funds by the panchayat; water governance at the local level; and issuing mandatory recommendations in respect of mining of minor minerals. The act enjoins the states to develop legislation that will put in place panchayats that are ‘in consonance with the customary law, social and religious practices and traditional management practices of community resources’. In promoting autonomy, state legislatures are required to empower panchayats and gram sabhas to govern effectively. This means that the ownership of minor forest produce would vest with the gram sabha or panchayat and that constitutional guarantees of non-discrimination and liberty, which are non-derogable and non-negotiable, and must be upheld as such by constitutional courts.

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these institutions would have the power to prevent alienation of land and initiate appropriate action to restore unlawfully alienated land. They would also be empowered to enforce the prohibition or regulation of liquor consumption and sale; to manage markets; exercise control over all institutions in the social sector; and exercise control over plans and programmes including the tribal sub-plans. While PESA has not been implemented by the states in either its letter or its spirit, the sub-committee constituted by the Ministry of Panchayati Raj recognized the difficulty of translating PESA’s spirit into operative legislation. It drafted detailed guidelines pertaining to each clause in PESA. These guidelines outline the history of derogation, discrimination and non-recognition behind each clause, and provide concrete recommendations for a way forward (Sub-committee on PESA 2007). The guidelines begin with the assertion that PESA is part of the constitutional mandate, drawing on the clear enunciation of the basic framework of administration in Schedules V and VI of the constitution. Special provisions being part of the remedy for discrimination, it could be argued that there are two channels along which restoration must proceed. The first is the principle of territoriality, in furtherance of the provisions in Schedule V, as territoriality provides the rationale not merely for tribal autonomy but for self-governance as well. The act also explicitly invokes the governance structure of Schedule VI areas (the second aspect of territoriality) as a model for putting in place a structure in Schedule V areas (clause 4[o]). Following close on the heels of PESA, the FRA was enacted ‘to recognize and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations’ (preamble to the constitution). The FRA focuses on forest resources and forest governance. It expands the definition of the gram sabha beyond PESA to include ‘all adult members of a village and in cases having no Panchayats, Padas, Tolas and other traditional village institutions and elected village communities, with full and unrestricted participation of women’ (FRA 2006: 2g).

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It is apt to situate PESA and FRA within the framework of constitutional morality. We return finally to the critical question of sovereignty and the right to liberty in adivasi homelands in the context of conflict. Alongside being offered the guarantee of autonomy and sovereignty through laws like PESA and the FRA, adivasi homelands face an acute crisis of liberty in the face of occupation by multiplicity of armed forces — state and non-state — whether in the north-east or in Chhattisgarh. A close reading of the realities of occupation — suspension of public services, arbitrary arrests, torture, illegal detentions, disappearances, abduction, and an atmosphere of terror — throws up the multiple and simultaneous derogations of article 15 and article 21 rights in these regions. The roots of the routine derogation of fundamental rights to non-discrimination and liberty lie in neo-liberal economic policy, which forces the large-scale displacement and dispossession of primarily indigenous tribal communities.16 This is but a reiteration of Ambedkar’s view that the peaceful working of a democratic constitution required two interconnected elements: One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit of the Constitution. . . . The question is, can we presume such a diffusion of constitutional morality?17

While the history of governance with respect to adivasi homelands and adivasi communities is an embattled one, the intersectional interpretation of non-discrimination and liberty — which converge for this group alone in a single clause in article 15 through ‘race’ and ‘place of birth’ — holds the promise of an insurgent and transformative constitutionalism.

16 The Salwa Judum judgement of the Supreme Court, Nandini Sundar and Others v. State of Chhattisgarh 2011 AIR (SC) 2839 puts the constitutional scheme back into focus. 17 Naz Foundation and Others v. Government of NCT of Delhi and Others 2009 (160) DLT 277, para. 79.

Chapter 8

Plural Societies, Religious Minorities and Discrimination A VIEW OF HISTORY [A Constitution] must recognize the existence of the minorities to start with. . . . minorities in India have agreed to place their existence in the hands of the majority. . . . They have loyally accepted the rule of the majority, which is basically a communal majority and not a political majority. It is for the majority to realize its duty not to discriminate against minorities. Whether the majorities will continue or will vanish must depend upon this habit of the majority. The moment, the majority loses the habit of discriminating against the minority, the minorities can have no ground to exist. They will vanish. — B. R. Ambedkar, ‘Basic Features of theIndian Constitution’ (2002c: 486–87)

Any understanding of discrimination based on religion in postcolonial India must trace its genealogy to the polarization between majority Hindus and minority Muslims during and immediately after the struggle for independence from British colonial rule. There are, of course, many views on this polarization and many interpretations of it, too wide-ranging to be discussed at length here. This chapter will outline the problem of religion-based discrimination, underscoring the aspects that have come up for deliberation in courts, and pointing specifically to the ways in which the largely monolithic and majority-centric judicial view of history abridges the space for a full-blooded articulation of discrimination against minorities: What is at stake [in the resurgence of communalism] is democracy, secularism, rule of law, nationalism and culture. . . . The idea of democracy is

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being replaced by majoritarianism, the concept of secularism is interpreted in religious terms, the rule of law is subverted by public coercion, Indian nationalism is equated with hindutva and Indian culture is described as Hindu culture. (Panikkar 1991: 15)

Majoritarianism has an adverse impact on all religious minorities. The violence against Christians in Kandhamal in Orissa in August 2008 left between 75 and 123 people dead, a majority of whom were Christian dalits and adivasis. Five thousand houses belonging to Christians were destroyed partly or fully; at least 264 churches and prayer halls were destroyed; personal property, primarily valuables and livestock, was looted; and philanthropic institutions razed to the ground, including old-age homes, orphanages, leprosy homes, tuberculosis sanatoriums, dispensaries, schools. In Kandhamal alone, between 25,000 and 40,000 people belonging to these communities were displaced due to the violence (Uma and Grover 2010: 17). The claim by the Sangh Parivar that ‘Orissa is the second “Hindu rajya” after Gujarat, indicates that Orissa has been the focus of Hindutva forces . . . in a manner similar to their campaigns in Gujarat’ (ibid.: 16). I will limit myself in this chapter to a discussion of Muslim minorities. While the observations in this context may in part be extended to other minorities, the specific history of communalism on the subcontinent raises very specific concerns in relation to Muslims. The first step in this exercise is to examine the problem of communalism, which is the medium of discrimination based on religion, and provides the ideological sustenance for the micropractices of exclusion. As a particular constellation of ideas rooted in the experience of modernity in India, communalism is based on the fundamental assumption that Hindus and Muslims are and have historically been separate communities existing in opposition to each other. Rooted as it is in modern systems of understanding, communalism ‘participates in modern history and culture at many levels’ (Ludden 1996b: 13). An important part of the project of communalism has to do with the denial of historical tradition: through the creation of legitimacy for particular claims to belonging and citizenship; a selective appropriation of history; and the creation of an imagined past (Panikkar 1991: 1–3). Contrast this to

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the complex historical development of a composite culture through interaction between and synthesis across religions, a history that witnessed ‘theological discussions and debates in which scholars of all religions, whether Hindu, Christian or Muslim . . . participated [thus enriching] the Indian intellectual tradition’ (ibid.: 2). Particular interpretations of history set the norm for the operation of the law. Thapar points to the construction of the Hindu community in historiography and in the constitution as an example. Whereas Buddhists, Jains and Sikhs had distinct belief systems and ecclesiastical orders, all pre-Islamic indigenous religious movements were brought under the rubric of ‘the Hindu’ (originally a geographic and ethnic term), resulting in monocausal explanations of history on the subcontinent that boiled down to a Hindu– Muslim confrontational politics (Thapar 1991: 19). Religious sectarian conflict and the replenishing of treasuries by kings like Harsha through the plunder of temples were also part of history. Nor were these conflicts simply between Hindus and Muslims. Speaking of conflicts between Muslims and Hindus in colonial Bengal, for instance, Das points out that in several cases these were mass uprisings of the Muslim peasantry against the Hindu landed elite, the uprising itself taking the form of the confiscation and destruction of credit documents and the looting of grain. In these instances, the Muslim elite was not spared either, with ‘Muslim notables asking for protection [from the police] against their coreligionists’ (Das 1991: 40). Like confrontational categories, religious identities were neither fixed nor sharply separated, self-referentially or otherwise. In eighteenth-century Maharashtra, the Muslim sant Shah Muni, writing in Puranic style, explained the origin of the Muslims or Yavanas as having descended through the Paighambars from Mahavisnu; the Paighambars call Narayana Allah, and the four shastras the Quran (Thapar 1991: 29). Oberoi speaks of evidence of hundreds of Hindus in early nineteenth-century Punjab visiting Muslim shrines; of Muslims conducting Hindu life-cycle rituals; and Sikhs attending Hindu and Muslim places of pilgrimage. He also speaks of the Meherat Rajputs, who believe they are descended from Prithviraj Chauhan, undergo male circumcision,

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marry through a nikah, bury their dead, know very little of the Quran, and intermarry freely with Hindu Rajputs. In a response that would startle our census officials today, a total of 200,000 people in Gujarat declared themselves ‘Mohammedan Hindus’ in the 1911 decennial census (Oberoi 1997: 11). Did Hinduism exist as a coherent religion in ancient times? While different sects were in existence, and a plurality of traditions, these large, monolithic, religious categories are a recent construct, probably dating back to James Mill’s History of India, where he adopts the periodization of Hindu, Muslim and British, a periodization that continues to cast a shadow of distortion on Indian historiography. ‘Hinduism cannot be described as a historically evolved religion. The historicity of Hinduism is a relatively recent construction, undertaken in the nineteenth century as a part of the reformist-revivalist movements’ (Panikkar 1991: 2). Basically, from a social context that was characterized by diversity of location, habit and identity — internally within communities and externally between communities — there was a shift to a reified, monolithic, reductionist construction of religious communities during colonialism. This construction was absorbed into public and dominant discourses alike and validated as fact by the conservative political leadership of these communities. Ali Anwar points to the striking fact that both the Hindu Mahasabha and the Muslim League opposed the enumeration of caste in the census on the ground that it would weaken ‘the community’ (see Irfan Ahmed 2003: 4887). But this did not necessarily truncate the diverse ways in which intra- and inter-community life was structured on the ground, a point that will be elaborated in a later section. Nor did it mean that this was the only political mobilization in place. The Momin movement that mobilized backward Muslim communities and opposed the Muslim League during the freedom struggle is a case in point. On the one hand, therefore, we have Minto’s statement while recommending separate electorates: ‘The Indian Muhammedans are much more than a religious body. They form in fact an absolutely separate community, distinct by marriage, food and custom, and claiming in many cases to belong to a race different from the

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Hindus’ (see Rao 1968: 741). On the other hand, interestingly, after all was said and done, and the constituent assembly sat down to deliberate on the new constitution, the discussion of minorities was not limited to religious minorities, but encompassed racial, religious and caste minorities, all of which faced problems that were similar and required solutions that were comparable. While Sikhs were a minority, it was argued that there were sects among them that were on par with the scheduled castes — like the Mazhabis, the Ramdasias and the Kabirpanthis — and that they must therefore be listed as scheduled castes so that they could access the safeguards (ibid.: 770–72). Hence, the idea that sections of a religious minority intersect with the caste hierarchy and require protections on par with caste is part of constitutional history, and extremely relevant to the current debates on whether or not sections of religious minorities come within the meaning of backward classes. What is also relevant here is the fact that the debates in the constituent assembly did not make a substantive distinction between minorities of different kinds, even while acknowledging that the historical and cultural specificity of experience must be borne in mind while providing for safeguards.

DIVERSE AND PLURAL MINORITIES The existence of Meherat Rajputs, according to Oberoi, indicates that caste is an intrinsic part of Muslim social reality, which is not only internally stratified, but also shares, in this instance, a stratified position with the same Hindu caste. In other words, the hierarchy of caste in Muslim society in instances like this mirrors the caste system in Hindu society in the same region. Because Muslims and Hindus subscribe to similar and parallel caste orders, the hierarchy ranks caste groups in a dual manner: within each religious group in almost identical fashion; and across religious groups, where the solidarity of caste position between Hindu and Muslim Rajputs is created by an identity of social location as Rajputs. This throws into question the presumption of mutual exclusivity between Hindu and Muslim communities. The 1911 census showed that out of 12 million followers of Islam in Punjab, 10 million reported

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caste names like Rajput, Jat, Arain, Gujar, Muchi, Tarkhan, and Teli, while only two million were of ‘foreign origin’, including Ashrafs, Pathans and Baluchs (P. S. Krishnan Report 2007: 50). Ali Anwar, in his study of Muslims in Bihar, explores the parallel reality of caste among Muslims. While it does not intersect with the Hindu caste order, the Muslim caste hierarchy is structured in very similar ways. Anwar argues that, contrary to the dominant view that caste is a result of government policies in independent India, caste discrimination among Muslims in fact has a much longer history, one that goes back several centuries. Detailing practices of discrimination by the dominant Ashrafs and Pathans through a cultural mapping of stereotypes, proverbs and social practices (including segregated burial grounds and endogamy), Anwar focuses on the condition of low-caste Muslim communities like the Julahas (weavers), Halalkhor, Lalbegi (scavenger), Bhatiara, Gorkan (grave-diggers), Bakkho, Mirshikar, Chik (butcher), Ragrez, Darzi, and Nat (see Irfan Ahmed 2003: 4887; see also Alam 2003: 4881). Mondal suggests that there are approximately 170 marginalized Muslim communities in India; the stratification among the Ajlaf (commoner) communities mirrors the caste system (Mondal 2003: 4893). Ghaus Ansari, drawing on census reports from 1901, categorizes Muslim castes into three groups: Ashraf, Ajlaf and Arzal. This classification was adopted by the Sachar Committee in its 2006 report on the status of Muslims in India. The Arzal consists of castes analogous to the ‘untouchable castes’ among Hindus whose primary occupation is civic sanitation (see P. S. Krishnan Report 2007: 62–63). Quite apart from the ways in which the diversity among Muslim populations mirrors caste, Zainuddin makes a striking observation that has an immediate bearing on the present exercise: ‘The foreign or immigrant Muslims were referred to as “ashrafs” while the local converts especially from the lower echelons of Hindu society were designated as the “ajlaf ”. The basis for this social stratification was birth and race as status symbols’ (Zainuddin 2003: 4899). The discrimination that Anwar speaks about, therefore, and the dominance of the Ashraf over the Ajlaf, is discrimination based on both caste and race.

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Speaking of the history of conversion, especially of the lower castes to Christianity and Islam, Krishnan observes that while the movement to Christianity is well documented, the movement to Islam is not. In a rare reference, however, the Manual of the Kistna District, 1883, records: Indeed if a convert comes from the lower or outcastes it is a social rise in life. Ramigadu, a Pariah or leather-worker in the village, who could not draw water from the well reserved for caste Hindus, becomes a Muhammadan, lets his beard grow, calls himself Abdul Hasan and draws water from the caste well unchallenged. (P. S. Krishnan Report 2007: 19)

Dutt, writing in the early twentieth century, echoes this view, saying that most Muslims in East Bengal were converts from the Namasudras and Rajbansis, both major scheduled castes in that region. Jagdish Narayan Sarkar wrote that a majority of Muslim converts in Bengal belonged to ‘the poor aborigines of eastern and deltaic Bengal, . . . fishermen, hunters, pirates and peasants, . . . the impure or unclean out-castes, popularly called the untouchables, spurned and neglected by the caste-proud Brahmanical HinduSociety [who] adopted Islam to escape from social injustice or secure social status’ (see ibid.: 33). Meenakshipuram in Tamil Nadu saw a total of 1,713 conversions of dalits to Islam in 1981. These conversions, which spread to the districts beyond Meenakshipuram, were not unconnected to the frequent episodes of collective violence against dalits by the dominant castes in that region (P. S. Krishnan Report 2007: 20). Kerala is a state that has the first recorded presence of Muslims in India, although this early history presents a very different picture, involving Arabs engaging predominantly in maritime trade. However, the community of Muslims grew rapidly because of conversions and unions with Arabs by the lowest castes who found in this a way of escaping discrimination. Krishnan notes that in the first formal order of reservation issued in Travancore on June 25, 1935, the ‘Muslim community’ was specifically included. Even in the early 19th century, when the Regent Maharani issued orders permitting women of depressed communities to wear gold and silver ornaments, which were prohibited for them till then, the order referred illustratively to some such communities, and Muslim was one of them. (Ibid.: 38)

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Despite conversions being seen as offering an escape from caste oppression, several studies have shown that the so-called egalitarian religions that took in converts, rather than eschewing caste, adopted it, denying these communities the escape they sought. It is important to recognize that the organized religions that received converts were not necessarily egalitarian in their practice. The social and ideological practice of religion in caste-based Hindu society has been viewed against textual prescriptions in Christianity and Islam that spoke of equality. Yet we know from the troubled histories of Christianity that it has quite easily absorbed and validated virulent forms of inequality, especially in the various encounters of white with non-white peoples. Little surprise, then, that Christianity, especially in south India, absorbed ideologies of caste discrimination that divide churches even today, liberation theology notwithstanding. The missionary intervention in adivasi communities has not been unproblematic in this regard, either. With respect to Islam, Ansari traces the origin of stratification in Muslim society in India to the interweaving of notions of ‘high-born’ and ‘low-born’ current among ruling-class Muslims in Central Asia, with notions of hierarchy in the caste system in India (see P. S. Krishnan Report 2007: 49).

FIELDS OF DISCRIMINATION AND MARGINALITY In 2006, the Sachar Committee came up with extensive documentation of the ways in which Muslims faced discrimination in India. The effort to document the condition of Muslims was triggered by the genocidal massacre that took place in Gujarat in 2002. This connection between collective violence and the documentation of discrimination is immediately relevant to the present project, and underscores the direct relationship between liberty and nondiscrimination. Another facet of liberty comes to the fore when we look at the minority question in contemporary India: the use of collective violence, not merely as a derogation of life, but as a curtailment of liberty. This will be examined more carefully in a later section that looks at genocidal massacre, and discusses the principal findings of the Sachar Committee.

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The exclusion of Muslims by design has an older history in the country. Mushirul Hasan speaks of the years immediately after independence: of Muslim shops being sealed in Delhi and Uttar Pradesh (UP) by the minister of rehabilitation; of the chief minister of UP making it known that government jobs would not be available to Muslims and suspending aid to Urdu-medium schools; of elective posts within the Congress being out of bounds for Muslims. All this is suggestive of the fact that the foundational fabric of the new nation was already coloured by the hues of communalism at the moment of freedom (Hasan 1991: 66). That society, especially in the border states, was deeply fractured both by the political polarization as well as by partition violence, is widely acknowledged. What Hasan points us towards is evidence of discrimination against Muslims by the state and elected representatives of the people. The time he refers to is the time when the constitution was being written. The chief minister of UP, Govind Ballabh Pant, while actively pursuing a political agenda of exclusion of Muslims in his state, was deliberating on minority rights in the constituent assembly, and on the framework of the new constitution. The ways in which the body politic, the state and the law are intertwined, therefore, foreground for us the unfathomable ramifications of communal polarization and the spread of discrimination based on religion. A survey of Muslim women in India revealed that she [the Muslim woman] is typically among the poorest . . . and is illiterate for the most part. . . . she is married by the age of 15 years . . . and is plagued by ill health for most of her life. Low skills and education, as well as seclusion and a severe lack of mobility, limit her chances of paid work outside the home, making for almost complete economic dependency on her husband — who is likely to be poor and disadvantaged himself. Violence . . . and the lack of viable options . . . keep her in a highly subordinated and often abusive relationship, while cultural and social norms, suffused with a pervasive patriarchy, allow her little choice or decisional autonomy in practically every aspect of her life. (Hasan and Menon 2004: 241)1 1

The all-India Muslim women’s survey was the first national survey of its kind and covered 9,541 women, 80 per cent of them Muslim, 60 per cent urban, spread over 40 districts in 12 states. It focused on 10 parameters: socio-economic status, education, work, marriage, mobility, decision-making, violence, access to social welfare and media, and political participation. See also Hasan and Menon (2005).

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Stressing that class, gender, community, and state are intersecting and mutually contingent axes that produce mutually reinforcing forms of deprivation and disadvantage, Hasan and Menon draw attention to the fact that this disadvantage is compounded by minority status: ‘Gender discrimination coalesces with class inequalities in perpetuating a structured disempowerment of Muslim women’ (ibid.: 242; emphasis in original). They elaborate on this by pointing to four factors that are critical to the structuring of disempowerment of Muslim women: poverty, communal politics, patriarchy, and personal laws. The case of Shah Bano, the subsequent enactment of the Muslim Women (Protection of Rights on Divorce) Act and the national debate that marked both the case and the enactment illustrate this very convergence (see Sunder Rajan 2003: 147–76). However, while the dominant discourse on Muslim women focuses on the Shariat and women’s firm location within personal laws, significant research has thrown up important commonalities in the lived experience of Hindu and Muslim women who share a common socio-economic status (Fazalbhoy 2005). A study conducted in Bijnor in Uttar Pradesh found a situation in which the state had abdicated in its responsibility to provide education to poor children by making government-run schools totally inaccessible, especially for Muslim children. In this situation, local communities mobilized support for the setting up of madrasas that provided basic education for girls. Contrary to popular perception, it was primarily illiterate mothers who were keen that their daughters access some form of formal education ( Jeffery et al. 2005). The considerably lower access of Muslim children to schooling is also reflected at the national level in the Sachar Committee’s report. Taking socio-religious categories, gender, and residence (rural or urban) into account, the report finds that Muslim children show consistently lower levels of mean years of schooling (Sachar Committee Report 2006: 56). In the area of employment, Muslims are concentrated in casual, insecure employment. The access of Muslim communities to physical and social infrastructure — education, health and sanitation, roads, public transport and public facilities, adequate housing, fuel, and water — is lower than the access of other communities (ibid.: 139–49).

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The focus on seclusion masks the realities of political participation by Muslim women at various levels, ranging from the local to the state and national levels outside community spaces, reducing them in the popular imaginary to beneficiaries of either state or community largesse. While ashraf women have had a presence in national politics (although small, like all women in India), ajlaf women have played a significant part in shaping politics at local levels, as my study of Muslim women in Kurnool district demonstrates (K. Kannabiran 2002, 2005). The sex ratio is a classic indicator of horizontal discrimination. The National Family Health Survey (NFHS) data shows that Muslims have the highest sex ratio among all socio-religious groups in the country, with 986 girls per 1,000 boys. The ratio for SC/STs is 931, other Hindus 914, and other groups 859 (Sachar Committee Report 2006: 34). The relevance of the Sachar Committee’s report lies particularly in the fact that low representation in the public domain increases insecurity and vulnerability to collective violence: ‘While communal violence may not be a cause for Muslim backwardness, there is some evidence to argue that the expectation of recurring violence may play a very important role in depressing fortunes, fostering insecurity and increasing social and economic vulnerability’ (Robinson 2007: 842). Further, this lack of a critical and vocal presence has made Muslim survivors and suspects vulnerable to arbitrariness on the part of state agencies, ranging from the police to the civil administration and even the judicial system (Sachar Committee Report 2006: 13). A point to be noted is the observation of the Sachar Committee that this insecurity is one that is shared by all minorities (or disadvantaged socio-religious communities) (ibid.: 25).

NON-DISCRIMINATION AS RESERVATION: THE IDENTIFICATION OF MUSLIM BACKWARD CLASSES IN ANDHRA PRADESH The report of the special advisor to the Andhra Pradesh (AP) government on the issue of reservation for Muslim OBCs documents

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in painstaking detail the history of Muslims in India, the stratification systems in ‘the community’, the parallels with other states, the parallels with the caste system ranging from practices of exclusion to practices of upward mobility, and the patterns in the relationship between caste status and occupation, especially at the lowest levels, where occupation serves as the stigmata of caste status. Drawing extensively on sociological and anthropological work, Krishnan details channels of social interaction, histories of resistance by Muslims to caste oppression, particularly in Kerala, and the history of protective legislative and executive measures in favour of Muslim communities located at the bottom of the social ladder. The purpose of the report was to make a case for official recognition of backwardness among some classes of Muslims, and the need for reservation for these classes: ‘I have described the patterns of social stratification in Muslim societies in different regions of India in some detail so that it becomes possible to better appreciate the social structure of Muslims in Andhra Pradesh’ (P. S. Krishnan Report 2007: 154). The report then traces the presence of categories of Muslims in what is now Andhra Pradesh, drawing on district gazetteers going back to the early twentieth century. The connection between sociology/anthropology and constitutionalism is nowhere more evident than in this instance, as also the uses of the critical edge of the social sciences in gaining a fuller appreciation of the foundations of law. The Anthropological Survey of India, in 1976, published a list of 391 communities in Andhra Pradesh, of which 24 are Muslim communities: (1) Arab, (2) Attar Saibulu, (3) Bohara, (4) Chakketakare, (5) Dhobi Muslim/Muslim Dhobi/Dhobi Musalman, (6) Dudekula/Panjikutti, (7) Faqir/Fhakir Budbudki, (8) Garadi/Garadi Muslim, (9) Gosangi Muslim, (10) Hajam/Nai/Navid, (11) Irani, (12) Khatik/Khatik Muslim/ Kasab, (13) Labhai/Labbi, (14) Mehtar, (15) Mughal/Moghal, (16) Noor Basha, (17) Pathan, (18) Qureshi/Kureshi/Khureshi (19) Shaik/Sheikh, (20) Shia Imami Ismailis/Khoja, (21) Siddi and (22) Syed/Saiyed/Sayyad/ Mushaik, (23) Borewale, (24) Guddi Eluguvallu.2 2

Krishnan observes that the highlighted (italicized) communities are the same but go by different names (P. S. Krishnan Report 2007: 167).

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Krishnan explores the socio-economic and occupational background of each of these communities, noting specifically which of them are backward along which indices; which were to be exempted from the special protections recommended by the National Commission for Backward Classes because of their secure socioeconomic and occupational status; and which had already been identified as backward classes in the central list and in other states. Since the identification of socially and educationally backward classes (SEBC) does not specifically include identification along religious parameters, some communities of Muslims figure in different state and central lists as entitled to reservation. The criteria for including Muslims in the SEBC list are as follows. The majority of Muslims in India are of Indian origin; this majority derives from the same castes that have been classified as scheduled castes or backward classes, and generally constitutes the Muslim working classes. Despite the doctrinal framework of equality in Islam, some caste identities persist in varying degrees throughout the country. Where there has been a consolidation into a larger group, like the Moplahs or Labbais, collective backwardness has not necessarily been obliterated. Finally, social stratification in Muslim society is a documented fact that must be taken note of in policy (P. S. Krishnan Report 2007: 204–5). Although there is a debate on whether Muslims as a whole should be included in the list of backward classes, the official trend (starting with the Kaka Kalelkar Committee) has been to acknowledge stratification and to identify backward sections for special treatment, including all untouchable communities and all occupational groups that are known by their occupational name and whose Hindu counterparts have been identified as backward.The Mandal Commission evolved two ‘rough and ready criteria’ for identifying non-Hindu OBCs: (i) All untouchables converted to any non-Hindu religion, and (ii) Such occupational communities which are known by the name of their traditional hereditary occupation and whose Hindu counterparts have been included in the list of Hindu OBCs. (Examples: Dhobi, Teli, Dheemar, Nai, Gujar, Kumhar, Lohar, Darji, Badhai, etc.). (See P. S. Krishnan Report 2007: 212)

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Krishnan argues that the first method was useful in identifying Christian untouchables, but not Muslims, because of a masking of origins and current practices by doctrinal rhetoric. The second method, adopted by the Mandal Commission, is not very relevant either to the situation in Andhra Pradesh, where the largest number of conversions have been from agriculture-based ‘untouchable’ castes. These castes do not come within the meaning of ‘occupational groups’, which are seen as closed groups; they are, rather, former agrestic slaves/serfs, different kinds of labourers, tenants-at-will, and small peasants (ibid.: 211–12). The identification of Muslim backward classes was proposed by the AP Commission of Backward Classes (APCBC) on the basis of the report submitted by P. S. Krishnan. Broadly, it may be argued that the principal index of social backwardness is the inability to access equal opportunity in education and employment. According to statistics furnished to the APCBC by different departments in the government, between the years 2002 and 2007, a mere 2.7 per cent of seats in professional education went to Muslim students. Between 1999 and 2006, only 3.49 per cent of government jobs went to Muslims at the state level. Where the six groups newly identified by the Backward Classes Commission are concerned, namely, Faqir, Pakeerla, Labbi, Qureshi, Muslim Rajakas, and Turaka Kasha, only 3.5 per cent of the Muslims employed in 76 departments of the state government belonged to these classes in all cadres put together (BC Commission Report: 60–67). Eight other groups — Achukatlavandlu, Guddi Eluguvallu, Siddi, Garadi Muslim, Attar Saibulu, Gosangi Muslim, Sheik, and Hajam — did not figure at all in the employment information furnished to the commission. The Backward Classes Commission recommended a reservation of 4 per cent in education and employment for these 14 groups, leading to the Andhra Pradesh Reservation in Favour of Socially and Educationally Backward Classes of Muslims Act, 2007 (Act 26 of 2007). In T. Muralidhar Rao v. Government of Andhra Pradesh,3 a seven-judge bench of the High Court of Andhra Pradesh decided 3

T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB).

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by majority that this enactment was ultra vires of article 14, and therefore unconstitutional. A close look at this decision is necessary for an understanding of the ways in which it is possible for constitutional courts to frame the issue of discrimination. The majority, led by Chief Justice Anil Dave, consisted of Justices A. Gopal Reddy, V. Eashwaraiah and G. Raghuram. Justice T. Meena Kumari, concurring with the majority, wrote a separate judgement. Five concerns were raised by the petitioners, led by a member of the Vishwa Hindu Parishad. These included the concerns that: the grant of quotas would decrease the number of seats in professional courses, not just in the merit category, but also in the sports quota;4 the other backward-class (BC) categories would be affected adversely by the inclusion of more groups; Muslims did not satisfy the criteria for inclusion in the list; ‘Muslim’ needed to be defined; this category was religion-specific, and, given the groups already listed under the A and B categories, a separate category was unjustifiable; 112 other groups were waiting for inclusion (including Brahmins and Vaishyas), and therefore the provision of reservation for Muslim groups alone was against the principle of fairness; and, most importantly, the APCBC, instead of itself conducting a survey and setting the criteria for inclusion, had relied on secondary sources (including the Anthropological Survey of India and the census) in order to arrive at a decision. Interestingly, none of the petitioners deployed the reservations versus merit argument, which is the classic anti-reservation position. Rather, the petitioners’ positions all reflected a contestation of the claim of Muslim backward classes against their own claims to a quota. The issues before the court, as outlined by the majority, were broadly two-fold: a decision on the standard of judicial scrutiny permissible in reservation cases; and the sustainability of the recommendations of the commission. In addressing the matter of scrutiny, the court dwelt at length on the meaning of the separation of powers: ‘The Constitution entrusts the task of interpreting and administering the law to the Judiciary whose view on the subject 4

T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 16.

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is made legally binding on all till it is changed by a permissible legislative measure.’5 Having framed the function of the courts in this manner, the judgement viewed favourably the application of the strict scrutiny standard in an earlier case, where the challenge to Muslim reservation had been upheld: We must examine whether the conclusion arrived at by the State that the groups of Muslims incorporated in the Schedule appended to the impugned Act are, in fact SEBCs. It is of vital importance to examine the same because, while giving certain rights to them by providing reservation, the State is proportionately depriving persons of other class of their opportunity to higher education and to employment in public services.6

The fundamental premise of reservation is discrimination and class disadvantage. The court’s scrutiny, therefore, needs to focus on whether the justification of reservation is evidence-based. That reservation for one class leads to the shrinking of possibilities for another (meritorious or otherwise) is an argument belonging to the Champakam Dorairajan line of reasoning that has been expressly removed from the sphere of constitutional jurisprudence. Yet it survives implicitly through reiteration in constitutional courts. The next step, in the court’s opinion, was to look at the methodology followed by the commission in gathering evidence of discrimination against the 15 groups of Muslims listed in the schedule. Arguing that procedural error, namely, the failure to set out the criteria for backwardness and the factors influencing it prior to the identification of groups, had been fatal to the report of the commission and its recommendations,7 the court went on to examine the minutiae of research methods and sampling techniques, finding more fatal flaws as it went along. These included the reliance on secondary data; the disjuncture in the purpose of data collection between the commission and the studies it relied on; the adoption of non-scientific methods of sampling; and the 5 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 37; emphasis added. 6 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 99; emphasis added. Also see paras 103, 174. 7 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 130.

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failure to gather primary data with the express purpose of determining backwardness. ‘Data collected for one purpose may not be useful for a dissimilar purpose.’8 The court also critiqued the commission’s reliance on the report prepared by P. S. Krishnan, who in turn had relied on secondary sources, and on the 2001 census instead of conducting a fresh survey, the census being a secondary source as well.9 The third step was to question the government’s rectitude in appointing P. S. Krishnan when the commission, in its status as a statutory body, was already entrusted with the task of assessing the feasibility of reservation for Muslims. This argument extended to the acceptance by the commission of the report submitted by Krishnan to the government. By entrusting to Krishnan the same tasks as were to be undertaken by the commission under the 1993 act that had constituted it, the state was held to have transgressed by usurping the powers of a commission that was legislatively authorized to regulate its own functions.10 The fourth step was to look for the rationale behind providing 4 per cent reservation to Muslim backward classes. Muslims constitute 9.2 per cent of the population of Andhra Pradesh; 19.5 per cent of this population has been listed as backward classes under the BC ‘A’ and BC ‘B’ categories. By a strange arithmetic, the court arrived at a figure of 2 per cent as the proportion of Muslim backward classes in the population of the state, thereby concluding that 4 per cent reservation for 2 per cent of the population was untenable.11 Even if one were to go strictly by the proportionality principle, a key observation in the Krishnan report is that while the backward classes among Muslims are more in the region of 80 per cent of the total Muslim population of the state, only 19.5 per cent is currently listed. This formed the basis for the entire exercise of identifying the classes that needed protection. 8

T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 149. T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 171. 10 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 182. 11 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 184. 9

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The fifth step was to look at the logic of preparing a separate list, group ‘E’, for groups newly identified, and leaving earlier identifications in their original place in the A and B lists. The court saw the omission of already identified groups from the new list as unfair discrimination against them: Those Muslim communities earlier included . . . would have to compete with others for the percentage of affirmative opportunities . . . while those in Group ‘E’ would enjoy exclusive package of affirmative opportunities of 4%. This action of the State constitutes discriminatory treatment among the identified Muslim groups and is violative of Article 14 of the Constitution.12

The idea driving the impugned policy was precisely to look at Muslim backward classes and at the continuities and intersections between the lived experiences of Muslim groups and other communities. By framing the issue in the terms just described, the court in fact set up and validated a polarization between ‘Muslims’ and ‘others’, a polarization that it has been entrusted to dismantle through the medium of the constitution. This setting up of a binary space for reservations is bolstered through a query left unanswered on the definition of ‘Muslim’.13 An earlier case had described the Muslim in essentialist terms — ‘Islamic faith aggregate’14 — a description that has been validated though reiteration. What is even more significant, and needs a cautionary note, is the quick transition from raising the problem of definition to a discussion of the disastrous consequences of conversion. This is a jurisprudential leap, which it is important to dwell on if only because of its far-reaching implications for our understanding of constitutionalism and constitutional morality, as will become clear shortly. 12 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 187; emphases added. 13 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 200. 14 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 109.

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The schedule to the impugned act contained 15 items. The first 14 were the groups that had been specifically identified as backward. Item 15 in the schedule provided for reservation to ‘other Muslim groups’, barring dominant groups like the Pathans, ostensibly to provide for the future possibility of unidentified backward groups accessing the benefit. The majority of the judges saw a problem with including an item that was non-specific. In such a case, it is possible for the court to proceed along two lines: first, it may strike down the policy; or, second, it may strike down the item without using that single item to topple the policy. If indeed the item is found to introduce a fatal flaw, the duty of the court is to provide the reasoning driving the conclusion that the flaw is fatal. The reasoning of the AP High Court on why the flaw was fatal — the concluding note of the majority judgement — was penned by four judges, including Justices A. Gopal Reddy, V. Eashwaraiah and G. Raghuram, led by Chief Justice Anil Dave. Justice T. Meena Kumari, while concurring with the decision of striking down the enactment as unconstitutional, wrote a separate judgement that did not concur with the reasoning of the majority judgement. This disagreement is evident in her crucial silence on the issue raised by the majority judgement. This is, in fact, the salutary part of the judgement of the court: that three of the seven judges ( Justices Prakash Rao and D. S. R. Varma being the other two) did not pick up the line of reasoning adopted by the majority, which runs as follows: Article 25 of the Constitution provides that every citizen has a right to profess, practise and propagate any religion. Item No. 15 of the Schedule potentially encourages a citizen to convert to Islam, with a view to claim the benefits of reservation. If a person, who is not a Muslim and who belongs to a forward caste embraces Islam . . . he would be a member of ‘other Muslim groups’ and would be eligible for reservation provided he is not a member of a creamy layer. In such an event, in our opinion, anybody can avail the benefit of reservation . . . and that would be against the spirit of secularism. . . . This is a significant aspect which has not been considered at all while enacting the impugned Act and this would have disastrous consequences. . . . Looking at the facts of the case . . .

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the 2007 Act . . . potentially encourages religious conversion and is thus unsustainable.15

To begin where this observation begins, article 25 of the constitution reads as follows: Article 25: Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

Conversion from one religion to another is an intrinsic part of the freedom of conscience and the right to freedom of religion under the constitution. Very clearly, it is a right vested in persons, and one that allows them to profess a religion, to practise it (insofar as such practice does not specifically derogate the rights of others by barring them from entry into places of worship or imposing any disability on them; temple entry is an example), and to propagate it. The numerical and qualitative enhancement of the community of believers has always been a central concern of organized religion throughout its chequered history. Proselytizing has been an intrinsic part of religious practice focused on such enhancement. The mobility of believers between religions could occur for a range of reasons, spiritual or material. Looked at in the context of the Muslim backward classes, the movement from the lower echelons of the Hindu caste order to Islam, Christianity and Buddhism was triggered by deeply entrenched practices of exclusion and violence. Even Ambedkar, the architect of the Indian constitution, was not an exception to this movement. Be that as it may, the question before us is: can a constitutional court bar a policy move for reservations, because it believes that such a policy will encourage conversion? By ruling against the freedom of religion, the court has in fact subverted a principal constitutional tenet. The second part of the problem in the court’s approach has to do with the link it made between conversion and secularism. 15 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), paras 201, 203; pp. 576–77.

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The constitution mandates plural secularism and the freedom of religion. These are not mutually exclusive, as the court in this case seems to suggest. Rather, secularism must inform every aspect of state practice (in all its three arms), and the state must guarantee to every person the right to freedom of religion. It is certainly no part of the obligation of a constitutional court to secure secularism through the curtailment of the individual’s fundamental, nonderogable right to freedom of religion. That this also involves a complete misreading of the concept of secularism itself is another matter. The dissenting judgements of Justice B. Prakash Rao and Justice D. S. R. Varma attempted to invert the skewed reasoning of the majority and put the constitution back on its feet. Justice Prakash Rao’s judgement focused on the two questions addressed to the seven-judge bench for reference by the five-judge bench, and reverted back to the five-judge bench for a decision on merits. Justice Varma, like the majority, decided on merits and did not think it necessary to refer the matter back to the five-judge bench for orders. In sum, the arguments in the dissenting opinions were focused on two questions. First, is strict judicial scrutiny applicable to matters of affirmative action of the state under the equality provisions? Second, was the procedure followed for collection of data and identification of groups in conformity with the rules laid out in Indra Sawhney? On the standard of scrutiny, Prakash Rao held that the ‘the applicability of the concept of strict scrutiny, narrow tailoring, compelling state necessity and suspect legislation etc., are not available to Indian Courts while examining the aspect of providing social justice measure.’16 On the issue of reliance upon the report prepared by P. S. Krishnan, he observed that since the recommendations of the commission were not binding on the government, the latter could use the report of the commission alongside any other materials available to it before coming to a decision. Deputing a person like P. S. Krishnan for the task of preparing a report, and 16

T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 31, p. 625.

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forwarding the report to the commission, ‘cannot be found fault with, in the absence of any statutory prohibition’.17 On the data generated and the methodology followed, Justice Rao felt that the National Commission for Backward Classes had evolved what it called a ‘fast-track’ method to identify socially and educationally backward classes. The procedure followed by the APCBC was in conformity with that procedure. While the commission could have followed a more rigorous procedure in the survey, this by itself did not render the entire report unscientific.18 Following the Supreme Court, Justice Rao observed that the court could not go into the adequacy of the materials, as long as there was material available that pointed to the backwardness of the communities identified.19 There is no material on record to show that the identified groups did not satisfy the criteria.20 Importantly, he stresses the relevance of sociological and anthropological research to judicial and executive decision-making: Mr. PS Krishnan is bound to rely on the earlier studies made by other sociological and anthropological experts which is not only relevant but has a material bearing. . . . It is not as if [he] is inventing a new theory. . . . The studies are based on ground realities which have not changed even after sixty years of independence.21

Reservation for Muslim backward classes are bound to be subject to contestation in the manner that all reservations are contested by dominant groups: the women’s reservation bill being stamped down by men in parliament; reservation for dalits and adivasis, although a constitutional mandate, being truncated through arguments about the creamy layer, through fine calibrations between entry 17

T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 38, p. 626. 18 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 42, p. 631. 19 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 44, p. 639. 20 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 55, p. 644. 21 T. Muralidhar Rao v. Government of Andhra Pradesh 2010 (2) ALD 492 (LB), para. 4, pp. 640–41.

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and promotional levels, and the 50 per cent ceiling; reservation for persons with disabilities being seen as a statutory measure, as distinct from a constitutional requirement, and hedged through fine distinctions and blatant exclusions. Now, Muslims will travel up this road that has borne many stampedes. And their success will depend upon political will and the tenacity of movements supporting this demand. The real cause for concern, however, is the colour of the majority judgement. This judgement does not represent a recent trend. Courts have earlier put before us a strange juxtaposition — the irrelevance of the constitution and the relevance of the ‘lawgiver’ Manu’s blasphemies, as also of conjectural constructions from the Quran.22 What are the implications of this absorption and situated reiteration of a conservative and deeply discriminatory majoritarian rhetoric in constitutional courts, for an understanding of personal liberty for religious minorities? It is this aspect of discrimination based on religion to which we will now turn.

COMMUNAL VIOLENCE, GENOCIDAL MASSACRE AND THE RIGHT TO LIBERTY A disquieting feature of the Hindutva wave has been not just the demolition of the Babri Masjid at Ayodhya but the way Hindu propagandists conjured up the image of a community outside the ‘national mainstream’. Muslims were depicted as aggressive fundamentalists and demonized as descendants of depraved and tyrannical medieval rulers who demolished temples and forcibly converted Hindus to Islam. (Hasan 1996: 186)

The experience of religious minorities has been a troubled one. Kashmir, Delhi, Gujarat, and Kandhamal: these events place before us four very different, yet similar, kinds of experience of religious minorities, experiences that negate the rights guaranteed by article 21. These events demonstrate the deprivation of life, combined with the deprivation of liberty: in terms of forced displacements, 22 Justice Chandrachud, Mohammed Ahmed Khan v. Shah Bano Begum 1985 AIR (SC) 945, para. 1. See the epigraph to the section ‘Interpreting the Constitution’ in the Introduction to this volume.

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forced confinement and ghettoization, arbitrary arrests and detention, unfair trials, public sexual humiliation, aggravated sexual assaults, extra-judicial murders by the police and the armed forces, and the complicity of the state both through direct involvement and through the refusal to exercise due diligence. This section will explore the interconnections between the rise of Hindutva as a state ideology, genocidal violence, discrimination, and the loss of liberty, in the context of the violence against Muslims in Gujarat in 2002. Several reports are available that document the violence and its aftermath in painstaking detail. I will not repeat the details here, but shall examine the possibilities this documentation creates for understanding discrimination differently. Sixteen of Gujarat’s 24 districts were engulfed in the most organised armed mob attacks on Muslims between February 28 and March 2, 2002, when most of the attacks were concentrated. Rampaging mobs were at it until mid-March. . . . Nowhere were the mobs less than 2–3,000, most often they were more than 5–10,000 strong. This and the fact that they were armed with swords, trishuls and agricultural instruments that could kill. . . . It is only trained cadres who can spill out in such an organized fashion, in thousands across the state of Gujarat, within the ‘72 hours’ it took Chief Minister Narendra Modi to ‘bring things to normal’. (Concerned Citizens Tribunal 2002: I, 19)

The brutality and the violence of this time have been recorded and analyzed in great detail. Communal violence, while it reached genocidal proportions in the 2002 pogrom against Muslims, has an older history in Gujarat. Christian adivasis were attacked in the Dangs during Christmas of 1998. The question that is of immediate relevance here concerns the relationship between majoritarian political ideology, discrimination, the loss of liberty, and state responsibility on both counts. All accounts that trace the history of majoritarian politics in Gujarat speak of the deeply entrenched polarization of the Hindus and the minorities, Muslims in particular. Yet, an important part of this history is the fact that, although Gujarat is a border state, it did not witness the kind of holocaustian violence that Punjab and Bengal witnessed during partition. However, Hindu–Muslim relations have been

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progressively under strain in the period after independence, with the incidence of several communal riots. The 1980s saw the rapid rise of Hindu nationalism (Yagnik and Sheth 2005: 224–25). The intersecting axes of dominance and discrimination are perhaps nowhere more evident than in Gujarat, where the antireservation movement in 1981 marked the rise of a strident Hindu nationalism: Extreme forms of caste violence followed and the clashes between Savarnas and Dalits which started in industrial Ahmedabad became a caste war that spread to the towns and villages of eighteen out of nineteen districts of Gujarat and the many Patidar dominated villages of north and central Gujarat. (Yagnik and Sheth 2005: 255)

This was followed quickly by a consolidation of Hindu forces across caste distinctions, using yatras (pilgrimages) as a call to mobilize. Each yatra brought communal clashes in its wake. By the early 1990s, Hindutva was the dominant political force in Gujarat. The polarization between Hindus and Muslims had become aggravated, despite continuing tensions over the dominance of the upper castes and the subjugation of the adivasis. Hinton uses the term ‘genocidal priming’ to describe this scenario: ‘a set of processes that establish the preconditions for genocide to take place within a sociopolitical context. . . . specific situations will become more or less “hot” and volatile — or more likely to be set off — as certain processes unfold’ (Hinton 2002: 29).23 Whether one describes Gujarat 2002 as genocide, a genocidal massacre, or a crime against humanity, accounts of the priming of mass violence by the combined forces of the Hindu right are part of the testimonies of the specific episodes. Descriptions of these forces as using Gujarat as a ‘laboratory of Hindutva’, while contested, nevertheless point to the processes by which polarization transmutes into escalating discrimination, which travels steadily up the road of violence from riots to massacre. The production of hate literature and distorted ‘reporting’ by the saffron media are known to have fanned mob fury and fuelled violence after Godhra. The 23

This section draws on Hinton’s theorizing of the anthropology of genocide.

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facts relating to the incidents that led to the deaths on the train in Godhra station have been thickly overlaid by the aftermath, with conjecture substituting for facts and fuelling ‘investigation’ in a context of genocidal priming. Most critical of all, however, is the immediate connection between the Ayodhya mobilization of kar sevaks and the violence in 2002. The significant fact that the experience of Gujarat 2002 throws up is that discrimination creates the context for genocidal massacre and provides the basis for the impunity of perpetrators in the aftermath of violence. Such impunity may take several forms, ranging from non-prosecution to the simple denial of the gravity of the mass crimes. The state is a key player in the entire project of genocidal priming, as it is in the massacre of or aggravated assaults on victims. This process, simultaneously ideological, political, exclusionary, and violent, does not abate with the violence, but ebbs into discrimination. The priming continues to prepare people for new triggers and targets. In Gujarat we have a volatile situation, with mobs focused on the rhetoric of the ‘Hindu rashtra’ and ‘kar seva’, mobilized through an ideological formation that essentializes the Hindu and the Other into frozen, homogenous, adversarial categories. The claim of Hindutva majoritarianism is simultaneously political and territorial. And the violence is both symbolic and physical, the symbolic (the demonization and stereotyping of the Muslim) often cited as justification for the physical violence. Whether it is the public space of the city (the street) that is appropriated as a site of massacre and humiliation of Muslims, or the destination to which they must be transported (‘Pakistan’), the nation that must be cleansed of diversity (the ‘Hindu rashtra’), or simply neighbourhoods that become the microcosm of this genocidal nation, the territoriality of genocidal massacre, its spatial dimensions, are immediately relevant to an understanding of the loss of liberty of the minority Muslims. Confinement to Muslim neighbourhoods and enclosure in relief camps, forced eviction/elimination/ decimation from the heterogeneous spaces of the city/village — these are aspects of the loss of liberty that are tied to deep-rooted practices of discrimination in which both citizens and the state

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are complicit. This, I would argue, represents an interlocking of the denial of rights under articles 15 and 21, rights that cannot be prised apart. This interlocking of discrimination and the denial of liberty is rudely foregrounded in the decision of the Supreme Court in the case of Zahira Habibullah Sheikh,24 which raises a different set of questions about discrimination and its courtly habitations. Not the least of these questions is the untrammelled power vested by the court in itself and used to deprive a witness–survivor of mass violence of her right to personal liberty. I argue that by charging Zahira Sheikh with contumacious conduct in the matter of her testimony about the mass violence she had witnessed and in which several members of her family were killed; by defining that conduct in terms that are legally unacceptable (as U. Baxi [2006] points out so succinctly), and casting the definitional net so wide that she would have no escape; by convicting her, sentencing her to imprisonment and ordering the attachment of her properties; and by drawing justification from the Manusmriti to negate the liberty of a Muslim survivor of Hindu fundamentalist assault — the Supreme Court demonstrated by its own example the way in which discrimination interlocks with the loss of liberty in the case of persons belonging to religious minority communities, especially the women of these communities.25 Whether it is the decision of the Supreme Court in the Shah Bano case, or its decision in the Zahira Sheikh case, or the decision of the AP High Court in the case on reservation for Muslim backward classes, the normativization by constitutional courts of conservative Hindu legal traditions embodied in the Manusmriti, and the situated reading of the constitution within the ideological frameworks of orthodox Hinduism, sharpens the 24

Zahira Habibullah Sheikh and Anr v. State of Gujarat and Ors (2006) 3 SCC 374, and Zahira Habibullah Sheikh and Anr v. State of Gujarat and Ors MANU/SC/0322/2004. Upendra Baxi (2006) provides a detailed analysis of this case and its implications for constitutionalism. 25 For a detailed analysis of this case see U. Baxi (2006). This concern was echoed by the CEDAW Committee during its review of the second and third periodic report submitted by the Government of India (George and Kannabiran 2007).

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crisis of constitutional disarticulation on the critical issue of nondiscrimination.

CONCLUSION Even while it speaks the language of equality, the court, through repeated and strategic invocations of patriarchal Hindu majoritarian traditions, sets up a judicial field that is discriminatory in its partial and selective memorializing of these traditions. This, then, provides the environment for the elaboration of non-discrimination based on religion.26 The point of departure is one that is already weighted against religious minorities, and this gets carried forward into the deliberations and decisions of the court. The critical question that a transformative and insurgent constitutionalism must then address pertains to the recourse available to citizens against the court’s donning of the habit of majoritarian morality over the raiment of constitutional morality. This majoritarian morality erases the foundations of the constitution in anti-discrimination struggles within Hinduism, like the bhakti traditions, and also Buddhist and Jain traditions of critique. To go back to where we began, neither the Hindu nor the Muslim are homogeneous categories in Gujarat, or anywhere else in the country. There is a robust plurality within each category, along the axes of caste, religion, tribe, and class, and along the lines of tradition, spirituality, or material and political interests (Imtiaz Ahmed 1984). The only way the polarization project becomes possible is through the denial of diversity and of a plurality that is fragile, if not impossible. While it is still possible for social movements to counter statesponsored hegemonic projects, the acceptance of this project by sections of the judiciary, through recourse to liberal jurisprudence, or through an assimilative understanding of secularism, or through simple majoritarianism, remains deeply problematic, especially in 26

The most recent illustration of this may be found in the September 2010 decision of the Allahabad High Court on the Babri Masjid/Ram Janmabhumi matter. For a detailed account of secularism and the Indian constitution, see Jacobsohn (2003).

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terms of the consequences of this project. While it is true that ‘a constitutional democracy must create sufficient political space for the airing of direct challenges to its own foundational suppositions’ ( Jacobsohn 2003: 196), the declarations that are given free-speech protections translate by virtue of those protections into state ideology. This has far-reaching implications for minorities in accessing non-discrimination and liberty protections unhindered. As history has unfolded, it has become clear that the declaration by a Sangh Parivar candidate that he would establish a Hindu nation27 — and it can scarcely be forgotten that the 1996 Manohar Joshi judgement was delivered at the mid-point of the decade that separated the Ayodhya violence and the Mumbai riots from the Gujarat massacre — was not a mere ‘expression of hope’ (to quote the Supreme Court), but a call to arms in the service of a Hindu nation in democratic, secular India.

27

Manohar Joshi v. Nitin Bhaurao Patil and Another 1996 AIR (SC) 796.

PART III SEX, GENDER AND THE DENIAL OF FREEDOMS

Introduction This part consists of four chapters that look at the problem of gender-based discrimination in India. Gender, like disability, cuts across caste, tribe and religion; unlike disability, however, it is a hyper-articulate index of discrimination. From the early social reform protests against the enslavement of women, to contemporary campaigns for political voice and visibility, debates about the troubling persistence of women’s low status have preoccupied legislatures and courts alike. Yet, these very spaces have reproduced the ideological parameters within which discrimination against women is located, even while they seem to hold forth on equality for women. The connections between discrimination and the loss of liberty is foregrounded starkly in women’s collective experience of sexual assault. It is here, too, that the self-contradictory moves in the fields of law are most evident. We know now that gender is not a binary category. Although historically ousted from debate and overt articulation, sexual minorities have a history of presence, self-expression and aesthetics on the Indian subcontinent. They have possessed voice and visibility, interrupted, no doubt, but present. If sexual assault is the form that the loss of liberty takes for women, what are the ways in which discrimination intersects with unfreedom when we step out of the confines of binary classifications? And how does the law as a classificatory tool trapped in this binary deal with such unconfineability? Chapter 9 sets out a brief history of social reform in India from the late nineteenth to the mid-twentieth century. The primary object of these reforms was the elimination of discrimination against women, or the emancipation of women, as it was then called. This, importantly, involved everyday insurgencies and intense engagements with the law.

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Chapter 10 provides a detailed examination of the judicial discourse on discrimination against women. It analyzes the reported judgements of the high courts and the Supreme Court over a 60year period. Chapter 11 focuses on the issue of sexual assault, describing the history of legislative measures and the development of judicial interpretation that culminated in sexual assault being viewed as a derogation of the right to life and personal liberty. Chapter 12 looks historically at the issue of discrimination against sexual minorities. It undertakes a review of historical studies along with an examination of the Naz Foundation decision and the Andhra Pradesh (Telangana Areas) Eunuchs Act.

Chapter 9

Genealogies of Resistance to Sex Discrimination in India This chapter will explore the history of the idea of nondiscrimination on the basis of sex, through a detailed investigation of some continuing, persistent themes in Indian society. What are the key themes, the constants, in the proliferation of concerns about women? And what does this tell us about the specific ways in which Hinduism, for instance, is structured by patriarchy? This issue is particularly significant given the hegemonic, majoritarian position that Hinduism has increasingly come to occupy in contemporary India. It was during the period of colonialism that women’s experience in Hinduism began to be problematized. At this point in the late nineteenth and early twentieth centuries, practices of female infanticide, sati (widow immolation), enforced widowhood (or the prohibition of remarriage for widowed women), child marriage (pre-pubertal marriage especially for girls, most girls being married before they completed six years), pardah–pativrata (seclusion– chastity), restitution of conjugal rights, and marital rape, became central to the debates on the position of women within Hinduism. Today, these themes continue to be central, despite an intervening period of reform, resistance and prohibition through the constitution and legislation. The idea of non-discrimination as applicable to women has its origin in the traditions of the heterodox sects and devotional movements like the bhakti movement. These sects allowed women to transcend the physical constraints imposed on them by the institutions of caste, marriage and female seclusion. Mirabai, Avvaiyar, Bahinabai, and Lal Dhed were a few of the women who

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challenged the notions of subservient wifehood and conjugality, central to the practices of orthodox Hinduism, in pursuit of a larger devotion that meant, by definition, that they would inhabit a public space, and not be subject to the normal restrictions of caste or patriarchy. This struggle was far from easy, and often met with violent opposition from the conservatives. But these women survived such opposition in their own lifetimes, and their work, too, has survived for posterity. These women and others like them opened out a whole new world to women of their times and to later generations, a world that they were free to inhabit on their own terms. Current engagements with the question of discrimination against women, and analyses of change, must draw on these seminal movements of the past, in order to delineate the field of constitutional morality and a different constitutional interpretation of sex-based discrimination. Tarabai Shinde was one of the key architects of the transition to a new womanhood in a predominantly Hindu, caste-ridden society. Writing in fury over the sentencing to death of a young widow for the murder of her infant,1 Shinde wrote in 1882: God brought this amazing universe into being, and he it was also who created men and women both. So is it true that only women’s bodies are home to all kinds of wicked vices? Or have men got just the same faults as we find in women? I wanted this to be shown absolutely clearly, and that’s the reason I’ve written this small book, to defend the honour of all my sister countrywomen. I’m not looking at particular castes or families here. It’s a comparison just between women and men. (Shinde 1994: 75)

The trenchant critiques of patriarchal oppression and the stridency of early feminism evident in the work of people like Tarabai resulted in the gradual development of new ways of thinking about women. Margaret Cousins, in stark contrast to commentators like Mayo in the tumultuous early twentieth century, mapped the acceptance of the idea of equality by Indian women,2 and by reformers on behalf of Indian women. Cousins writes of Marwari girls riding on horseback in a procession of Marwari women on 1 2

The sentence was later reduced to transportation to a penal settlement outside the state. Cousins cites examples primarily of Hindu women in this regard.

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their way to an Anti-pardah Women’s Conference in 1941; of women workers of the cotton mills in Madras Presidency meeting to demand a ban on polygamy; of an office-bearer of the All-India Women’s Conference persisting in her public duties a fortnight after the death of her husband, the only signifier of widowhood being the absence of the puttu on her forehead.3 She also describes a Brahmin woman conducting afternoon classes in adult literacy for women; the talented daughter of an active social reformer being withdrawn from school and married off ‘to the consternation of all around’; a Brahmin woman who, in her child’s and her own interests, actually went through legal divorce proceedings when her marriage broke down, because the marriage had been registered under secular law in addition to the performance of the religious ceremony. Cousins cites the instance of 700 women — Hindu, Muslim, Christian, Parsi, Brahmin, and non-Brahmin — dining together in a school courtyard in Bangalore, ‘self-released from inter-dining restrictions of community or caste’, and of women participating in the non-cooperation movement after convincing their husbands of their commitment to the cause of freedom (Cousins 1947: 116–30). Many narratives of Hinduism in the colonial period focus on men’s efforts at social and religious reform. The works of Shinde and other authors show that there was a growing subculture of resistance that had been fashioned and nurtured by women, a subculture rarely spoken about, but one that was radical and spontaneous (O’Hanlon 1994: 53–59).

UNDERSTANDING DISCRIMINATION AND VIOLENCE The debate on the position of Hindu women is a debate about the lifetimes of Hindu women, with all their twists and turns. Quite naturally, this debate must begin with the birth of the female infant, moving along her life span, plotting the significant moments. What strikes us immediately, when we look at women’s lifetimes, particularly those of Hindu women, in the course of the 3

Puttu: the sacred vermilion mark worn by Hindu men and unmarried and married Hindu girls/women, prohibited for widows.

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last century or more, is the fact that the significant moments are defined far more in terms of negation than as an affirmation of life; they are couched in terms of pain, deprivation and even death, rather than survival and blossoming. Birth, marriage, widowhood, and death, each stage cradled in religious belief and fervour, carry the symbols of devaluation and discrimination where women are concerned. The widespread incidence of female infanticide (and its contemporary avatar, female foeticide) characterizes the first moment in the female lifetime. ‘The census of 1870’, Pandita Ramabai wrote, ‘revealed the curious fact that 300 children were stolen in one year by wolves from within the city of Umritzar, all the children being girls.’ This fact elicited from her the ironic comment that ‘even the wild animals are so intelligent and of such refined taste that they mock at British law, and almost always steal girls to satisfy their hunger’ (Chakravarti 1989: 69). Research into practices of female infanticide has shown that in Gujarat, for instance, for a hundred years until the late nineteenth century, not a single female child was born in the royal house of the Raja of Porbandar. Reviewing the research on female infanticide in contemporary India, Harriss-White (1999), echoing Amartya Sen, observes that the declining sex ratio in India since the turn of the century points to the fact that the missing women are a social product. Research from the southern state of Tamil Nadu reveals that two-thirds of female infant deaths and 40 per cent of female neo-natal deaths are due to ‘social causes’. It is true that deteriorating life chances for female infants are not a peculiarly Indian phenomenon, and are reflected in several patriarchal societies across the world; further, the correlation between religion and infanticide has not been established to date (ibid.). Yet, the demographic spread of infanticide does point to regions and castes that are predominantly Hindu, both in contemporary India and in the colonial period. If rhetoric is any indication, arguments against this practice, from Pandita Ramabai to women’s rights activists today, squarely address the relations between culture/custom and human rights. They demand a new, safe cultural space for girl children, and a religious/customary ethic premised on non-discrimination.

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In the case of Hindu society under colonialism, the complex relationship between British penal law and Hindu customary law was invoked repeatedly to inscribe the liberal notions of individual rights, barbarism and immorality on one side, and the superiority of British jurisprudence over native law on the other. One of the first rules regarding the relation between custom and the written text of law was set down in 1868 in Collector of Madura v. Mootoo Ramalinga.4 The judgement in this case held that custom could override the written text of law if its antiquity was proved. In addition, the legitimacy of a custom also hinged on whether it militated against public policy, and on the primacy of public law over private law. Yet, at a practical level, several cases reinforced native law against demands by women for change, arguing that acquiescence to such demands would constitute interference with Hindu religion (K. Kannabiran 1995: WS59–WS69). In 1887, Rukmabai, an educated girl from the carpenter caste, refused to live with her uneducated, consumptive husband, challenging the validity of infant marriage and asserting her right to repudiate it in adulthood. She was threatened with imprisonment under Act 25 of 1877 for the non-restitution of conjugal rights (Chakravarti 1989: 73–74; Sarkar 2001: 194). Resisting the use of force, Rukmabai interrogated the twin forces of religious orthodoxy and colonialism. Commenting wryly on the decision to force her to live with her husband, she wrote to Ramabai, The learned and civilized judges . . . are determined to enforce, in this enlightened age, the inhuman laws enacted in barbaric times, four thousand years ago. . . . There is no hope for women in India, whether they be under Hindu rule or British rule. . . . The hard hearted mothersin-law will now be greatly strengthened and will induce their sons to sue the wives in British courts since they are now fully assured that under no circumstances can the British government act adversely to the Hindu Law. (Chakravarti 1989: 74)

Rukmabai was not alone in questioning the permanence of unions contracted without the consent of women. Tarabai Shinde, writing in 1882 says, 4

Collector of Madura v. Mootoo Ramalinga Sathupathy (1868) 12 M.I.A. 397.

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what does stridharma really mean? It means always obeying orders from your husband and doing everything he wants. He can kick you and swear at you, keep his whores, get drunk, gamble with dice and bawl he’s lost all his money, steal, commit murder, be treacherous, slander people, rob peoples’ treasures or squeeze them for bribes. He can do all this, but when he comes home, stridharma means women are meant to think, ‘Oh, Who’s this coming now but our little lord Krishna, who’s just stolen the milkmaids’ curds and milk and . . . then smile at him and offer their devotion, stand ready at his service as if he was Paramatma himself. But how can people go on believing this idea of stridharma once they have begun to think about what’s good and bad? They’d change their ideas straightaway, won’t they? (Shinde 1994: 79–80)

In a context where the Hindu wife, her chastity and absolute monogamy were imbued with mystical qualities, repositioning conjugality in this manner was far from easy. The matter of Hindu marriage, thus, was twisted and knotted. Women were able to force some resolutions, through their actions and their writings, in their own individual interests and in the collective interest of women. Other issues were forced by the community in defence of religious and cultural integrity against the state. Even the latter resolutions, however, were gendered prescriptions that ultimately came to rest on women’s bodies, like the ubiquitous thali (the neck ornament that serves as a sacred symbol of marriage with man or god) worn by women as a sign of monogamous chastity. In 1890, Phulmani, 10 or 11 years old, died of marital rape in Bengal. Marital rape was not (and still is not) a criminal offence (Law Commission of India 2000: 3.1.2.1). Phulmani was above the statutory age of 10, so legally she could not be raped by her husband, since intercourse within marriage was consensual by definition. While pre-pubertal marriages were the norm in Hindu society, there was some debate on whether pre-pubertal cohabitation was customary. The votaries of Hindu tradition argued, however, that the age of cohabitation could not be pushed beyond 10 years under any circumstances, since, normally in Bengal, menarche set in between 10 and 12 years. Raising the age to over 10 would constitute an interference with custom. Reformers, among whom medical reformers formed a considerable section, campaigned

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vociferously for raising the age of consent from 10 to 12 years, bringing out long lists of cases where child wives had been grievously hurt or killed because of rape, and non-consenting infant wives had been battered (Sarkar 2001: 210). Haimabati Sen was born in 1866, and widowed in 1876. She experienced the pain of a pre-pubertal marriage with a debauched husband, followed by widowhood while still a child. Haimabati searched for release through education, remarriage and reform, but found that none of these really offered any space for her spirit to find fulfilment. Having had to fight every inch of her way, she finally set up a practice as a lady doctor. Her memoirs provide a gripping account of what it meant to be a Hindu woman in the late nineteenth and early twentieth centuries. Describing her marriage, she says: The groom was a Deputy Magistrate in Jessore and his brother was the police inspector of Khulna. The prospective bridegroom was kulinkayastha by caste and forty-five years old. He had lost two wives and was now planning a third marriage. . . . This was the groom everyone approved of. . . . I was nine years and six months at the time. (Forbes and Raychaudhuri 2000: 69–70)

And of her widowhood: Shame on you, Hindu society, great is your glory! A girl of ten will have to pay for the marriage of an old man of fifty. I bow a thousand times at the feet of parents who would in this way turn a daughter’s life into a desert. In no other country does one find either such a society or such conduct. Such oppression of women is possible only in India; in no other country are such customs in vogue. I was but a mere child and I had already relieved my parents of all their responsibilities for me and become a slave dependent for my sustenance on my husband’s elder brothers. I had to learn to accept the fact that at this tender age I would be a slave to other people’s whims for a handful of rice. (Ibid.: 98)

Two issues intersect in these cases: discrimination against women in the family, and violence in the conjugal home. Rukmabai and Haimabati articulate (for thousands of women of their time) the connections between nation and family; they underscore the need for the state to redress the grievances of women in the

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family, especially vis-à-vis their husbands, but also vis-à-vis the community (the extended family). In stark contrast to this, we have the assertions that mirrored, either exactly or in milder form, Bankimchandra’s eulogy of sati at the end of the nineteenth century: I can see the funeral pyre burning, the chaste wife sitting at the heart of the blazing flames, clasping the feet of her husband lovingly to her breasts. Slowly the fire spreads, destroying one part of her body and entering another. Her face is joyful. . . . The flames burn higher, life departs and the body is burnt to ashes. . . . When I think that only some time back our women could die like this, then new hope rises up in me, then I have faith that we, too, have the seeds of greatness within us. Women of Bengal: You are the true jewels of this country. (Sarkar 2001: 203)

Bankimchandra Chattopadhyaya (1838–94) was a Bengali Brahmin with a Western education who served in the British government for 33 years. A prolific writer, he drew on classical literature, Western philosophy and Hindu philosophies in his writings on Indian (Bengali) society and culture. In the era of Hindu nationalism in the late nineteenth century, Bankim’s writings focused on the Hindu way of life and the Hindu nation. He carved out a new identity for the Hindu woman, one based on her individualism and free spirit. This was a utopian construction based on the ideal of freedom from colonial rule: the woman and the nation constantly mirrored each other in these writings, an image that was juxtaposed to oppressive domesticity/colonial subjugation (ibid.: 135–62). Ironically, however, this construction of the new womanhood by Bankim romanticized the nation-as-woman/woman-asnation rhetoric, thus actively putting women beyond the pale of justice and the law. This is a method in jurisprudential reasoning on the question of discrimination that continues well into present times, as the next chapter will demonstrate. Just as the body of the chaste Hindu woman was sacred, so also were the symbols of chastity and conjugality that adorned that body. The virtue of chastity reified the embodiments of that chastity — the wife and the thali were two such objects. The thali was the knotted cord that marked off and separated the chaste conjugal body (wife) from the pure, virginal, pre-conjugal one and

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the inauspicious post-conjugal one (the widow). By containing and defining the auspicious state of marriage, the thali bears for Hindus, particularly in south India, the weight of culture that must be protected from any defilement. In 1932, Mr Dodwell, a subdivisional magistrate in Tellicherry in Madras Presidency, caused the removal of the thali of one Mrs Prabhu in lieu of a fine. Although the government immediately issued an apology that was published in the government communiqué, members of the council did not feel the matter ended there. They wondered whether it was a mere error of judgement or an act of wilful perversity; whether, had there been an Indian magistrate and a European lady in place of Mrs Prabhu, the reparations demanded would be more severe. Alleging racial discrimination in this case, one member wanted to know whether the government realized that the thali was not a toy to be handled by everyone. Another wondered whether ‘the Government approve[d] of the conduct of the said Magistrate in so ordering the removal of a wearing apparel of an Indian lady.’5 When representatives of government, in a meek attempt to defend the action, said the Criminal Procedure Code did not explicitly prevent the seizure of the thali, they were immediately asked how, after 10 long years of service in this country, the magistrate was still not aware of the sanctity of the thali as a symbol. On 4 September 1987, Roop Kanwar, a Rajput woman, was burnt to death on her husband’s pyre in village Deorala in Rajasthan. As a response to incidents in the nineteenth century, the Indian Penal Code had specifically made sati (the immolation of a woman on the funeral pyre of her husband) a criminal offence punishable by law. However, in 1987, in an enactment of sati that claimed the privilege of tradition, not only did Roop Kanwar die on her husband’s pyre (there are accounts of her reluctance and of her attempt to jump off the burning pyre), but she was glorified and worshipped publicly in the region. The penal code was found inadequate and a new state law was passed, but the perpetrators enjoyed impunity and even the active support of the state. This 5 Proceedings of the Fourth Legislative Council of the Governor of Madras, 12 March 1932 [4 MLC 1932], 1012Q; emphasis added.

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marked a watershed in the increasing stridency of Hindu nationalism in the country; sati became all over again a marker of the glorious Hindu heritage. The public immolation of a woman with the active participation of the entire village, the celebration of her ‘martyrdom’ for months and years afterwards, and the inability of the government to act effectively, pleading that it was a case of religious rights that made interference of any sort undesirable — all these factors echoed debates during the colonial era in eerie fashion. They point to changing values in Hinduism where the ‘true Hindu spirit’ is seen as resting upon the public (forced) deaths of women (Kishwar 1999: 55–70). The practice of sati embodies the convergence of discrimination and violence against women. The continuities between nineteenthcentury eulogists of sati and contemporary protagonists obliterate the difficult struggles for change, particularly for the abolition of sati and enforced widowhood, in the late nineteenth–early twentieth centuries. Invocations of tradition today rest on a moral amnesia pertaining to women’s struggles against traditions of discrimination in the immediate past, and the hard-won gains of those struggles. They must also rest on the slide back from the woman–citizen to the woman subject/object, communally owned and controlled. While the earlier debate on sati took place in a larger context of the absence of education for women and the widespread acceptance of practices like infant marriage, sati today coexists with a 40 per cent female literacy rate and 70 per cent male literacy rate in Deorala: the men of Roop Kanwar’s family had access to a tertiary education. Yet, accounts of her immolation skirted secular frameworks and eulogized her chastity and its value for the preservation of the particular structures of caste domination in that region (Dhagamwar 1992: 288). The law against sati (past and present) makes the insidious distinction between voluntary and involuntary sati. However, the facts that women like Roop Kanwar are in fact held in custody in their conjugal homes, and that the penal code explicitly bans the taking of one’s own life, complicate the assumption of impunity that goes with sati even today. The only resolution possible is through an assertion of tradition and the blurring of the critical

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distinction between a secular and a religious state. Both this assertion of tradition and the plea of helplessness by the state become possible through an essentialization of the attributes of particular classes/castes of women: valour and chastity become the natural attributes of ascribed status. In stratification systems that are descent-based, like caste, the attributes of gender adhere to those of caste, and are transmitted along with the attributes of caste, so that as caste gets reconfigured and its meanings and contours shift, gender too gets reconfigured. And this entire process is linked intimately to the politics of religion in the wider society: Though rajput women formally inhabit the realm of high civilization, both their valour and wifely fidelity in acts of jauhar [collective suicide by women to avoid capture and dishonour by the enemy] or in plans of sati are enacted not as culture but as nature — as the untaught emanation of racial essence which inheres in rajput blood. . . . In a patriarchal inflection . . . the bond of Hindu indissoluble marriage is given its ideological frontier in the ideology of ‘sati’ while its practical culmination is found in the immolation of women! (Sangari 2001: 76)

Traditions of sati are peculiar to some regions and castes in the country. Extreme forms of discrimination against widows are more common and evenly spread across the country. Prem Chowdhry’s research on widow remarriage (karewa) among the Jats of Haryana points to the fact that remarriage by itself does not necessarily offer a solution for women. Remarriage could exist in areas where women’s physical and reproductive labour is an asset that must regenerate, within a larger patriarchal, misogynist culture, so that widow remarriage becomes a matter not of individual will but of community control over women’s labour (Chowdhry 1989: 302–36). The constitution of patriarchy, therefore, has been neither uniform nor homogeneous across caste and region. The upper castes (especially ‘twice-born’ castes) asserted the permanence of marriage for women and enforced absolute monogamy that permitted women to marry only once in a lifetime; here, the death of a husband signalled actual or social death. Elsewhere in the caste hierarchy, women could be forced to remarry during their reproductive years. Elsewhere still, as in Kerala, the law of patrilineal

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primogeniture, absolute monogamy for women and female seclusion among the Namboodiri Brahmins could support a system of matrilineal hypergamous polyandry among the non-Brahmin Nayars, with Nayar women taking Namboodiri partners. In general, in consonance with a ranked or graded social order was a system of ‘graded patriarchies’ (Chakravarti 2002: 167). Women in the late nineteenth and early twentieth centuries were generally extremely vulnerable in the face of religious orthodoxy and caste bigotry. Neither wealth nor high caste status, nor even the lack of caste privilege at the other end of the spectrum, mitigated their suffering as women. This pushed women like Haimabati to strike a shrill new note of resistance and change, in stark contrast to Bankimchandra’s eulogy of sati. The genealogy of changing values within Hinduism begins with those resistances.

CHALLENGING ENFORCED WIDOWHOOD An early critique of Hinduism that was centred specifically on the position of women in Hindu society, denoted by Aryan religion and Brahminism, was developed by Jotiba ( Jotirao) Phule in Maharashtra. Writing on ‘the most delicate subject of enforced widowhood upon Brahmin women’, Phule says: The partial Aryan institution inconsiderately allows polygamy to males, which causes them to fall into new habits of wickedness. When his lust is satisfied with his legal wives, he for novelty’s sake haunts the houses of public women. . . . In old age in order to obliterate the stigma upon his character, the shameless fellow becomes a religious man and hires public harlots to dance and sing in the temples with a view to venerate the stone idols, for his own satisfaction. After the death of this wicked man, his young and beautiful wife is not allowed by the same Aryan institution to remarry. She is stripped of her ornaments; she is forcibly shaved by her near relatives; she is not fed well; she is not properly clothed; she is not allowed to join pleasure parties, marriages or religious ceremonies. In fact she is bereaved of all the worldly enjoyments, nay she is considered lower than a culprit or a mean beast. (Phule 2002b: 195)

The state of being married (sumangali) was, in upper-caste Hindu society, the most auspicious state for women. Women’s social life and ritual obligations were tied to their wifehood. Men, too,

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could only fulfil their social and ritual obligations in their role as householders. However, the system of monogamous patriliny in Hindu society in most parts of the country allowed women to marry only once in a lifetime, while there was no such restriction on men. In addition, norms of chastity dictated that women were best married before the onset of puberty (even in the case of the matrilineal Nayars of Kerala), often to men in their 30s or 40s. In several regions, this requirement was prescriptive; families that had unmarried girls who had attained puberty were excommunicated. Widowhood was commonplace, particularly during childhood, sometimes without the consummation of marriage. Widows, being people who lived in a state of social death, were required to wear either white or ochre clothes; they were not allowed any ornaments, had to have their heads tonsured and ate only the barest of foods. The campaign for widow remarriage hit at the base of Hindu family ideology. The first widow remarriage in Andhra was performed in the year 1881 (Ramakrishna 1983: 119). If remarriage itself was resistance, there were other strategies that women developed as well — refusing as widows to wear white clothes (Veeresalingam 1984: 123), refusing tonsure, marrying across caste lines (ibid.: 242). Many women chose to work for the cause of widows, by conducting marriages without Brahmins, starting shelters for pregnant widows, thus recognizing the sexual abuse of women in the family, starting homes for their children so that they could remarry, cooking for these occasions, assisting births, risking and braving social ostracism (Ramakrishna 1983: 122n166). Women, as the creators, reproducers and propagators of a new social order, demonstrated a commitment that was of a completely different order from the commitment of those who traditionally occupy hegemonic positions in intellectual history. The anonymous women from different social strata who came forward to offer their support to the struggle for the rights of women, and those who fashioned everyday resistances to the cultures of oppression and dependence in the face of stiff opposition and possible ostracism by the orthodoxy, were women without whom there would be no intellectual history of reform. While Jotiba Phule organized a strike of barbers in Pune to protest against the custom

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of tonsuring widows, Singaram, a Tamil Brahmin child widow in Nellore, demanded a piece of land from the men of her family if she underwent tonsure, so that she could pay the barber without having to stand at their door for those few cents every month. The demand for tonsure was withdrawn immediately. Ambedkar, significantly, linked both sati and enforced widowhood to practices of endogamy in the caste system, as discussed at length in an earlier chapter.

CLAIMING LEGITIMACY AND RECOGNITION: THE DEVADASI MOVEMENT The counterpart of the norm of enforced widowhood was the devadasi system, or the practice of dedicating young women (and girls) to temples, literally by marrying them to the deity, making them sexually available to the priesthood and to landed classes of appropriate caste. The devadasi system prevailed especially in western and southern India. Since these women were married to the deity, they could never be widowed, and were known as nityasumangali (eternal wife, one who can never be widowed). They played a ritual role in marriages. It was believed that a bride blessed by a devadasi would not be widowed. The debates around prostitution in India, and around the problems with the application of criminal law, began in the late nineteenth century, with the use of sections 372 and 373 of the Indian Penal Code to imprison women for procuring minor girls for prostitution using the ceremony of adoption and dedication. The practice at the centre of these debates was the dedication of devadasis to temple service. We can trace the trajectory of contemporary debates on prostitution in India to the earlier debates, within colonial courts and outside, on the uses of criminal law, property law and citizenship rights. The question of prostitution, when it came up for debate in the context of social reform and devadasi abolition in colonial India, was already connected to Josephine Butler’s campaign around the Contagious Diseases Act, and to the Social Purity Movement. Indian reformers, both pro-abolitionists and anti-abolitionists, set forth complex arguments on the place of

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prostitution in an emergent social order. They debated on whether it was coeval with progress and modernity, and consistent with the goals of nationalism and freedom. Simultaneously, courts especially in the Madras Presidency were deliberating on what constituted ‘evidence’ of prostitution. Could it be concluded, for instance, that evidence of the ceremony of adoption could lead to the inference of prostitution? The Abbe Dubois seemed to have put the matter beyond historical doubt in his compendium on Hindu ceremonies (Dubois 1989). An even more basic question: was the government or the judiciary in a position to infer that the devadasi was a prostitute? When the inference was made, Indian judges asserted that even prostitutes had civil rights (see K. Kannabiran 1995: WS50–WS69). These official debates were animated by the movements for and against abolition. In the early twentieth century, the devadasi system (along with Nayar polyandry) was condemned by the social reform movement as a degenerate practice that encouraged sexual promiscuity and legitimized prostitution. The crisis that came to a head around the devadasi system involved issues of gender and power. The inheritance of property down the female line, the fact that these were the only women who legitimately occupied public spaces in Hindu society, that devadasi women from the upper castes were the only women who had access to education and learning at a time when these were proscribed for other Hindu women, and the fact that the earliest and finest performing artists and poets came from this class — all this meant that it was only through the elimination of gendered class privilege that ordinary, married Hindu women could lay claim to the same privileges. Indeed, it was the only way they could lay claim to the public space. There were, then, several women from within the community who resisted reform, asserting their position and questioning the wisdom of reform, as also its politics. Several of them saw it as a conspiracy by the men of their community to appropriate resources and property traditionally denied to them. The absence of property transmission to men, argued the abolitionists, made the men ‘drones and parasites’. An important objective of reform was the restoration of the men of this community to their rightful place at the head of the domestic

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unit. The traditional proscription on devadasi women marrying or cohabiting with the men of their community, that is, their unavailability to men of their own community, was construed in terms of the emasculation of the men (K. Kannabiran 1992, 1995). Questions of religion and women’s place in Hinduism were central to this entire debate, because the devadasi practice was an important part of institutionalized Hinduism. The major part of the debate, however, focused on immoral sexuality, a recurrent concern in the debates around social reform. ‘These lewd women, who make public traffic of their charms, are consecrated in a special manner to the worship of the divinities of India. . . . their singing . . . is almost always confined to obscene verses describing some licentious episode in the history of their gods’ (Dubois 1989: 585). Or: ‘The dasi herself is a recognised prostitute. The result is that a depraved woman . . . is allowed to tempt God’s bhaktas [devotees] away from the path of morality, by her dancing and singing, even at the time they are praying to overcome temptation’6 The question of rights to citizenship and civil rights came into sharper focus in the context of the freedom struggle. As women who already inhabited the public domain and were familiar with its protocols, and who had prior experience of confrontation with the repressive might of the colonial state, many devadasi women emerged as leaders known for their oratory skills. But the situation of devadasi women entering public–political spaces alongside ‘respectable’ women created a crisis of sorts. It appears from accounts of the period that men flocked to meetings where the ‘slipped sisters’ were scheduled to speak — in fact, discussions in the press spoke of the tendency among men to assume that only ‘slipped sisters’ could participate in public functions in public places, and sing the national anthem (Kalki 1931). Consequent on their participation, questions arose about the extent of segregation that was necessary in order to ensure that ‘respectable’ people would not be sullied by contact. Could the children of prostitutes be placed together 6

S. Anjaneyulu, ‘Presidential Address to the Andhradesa Kalavanthula Social Conference’ (1924), Muthulakshmi Reddi Papers, Subject File 12, New Delhi: Nehru Memorial Museum and Library.

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in the same schools with children from ‘respectable’ families?7 Should devadasis be seated separately in meetings that demanded freedom from colonial rule? If they courted arrest, could they lay a legitimate claim to the privileges of political prisoners, or were they to be treated as prostitutes?8 Later still in the midtwentieth century, women in the Telangana armed struggle were campaigning against the devadasi system as a form of bondage and feudal servitude that was sexually exploitative of dalit women (Stree Shakti Sanghatana 1989). The most significant positions on devadasi abolition were taken up by Muvalur Ramamirthammal and Bangalore Nagarathnamma, both women from the community of devadasis. The first was an ardent reformer who wrote a novel to propagate reform, apart from campaigning personally to stop the practice of temple dedication in the 1920s and 1930s. Muvalur Ramamirthammal saw the system as one that exploited women in the name of religion (Ramamirthammal 2003). Bangalore Nagarathnamma was a reputed musician, dancer and scholar of the performing arts, who resisted every attempt to denigrate the women of the devadasi community. Her resistance to reform was based on reading a larger agenda of dispossession of women in the campaign for reform. Apart from resurrecting classics like Radhika Santvanamu by Muddupalani, a sixteenth-century courtesan, and putting in place the annual Tyagaraja music festival at Thiruvayyaru, a festival that celebrates the life and work of the famous saint–poet Tyagaraja, Nagarathnamma defended devadasis from the charges of sexual promiscuity and adultery: ‘For a woman who has once been married to a man before the sacred fire to then go to another husband is adultery but a vesya [prostitute] can never be called an adulteress’ (Nagarathnamma 1948: 4). 7

‘The prostitutes take upon themselves to train up their children from their infancy and teach them nothing but how to lure the other sex. How, then, can we allow our children to read with these? . . . Is this the same thing as arguing that a Brahmin cannot sit with a Pariah? No, we are strenuous in upholding the cause of education. . . . Let the Government establish one school in each Division exclusively for the children of prostitutes.’ Report on Native Newspapers in the Madras Presidency, Report on Tamil Newspapers for the Week Ending 3 August 1878. 8 G.O. No. G Law 1539 (Councils, Leg. Councils, Prisoners), 15 April 1932.

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Ramamirthammal’s critique of Brahminical Hinduism, on the other hand, saw caste differences, untouchability, enforced widowhood, and prostitution as the creation of religion and god (both terms that were Aryan and Brahmin by implication): If Brahma was such a great god with a sense of equality then he would have made man and woman equal partners. Is it right for him to tie the knot between a sixty-year-old man and a six-year-old girl? If that was all right then he should have also married a sixty-year-old woman to a six-year-old boy. That would have been justice. (Ramamirthammal 2003)

Both these arguments were powerful signifiers of change within and around Hinduism.

CHALLENGING ORTHODOXY While men like Periyar and Jotiba Phule demonstrated a rare sensibility, women’s engagement with reform was, in general, substantively different from that of men. More critical than the work of reformers was the fact that women survivors, through living out their lives, fashioned an intellectual and social life that belonged really to a new era. The same is the case with women who were active in social reform, particularly the wives of noted reformers, whose work has often been blurred in constructions of ‘modern’ conjugality — the ideal wife being one who is enlightened and supportive of her husband in his social mission (Volga et al. 2001). Unlike peasants and workers, who could function as ‘objects of investigation’ without providing a ‘methodological advance or fuller understanding of the historical process’ (Panikkar 1995: 62), women ‘subjects’ of reform, particularly widows, had to display an active agency in order for the idea of non-discrimination to take shape and acquire meaning. While it is true, for instance, that the debates on widow remarriage occupied a position of universality on the reform agenda across regions as fundamental to women’s emancipation, the radicalism of widow remarriage unequivocally rests in the act of the widow in remarrying, an act that in itself constitutes the production of intellectual history, and represents the ultimate methodological advance in the creation of that history. Intellectuals like Kandukuri Rajyalakshmi, Muvalur

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Ramamirthammal, Haimabati Sen, Savitribai Phule, Tarabai Shinde, Pandita Ramabai, and Rukmabai reproduced the agency and radicalism of the women-widows, devadasis and child-wives (non-consenting by definition), through their praxis, which includes but transcends debate. A discussion of the struggles against discrimination would be incomplete without a consideration of the ways in which the selfrespect movement, which was essentially a resistance to Brahminical Hinduism, imagined a new womanhood and a new world built around mutuality, where women would be equal to men. Periyar E. V. Ramasamy Naicker, the architect of the self-respect movement launched in 1925 in Tamil Nadu, mapped a non-Brahmin worldview by standing the caste system on its head. The new social order could emerge only through a radical transformation of structures of feeling and material conditions. Constructions of masculinity and femininity are central to the social order. Social transformation therefore depends on dislodging these constructions, both rhetorically and in practice, resulting in shifts in perception and, ideally, in an inversion of constructions of gender within various traditions. Speaking of the Vedic period, which is touted as the archetypal patriarchal normative order in a monolithic Hinduism, Sidambaranar, Periyar’s biographer, writes that, even within the Vedic schema, women were superior to men. Masculinity itself was defined not in opposition to femininity but in essentially feminine terms. Qualities of courage, fearlessness, beauty, education, fame, and victory, essential traits of the ideal man, are always described in terms of Lakshmi, a goddess (Sidambaranar 1929). Periyar’s treatment of the question of masculinity is, however, distinctive. In an article titled ‘Masculinity Must Be Destroyed’, Periyar observed that the term masculinity itself degraded women, since it was built on the assumption that courage and freedom inhered in the man, with its obverse, femininity, implying subservience. The very existence of the norm therefore ensured that men and women would constitute themselves within its parameters. Despite the constraints that women faced, they had to begin reconstituting themselves as equal partners with men, instead of remaining dependent subjects (Geetha and Rajadurai 1998: 389).

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Penn-ina-nallar, echoing Tarabai Shinde, drew up a balance-sheet for men and women. Here, the levels of social tolerance of behaviour were revealed as starkly different for women and for men; the plight of widows did not in the slightest measure reflect the situation of widowers; and culture and custom only further entrenched women’s subjugation. The solution to this situation, which was one proposed by most self-respecters, was equality in marriage, and marriages based on love and comradeship — a measure that would radically tilt the balance in favour of women, since the oppression of women within the home, particularly in the conjugal relationship, was seen as being at the core of their subjugation. Self-respect marriages, therefore, became an important messagebearer. They eschewed Sanskrit incantations, Brahmin priests and rituals, and introduced the requirement of explicit consent from the bride and the groom and the encouragement of inter-caste marriages (ibid.: 379–82). This change, and the new emphasis on mutuality, was part of a larger critique of Hindu religion. Geetha and Rajadurai (1998: 308) identify five major elements in the self-respect critique of Hindu religion: the critique of the Brahmin priest and Brahminism as ideology; a rationalist and subversive critique of the Vedas, Itihasas and Puranas; a criticism of religion as worldview; a critique of religious doctrine; and, finally, a critique of religious practices, rituals and festivals. Atheism, which constituted the core of self-respect ideology with respect to faith, was ‘redefined and re-signified to reflect the critical and iconoclastic tenor of the Self-Respect movement, [so as to emerge] as a creative mode of engagement with the problems of faith in a society ruled by caste’ (ibid.). However, the critique of Brahminism did not come from nonBrahmins alone, but from Brahmin women as well, who identified completely with the self-respect critique. This brings to mind Jotiba Phule’s inclusion of all women in the category shudratishudra, the castes ranked lowest in the caste system, including peasant cultivators, labourers, serfs, and artisans. This was apposite, according to Phule, since orthodox Hinduism did not make a distinction between women and the shudratishudras. Instead of

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separating jati from varna, Phule spoke of the caste system as consisting of a dvaivarnik (two-varna) structure rather than the traditional chaturvarnya (four-varna) structure. The Brahmins and the shudratishudras formed the two poles of this hierarchy. All women, irrespective of caste, were placed in the latter category, following Manu, who viewed all women as shudra or dasa (servant). Echoing this view is the following testimony of a Brahmin woman in the mid-twentieth century: Self-Respect activists involved in various social reforms hold the Brahmins responsible for the oppressed and enslaved state of other peoples. . . . The Brahmins, you see, also oppress their own kind. . . . I am a Brahmin woman, the only daughter of my parents. . . . When I turned thirteen, my parents declared that it was unseemly for a grown girl to set foot outside the home. Since then, I have lived inside these four walls like a caged bird. After I came of age, my parents tried to perform my ritushanti [ritual consummation of pre-pubertal marriage]. The event never happened. . . . My life has been laid waste. . . . My plight . . . is worse than a widow’s. (Kamalakshi 2003: 28–30)

MULTIPLE, INTERSECTING DISCRIMINATIONS The disease of untouchability has spread far and wide among our people. The adi-dravidas [panchamas, dalits, ex-‘untouchable’ castes] are the worst hit. . . . As for adi-dravida women, they are forbidden from wearing a blouse. They cannot use brass utensils or pots. They are not permitted to wear gold jewels. Such are the cruel prohibitions they are forced to endure! Hesitant to face strange men without her upper cloth or blouse, a sister who has to step out of her house, might sometimes dare to cover herself with the mundanai [end of sari used to cover the breasts]. At once, the upper castes will set their servants on her. She will be beaten soundly for daring to act contrary to custom. . . . Women, they say, are soft-hearted and kind. But just look at the humiliation our women heap on an adidravida woman. . . . Many women believe that it is a sin to give an adidravida water when they are fasting or on amavasai nights. Strange, is it not, that people can claim to be fasting for punyam, even as they refuse water to the thirsty. (Maragathavalliyar 2003: 57–59)

This passage foregrounds the critical relationship between caste and gender, one that continues to be articulated today in the context of dalit mobilization. Dalit women had to leave their breasts

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uncovered, and had to fight long and hard to be able to wear a blouse and cover their breasts with the upper end of the sari, the mundanai — both signs of upper-caste privilege. Caste hierarchies are welded to definitions of masculinity and power based on gender and generation, and are enforced through the systematic use of violence. Women are the passive bearers of the tradition and the honour of the caste (Kannabiran and Kannabiran 2002: 55–67). Articulations of caste by the Dalit Panther movement in Maharashtra and elsewhere in India since 1972 illustrate the intermeshing of gender with caste, although the connections are not explicitly theorized. Dalit writing in general presents a worldview that defines social location in terms of the centrality of social groups in production processes (Ilaiah 1996). Dalit literature also articulates the playing out of nationality and citizenship on the bodies of women, which already bear the inscriptions of caste, by juxtaposing, for instance, the fine of ` 50 for molesting a dalit woman against the fine of ` 300 for disrespect to the national flag. This echoes the concerns of Pandita Ramabai in the late nineteenth century, who drew a parallel between English rule in India and the rule of high-caste men over the low castes and women down the ages. The National Dalit Women’s Federation, formed in 1995, brings together the various perspectives in dalit assertion and resistance, encapsulating a 200-year history. The federation interrogates upper-caste, Brahminical hegemonies in inter-caste relations, particularly the antagonistic, often violent relations between upper castes and dalit women in a climate of increasing right-wing nationalism. It also critiques dalit patriarchies from within. The federation’s delineation of its mandate brings into sharp focus current debates on the place of dalit women in quotidian politics: should they have a quota within the quota earmarked for reserved categories, or should they have a quota within the quota reserved for women? Dalit Women in India . . . have been beaten and otherwise abused at wells and in other public spaces. These assaults often occur as these women pursue their gendered responsibilities of acquiring water in a context in which their putative untouchability renders them vulnerable to violence

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from higher caste members if they are perceived to have transgressed their corporeal boundaries. Although this violence is most readily framed as simply anti-caste discrimination, it is actually intersectional: the women must therefore negotiate a complex set of circumstances in which a gendered set of responsibilities positions them to absorb the consequences of caste discrimination in the public sphere. (National Federation of Dalit Women 2000)

That they have a right to both is rarely admitted. The NGO Declaration on Gender and Racism at the World Conference against Racism asserted that dalit and minority women faced targeted violence from state actors, powerful members of the dominant Hindu community and dominant castes. It drew a clear connection between racism, religious fundamentalism and caste. The declaration represents a major shift in the understanding of Hinduism and caste at the level of mobilization, a shift effected yet again by women, like the critique of Hinduism in colonial India: This distinct manifestation of racism — in the form of exclusion, forced segregation and targeting through systematic violence — has been legitimized in the Indian context, through the ideology of hindutva [a Hindu state] that is an authoritarian and discriminatory ideology and has seriously eroded the operation and functioning of the Indian State, the Indian Constitution and its secular egalitarian character. . . . . . . in practice, caste based discrimination, aggressive communalism and marginalisation of the indigenous people have meant the denial of the freedom to live without fear, threat and intimidation, the denial of equality before the law, organized ghettoisation and hate preaching in educational texts. (National Federation of Dalit Women 2001)

Coercion, force and violence in marriage, sati, and sexual slavery based on caste, are recurring themes in this discourse. The language of abduction, of disrobing and rape, as also fundamentalist constructions of masculinity and femininity, acquire a new belligerence in the era of state-sponsored, right-wing Hindu nationalism, especially in the first decade of the twenty-first century. These constructions of gender, far from being empowering or representing positive values, undermine the dignity and integrity of entire classes of persons in fundamental ways, a trend captured

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by the text of the declaration just reproduced. This process harks back to the origins of Hinduism, the root causes of its conflict with other religious groups traced back several hundred years, and the ‘essence’ of the ‘original’ Hindu tradition increasingly constructed as something that has been corrupted and that must be resurrected. The authoritative definition of the ‘authentic’ tradition, or the ‘invention of tradition’ to use Hobsbawm’s term, is a product of power, so that any argument for resistance to tradition evokes a hegemonic defence of culture against the ‘corrupt modern’. And women are trapped in webs of modernity and tradition today as they were a century ago, although the rhetorical and political frameworks are radically different (Chakrabarty 2002; Hobsbawm and Ranger 1983).

REVISITING THE PROSTITUTION QUESTION Prostitution is not an issue that can be looked at in isolation in one country/region alone, especially at a time when the connections between prostitution and international trafficking in women and children have become central to human rights debates and activism ( Jeffreys 2002). The World Charter for Prostitutes’ Rights speaks of decriminalization, the granting of full citizenship rights and recognition, humane conditions of work, freedom of association, and the right to healthcare access and services (ICPR 1985; VAMP 2007). Considerable work exists in India on the various aspects of the prostitution debate. Research has explored the themes of decriminalization, partial decriminalization, sex work, legalization, trafficking, and the rights of women in prostitution, to name a few issues.9 Many cases have forced the scrutiny of custodial facilities for women, especially in the matter of protective homes for women and girls under the Suppression of Immoral Traffic in Women and Girls Act, 1956. These cases point to chronic sickness, mental illness, communicable diseases, and inhuman conditions in these homes, and the complete absence of other livelihood 9

Jean D’Cunha’s long engagement with this issue is well known, as also the work of groups like Sangram in Sangli, Sanlaap in Kolkata and Prajwala in Hyderabad. Each has a distinct position, but contends with the criminal law on the ground. For an extensive review of the debates see Sunder Rajan (2002) and Kotiswaran (n.d.).

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options for women and girls taken into custody, all manifestations of the recriminalization/revictimization of women in prostitution by the state.10 The debates on prostitution in India range from seeing it as sex work — another form of labour — to a systemic victimization of women (and children) that must be eliminated, by stages if necessary. Across these widely divergent positions, however, there is unanimity about the need to protect women in prostitution from a repressive state that uses a range of laws (of which the Immoral Traffic Prevention Act is just one instrument), bolstered by raw police arbitrariness and custodial abuse, in order to subjugate these women. Prostitution and its difficult contexts, as also the problematic resolutions to sex work that are located in the patriarchal imaginary, are pertinent to a consideration of non-discrimination and liberty with respect to sex/gender categories. It helps us interrogate the moralistic discourse in the criminal law on sexual assault, which is the perfectly honed weapon for the arbitrary and unlawful deprivation of personal liberty where women are concerned. We will examine this in fair detail in chapter 11 with reference to Rameeza Bee.

A DIFFERENT ROUTE TO A ROBUST SEX RATIO? It is useful to explore the relevance of international law to an understanding of sex-selective abortions, if only to bring home the gravity of its implications. Article 7 of the Rome Statute of the International Criminal Court (which India has not ratified yet) defines ‘crimes against humanity’ as: any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; . . . (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible 10 Dr Upendra Baxi (1) v. State of Uttar Pradesh (1983) 2 SCC 308; Dr Upendra Baxi and Ors (II) v. State of UP and Ors (1986) 4 SCC 106.

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under international law; (i) Enforced disappearance of persons; . . . (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.11

‘Extermination’, according to the Rome Statute, includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population. ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity. It could be argued that extermination, through the systematic murder of newborn female infants and through the abortion of female foetuses (under clause [g] above) is part of the persecution of women as a class (clause [h]). Article 25 of the Rome Statute addresses the crucial question of individual criminal responsibility. Clause (3) states: a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose . . . (f ) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions.

Families that seek sex-selective abortions, but, more importantly, medical practitioners (and all categories of employees in establishments with ultrasound or other diagnostic or fertility treatment facilities) who use their facilities to either commit or aid in the commission of sex-selective abortions, attract prosecution in far more serious ways than contemplated by national legislation. The 11

Article 7, Rome Statute of the International Criminal Court. http://untreaty.un.org/cod/ icc/statute/romefra.htm (accessed on 16 September 2011).

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conspiracy of silence and non-reporting, especially by the medical fraternity, even when definite information of the commission of this offence is available, is another dimension of the problem left largely un-addressed. The collective responsibility of professional bodies, when members engage in derogatory practices on a mass scale, targeting an entire class of persons, use of professional training and recognition is an aspect that merits serious deliberation. National legislation on sex-selective abortions, its interpretation by the judiciary, and its implementation by governments, needs to take cognizance of its occurrence in radically new forms in order to combat it effectively. More importantly, there must be an end to the impunity that is the hallmark of this practice today. Finally, it is necessary to examine the question of sex-selective abortion and sex pre-selection within the larger framework of targeted abortions; the widespread, lawful abortions of foetuses with disabilities; and the relationship between discrimination, liberty and mass violence (which includes targeted extermination) for different classes that suffer from marginality.

CONCLUSION: THE IMPORTANCE OF GENEALOGIES TO CONSTITUTIONAL INTERPRETATION Genealogies are indispensable to the present. The bhakti movement provided women in medieval India a rare space outside of the family to carve out a women’s weltanschauung. By definition, this involved an interrogation of patriarchal norms of the primacy, over religious faith, of the values of submission, domesticity, conjugality, and wifely devotion on the part of women (Tharu and Lalita 1991). It also involved the reinterpretation of literary works by women, and the construction of a genre of women’s writing on non-discrimination that spoke against the grain of mainstream ideologies (Volga et al. 2001). The other part of the project of reinscription has consisted of renewed explorations of myth and tradition and their interpretations of women’s position, through asserting the historicity, materiality and diversity of tradition against the universalizing, homogenizing, essentially fundamentalist interpretations of Hindu belief and

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religion. Romila Thapar has argued persuasively that traditions are constantly invented in the very process of being handed down from one generation to another, while legends have been interpreted in widely varying ways, making the declaration of ‘authentic’ tradition deeply political. Thapar argues that ‘the way in which present day society picks up a tradition is determined by present day attitudes to women’ (Thapar 1987: 3). While there are several versions of the Ramayana story, the only versions that are picked up for projection in film and television are the Tulsidas and Valmiki versions, both of which valorize a patriarchal Kshatriya tradition. Tulsidas, especially, makes extremely disparaging comments about a woman’s nature. Speaking of the concentration of the Tulsi epic on the godhead, Thapar points out: roughly in the period before the early centuries AD . . . the hero became the incarnation of the deity. . . . [While] in the Greek epics gods participate with the heroes . . . in the Indian epics, at a certain point in the process of their being rewritten, the heroes became the incarnations of the gods. (Thapar 1987: 5)

In this process of rewriting, a secular text gets transformed into a sacred text that is central to Hinduism and the Hindu religious identity. The folk variants of the Ramayana, on the other hand, reflect local social structure, ethnic relations and belief structures. Each of these versions contains a different depiction of Rama, Sita and Ravana; Ravana here is often not projected as a villainous demon, or Sita as the meek, submissive wife. For both men and women in Hindu society, Uma Chakravarti argues, the ideal woman has been personified traditionally by Sita, who is portrayed in the Ramayana as the ‘quintessence of wifely devotion’ (Chakravarti 1983: 68–75). Yet this homogenizing is not true to the many versions of the Ramayana that predate Valmiki’s text. Chakravarti also argues that several versions of the Ravana myth existed that were not originally connected to the Rama story. The Valmiki Ramayana brings together the Rama legend and the Ravana myth, she says,

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to create a major epic with the emphasis on masculine heroism, valour and honour in the person of Rama and of feminine self sacrifice, virtue, fidelity and chastity in the person of Sita. . . . the text was a potent instrument for propagating the twin notions that women are the property of men and that sexual fidelity for women was life’s major virtue. (Ibid.: 71)

Valmiki’s text also represents a later stage in the development of marriage, whereby the patriarchal monogamous family became firmly entrenched in Hindu society. The development of the Sita myth, according to Chakravarti, suggests that successive versions only added to the themes of ideal marriage, female fidelity and chastity, reinforcing a patriarchal stereotype of the ideal woman. Sita’s fire ordeal (agnipariksha), the lakshmana rekha (the line she is required not to cross if she is to be safe), or even her ultimate return to the earth, are mythological episodes that illustrate the only two options available to women in a patriarchal society — conformity or death (ibid.). With Rama today being the hegemonic centre of a larger political debate, Thapar’s assessment of Sita is refreshing: Sita is a very interesting figure. She is not an ordinary Kshatriya woman. She is born out of a furrow. So there is something unusual about her. One cannot be sure whether she will accept the mores and behave as a Kshatriya woman should, or whether she will be in some way nonconformist. And, ultimately, after all the trials and tribulations, she, in a way, goes back to mother earth. She says, in a way . . . ‘I am different. I was born of the earth. I have been through all this and have proved myself. But now I go back where I belong. I don’t belong to you.’ (Thapar 1987: 6)

The seclusion of women is another concern we may raise here. Hindu society does practise an active separation and segregation of women. The question of gendered spatial boundaries is often explained away by alluding to reactions of fear of the abduction of Hindu women by Muslims, a fear generally traced to the tenth century A.D. However, cultures of seclusion were prevalent in India long before this. In the period of the Rig Veda, when land was not yet a source of economic and political power and the economy was predominantly pastoral, women and the family were central to the pastoral production units. Women managed dairying while the men went out to war. Duhita, used for daughters, literally

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means ‘one who milks the cows’. The Aryan woman was called the grihapatni, the equal partner of the head of the household, the grihapati. However, this early association of women with the household, according to Chakravarti, became the core of the Hindu ideal, minus the larger Vedic context. The disintegration of the pastoral economy and women’s centrality in it led to a metamorphosis of the grihapatni into a pativrata, the chaste wife. This change also had to do with settled agriculture and the emergence of land as a source of power, and the entrenchment of patrilineal descent. The Sita ideal, particularly in the Valmiki and Tulsidas Ramayanas, represents the crystallization of the pativrata and also the segregation and control of women (Chakravarti 1986). In this entire process, the family was the locus of interest and of emotion. The representation of mythical characters has always been a matter of political strategy. Often, the representation has relocated the characters from the realms of myth and legend into history. A common way of doing this, particularly in the recent past, has been to forge a brotherhood of the faith, deepening the lines of exclusion. Phule shows us another way of representing myth, historicizing pain and physical hurt in the process. On the story of Parashurama, whose mission was to decimate the Kshatriyas, Phule says: He not only killed several kshatriya men but also snatched from the arms of their orphaned wives their innocent infants and mercilessly sent them to a cruel death. . . . When he heard of widowed, pregnant and helpless kshatriya women, desperately running away to save the lives of their unborn babies, he chased them like a hunter and captured them. . . . Womenfolk are not used to running. Besides most of them belonged to families of good descent and never had occasion to cross even the thresholds of their houses. . . . they must have tripped and fallen and dashed against the boulders on the way or the rocky mountain by the sides of the roads and bled profusely through the several wounds caused by the fall on their arms, foreheads, knees and ankles. . . . Their mouths must have been parched dry in the burning sun and because of the lack of water and constant running, they must have felt sick. Their mouths must have frothed with fear and the tiny lives inside their bellies must have rolled frantically, causing them unendurable, acute pains. They must have prayed desperately for the earth to open up and swallow them so that they could escape from this merciless

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pursuit. . . . How many terror stricken women must have embraced death! How many women must have fallen at his feet and begged Parashuram for mercy. . . . The ruthless tyrant butchered babies in front of their mothers. . . . some of them must have perished with grief, and some of them must have gone raving mad. . . . But we should never hope to get this account from the Brahmans. (Phule 2002a: 41–43)

In imagining and giving voice to women’s pain and suffering, Jotiba was in fact inverting the dominant narrative of the period, which centred on and was confined to assertions and contestations of tradition, where neither women’s bodies nor their lived experience was relevant. Especially when speaking of the ‘highcaste’ woman, the assumption of her capacity to bear extreme and grievous physical hurt sublimated these women and elevated them to the level of divinity, described and defined by men, of course. Inscribing the pain experienced by women in the telling of a myth or legend has the effect of foregrounding immediately the highcaste woman’s experience of pain as a consequence of that same tradition in the here and now. Through the writing of pain, Jotiba Phule powerfully dislodges the normative structure of gender and caste in traditional Hinduism. This reconfiguration is relevant even today, when the sublimation of pain is a strategic device used to deny women the rights to life and dignity in the name of tradition. The decentring of stories of patriarchal power, both through the writing of histories of diversity and pluralism, and through the devalorization of that power by inscribing stories of pain and hurt at the centre of mythic traditions, creates new possibilities for reinscribing the values of non-discrimination and justice (especially with respect to gender and caste) in those traditions, in practice as well as pedagogically.

Chapter 10

Sex Discrimination Jurisprudence in India The so-called ‘objective’ interpretation is as much ‘subjective’ in this sense as ‘constructive’ interpretation. The mind that interprets is not a tabula rasa; neither is it just a calculating machine or an electronic brain. The interpreter is a thinking being and as such he will have to interpret with a mind having a system of beliefs and from a standpoint which he happens to occupy at the time of the interpretive activity. — Debiprasad Chattopadhyaya , Lokayata (1978: xi–xii) P. S. Deshmukh: I would beg your pardon and request you to permit me to add the words ‘and young men’ after the word ‘children’ . . . and young men . . . (Interruption) Mr. President: And not young women? P. S. Deshmukh: ‘Man includes woman.’ — Constituent Assembly Debates (1 September 1949)1

This chapter presents an account of six decades of judicial meanderings on the question of discrimination based on sex, through an examination of reported cases from the high courts and the Supreme Court. It has the limited aim of unpacking the deliberations on sexual non-discrimination in courts in India. These cases by themselves do not exhaust the field or the broad concerns of non-discrimination, but rather excavate one site where there have been protracted de-liberations on this issue. In reading case law, rather than focusing on the ratio (or the final decision), which is generally how legal reasoning on non-discrimination would be pieced together, I undertake a sociological reading that looks at the ethnographic detail that the texts present. I also look at the 1

http://parliamentofindia.nic.in/ls/debates/vol9p23b.htm (accessed on 20 July 2010).

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processes and the points of deliberation and contestation between petitioners, respondents (most often the state) and courts, and the multiple implications of jurisprudential resolution for genderbased discrimination. The idea is not merely to trace the march of ratios towards the culmination of the judicial achievement of emancipation for women, but to follow the plural threads of reasoning with respect to women’s status, position, vulnerabilities, and rights, and understand their ideological underpinnings. The first thread in legal reasoning on non-discrimination relates to an oft-repeated refrain in article 15 jurisprudence on sex discrimination, that a particular claim is not on grounds of sex alone. By this argument, when sex combines with property,2 social norms,3 ‘different conditions of service’,4 and other such factors, the very fact that it is expressed in combination removes it from the purview of article 15(1). This exemplifies the disaggregative norm of interpretation based on a reductionist reading of the constitutional fragment: ‘on grounds only of sex, caste, language, place of birth or any of them’ (emphasis added). The second thread in constitutional reasoning consists in the understatement of discrimination as classification or differentiation. This works sometimes to the immediate advantage of women, sometimes not, but the interpretive reduction (whatever the immediate outcome) has philosophical implications in terms of our understanding of discrimination. The third thread explores the scope and purpose of article 15(3) — the creation of special provisions for women and children. This provision has been tossed around in courts in ways that are very telling with regard to the orientation of the judicial mind to the location of women in the public domain. To anticipate my argument, on the surface, interpretation is of course only a question of law. However, a closer and more careful reading will demonstrate that both fact and law intermesh with 2

Sri Mahadeb Jiew and Anr v. Dr B. B. Sen AIR 1951 Cal 563. M. I. Shahdad v. Mohd Abdullah Mir and Others AIR 1967 J&K 120. 4 Air India Cabin Crew Association with Air India Officers Association and Another v. Yeshaswinee Merchant and Others and Air India Limited and Others 2004 AIR (SC) 187. 3

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notional elements that are embedded in a patriarchal system, which puts in place an ideological apparatus for the juridical understanding of sex-based discrimination.

DIFFERENTIATION, CLASSIFICATION AND DISCRIMINATION How does one draw a line between differentiation, classification and discrimination? The first question in this respect that came up for resolution before the courts had two parts, both of which continued to shadow the enunciation of non-discrimination on grounds of sex for several decades. Its echoes are audible even in the present. Order 25 of the Civil Procedure Code lays down the procedure to be followed by courts in case of money suits. Under sub-rule 3 of rule 1, the court had the power to demand monetary security from the plaintiff, if the plaintiff happened to be a woman and did not possess sufficient immovable property in India. On the other hand, as regards the male plaintiff, the rule required them to give monetary security only if they were resident outside India and did not have sufficient immovable property in India.5 Was this provision an infringement of the right against discrimination guaranteed in article 15(1)? Was it void under article 13(1)?6 Or, could it be argued that it was covered by the special provisions under article 15(3)? In Mahadeb Jiew, the court did not hold that there was no discrimination, but that since proprietary considerations were superadded to sex in this case, it did not constitute discrimination on grounds of sex alone. It observed in the process that ‘possession of sufficient immovable property in India is not a consideration bearing on sex at all.’7 The next step in this reasoning led to the argument that the introduction of a scheme segregating women and men students, retaining the more established and reputed facility for men, and 5

Sri Mahadeb Jiew and Anr v. Dr B. B. Sen AIR 1951 Cal 563. Article 13: ‘(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.’ 7 Sri Mahadeb Jiew and Anr v. Dr B. B. Sen AIR 1951 Cal 563. 6

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asking the women to travel back and forth between the women’s college and the ‘co-educational’ institution for men, did not constitute discrimination on grounds of sex alone, because it was sex coupled with the application of a scheme for women students, ‘which covered development of women’s college as a step towards the advancement of female education’.8 The court held this view even though the scheme obstructed women’s entry into an institution and thereby validated the creation of ‘special institutions’ for men, contrary to the constitutional framework. This, paradoxically, also brought the scheme within the meaning of ‘special provisions for women’ under article 15(3), and not under ‘discrimination’. Differentiation that is insidious and amounts to discrimination can emerge even through apparently benign legislation, like the Court of Wards Act. A comparison between the provisions of sections 8(1)(b) and 8(1)(d) of the UP Court of Wards Act revealed clearly that the act discriminated against the woman. Clause 8(1)(d) left it to the discretion of the government to declare a female proprietor unfit to manage her estate without any rules being laid down to determine what constituted incapacity to manage the estate. She was not allowed to represent her case before the declaration was made. In the case of a man, on the other hand, not only did the law require that certain conditions be fulfilled before he could be declared unfit to manage his estate, but also that he had to be given the fullest opportunity to have his objection heard. The State of Uttar Pradesh, in defence of this provision, argued: all differentiation is not discrimination and it is open to the state to classify citizens into categories provided that the classification is reasonable and based on intelligible indicia. Since it is a well known fact that women generally are not such competent managers of property as men and are much more liable to be led astray, therefore, for the purpose of management of property, they may be legitimately put in a class by themselves.9

The Allahabad High Court, rejecting this argument, stated that the denial of the right of representation to women, and the absence in section 8(1)(b) of the Courts of Wards Act of any rules 8 9

Smt. Anjali Roy v. State of West Bengal AIR 1952 Cal 825. Rani Raj Rajeshwari v. State of UP and Others AIR 1954 All 608; emphasis added.

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similar to those in Section 8(1)(d), could not but be regarded as ‘hostile’ to women. The differentiation, it was held, attracted article 15 protections, because it was based solely on the sex of the proprietor.10 The shortfall of institutions offering higher education to women alone led to institutions hitherto open only to male students opening their doors to the rapidly increasing number of women students as well. Madras University acted on a University Commission Report on the situation of girls in co-educational institutions, which stated that, in these institutions that had a predominantly male presence, girls lacked the ‘atmosphere of freedom necessary for their natural development’. As a remedial measure and to ensure discipline, women students were barred entry without the express permission of the university syndicate. In justification of its decision to regulate the entry of girl students, the university argued that it was not state-maintained, but only state-aided, and therefore did not come within the meaning of the state. This was an argument that the court upheld in its judgement. Further, in a twisted reasoning, the court held that there were no regulations refusing admission to women students: ‘those regulations are addressed to colleges and it is the colleges that are refused permission to admit women when they do not provide sufficient facilities.’ Although the fact of ‘hostile environments’ was explicitly recognized as early as 1954, the remedy in that context was the exclusion of women from these environments as a measure of ‘discipline’.11 Order 5, rule 15 of the Civil Procedure Court provides that when defendants cannot be found and no agent has been empowered to 10

Rani Raj Rajeshwari v. State of UP and Others AIR 1954 All 608. For a decision upholding women’s right to inherit property under the Mayurbhanj Lakhrai tenure and bless rulers, see Phulmani Dibya v. State of Orissa and Ors AIR 1974 Ori 135. 11 The University of Madras v. Shantha Bai and Another AIR 1954 Mad 67; emphasis added. What is significant to our general framework for an understanding of nondiscrimination is the fact that, on this point, interestingly enough, the court relied on the American decision in Norris v. Marjor and City Council of Baltimore 76 F supp. 451 (D. Md. 1948) (L). Here, a rule prohibiting the admission of African-Americans in a private school that received aid from the state but was not maintained by the state, was upheld in that it did not violate the 14th Amendment.

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accept service of summons, the service may be made on an adult male of his family.12 The court held that the provision of order 5 rule 15 does not give women a disadvantageous position, but rather exonerates them from the responsibility of fastening notice of service as service on the other members of the family. Justifying its decision, the court observed: the function of females in Indian society is that of housewives. Until recently it was in exceptional cases that women took part in any other activity than those of housewives. Females were mostly illiterate and some of them parda nashin. The legislature while enacting this rule had in mind the special conditions of the Indian society and therefore enjoined upon the male members and did not regard service on females as sufficient.13

The distinction between classification/differentiation and discrimination based on sex has always been a troublesome one. The Government of Bihar created two sex-segregated branches in a cadre, issuing promotion orders to each separately, which resulted in the superseding of women with seniority. The court held that this violated the protections enshrined in articles 14 and 16.14 As late as 1979, it was found that the cadre strength of women doctors in government service was only one-fifth of the total cadre strength of government doctors in the state of Bihar. The state, with a view to addressing the needs of female patients, decided to ‘earmark’ and ‘allot’ 125 seats for girl students in the Medical College. This, it was argued, was not reservation but a mere identification or classification of a ‘source’ from which those seats were to be filled up. The state asserted, and the court concurred in this, that the object was to fulfil the ‘needs of lady patients in the state’,15 not to make special provisions for women to access medical education. Although in effect upholding the validity of reservation, the reasoning of the courts undermines its importance 12

M. I. Shahdad v. Mohd Abdullah Mir and Others AIR 1967 J&K 120; emphasis added. M. I. Shahdad v. Mohd Abdullah Mir and Others AIR 1967 J&K 120; emphases added. 14 Mrs Uma Sinha v. the State of Bihar 1975 LAB IC 637. 15 In the court’s words, ‘the mental aptitude and psychological background of lady patients for treatment of gynecological diseases and also obstetric services by lady doctors cannot also be ignored for the purpose of judging the reasonableness of such earmarking.’ Padmraj Samarendra and Ors v. State of Bihar and Another AIR 1979 Patna 266. 13

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by foregrounding the ‘needs of patients’, and by identifying women, not as a class that has not had equality of opportunity with respect to medical education, but as a ‘source’ through which a public need could be fulfilled. This reasoning results in a displacement of the ‘special provisions’ under article 15(3) from being women’s constitutional right, to the more diffuse need for the creation of medical facilities for women generally.16 While these are both necessary, they belong to different classes of action. Rendering them interchangeable through interpretation has far-reaching consequences for the jurisprudence on non-discrimination based on sex. It is also important to recognize that this slippage between discrimination and classification is a doubled-edged weapon. In one set of cases, women’s claims against discrimination have been defeated on the grounds that the impugned action is a classification, and by that token not discriminatory. In yet another set of cases, classification is the medium through which special provisions and reservations for women are brought in. When evaluating whether or not a particular method of differentiation is discriminatory, therefore, it is important to ascertain whether that method of differentiation can either lead to or reinforce existing hierarchies and concentrations of power. To the extent that they reflect and correspond with systems of social inequality, differentiation and classification may be sources of discrimination.

EQUALITY IN RELATIONSHIP The question of sex discrimination in the context of relationship gets expressed in the jurisprudence on sex discrimination in two 16

Padmraj Samarendra and Ors v. State of Bihar and Another AIR 1979 Patna 266. In Amalendu Kumar, where the petitioner challenged the reservation of 20 per cent seats in medical college for girls on the ground that the total quantum of reservation exceeded 50 per cent (scheduled castes, 14 per cent; scheduled tribes, 9 per cent, backward classes, 10 per cent; girls, 20 per cent; total, 53 per cent), the court held that if women have been identified as a source of allotment and not claimants of reservation, the 20 per cent allotment cannot be counted in with the rest of the reserved seats, and therefore the quantum of reservation stays well within the 50 per cent watermark. Amalendu Kumar v. the State of Bihar and Ors AIR 1980 Patna 1.

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ways: first, in the context of spousal or filial relationship, in relation to adultery, bigamy, restitution, privacy, divorce, maintenance, property, and guardianship, to name a few issues; and second, in the context of employment, where relationship is ‘represented’ in specific ways that discriminate against women, denying them entitlements that would accrue to employees in the normal course. From the first set of cases, I will pick out three issues (somewhat arbitrarily), and reflect on their implications for an understanding of the ways in which courts have constructed conjugality and equality in relationship.17 Marriage provides the most illustrative space for the unpacking of the social context. The discussion of bigamy in an early case frames the issue of discrimination based on sex almost unconsciously, pointing to the social bases of jurisprudence. The discussion around the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, centred around whether it was discriminatory against Hindus to penalize them for bigamous marriages while polygamy was allowed to Muslims. The argument justifying the practice of bigamy was as follows: a Hindu marries not only for association with his mate, but in order to perpetuate his family by the birth of sons. It is only when a son is born to a Hindu male that he secures spiritual benefit by having someone who can offer oblations to his own shade when he is dead and to the shades of his ancestors and that there is no heavenly region for a sonless man. The institution of polygamy is based upon the necessity of a Hindu obtaining son for the sake of religious efficacy.18

The court inserts women into this context, reinforcing the context even while holding that bigamy is not permissible: Hindu marriage is a sacrament and not a contract and the sentimental love and devotion of a Hindu wife for her husband is well known. Legislature may well have thought that it would be futile to make the offence of Hindu bigamy punishable at the instance of the wife because Hindu wives may not 17

A detailed discussion of rights in relationship in different religious groups would require far more space and deliberation than is possible in this chapter. 18 State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84; emphases added.

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come forward with any complaint at all.19

Twenty years later, the Sareetha case in Andhra Pradesh on the restitution of conjugal rights marked a turn in judicial discourse on conjugality, a turn that was not, however, sustained in subsequent cases.20 Examining the validity of section 9 of the Hindu Marriage Act, the AP High Court observed with exceptional sensitivity: ‘A court decree enforcing restitution . . . constitutes the starkest form of governmental invasion of personal identity.’ Although, theoretically, this section applied to men and women equally, and by that token satisfied the equality test, the court observed: ‘bare equality of treatment regardless of the inequality of realities was neither justice nor homage to constitutional principles.’ On the face of it, the court’s rejection of the right to restitution seems to be located within the framework of the right to privacy, bodily integrity and dignity.21 While these are indeed the signposts of constitutional rights material to this case, what the court seems to forewarn itself against is the danger of judicial complicity in marital rape — ‘to coerce the unwilling party through judicial process to have sex against that person’s consent’. The court interrogates the claim for restitution from that vantage point. The court, however, doubled back after Sareetha, rolling back the advance this interpretation represented with regard to the place of consent and choice in marriage. With reference to restitution itself, in a context where marital rape can neither be named nor constitutes part of the offence of rape under the Indian Penal Code, it was possible for the Delhi High Court to assert that the introduction of the ‘cold principles of Constitutional Law’ into the home is like ‘introducing a bull in a china shop’, and ‘will have the effect of weakening the marriage bond.’22 This view is reiterated in the otherwise commendable report of the Law Commission as 19 State of Bombay v. Narasu Appa Mali AIR 1952 Bom 84; emphasis added. Also see Srinivas Iyer v. Saraswathi Ammal AIR 1952 Mad 193. 20 T. Sareetha v. T. Venkata Subbaiah AIR 1983 AP 356. 21 These are the signposts Martha Nussbaum delineates as well in her analysis of this case. See Nussbaum (2005: 192–97). 22 Harvinder Kaur v. Harmander Singh Choudhry AIR 1984 Delhi 667.

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late as 2000.23 This is one facet of the turnabout after Sareetha. Decisions on the law on adultery that followed close on the heels of the Sareetha judgement point us to another facet. Section 497 of the Indian Penal Code defines adultery as follows: Adultery: Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment. . . . In such case the wife shall not be punishable as an abettor. 24

The constitutional validity of this section was challenged on the grounds that it did not confer similar rights of prosecution on the husband and the wife, and that it penalized extra-marital relationships arbitrarily. The Supreme Court upheld the validity of this archaic section, saying that ‘merely because the section does not define adultery to include cases where a husband has sexual relations with an unmarried woman it cannot be declared unconstitutional.’ It went on to observe that women were treated like chattel within marriage, and that it was men who were the seducers, not women. This view, because it emanates from the crest of justice, the Supreme Court, is the ‘constitutional interpretation’. It is a fact that women are treated like chattel within marriage in a patriarchal system. If that is not desirable (as the Supreme Court seems to be saying), one way of dislodging women from the position of chattel is to reformulate the definition and implications of extra-marital relationship, tying it to notions of consent, choice and dissolution of marriage. In other words, the idea is to use interpretation to step out of patriarchal confines. Instead, paradoxically, the court regrets the fact that women are chattel within marriage, yet locks them firmly into the position of chattel by substituting constitutional morality with codes of public 23

Law Commission of India, 172nd Report on Rape Laws, 2000. Emphasis added. The section enables a husband to prosecute the man with whom his wife has an extra-marital relationship. It does not confer a similar right on a woman whose husband is in a relationship with a married woman. Married men entering relationships with unmarried women are left out of the circle of prosecution. 24

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morality,25 which allowed for one man to prosecute another man for having a relationship with his wife. A wife may not prosecute her husband, her lover, or her lover’s wife because, within this framework, as chattel she is denied agency.26 The reduction of women to chattel and the denial of agency are also evident in the fact that a married woman under the law is not guilty of adultery if she has obtained the consent of her husband.27 The unequal position of husband and wife with respect to adultery provisions under the Indian Divorce Act, 1869, was held by the Madras High Court as a valid classification, since a woman could bear children who would be treated under law as legitimate children of the husband, while a man ‘cannot bear a child’ if he commits adultery.28 Biology, by this token, is destiny. The absence of a holistic understanding of discrimination in conjugal relationship and the disaggregated application of the law in this sphere is an expression of the strategy of jurisprudential dissociation. The court either subscribes to the wisdom of these provisions, as just described, or asserts that it is of little consequence, since the court is ‘the arbiter merely of the constitutionality of the law.’29 This strategy of jurisprudential dissociation is a critical tool in the ideological condonation of gender-based discrimination. To use Upendra Baxi’s delineation, it embodies the interlocking of C2 (constitutional interpretation) and C3 (‘the discursive sites for justification . . . of practices and performances of governance’) (U. Baxi 2004: 55n1). This strategy also expresses itself through the ethod of disaggregation, where the social formation of 25

For a discussion on Ambedkar’s formulation of constitutional morality as distinct from public morality, see the recent judgement of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi and Others 2009 (160) DLT 277. 26 Sowmithri Vishnu v. Union of India 1985 SUPP SCC 137. 27 The absence of spousal consent, it might be argued from a ‘legal’ point of view, points to mens rea, but we are looking here precisely at the ideological ramifications of legal reasoning. 28 Dr Dwaraka Bai v. Nainan Mathews 1953 AIR (Mad) 792, cited in Swapna Ghosh v. Sadananda Ghosh and Another 1989 AIR (Cal) 1. 29 V. Revathi v. Union of India (1988) 2 SCC 72. In Naz Foundation v. Government of NCT of Delhi and Others 2009 (160) DLT 277, the Delhi High Court reinvented the role of the arbiter of the constitutionality of the law, making a sharp departure from the tradi-tion of jurisprudential dissociation.

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gender-based discrimination is sliced into different parts that are viewed as independent entities that have no bearing on each other. It was not only Hindu wives who found themselves in an unequal position. What merits serious reflection is the emergence of a radical, even strident voice in the judiciary, willing to look at conjugal relations in the context of the constitution in relation to Christian30 and Muslim31 women. Where women of adivasi communities are concerned, the judiciary has tended, in a manner similar to its deliberations on Hindu women, to privilege ‘community recognition’ of relationship, especially in the context of tribal–non-tribal marriages, as part of the constitutional emphasis on autonomy. This has meant, in effect, the ousting of the outmarrying adivasi woman and her offspring, as commonly happens in societies that are patrilineal, while the offspring of outmarrying adivasi men are assimilated into the adivasi fold.32 This jurisprudential dissociation, apart from privileging public morality over constitutional morality, is especially problematic in a context where the sexual exploitation and desertion of adivasi women by non-adivasi ‘diku’ men poses the biggest hurdle to the liberty of adivasi women. With reference to Hindu women, however, the equivocation and quick resort to scriptural/textual/dominant cultural prescriptions of subordination and acquiescence of the ideal Hindu wife present a stark contrast to the deliberations on the rights of women of other communities. This doublespeak in relation to Indian women merits serious consideration, particularly because there is in place a radical voice with a long history within the Hindu community as well, a voice that speaks to a different notion of constitutional morality. The Sareetha case, for instance, echoes Rukmabai’s struggle against the restitution of conjugal rights a century earlier.

30

Pragati Varghese v. Cyril George Varghese 1997 Bom LR 333. Mohammed Ahmed Khan v. Shah Bano Begum and Others AIR 1985 SC 945. 32 Society for Protection and Enforcement of Adivasi Right and Another v. State and Others 2002 AIR ( JHA) 17. 31

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DISCRIMINATION AT THE WORKPLACE Jurisprudence on discrimination against women in the workplace has focused on equal treatment, equal pay for equal work, special provisions, and the enunciation of efficiency rules and relationship rules. An important thread in article 15 jurisprudence on the workplace has to do with what I call the ‘efficiency rules’ and the ‘relationship rules’. The railways found that women employees were less susceptible to improper influence, were more patient and courteous and less corrupt than male employees. It was therefore decided to reserve clerical posts in reservation offices for women, with a view to increasing efficiency.33 This view of women’s efficiency in paid work, which encourages women workers and essentializes femininity in one stroke, is problematic; nevertheless, it is rare in the discourse on women in paid work. The airlines cases, for instance, stand in stark contrast to the railways position. Air India and Indian Airlines wanted their hostesses to be young, ‘attractive’, underweight, and unmarried; if they married, pregnancy was barred. By this argument, a narrowly prescribed, normative physical appearance against which women were measured in literal terms throughout their period of service — ‘medical fitness’ — was the precondition of efficiency, which was achieved through an interlocking of bodily measurements with active disparity based on sex in the material conditions of service.34 It is true that major decisions have struck down discriminatory provisions in the civil services,35 and there has been recognition at one level that ‘our struggle for national freedom was also a battle against woman’s thralldom.’36 Yet the centrality of marriage to the 33

Charan Singh and Others v. Union of India 1979 LAB IC 633. Air India v. Nergesh Meerza and Ors AIR 1981 SC 1829; Air India Cabin Crew Association with Air India Officers Association and Another v. Yeshaswinee Merchant and Others and Air India Limited and Others 2004 AIR (SC) 187. 35 Radha Charan Patnaik v. State of Orissa and Another AIR 1969 Orissa 237 (V56 C84). The Indian Administrative Service (Recruitment) Rules, 1954, excluded married women from posts included in that service on the grounds that marriage brought about certain disabilities and obligations that might affect the efficiency or suitability of employment. 36 Justice Krishna Iyer in C. B. Muthamma v. Union of India AIR 1979 SC 1868. C. B. Muthamma, a foreign service officer, successfully challenged the Indian Foreign Service Rules, 1961, which required a woman officer to take written permission prior to marriage and barred married women from entering the service. 34

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definition of womanhood remains a disabling factor in women’s entitlements to justice and remedies at work. Public morality has locked women into stereotypes of the nurturing mother and the acquiescent wife who bears sole responsibility for housework and childcare, and has prescribed behavioural norms that curtail their mobility outside the home. These very stereotypes are transported through jurisprudence into the workplace to curtail women’s access to equal opportunity and equal treatment.

The Efficiency Rules When sex-disaggregated data shows an overwhelming number of male offenders in comparison to women offenders, should women with the requisite service be permitted promotions as superintendents of men’s jails?37 In the case of Mrs R. S. Singh, the Punjab and Haryana High Court was dealing with an order by the governor prohibiting women from employment in men’s jails except as clerks and matrons. While Mrs R. S. Singh was eligible for appointment as a jail superintendent, her name did not figure in the list of superintendents of jail in the gradation list in March 1966. Records of her employment carried a note that she was not encadred with the superintendents. In general, she had been considered unfit for appointment in the men’s jail, where hardened and ribald prisoners were kept in confinement. Women employed in these institutions, in this view, are potential victims of male crime, specifically male sexual crime, a possibility that even the prison cannot offer women protection against: It needs no great imagination to visualize the awkward and even hazardous position of a woman acting as a warden or other jail official who has to personally ensure and maintain discipline over habitual male criminals. Necessarily the inmates of these jails have a large majority of hardened and ribald criminals guilty of heinous crimes of violence and sex. . . . The difficulties which even male Wardens and other jail officials experience in handling this motley and even dangerous assemblage are too clear to need elaboration. A woman performing these duties in a men’s jail would be even in a more hazardous predicament.38

37 38

Mrs R. S. Singh v. State of Punjab and Others AIR 1972 Punjab and Haryana 117. Mrs R. S. Singh v. State of Punjab and Others AIR 1972 Punjab and Haryana 117.

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Assuming the position of absolute neutrality, the court poses the question in the reverse. Would it be acceptable to employ men in all-women institutions — prisons, educational institutions, etc.? Clearly not. So it is concluded that it is absolutely reasonable to differentiate classes according to sex for purposes of employment.39 The reasons for both these arrangements are not similar but identical: namely, whether you speak of men in custody or a man in authority, the state cannot assure good conduct; the solution therefore is to confine or exclude women as the case may be. The justification, however, is situated in the efficiency rule: One of the paramount considerations for the public service must be the efficiency of its employees. The State must select and appoint persons most suitable to discharge the duties of a particular job which they are to hold. . . . It is evident that where disparities of either sex, patently add to or detract from, the capacity or suitability to hold a particular post or posts, then the state would be entitled to take this factor into consideration in conjunction with others.40

By a predictable elision, the best possible incumbents become the most suitable persons, and sex is seen not alone but in conjunction with propriety, decency, morals, and decorum. That sex is a ground for discrimination only because it always acts in conjunction with propriety, decency, morals, and decorum, is lost in this deliberation. Each of these terms is defined in a manner such that the presence of one or more of these attributes ‘exonerates’ women from citizenship (the pardahnashin wife), and their absence disqualifies them from citizenship (the prostitute). 39

By 1997, there was a change in this position: recruitment rules providing that the post of principal of a women’s college shall be filled up by a female incumbent were declared invalid, unconstitutional and ultra vires the provisions of articles 14, 15 and 16 of the constitution. M. C. Sharma (Dr) v. Punjab University, Chandigarh AIR 1997 P&H 87, p. 120. 40 Mrs R. S. Singh v. State of Punjab and Others AIR 1972 Punjab and Haryana 117. This is a reiteration of Prof. White on public administration, which, the court said, was also noticed with approval by the Supreme Court in Sant Ram Sharma v. State of Rajasthan AIR 1967 SC 1910: ‘The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organization. The main interest to be served is the public interest, not the personal interest of members of the official group concerned’ (emphases added).

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The fact of women’s dual responsibilities at home and at work, and the orientation of employers towards notions of genderappropriate behaviour where women are concerned — even where the state is the employer — lead to the extension of the efficiency argument to defeat women’s equality claims at work. Thus, a police department, for instance, can deny women typists promotion ‘on public grounds’, ‘due to the peculiar nature of the work of the stenographers of the department (touring along with the officers and working at odd hours)’;41 or the Indian army may resist the posting of a lady officer as officer-in-charge of its legal cell on the grounds that the legal officer would be required to attend the courts every day, and that the position involved travelling at odd hours in the mornings and evenings and handling courts martial and other ‘sensitive’ courts of inquiries. The fair trade-off for the army was: ‘in case the lady officer is to be posted to the station she may be adjusted as an additional officer.’42 In both these cases, the court upheld the claim of the women against the state, but with a certain measure of unease. In the first case, it held that ‘whatever be the ultimate reason behind the order, and however “laudable” it may be’, that would not remove ‘the effect of the order [which] involves an infringement’ of her fundamental right under article 16(1).43 In the second case, the court’s view was that a ‘married lady officer with a child cannot be considered to be a “lame duck” incapable of discharging her duties efficiently.’44

41

Vijayamma v. State of Kerala and Others 1978 (2) LLJ 323. In Messrs Mackinnon Mackenzie and Company Limited v. Audrey D’Costa and Another 1987 AIR (SC) 1281, the Supreme Court upheld the decision of the Bombay High Court on women stenographers’ entitlement to equal remuneration for work of same or similar nature. In Uttarakhand Mahila Kalyan Parishad and Ors v. State of UP 1993 Supp (1) SCC 480, the Supreme Court ruled that there was no justification for women teachers being paid less or having fewer promotional avenues than their male counterparts. It directed the state to ensure parity between women and men teachers. In the case of Omana Oomen v. FACT Ltd AIR 1991 Ker 129, the court reiterated the non-negotiability of equal treatment and equal opportunity alongside protective measures barring employment of women in night shifts. 42 Capt. (Mrs) Dimple Singla v. Union of India and Others 2002 (63) DRJ 216. 43 Vijayamma v. State of Kerala and Others 1978 (2) LLJ 323; emphases added. 44 Capt. (Mrs) Dimple Singla v. Union of India and Others 2002 (63) DRJ 216.

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The Relationship Rules A school board in Tamil Nadu passed a resolution that ‘the service of the teacher will be terminated with three months notice when she gets married for the following reasons — (i) When she takes maternity leave, the small children’s education will be affected without teacher for three months.’ Clearly, although there is no specific mention of women teachers, it is a sex-specific rule that was struck down as violative of articles 13, 14, 16, and 21, because it discriminated against teachers who chose to get married and who were not Christian.45 Similarly, as late as the 1990s, the Municipal Corporation of Delhi, in a written statement filed before the Industrial Tribunal, pleaded that the provisions under the Maternity Benefit Act, 1961, or the Central Civil Services (Leave) Rules were not applicable to the female workers engaged on muster roll as they were all engaged only on daily wages. The corporation also contended that they were not entitled to any benefit under the Employees’ State Insurance Act, 1948. Most of the women employed by the corporation were employed on a casual daily wage basis for years on end, and engaged in hard physical labour with no labour protections in place because they were designated as casual labour.46 This plea of the corporation is worth noting in light of the fact that India is a signatory of CEDAW, which speaks explicitly of the rights of women in employment. The effect of this decision, however, is also to protect the right to reproductive choice and the right to relationship where women are concerned, both of which are extremely contested areas of women’s autonomy in the contexts of discrimination. Nergesh Meerza is a telling case.47 In a case of public employment, the employer’s requirement of a four-year bar on marriage was 45

Mrs Sivanarul v. State of Tamil Nadu, Rep. by Secretary, Department of Education, Madras-9. 2. The Director of School Education, Madras-6. 3. Nirmala Matriculation School, Chidambaram by Its Cor, St Valentine Mary. 4. Mrs. Vijaya Ananda 1985 II LLJ 133. 46 Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Another 2000 AIR (SC) 1274. 47 Air India v. Nergesh Meerza and Ors AIR 1981 SC 1829.

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retained as being reasonable and salutary, since generally airhostesses joined service at 19, and the regulation permits them to marry at 23, which is by all standards a very sound and salutary provision. Apart from improving the health of the employee, it helps a good deal in the promotion and boosting up of our family planning programme. Secondly, if a woman marries near about the age of 20 to 23 years, she becomes fully mature and there is every chance of such a marriage proving a success, all things being equal.48

The second provision regarding the termination of service on first pregnancy, the court found, shocked its conscience: It seems to us that the termination of the services of an AH under such circumstances is not only callous and cruel act but an open insult to Indian womanhood — the most cherished and sacrosanct institution. We are constrained to observe that such a course of action is extremely detestable and abhorrent to the notions of a civilized society . . . and is therefore clearly violative of Article 14 of the Constitution.

However, the rule could be suitably amended so as to terminate the services of an AH on third pregnancy provided two children are alive which would be salutary and reasonable for two reasons. In the first place, the provision preventing third pregnancy with two existing children would be in the larger interest of the health of the AH concerned as also for the good upbringing of the children. Secondly, . . . a bar of third pregnancy where two children are already there [would be acceptable] because when the entire world is faced with the problem of population explosion it will . . . be . . . absolutely essential for every country to see that the family planning programme is not only whipped up but maintained at sufficient levels so as to meet the danger of overpopulation (emphases added).

Condemning the stress on their ‘appearance, youth, glamour and charm’, the Supreme Court observed that a woman in our country occupies a very high and respected position in the society as a mother, a wife, a companion and a social worker . . . such 48

Article 15 embodies recognition of the fact that all things are not equal.

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observations disclose an element of unfavourable bias against the fair sex which is palpably unreasonable and smacks of pure official arbitrariness.49

In a case that involves women’s entitlements as workers, a jurisprudential dissociation is effected by the court between the claim and the claimant. The embodiment of the claimant in essentialist, non-material terms creates a crisis of dissonance in the legitimate material claim, because, after all, the profane must not be allowed to disrupt the harmony of the sacred. And what greater profanity than equality? Further, for women — even women in public employment — there is no separation between the home and the world, and any claim to privacy is null and void. This construction elevates deeply discriminatory cultural stereotypes above constitutionalism in a country where Tarabai Shinde’s Stree Purusha Tulana (A Comparison between Women and Men) inaugurated women’s struggles against reification and subjugation over a century ago. Motherhood, pregnancy, child-birth, menstruation, and marriage are, for the male employer, the principal constituents of the identity of women in paid work and the determinants of their worth. For courts, these are the constituents of ‘modesty’. The Life Insurance Corporation (LIC) required women candidates to state the following: husband’s full name and occupation; number of children; whether menstrual periods have always been regular and painless; number of conceptions; date of last menstruation; whether pregnant at the time of applying; date of last delivery; abortion or miscarriage, if any. All completely irrelevant to her employment or capacity or competence at work. If the LIC wanted to map the possibilities of a healthy workforce, neither pregnancy nor childbirth, or menstruation, is indicative of ill health or morbidity. Answering these questions is no less painful, ‘embarrassing’ or ‘humiliating’ than having to go through a pregnancy test prior to appointment. The court, however, thought differently: 49

Emphases added. The clauses regarding retirement and first pregnancy were struck down as unconstitutional, third pregnancy termination was recommended in passing, and the pleas for parity of promotional avenues with AFPs and parity with service conditions of AHs in foreign airlines rejected. The ‘fair sex’ is a peculiarly judicial way of naming (refusing to name?) women, the other way being to call them ‘females’.

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The modesty and self respect may perhaps preclude the disclosure of such personal problems like whether her menstrual period is regular or painless . . . etc. . . . If the purpose of the declaration is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the service [the legality of which we express no opinion since not challenged], the Corporation could subject her to medical examination including the pregnancy test.50

Jurisprudential dissociation converges with the status quo yet again. More on the relationship rule: in 2002, the Indian Army had 980,000 active troops, along with an army reserve of 800,000. In 1994 it was reported that there were 200 women in the armed forces.51 Barring a couple in combat positions, all the rest were in the military nursing service. The military nursing service had evolved rules that laid down that, in the interests of the efficiency of the service, a woman could remain in service after marriage only if she justified her continuance by showing extra efficiency in the years preceding her marriage. In 1988, Indira Kumari Kartiayoni, a lieutenant nursing officer in the military nursing service, married after obtaining requisite permission. However, subsequent to the marriage, her service was discontinued because she had failed to demonstrate ‘extra efficiency’ for two years prior to marriage. The Supreme Court ruled that the appellant be given the opportunity to prove her efficiency in the two years subsequent to marriage and then be discontinued if found inefficient.52 What is the measure of that extra efficiency? How can performance 50 Mrs Neera Mathur v. LIC of India and Another 1992 LAB IC 72. The parenthetical remark demonstrates the practice of jurisprudential dissociation that I alluded to earlier. 51 Elsewhere, a court observed that reserving 50 per cent of jobs for women would constitute a monopolization of posts in favour of women. This rule does not apply to the monopolization of posts in favour of men even in public employment. 52 Lt (Mrs) Indira Kumari Kartiayoni v. the Maha Nideshak, Raksha Mantralaya, Shastra Sena Chikitsa Seva, New Delhi and Others AIR 1991 SC 416. Mohini Philip v. Union of India and Others 1993 (2) LLJ 182 challenged the same rule successfully. Also Lt C. Reethama Joseph (Mrs) v. Union of India and Others 1997 (10) SCC 721, where the petitioner challenged the validity of the rules that authorized the respondent to discharge the petitioner on marriage. The court dismissed the petition and did not strike down the rule, but reserved the right of the petitioner to challenge the impugned order regarding her release before the appropriate authority and in accordance with law.

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be adequate if marriage is not contemplated, inadequate if marriage is contemplated? Here again we see the reiteration of the 1967 ‘function of females’ argument. Marriage in the eyes of the law does not mar the lives of men. There is no doubt that the court was aware that it was dealing with a ‘woman’s problem’. But, most important of all, an unjust rule is upheld, and also different standards are set for women that work to their disadvantage as a class. The decision itself gives immediate temporary reprieve without displacing the arbitrariness of the rule in any manner whatsoever. For the women in the corps, however, it is not marriage that is the issue but sexual harassment and too little meaningful, engaging work (Goel et al. 2000). And this is not the experience of women in the corps alone. The efficiency rules for women do not draw their legitimacy from the constitution, as in the case of scheduled castes and scheduled tribes under article 335.53 They are instead grounded in the relationship rules or in the nexus between sex and ‘other factors’ that, as Kannabiran suggests, represent patriarchy’s inarticulate major premise, the capabilities of women assessed subjectively, without respite and without any constitutional basis or justification.54 Parekh and Pantham echo this view when they say: ‘politically enforced norms or principles of social organization are rooted in the archaeologies of social knowledge, which serve as pre-theoretical or pre-articulate frames of our notions of political rationality, justice, truth, rights, democracy and moral beliefs’ (Parekh and Pantham 1987: 9).

Equal Treatment In the second airhostesses case, Yeshaswinee Merchant, the Supreme Court negated the claim of equal treatment with respect to age at retirement and salary structure, upholding the early retirement of women employed as airhostesses in Air India, a public-sector 53

In the case of the scheduled castes and tribes, the efficiency rule laid down in article 335 reverses the equality principle embodied in reservations, because the underlying assumptions of these two provisions contradict each other directly. A more detailed elaboration of this point is outside the scope of this essay. 54 K. G. Kannabiran, personal communication dated 14 July 2009.

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undertaking.55 Justifying its decision, the court drew on its own observation in an earlier case that ‘there cannot be any cut and dry formula for fixing the age of retirement’ (emphasis added), and that this ‘would always depend on a proper assessment of the relevant factors and may conceivably vary from case to case’.56 Four years later, in 2007, the Supreme Court upheld women’s claim to equal treatment and equality of opportunity, questioning sex role stereotyping and the application of the parens patriae principle by the state to deny women access to equal treatment vis-à-vis employment opportunities in the hospitality sector.57 Where the airhostesses are concerned, the decision to validate unequal treatment continues even while women begin to access equal opportunity and treatment in restaurants and bars as a result of Anuj Garg. This is a second aspect of jurisprudential dissociation — the possibility of the simultaneous operation of contradictory lines of reasoning on the same issue, namely, discrimination based on sex. Another important dimension of equal treatment is equal pay for equal work. Although this principle is not declared expressly as a fundamental right in the constitution, it is deducible from articles 14, 16 and 39(d).58 The Orissa government issued a circular to the effect that in the appointment of primary school teachers, women would be preferred irrespective of their position in the merit list. In pursuance of this circular, the chairman of the selection board directed the employment exchange to forward only the names of women candidates, and specified that where 55

The Bombay High Court in Yeshaswinee Merchant and Others v. Air India Limited and Others 2001 (3) CLR 815 ruled in favour of absolute parity and equality of treatment. The Supreme Court, however, set aside this decision and censured the Bombay High Court for the violation of ‘judicial discipline’. Air India Cabin Crew Association with Air India Officers Association and Another v. Yeshaswinee Merchant and Others and Air India Limited and Others 2004 AIR (SC) 187, para. 46. 56 Air India v. Nergesh Meerza and Ors AIR 1981 SC 1829. 57 Anuj Garg & Ors v. Hotel Association of India & Ors (2008) 3 SCC 1. 58 Randhir Singh v. Union of India 1982 Indlaw SC 108. This principle of equal pay for equal work was applied in Chitra Paul, with the court holding that when all school mothers appointed by the Government of Tripura performed identical work, there was no justification for fixing differential pay scales for temporary school mothers and regular school mothers. Chitra Paul Smt. and Others v. State of Tripura and 3 Others 1994 (1) CLR 1099.

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suitable women candidates could not be found, the posts would be kept vacant till such candidates were found. This was challenged by an unregistered association of the unemployed trained male matriculates and intermediates of the district of Keonjhar. Drawing on the Report of the Committee on the Status of Women in India, Towards Equality, the court, while acknowledging the disadvantaged position of women, and asserting the need for special provisions and preferential treatment, also observed that the action of the chairman of the selection board directing the employment exchange to sponsor only the names of women was unjustifiable, as also his decision to keep seats vacant if suitable women were not available, because it would amount to ‘100 percent reservation’.59 The Special Rules for the Kerala Last Grade Service enumerate several categories of posts in that service. Rule 5 of the special rules deals with appointment to various categories. The note along with rule 5 reads: In view of the arduous and special nature of duties and responsibilities attached to the posts specified in the table below only male candidates shall be eligible for appointment under this rule to the said posts — peon, watchmen, duffadar, cleaner-cum-conductor, gate keeper, court keeper, process server, messenger, village man, chainman, maistry, plumber.

This note underwent changes from time to time so as to exclude women from more and more categories. At the time the case was heard, in place of 12, 25 categories were included as inaccessible for women, and four more had been proposed.60 While directing the Kerala Public Service Commission to appoint the petitioners in the next two vacancies that arose, the court ‘alert[ed] the state and union government to the need for attention to affirmative action in the area of sex discrimination’.61 The frequent violation of women’s right to equality by the state, and the need for courts to step in time and again to rectify this, points to the normalization of discrimination against women in 59

Bijoy Kumar Jena v. the State of Orissa 1987 LAB IC 593. A. N. Rajamma v. State of Kerala and Others 1983 LAB IC 1388. 61 A. N. Rajamma v. State of Kerala and Others 1983 LAB IC 1388. 60

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the public domain. The need for the court to state explicitly that ‘the distribution of state largesse cannot be made in violation of right to equality,’62 or again, that ‘the Government should be a model employer. Socialism being the goal of our Constitution since forty-second amendment, . . . discrimination/exploitation [by the government with respect to public employment] has to be condemned,’63 is telling. Equally eloquent is the absence of a clearly identifiable judicial understanding of what sex discrimination is despite the concern and the constitutional commitment of courts to rule against sex discrimination.

Special Provisions Upholding the right of women to reservation in 1953, the High Court of Bombay asserted that the ‘Government may well take the view that women are very necessary in local authorities because the point of view of women must be placed before the councillors before they decide any question affecting the Municipality.’64 The judges held that the proper way to construe Art. 15(3) is that whereas under 15(1) discrimination in favour of men on ground of sex is not permissible, by reason of Art.15(3) discrimination in favour of women is permissible, and when the state does discriminate in favour of women, it does not offend against Article 15(1).

The same question, deliberated on in the case of Km. Sharada Mishra,65 introduced an additional twist in the interpretation of article 15(3). Reservation exclusively for men, even if they are 62

Jani Bai v. State of Rajasthan and Ors AIR 1989 Raj 115. Also see the case of Janabai Govind Surve v. the State of Maharashtra and Others AIR 1991 Bom 333, where the state, through the claims tribunal, created a disability on the absolute right of a female claimant to receive and deal with the amount of compensation as she deems fit. Or even S. Lalitha Sundari and Another v. R. Kethar Nathan and Others 2002 AIR (Mad) 17, where positions explicitly designated for ‘female descendents’ were filled by men, using the misconstruction that female descendent meant descendent in the female line and not a descendent who is female! 63 Chitra Paul Smt. and Others v. State of Tripura and 3 Others 1994 (1) CLR 1099. 64 Dattatray Motiram More v. State of Bombay AIR 1953 Bombay 311 (Vol 40 CN 98). 65 Km. Sharada Mishra v. State of UP, Medical Education UP, Lucknow and Ors AIR 1993 ALL 112.

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dependents of ex-army personnel, is violative of article 14. There can be reservation for dependents, both male and female, and an additional reservation (or an earmarking of a part of the larger quota) for female dependents under article 15(3).66 However, the court’s ruling introduced the reasoning of ‘double advantage’.67 The construction of ‘special provisions’ under article 15(3) does not make the creation of such provisions contingent on the degree to which women gain space under article 14. Whether or not women in particular institutions succeed in securing a space comparable to men, special provisions to increase their access aim at redressing the macro-processes of discrimination that women are subjected to, and exist alongside the fulfilment of article 14.68 The only proviso that might possibly be read into this scheme is that when the mind of the community becomes enlightened and women in fact achieve equality of status and opportunity, article 15(3) will become redundant and may be removed through a constitutional amendment. As long as it remains part of the constitution, however, the provision can scarcely be read down through the introduction of arguments like ‘double advantage’. In effect, what this argument accomplishes is the denial of space in the open category to women and the validation of reservation for men (declared unconstitutional and ultra vires of article 14 in the same judgement), without this being stated explicitly. In 1995, the Supreme Court restored this right to women in State of AP v. P. B. Vijayakumar, where it held that while 30 per cent of posts in the said categories could be reserved for women, it was also open for women to compete for posts in other categories on an equal basis with men.69 66

Fifteen seats were reserved for dependents of ex-army personnel, of which 10 seats were reserved for male candidates and five seats for female candidates in the Moti Lal Nehru Medical College, Allahabad, for the MBBS course. 67 If the requisite number of women qualified in the open category, the seats reserved for women would be opened up to men as well. 68 Shamsher Singh v. State AIR 1970 P&H 372 had already held that ‘only such special provisions in favour of women can be made under Article 15(3), which is reasonable and do not all together obliterate the Constitutional guarantee enshrined in Article 16(2).’ 69 Government of AP v. P. B. Vijaykumar and Another 1995 AIR (SC) 1648. Similarly, in the Cooperative Societies case, it was found that the participation of women in the affairs of cooperative societies in Andhra Pradesh had been very minimal. Therefore, in response

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Special provisions were initially set in motion in order to redress the gender imbalance, especially in employment and education, because such provisions address the need to create spaces for women. However, they often use arguments that construct femininity as the rationale for the provision. While one side of this argument is the idea that women are not suited for ‘difficult, arduous work’, the other side is that women tend to be more honest, diligent, patient, and courteous.70 In cases where the creation of special provisions was challenged as being discriminatory against men, the court held that it was the state’s prerogative to introduce classification through policy measures that were aimed at restoring gender equity, and such classification could not be considered discriminatory.71 This matter of state prerogative may essentially have been a corrective so as to realize the constitutional commitment to equality and eliminate discrimination and exclusion. However, it has also been used arbitrarily, with women being treated as merely passive recipients/objects of state largesse/protection. This trend inverts the social justice intent of article 15(3), operationalizing it in terms of the very discrimination the article sets out to eliminate.72 to the recommendation of the National Convention on the Involvement of Women in the Cooperative Movement that one-third of the seats be reserved to the women in the management committees of cooperative societies, the Government of Andhra Pradesh amended the AP Cooperative Societies Act, 1964, providing for the nomination of two women by the registrar in accordance with authorized procedure. The women so nominated would have the right to vote and otherwise to take part in the proceedings of the meetings of the committee. Although this would take the total reserved positions beyond 50 per cent, the court ruled that the 50 per cent rule applied only to reservations under 15(4) and 16(4), women’s reservation falling outside of this categorization and possessing a validity independent of reservations in other streams. Toguru Sudhakar Reddy and Another v. the Government of Andhra Pradesh and Ors AIR 1994 SC 544. 70 Charan Singh and Ors v. Union of India and Ors 1979 LAB IC 633. The railway administration relied on the Report of the Committee on the Status of Women in India, 1974, which clearly lays down the fact of the backwardness of women. In K. R. Gopinath Nair v. the Senior Inspector cum Spl Sales Officer of Cooperative Societies and Others AIR 1987 Ker 167, the court reasserted the importance of reservation for women and scheduled castes in cooperative societies. It drew on the work of Emile Durkheim and Andre Beteille in explaining inequality and the idea of progress. 71 B. R. Acharya and Another v. State of Gujarat and Another 1988 LAB IC 1465. See also Vijay Lakshmi v. Punjab University and Others 2003 (8) SCC 440, where it was held to be in keeping with reasonable classification and with article 15(3) to reserve the post of principal in a women’s college for women with the requisite qualifications. 72 For instance, in Om Narayan Agarwal v. Nagar Pallika, Shahjahanpur AIR 1993 SC

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SPEAKING OF THE GENDER DIVISION OF LABOUR The gender division of labour inflects the litigation on nondiscrimination, particularly with reference to paid work. Reservations of up to 50 per cent were allowed to women in the lowest rungs of the labour ladder — in this instance, scavenging — with the court justifying its ‘expansive’ view with the observation that women provide better sweeper and scavenger services than men do.73 Women also perform important childcare functions, which need to be recognized adequately by the state. Take the case of school mothers in the employ of the Tripura government. The children are picked up from their homes and dropped back by the school mothers, who also attend to the emotional and physical needs of the children — all between ages 3 and 6 years — and manage the school nutrition programme, besides assisting the social education worker. They perform a very important and necessary function, the court found, but they were not adequately compensated for their work.74 In Messrs Mackinnon Mackenzie, the Supreme Court upheld the decision of the Bombay High Court on women stenographers’ entitlement to equal remuneration for work of the same or similar nature. Yet, it went on to observe that men do work like loading, unloading, carrying and lifting heavier things which women cannot do. In such cases there cannot be any discrimination on the ground of sex. Discrimination arises only where men and women doing the same or similar kind of work are paid differently.75

1440, a provision in the UP Municipalities Act provided for the nomination of two women members by the state government, at the pleasure of the government, paving the way for the arbitrary replacement of women members to pre-empt crucial voting on issues concerning the municipal board. Or take the case of Vijay Lakshmi v. Punjab University and Others 2003 (8) SCC 440. Here, the court ruled that reserving the post of the principal of a women’s college for women is not ultra vires of 16, and justified the provision through recourse to ‘public morals’, particularly given the young age of the girls to be taught. 73 Rajasthan Dainik Vetan Bhogi and Ors v. State of Rajasthan and Ors 1994 II CLR 975. 74 See also J. R. Clement Regis v. State of Tamil Nadu 1993 II CLR 651. 75 Messrs Mackinnon Mackenzie and Company Limited v. Audrey D’Costa and Another 1987 AIR (SC) 1281.

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An oft-repeated view of the court that links masculinity with the inherent capability for ‘arduous’ work has two coexisting and mutually reinforcing parts: first, that men perform ‘arduous’ work, which women are, by definition, incapable of matching;76 second, that when men and women are seen and known to perform the same and similar work (flight duties in airlines, for instance), the duties that men perform are defined as ‘arduous’ and compensated with longer service and fair conditions of employment, merely because these are performed by men. There is, in this last instance, no requirement for the employer to demonstrate, task by task, the differences in work requirements for men and women.77 There are other, somewhat amusing yet troubling, twists that the gender division of labour brings about in the sphere of employment, with consequences for questions of constitutionality. The Bimla Rani case, for instance, raised the question of equal pay for equal work, although the employer argued that the work was dissimilar and therefore justified differential wage rates. The petitioners pointed out the case of Sujjan, ‘a lady who was included in the list of men workers and so was getting a higher remuneration; but when it came to be known that she was wrongly designated as a male worker, her remuneration was reduced.’78 The nursing profession has been identified historically as a ‘female’ profession that draws on the nurturing, caring functions women must perform in patriarchal societies. It has been measured in terms of selflessness in ‘service’ that can never be monetized and, therefore, is always undervalued in terms of wages while being eulogized rhetorically. Enter the male nurse, who gets appointed as ‘sister tutor’, who, by virtue of service over two years, becomes senior to female sister tutors. On attaining seniority, can he be denied promotion on the grounds that the post is designated for ‘senior tutor (female)’? The respondent contended that in a predominantly female institution, 76

A. N. Rajamma v. State of Kerala and Ors 1983 LAB IC 1388. Air India Cabin Crew Association with Air India Officers Association and Another v. Yeshaswinee Merchant and Others and Air India Limited and Others 2004 AIR (SC) 187. For the use of the word ‘arduous’, see para. 74. 78 Bimla Rani and Ors v. Appellate Authority Equal Remuneration Act, 1976 and Ors 2005 (2) LLJ 148. 77

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a female sister would be more suited to the duties of a senior tutor, and that the rule regarding eligibility is based not on sex alone but on the suitability of a female candidate and the corresponding unsuitability of a male candidate for the post. The court held that to prevent a male sister tutor from being promoted to the post of senior tutor (female) on the grounds that he is not female amounts to discrimination based on sex alone.79 Can women claim the night? Section 66(1)(b) of the Factories Act, 1948, provides that ‘no woman shall be required or allowed to work in any factory except between the hours of 6 a.m. and 7 p.m.’ The court is unwilling to concede the claim that this provision discriminates unfairly against women: It is undoubtedly true that according to the traditional view, all that a woman needed to know was the four walls of her house. . . . Today, things have changed. . . . Yet, the very nature of their commitment to the family and the social environment require that they cannot be entrusted with all those duties which men may be asked to perform. Normally, they are not sent to the borders to fight. Lady constables are not asked to go on patrol duty at night. Lady waitresses in hotels are not required to work during night. They may be good for managerial jobs. They may even work as waitresses up to certain hours. But, special provisions so as to ensure that they are not harassed can be and have been made. It is on account of this situation that the Constitution makers had made a provision in Article 15(3). The Legislature was permitted to make special provision for women and children. The purpose was to protect both of them against the hazardous jobs and to save them in spheres where the Parliament considered it necessary.80

What is the relationship between the gender division of labour and gender hegemonies in the workplace? In Yeshaswinee Merchant, while the All India Cabin Crew Association supported the demand of airhostesses for parity in age at retirement, it opposed the proposal of interchangeability of duties between male and female cabin staff. On closer examination, the Bombay High Court found that the reason for this was that, under existing rules, only a male member of the cabin crew could be flight supervisor. If interchangeability were introduced, junior male cabin crew would 79 80

Alfred Baid v. Union of India 1976 AIR (Del) 302. Leela v. State of Kerala 2004 (3) LLJ 106; emphases added.

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be under the authority of a female flight supervisor, a possibility that all men in the association opposed. The court rejected this argument, asserting that ‘the hierarchy on board the aircraft will be based on seniority irrespective of sex,’81 a decision the Supreme Court set aside. The Kerala High Court observation in the Rajamma case that ‘the attempt should not be to perpetuate discrimination but obliterate it’82 marks an unusual parity between discursive frameworks and outcome. Despite these momentary glimmers, however, as late as 1990, advertisements for posts in the subordinate judiciary explicitly barred women from applying.83 Finally, the celebrated Visakha judgement on sexual harassment in the workplace in 1997, and a spate of judgements following Visakha, establish the non-negotiability of women’s right to safe working conditions free of sexual harassment.84 There is also, around this time, a progressive interpretation of women’s vulnerability to violence that is evident in some remarkable decisions. For instance, in Mrs Usha Badri Poonawalla, defamation was interpreted as violence and the petitioner was exempted from paying the court fee under the provision in the Bombay Court Fees Act, 1949, which exempted women litigants from paying court fees in cases relating to maintenance, property disputes, violence, and divorce.85 However, in a later case involving the Cochin Port Trust’s policy against employing women as shore mazdoors (labourers), the court reiterated its pre-Visakha position that, while women cannot be excluded from employment only on the ground of sex, 81

Yeshaswinee Merchant and Others v. Air India Limited and Others 2001 (3) CLR 815. A. N. Rajamma v. State of Kerala and Others 1983 LAB IC 1388. Kerala also ruled in 1990 that merely because a job required one night-shift assignment out of three, the prohibition on women working between 10 p.m. and 5 a.m. (proviso to section 66[b] of the Factories Act) cannot be used to deny women opportunity for employment where they are otherwise qualified. Omana Oomen v. FACT Ltd (1990) II CLR Kerala 42. 83 Smt. Urmila Devi v. State of UP and Another 1990 LAB IC 2047. 84 Apparel Export Promotion Council v. A. K. Chopra 1999 (1) SCC 759; Saudi Arabian Airlines v. Shehnaz Mudhatkal and Another 1999 (2) CLR 766; Albert Davit Limited v. Anuradha Choudhury (Ms) and Others 2004 (3) LLJ 608; Medha Kotwal Lele & Ors v. Union of India & Ors W.P. (Crl.) No. 173–177/1999 dated 26 April 2004; Samridhi Devi v. Union of India and Others 2005 (125) DLT 284. 85 Mrs Usha Badri Poonawalla v. K. Kurian Babu 2002 AIR (Bom) 292. 82

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their right may be restricted if the conditions in which they are required to work are hazardous to their health and well being. While coming to this conclusion, the court seems to repeat the century-old wisdom of the 1907 case Curt Muller v. the State of Oregon — ‘protect her from the greed and passion of man.’86 It took note of the fact that the women working at the shipping wharf, away from the main office, isolated and alone, can be an object of violence on their persons, especially at night, and that in the circumstances the decision did not violate articles 14 and 15(1) of the constitution of India.87 This brings us back, in a sense, to where we began. This extensive review of case law demonstrates troubling patterns in the jurisprudence on sex discrimination that seem to point to the inescapability from discrimination based on sex. In general, the hazards of employment for women range from ‘difficult’ work that they are ‘naturally’ unsuited for, like ‘the movement amidst moving cargo and in the midst of huge cranes, forklifts etc. demanding quick movement of feet’,88 to the ‘sensitivities of sex and peculiarities of societal sectors’.89 Given this reality, courts have, with a few valuable exceptions, found it expedient to choose a ‘pragmatic’ approach rather than a ‘dogmatic’ approach in matters of equality based on sex,90 an approach that translates on the ground into making peace with public morality and hostile environments. 86

(1907) 208 US 412, cited in Mrs R. S. Singh v. State of Punjab and Others AIR 1972 Punjab and Haryana 117. 87 Vanitha Avakasa Samrekshana Action Counsel & Others v. Chairman Cochin Port Trust & Others 2002 (35) LIC 938. This euphemistic allusion to violence against women at the workplace is followed immediately by the Visakha judgement: Visakha and Ors v. State of Rajasthan and Ors 1997 (7) SC 323. See also the precursor to Visakha — Mrs Rupan Deol Bajaj and Another v. Kanwar Pal Singh Gill and Another 1996 AIR(SC) 309. 88 A. M. Shaila and Another v. Chairman, Cochin Port Trust and Others 1995 (2) LLJ 1193. In Smt. Suraj Kumari and Ors v. State of UP and Ors 1990 LAB IC 34, the court recognized that women face problems of security and other hardships if posted in rural areas, and would additionally be cut off from their families. Even while upholding the order of the government, the court held that the women so transferred must be accommodated in urban rather than rural areas. In Shri Dnyandeo Dattatraya Kale and Ors v. the State of Maharashtra 1995 (3) BCR 86, the absence of toilet facilities and police stations in rural Maharashtra was granted as a reason for a cooperative bank not appointing women at the taluka level. 89 C. B. Muthamma v. Union of India AIR 1979 SC 1868. 90 C. B. Muthamma v. Union of India AIR 1979 SC 1868.

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By definition, this has meant dismantling the possibilities for the emergence of a constitutional morality of non-discrimination, based especially on sex but also on other grounds. This is accomplished by applying principles of equality mechanically, situating the deliberation firmly within the patriarchal paradigm, resulting in conceptual contradictions in equality jurisprudence. There is a discursive and structural problem as well. Legal language in current usage, and legal reasoning — apart from the bare construction of the article or section itself, that is — singularly lack the felicity to speak to women’s life-worlds. It is not a language that women speak, if only for the sole reason that they do not physically inhabit the bench beyond a tokenistic presence, if at all. And to the extent that rights can only be expressed and realized through language and voice, the problem is fundamental and crippling.

CONCLUSION Viewed in this manner, the swings in non-discrimination jurisprudence where women are concerned cease to be unexpected. Ambedkar anticipated this difficulty clearly when he said: ‘Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it.’91 ‘Our people’ includes women and men, leaders and citizens, litigants, lawyers and judges alike.92 There are faint glimmers of hope. The guidelines on the issue of sexual harassment in the Visakha case were framed from the standpoint of the situation of a working-class dalit woman’s vulnerability vis-à-vis the dominant castes, the police, and the state/government. The purpose of the writ petition was to seek ‘the enforcement of fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of 91

B. R. Ambedkar, quoted in Naz Foundation v. Government of NCT of Delhi and Others 2009 (160) DLT 277, para. 79. 92 The Indian Supreme Court has one sitting woman judge. The total number of women judges in the Supreme Court in the past 59 years has been four. There is an abysmally low representation of women in the judiciary in different jurisdictions — the proportion declining as one moves from the district level, which reveals the highest figures, to the high courts (25 women out of a total of 514, i.e., 4.86 per cent) and then to the Supreme Court, which presents the lowest figures at 1. See National Alliance of Women (2006: 53–54).

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the prevailing climate in which the violation of these rights is not uncommon.’93 The significance of this decision lies in the judicial recognition of the notion of ‘hostile environments’ as obstructing women’s equal entry into employment — a notion that could be extended by courts to understand better the subjugation of women in patriarchal societies divided along multiple, intersecting lines of caste, class, religion, and gender, among other axes, not severally but in conjunction with each other. The first step in breaking the cycle of interpretive disaggregation and dissociation is to attempt to redefine sex and its contexts in radically new terms. In the recent Naz Foundation judgement, the Delhi High Court deliberated on the meaning of the word ‘sex’ in article 15(1). Does the term ‘sex’ refer to attribute (gender) or performance (sexual orientation)? Through a nuanced reading of ‘sex’ in article 15(1), the court held that ‘sexual orientation is a ground analogous to sex and discrimination on the basis of sexual orientation is not permitted by Article 15.’94 We could take this further. Article 15(1) of the constitution says: ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’ (emphases added). It is true, as Martha Nussbaum argues, that constitutional interpretation has in some instances driven a wedge between sex and gender through the use of the word ‘only’ (Nussbaum 2005: 180). However, it is necessary to re-examine this article and explore the possibility that the phrase ‘or any of them’ might have a meaning distinct from ‘only’. While in legal usage the word ‘only’ in this context denotes ‘solely’ (Garner 1987: 390), and this is the way it has been interpreted by courts in India, there is no discussion either in the constituent assembly or in case law on the concluding phrase of this clause, ‘or any of them’ (Rao 1968: 182–92). The word ‘or’ in legal usage means both ‘and’, and ‘or’ (Garner 1987: 394). Opening this clause out and re-examining its import points us in a different direction: namely, the state shall not discriminate solely on the listed grounds, and on any of the 93

Visakha and Ors v. State of Rajasthan and Ors 1997 (7) Supreme 323. Naz Foundation v. Government of NCT of Delhi and Others 2009 (160) DLT 277, para. 104. 94

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listed grounds — in the singular or the plural, and on grounds of any of the listed indices with factors that do not figure in this list — factors that allude to the larger context. The specific conjunction of sex with any other factors or listed grounds that are alleged to result in discrimination based on sex, then, must be examined by the court. In other words, the word ‘only’ need not drive a wedge between sex and gender if it is read harmoniously with ‘or any of them’, because this would open up the possibility of reading sex either alone or in conjunction with other factors drawn from the social context in which sex operates. These other factors may be religion, race, caste, language, place of birth (each of which combines with sex to produce specific forms of discrimination), or they may be the medium through which discrimination is transmitted (property, ‘conditions of service’, decorum, and modesty). On another track, in the matter of relationship, it is useful to recall draft article 42: The State shall endeavour to secure that marriage shall be based only on the mutual consent of both sexes and shall be maintained through mutual cooperation, with the equal rights of husband and wife as a basis. The State shall also recognize that motherhood has a special claim on its care and protection. (Rao 1968: 325)

This article, dropped from the final draft of the constitution without a debate, nevertheless encapsulates an important aspect of constitutional morality in respect of marriage and conjugality — a notional change — that needs to be resurrected in ways that inform judicial and popular discourse on these questions. Its significance lies in the fact that it has the potential to lift thinking out of the cycle of the reification and subjugation of women in which the discourse on heterosexual conjugality is trapped even today. In the final analysis, it is only radical constitutional interpretation rooted in constitutional morality, and strengthened by equal representation within the judiciary at all levels along all axes, that will open out rich possibilities for an intersectional jurisprudence on non-discrimination as the norm in India.

Chapter 11

Sexual Assault and the Right to Liberty ‘Violence’ straddles the lawful and unlawful, the legitimate and the ‘illegitimate’, domination and resistance, injustice and justice, order and chaos. It takes many forms — the violence of holocaust, war and peacekeeping on the one hand, and the violence of normal times on the other, including violence against sexual minorities, persons convicted of crime, political suspects, all persons who are not men, and down the scale of graded inequality in the caste system, to name a few instances. Within the violence of normal times, it is useful to delineate specific, overt practices of violence as well as the subterranean forms that are embodied in systematic practices of exclusion, through neglect, silence, non-recognition, or denial of access, targeted at particular classes. These practices embody the interlocking of violence with discrimination. This interlocking is also visible in overt forms of collective violence. This chapter explores the relation between discrimination and violence, that is, between article 15 and article 21 of the constitution. It does this by focusing on the issue of sexual assault against women that has confounded Indian courts since the late 1970s, when Rameeza and Mathura forced a re-examination of the jurisprudence on rape. It is hoped that, in the course of examining different cases and the trajectories of justice, the layered connections between discrimination based on sex and the derogation of women’s right to life and personal liberty will become evident. The specific cases discussed here point to the many ways in which aggravated assault against women intersects with different indices of discrimination, so that discrimination based on sex is also discrimination based on religion, caste, race or place of birth (in the case of adivasi women). The derogation of liberty and bodily

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integrity hinges not only on sex but on sex in combination with other factors. The chapter will map the complex journey of sexual assault against women through the corridors of the criminal justice system. It will first describe the early history of rape in colonial India. It then moves on to a discussion of the Muktadar Commission that enquired into the rape of Rameeza Bee in Hyderabad in 1978, underscoring the experience of a survivor of custodial violence in a sympathetic court. It will then examine the judicial discourse on rape between 1978 and 1995, and seek to understand the ways in which Bhanwari Devi, raped by men of dominant castes in rural Rajasthan, negotiated her way through justice systems. It describes also the trial court proceedings against Premananda, a ‘godman’, and his associates for keeping minor girls in custody and assaulting them over several years. It traces the shifts in the framing of the law that located rape within the fundamental right to life in 1995 and thereafter. The place of sexual assault in the larger field of collective violence and the (im)possibilities of legal redress are then explored. The concluding part of this chapter will draw together the critical issues that have figured in the legal discourse on rape and sexual assault in India. In visiting these signposts, the issue of sexual assault is plotted along two axes: the chronological axis and the axis of contextual plurality. To take up the latter first: a troubled relationship has existed historically between ‘community spaces’ and ‘courts’. Yet a consideration of community justice systems becomes indispensable to a consideration of justice, especially for women, if only because the rhetoric of community courts has been echoed in the courts of trial and appellate courts over the six decades since 1950. The experiences of women during partition, the assault on women in north-east India by the armed forces, the custodial rapes of Rameeza Bee and Mathura, the experience of Bhanwari, and the mass assaults on Muslim women in Gujarat in 2002 — all these events make it clear that the ‘patriarchal delegation’ (Sangari 2008: 6) that moves back and forth between family, community and public institutions results in the constantly reiterated reading of the woman’s body in predetermined, deeply ideological ways.

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These readings lock women into the categories of castes, communities, tribes, and classes, so that the woman never stands as a discrete individual who has been assaulted. She is always, to begin with, a repository of patriarchal values who, for that reason, has been (must be) brutally violated. This patriarchal delegation is embodied in the apparently disinterested field of medical jurisprudence, where the formulation of the problem of rape and the ‘scientific’ devices that form the basis of laws of evidence to try this offence — the two-finger test, for instance — only demonstrate further the patriarchal encoding of the female body. The medical doctor re-presents proprietary readings of the woman’s body that are authoritative because they come from the realm of science (P. Baxi 2005). Yet we know that biology has historically been used in the service of ideologies that justify dominance by relegating the social to the realm of the natural, which is then reined in by the science of biology (Terry and Urla 1995). The space of the court in which the rape trial is located exists in relation to the larger, more nebulous, yet determinate ‘community’ spaces for claims with respect to sexual access and violation — all legitimate claims, whether or not lawful. The alliance between courts and communities is articulated far more coherently and completely with respect to sexual violence than in other realms of life; courts tend to reinforce or mirror community regulation of sexual control through strategies of withdrawal and/or equivocation. There is a discursive kinship between court and community, which is also a structural kinship. This mutual interdependence in the constitution of the criminal justice system stands in stark contradiction to the mind/body dualism of the law, notably criminal law. The structure of panchayats, policing, courts, prison administration, and forensic science in India excludes women quite literally. Women are hardly represented in community/caste panchayats (Dhagamwar 2005); the representation of women among the judges of the Supreme Court has never been greater than one; less than 4 per cent of the elite police force consists of women; forensic science is no exception to this norm; and women officers figure only in prison facilities for women, if at all. The discursive formations that emerge from this structure are therefore

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not unexpectedly exclusionary, at best, with respect to women. The descriptions of assault and the contestation of women’s claims to justice against the derogation of bodily integrity by state actors and the judiciary slide easily into ‘pornographic vignettes’, to use Carol Smart’s startlingly appropriate phrase (cf. Lacey 1998: 114). In this context, there have been concerted struggles to reconstitute ‘courts’. From the period after the Emergency of 1975, India has, through a deliberative process, witnessed the opening out of the trial beyond the narrow confines of the courtroom. The Muktadar Commission of Enquiry, set up to investigate the custodial rape of Rameeza Bee and the torture and death in custody of Ahmed Hussain in Andhra Pradesh in 1979, marks the early history of this struggle for justice. The Citizens’ Tribunal that investigated the violence against Muslim people in Gujarat 23 years later, in 2002, is the most recent milestone. Between these two landmarks, there are the courts of law that have tried, convicted and acquitted persons accused of sexual assault, as well as statutory commissions like the National Human Rights Commission and the National Commission for Women that have intervened in specific episodes, straddling as it were the deliberative spaces of citizens’ tribunals and the formal domains of courts.

THE TROUBLE WITH CONSENT Clauses 359 and 360 of Macaulay’s draft of the Indian Penal Code spoke of the offence of rape: Clause 359: A man is said to commit rape who, except in the cases hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: First: Against her will. Second: Without her consent while she is insensible. Thirdly: With her consent when her consent has been obtained by putting her in fear of death or of hurt. Fourthly: With her consent when the man knows her consent is given because she believes that he is a different man to whom she is, or believes herself to be married.

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Fifthly: With or without her own consent when she is under nine years of age. Exception: Sexual intercourse by a man with his wife is in no case rape. (See Dhagamwar 1992: 112)

The offence of rape in its earliest colonial formulations, therefore, referred to the heterosexual, non-consensual intercourse of a man with a woman who was not his wife. The distinction between sexual assault and sexual intercourse in this formulation depended on the subjective position of the woman and her kinship with the man. If she was a wife, even an infant wife, the man had the prerogative of sexual access. If she was not a wife and was below 9 years of age, he did not have this prerogative if she had consented under deception, or threat of hurt. He did not have the right to sexual access if she was over 9 years old, was not a wife and did not consent. The notion of hurt, harm or violence in the claim to or enactment of sexual access was absent from this formulation. This conception of sexual offence absorbed existing ideologies of Brahminical patriarchy, which is evident, for instance, in the distinction colonial officers made between the sexual maturity (‘ripening’) of English women and Oriental women. Laws in England penalized sexual relations with women under the age of 12 irrespective of consent. But it was argued that this age bar should be dropped to 10 in India, and in the presidency towns to 8, because ‘in India . . . females come to maturity so early, [that] this doctrine must be received with considerable caution, and must always be a point to be determined by the discretion of the Court, or by a jury’ (Singha 2000: 139; see also Dhagamwar 1992: 112–13). Radhika Singha points out that, notwithstanding this equivocation in colonial law, a significant difference was introduced in the law as early as 1812 — the difference between marital infidelity as a ‘private wrong’, on the one hand (adultery), and sexual relations between unmarried persons on the other. Here, rape was a public offence and fornication bypassed by the law (Singha 2000: 123).1 1

Mohammedan law, specifically, clubbed these very different acts under the broad category of zina (fornication).

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The gradation of punishment for rape was derived not from the severity of assault, but from the logic of social hierarchy on which codes of honour were based. Rape was defined as a ‘heinous crime’, the criterion of which was penetration, and the consequence was the pollution of the vessels of family and community honour. The law commissioners defended Macaulay’s draft penal code of 1837, which allowed the judge to choose between two to 14 years’ imprisonment to punish rape: On the one hand . . . the chaste high caste female who would sacrifice her life to her honour, contaminated by the forcible embrace of a man of low caste, say a Chandala or a Pariah. On the other hand . . . the woman without character . . . who is wont to be easy of access. In the latter case . . . the offender ought to be punished; but surely the injury is infinitely less in this instance than in the former. (see Dhagamwar 1992: 115)

This was in response to the criticism of the draft by J. F. Thomas, a judge in the Madras Presidency: ‘If the act of forcible violation is fully established, I can perceive no ground, even if the woman is without character, for lessening the security of person.’ But then Judge Thomas went on to argue for an increased stringency of punishment, because women of caste would find death preferable to violation by low-caste men, a viewpoint reiterated by the law commissioners. In effect, therefore, the distinction that colonial law set out to make between private wrongs and public offences was dismantled even as it was articulated. According to Singha, in the early 1800s it was administrative commonsense that the honour of men, particularly among the respectable orders in India, depended upon the chaste reputation of their women. Stories about the ‘defiled’ woman herself demanding to be killed tended to be accepted as confirmation ‘of the anxiety which the natives of this Country feel, on points where female chastity is concerned, to preserve unsullied the reputation of their family’ (Singha 2000: 144). Clause 359 of the draft code was retained as section 375 of the Indian Penal Code in 1860, with one amendment. The exception read: ‘Sexual intercourse of a man with his own wife, the wife not being under ten years of age, is not rape.’ Through the 1870s, there were sporadic reports about the battering, often to death,

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of resistant child wives by irate adult husbands, who were let off with light sentences, if convicted at all. In 1890, Phulmonee, an 11-year-old girl who had not yet come of age, died after her 35-year-old husband raped her. She died after 13 hours of profuse bleeding: ‘I saw my daughter lying on the cot, weltering in blood’ (see Sarkar 2001: 226). The women of Phulmonee’s family testified in court that, since caste codes did not permit pre-menstrual cohabitation, the couple had been kept apart till on the night of her death, when her husband had stolen into Phulmonee’s room and forced himself on her. However, the English judge, Wilson, accepted the husband’s version that, as they had cohabited several times earlier, intercourse was not the cause of death. The charge of rape did not arise because Phulmonee was clearly over 10 years of age. In his words: ‘I think it is my duty to say that I think there exists hardly such solid and satisfactory ground as would make it safe to say that this man must have had knowledge that he was likely to cause the death of the girl. . . . You will, of course, in these, as in all matters, give the benefit of any doubt in favour of the prisoner.’ The weight of the concern is, very blatantly, on the exoneration of the man rather than on the fate of the woman. The law itself was shaped so as to preserve custom as well as the male right to the enjoyment of an infantile female body. (Ibid.: 211–12)

The jury consisted of six Hindus, two Europeans and one Muslim. The husband was found guilty of causing death in-advertently, by a rash and negligent act, and was sentenced to one year’s rigorous imprisonment.2 After Phulmonee’s death, 44 women doctors, as part of the reformist movement to raise the age of consent, brought out lists of child wives who had died or suffered grievous hurt consequent on rape. Several girls who had been raped by their husbands, and the mothers of such girls, testified in court despite taboos against women appearing in public. One girl testified: ‘I have not reached puberty. . . . My husband violated me against my will. . . . When 2

Queen Empress v. Hurree Mohan Mythee ILR 1891 Cal 49 (see Dhagamwar 1992).

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I cried out he kicked me in the abdomen. . . . He rebukes me and beats me. I cannot live with him.’ The magistrate discharged the elderly husband of this girl and she was restored to him, like so many others before and after him.3 A century later, in 1971, the Law Commission of India in its 42nd report recommended changes in section 375.4 In the intervening years, the minimum age in the exception to section 375 below which intercourse would constitute statutory rape, had been raised to 15 years. The issue of marital rape was critical to these discussions. The report recommended the removal of marital rape from section 375, and the inclusion of an explanation to the effect that a separated wife would not be deemed to be a wife under the section on rape. It recommended the gradation of the offence of rape by a husband of his wife under a new section. Punishments were severe for the rape of child wives below the age of 12; minimal where the wife was between 12 and 15. The most significant contribution of the 42nd report of the Law Commission was in the recognition and definition of ‘custodial rape’. Although the recommendations did not immediately result in amendments in the law, they anticipated tumultuous debates around the issue of custodial rape that followed later in the decade. The issue of marital rape had to wait longer. In the Lok Sabha debates in 1983, the issues of marital rape and child marriage were discussed at length, with most members resisting the criminalization of marital rape, even if it was child marital rape (P. Baxi 2000).

A DIFFERENT COURT: RAMEEZA BEE AND THE MUKTADAR COMMISSION Rameeza Bee was 18 years old when she was gang-raped by four policemen, and her husband beaten to death, in March 1978. There was public protest over the rape of Rameeza and the death of her husband Ahmed Hussain. The police treated the angry 3

Reported in the Bengalee, 25 July 1891. See Sarkar (2001: 238). For a detailed discussion of this report, and the 84th Report of the Law Commission of India, see Dhagamwar (1992).

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crowd as an unlawful assembly and opened fire indiscriminately, which resulted in further loss of life. After the firing, a commission of enquiry was set up, with a sitting judge of the AP High Court being appointed to constitute the one-man commission. The terms of reference of the commission were confined to the assault on Ahmed Hussain, the causes of his death, and the rape of Rameeza Bee. The government went out of its way to shield the accused policemen. The forensic experts were coopted, and the special branch intervened in the preparation of the postmortem report of Ahmed Hussain, which said that he had died of cardiac arrest. Justice Muktadar found the policemen guilty of the offences of rape, assault and murder, with a common intention to do all this. He recommended that they be prosecuted for these offences. An investigation was conducted and a charge-sheet filed. The accused then moved the Supreme Court on the plea that since a sitting judge of the AP High Court had constituted the one-man commission of enquiry, the trial court was likely to be biased in his favour. The matter was transferred to the court of the district judge of Raichur, Karnataka, who acquitted the policemen. The state concentrated its efforts during the proceedings of the commission in trying to effect a virtual erasure of Rameeza’s rape. Despite very strong support from a range of political parties and civil liberties groups and representation by eminent civil rights lawyers like K. G. Kannabiran, the proceedings aggravated the trauma caused to Rameeza by the rape and the loss of her husband. The testimonies against her in the commission and the defence of the accused policemen centred on the question of her involvement in prostitution; the legality of her marriage to the deceased Ahmed Hussain; and whether or not Ahmed Hussain was working as a pimp. The strategy of the defence was to foreground her character, her dishonesty and her ‘immoral vocation’. As a result, Rameeza, a survivor of brutal sexual assault, found herself repeating constantly that she did not know the procession of men who were being paraded before her: I knew some people of my village. I do not know who Jayaramulu is. I do not know who Murtuza is. I do not know dhobi Marereddi. It is incorrect

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to say that I have immoral connections with Jayaramulu and Murtuza. It is incorrect to say that I stole sarees from the house of dhobi Marereddi. I never used to go in the bus to different villages for agricultural labour. I did not see Atmakur village. I did not even go to Kurnool. I do not know Kurnool Balamma. It is incorrect to say that a bus conductor named Ahmed Hussain took me to the house of one Balamma in Kurnool in Minchi Street and kept me there. I do not know that Balamma carries on the profession of procuring girls.5

Queries about the rape were interspersed with queries about her knowledge of the validity of cultural practice; there were accusations of theft, suggestions of a wider community of belonging (the immoral community), and insinuations regarding the mobility associated with that immorality (the bus that took her to a procurer, the rickshaw that was her vehicle for soliciting, and so on). The discursive and indeed the political strategy achieved a disruption in the statement of the assault against Rameeza and Ahmed Hussain, with the constant movement back and forth blurring the boundaries between Rameeza’s alleged immorality and the rape. The second part of this strategy was to establish that the ‘immorality’ was not an individual attribute that Rameeza alone demonstrated. The consolidation of the ‘immoral community’ happens through the testimonies of Qutubuddin, who was contacted by the home minister; Anwar Hussain, a 32-year-old rickshawpuller, a ‘former pimp’; his 18-year-old wife Ghousia, a former prostitute; Razia, a 25-year-old ‘prostitute’, wife of Haneef Ali; and through the personal identification of Rameeza Bee by ‘former clients’ during the commission’s proceedings. While Anwar Hussain stopped pimping 15 days before he was required to depose before the commission, Ghousia stated that she had given up prostitution a month and a half earlier, i.e., around the time that Rameeza was raped. The people they were testifying about, however, continued to reside in the community. According to all three depositions, Malan Bee, Rameeza’s mother-in-law, regularly sent girls to Hyderabad from Nandikotkur, often through 5

Statement of Rameeza Bee before the Muktadar Commission. Cross-examination by Mr Suresh Babu, Advocate for Mr Surender Singh, Sub-inspector, Nallakunta P. S.

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Ahmed Hussain, Rameeza’s husband, who had died after being tortured in custody. Anwar Hussain had been in this trade for 14 years, since the age of 16. He knew Malan Bee’s brother Imam Saheb and his first wife Qasim Bee, Shah Peer and Saheb, Malan Bee’s other sons, and Ahmed Hussain. Ghousia, Malan Bee’s ‘daughter’, was Anwar Hussain’s wife. All these people, according to Anwar Hussain, were in the business of prostitution. How was this ‘business’ organized? In the course of his work, Anwar regularly dealt with the police. He often paid mamool (protection money) and was charge-sheeted only twice in 14 years — once during the Emergency when all pimps were arrested and charge-sheeted. According to him, the police charge-sheeted pimps when they refused to pay mamool. His net income was around ` 20 per client. He also did pairavi (wheeling and dealing or brokering) for women who were charge-sheeted, and earned some money through this. These cases usually ended in confessions, and rarely went up to court. Anwar Hussain asserted that he had come to depose before the commission of his own accord, after having been served the summons by the head constable of Nallakunta police station. Rameeza Bee, according to Anwar Hussain’s testimony, was brought to him first by Imam Saheb and Nabi Saheb. He engaged her twice, and gave the 150 rupees that he earned to Nabi Saheb. However, after the arrival of Ahmed Hussain on the scene, he did not engage Rameeza any more.6 Ghousia’s testimony, in contrast to that of Anwar Hussain, is marked by an equivocality and ambivalence about her own position and her work. According to her statement, Ghousia married Anwar Hussain, a pimp, six months prior to her appearance before the commission. A native of Nandikotkur, she was brought, she says, to Hyderabad by Malan Bee, along with Razia, also a sex worker. Although she did not know Rameeza Bee personally, she had seen Anwar Hussain engaging her twice (although a little later she says in her cross-examination that she did not know whether Rameeza had had any transactions with Anwar in the 6

Statement of Anwar Hussain before the Muktadar Commission. Cross-examination by Mr Bari, Advocate for Rameeza Bee, and cross-examination by the commission.

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past year). She also knew Lakshmi, Imam Saheb’s step-daughter, also a sex worker. After speaking about the fact that she had been charge-sheeted and that Anwar had sent her to clients over the past few months, she goes on to say: ‘Anwar told me to say . . . that I work as a prostitute through Anwar. . . . I have never slept with a man for money. . . . I do not like the profession of a prostitute.’7 Razia’s testimony is very similar to Ghousia’s. There are notes in parenthesis in her testimony that state that from her demeanour it is clear the witness has been tutored, and her story is much the same. Both Ghousia and Razia were asked to depose before the commission by Anwar, at the behest of the police. But the tutoring could not get her to take an unequivocal stand with regard to Rameeza’s invovement in prostitution. Also, like Ghousia, she said: ‘I have not slept with any other man before. I come from a respectable family. Other members of the family also lead a respectable life. With the idea of maintaining the respect of my family I do not indulge in these things.’8 Qutubuddin, the uncle of Ahmed Hussain’s first wife Shahzadi Bee, was a mason who was now selling fish and mango. Through Ali Saheb, panchayat board member, the transport minister asked Qutubuddin to furnish information about Rameeza’s antecedents before the commission. And what is the ‘information’ he procures? Rameeza Bee had married another person about two years ago. . . . I learnt that she was married a second time at Mandlam. . . . Why should I now say as to how many men Rameeza Bee got married to and with whom she had been living? I got to know that she got married to a man named Noor Ahmed. I personally do not know anything about the second marriage of Rameeza Bee with Noor Ahmed. It is all hearsay. I do not know whether Rameeza Bee got married to Ahmed Hussain. . . . The character of Rameeza Bee is wayward. I have only heard and did not see about the behaviour or bad character of Rameeza Bee. I heard that she was friendly with the son of one Sattar. And also she was friendly with Rahmatulla. I have not seen Rameeza Bee with these people at all.9

7

Statement of Ghousia before the Muktadar Commission. Cross-examination by the commission. Emphases added. 8 Statement of Razia before the Muktadar Commission. 9 Statement of Qutubuddin before the Muktadar Commission. Emphases added.

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In privileging hearsay over lived testimony, the two are collapsed together, whereby the reality of Rameeza’s experience of rape fades into Qutubuddin’s assertions of what he has heard but not seen. Finally, one of the most horrifying events of the enquiry itself was the sight of the burqa-clad Rameeza standing quietly, as one man after another entered the witness stand to swear that he had had sex with Rameeza on a certain day at a certain place after paying her 10 or 15 rupees. Rameeza would then be asked to lift the burqa to reveal her face, for the man (and for the packed, tense courtroom) to stare at before affirming that she was the same woman. All of these men, like Qutubuddin, had been mobilized by the police to testify in favour of the defence. This repeated public unveiling enabled a moral displacement of Rameeza and her reconfiguration as prostitute. Prostitutes should not veil themselves and must be open at all times to the public gaze.10 The moral displacement of Rameeza was tied to the moral displacement of the community she belonged to in complex and at times elliptical ways. Through Rameeza, the authoritative and gendered state drew the (Muslim) community into the discourse. The discourse of rape itself was mediated through the community (prostitution–Muslim). The deflection of the charges, from rape, illegal detention and murder, to prostitution, soliciting and pimping, inverted the proceedings so that the aggrieved survivor Rameeza could only resurrect herself after she had defended herself successfully against the charges of prostitution. From prostitution to marriage. Ghousia and Anwar Hussain had a marriage certificate to prove their marriage. Ahmed Hussain had gone through a nikah (Islamic matrimonial contract) with Shahzadi Bee. Imam Saheb had gone through a nikah with Qasim Bee. But Malan Bee did not take due care in the case of Ahmed Hussain’s marriage to Rameeza Bee. 10

According to Middle Assyrian Law, ‘he who has seen a harlot veiled must arrest her, produce witnesses (and) bring her to the palace tribunal; they shall not take her jewelry away (but) the one who arrested her may take her clothing; they shall flog her fifty (times) with staves (and) pour pitch on her head.’ Further, ‘if a seignior has seen a harlot veiled and has let (her) go without bringing her to the palace tribunal they shall flog that seignior fifty (times) with staves; they shall pierce his ears, thread (them) with a cord, (and) tie (it) at his back, (and) he shall do the work of the king for one full month’ (Lerner 1986: 135–36).

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I know that according to the principles of Islam a marriage cannot take place unless the Nikha is performed. At my marriage, Nikha was performed. No Nikha was performed at the marriage of Rameeza Bee to Ahmed Hussain, but before four respectable persons, garlands were exchanged and betels distributed. I know that in Islam the relationship between a man and a woman without the performance of a Nikha is illegal. I do not know whether my brother Imam Saheb is keeping Sambakka without performing any Nikha with her.11

Malan Bee was therefore made to concede not just the illegality of her son’s marriage to Rameeza, but also the fact of her brother’s illegal union with a non-Muslim. What was accomplished in the process was an erasure of the family, both for Rameeza, who had been raped, and for Malan Bee, whose son had been killed and daughter-in-law raped. The denial of a legitimate family to Rameeza served as a demonstration of the absence or lack of legitimacy of this ‘natural’ social unit of the community. The gendering and subordination of the community was effected by the demonstration of the lack of status/‘chastity’ of its women, as well as by pointing to the desecration of ‘holy places’ by its men. Ahmed Hussain was ‘answering the call of nature’ when Rameeza was taken away and raped by the policemen. The argument of the defence was that Rameeza was arrested for indecent exposure and ‘soliciting’. And, again, the facts of Rameeza’s rape, her husband’s death, and the public outrage, all became immaterial when confronted by the accusation of ‘soliciting’. The place where Rameeza’s rickshaw was parked was next to a graveyard. I did not tell Mr. Bari that my husband went into a graveyard for purposes of answering the call of nature. Where my rickshaw was standing I saw a graveyard. . . . I do not know whether Muslims respect Muslim graveyards or not. I do not know also whether the Muslims put flowers on the graves and whether they perform fateha and I do not know that Muslims consider as a bad thing in desecrating the grave yards by answering calls of nature or urine there.12

11

Statement by Malan Bee before the Muktadar Commission. Cross-examination by Mr Mamanram Sharma. 12 Statement of Rameeza Bee before the Muktadar Commission.

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Interestingly, in addressing the issue of Ahmed Hussain’s death in police custody, the strategy for the defence centred around appropriating the space of the graveyard (by defining what was legitimate behaviour or not within its precincts), naming it (as holy, as a space that cannot be desecrated) and investing it with the codes of sacredness and defilement that form the core of Brahminical Hinduism. Yet, even this construction of the sacredness of the graveyard runs contrary to Hindu conceptions of the burial/cremation ground as essentially spaces of defilement and maleficence. Finally, there was a blurring of the individual with the community, whereby Ahmed Hussain’s act of urinating in the graveyard epitomized the habitual absence of respect for sacrosanct spaces among Muslims in general. This location of Muslims within sacred space and time was not a simple, linear process. Syed Murtuza Hussain, one of the policemen accused of raping Rameeza, recounts the time when he apprehended Rameeza: While going to the [police station with Rameeza] I observed the Vidyanagar Mosque. At that time I heard the mouzzan call the good Muslims to prayer. By saying that prayers are better than sleep. This call to prayer was for the morning prayers. It was about 5.15 when I heard the Mouzzan calling for prayers.13

The call to prayer marks the moment of prostitution, rape and defecation in the graveyard. The religio-cultural space of the community was appropriated and constructed in terms of what was recognized from the outside as the essence of the culture of that community, its naming as necessarily ‘other’. Small, apparently inane questions were used to frame the discourse in larger nationalist terms, setting up constant, minute, yet eloquent oppositions between Hindu and Muslim, legitimate and immoral, right and wrong, fact and hearsay. No remnant of a ‘family imagery’ was left in place, and there was an erasure of class in the entire discourse: the disentitlements and discrimination suffered by men and women of the working classes were violently overwritten by distorted constructions of the community. 13

Statement of Syed Murtuza Hussain before the Muktadar Commission.

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Shahzadi Bee, Ahmed Hussain’s first wife, foregrounded the imperatives of class and survival in her testimony. Her older daughter had died a few days after Ahmed Hussain’s death, and she had a three-week-old baby in her arms while she was in the witness box. Her deposition did not conform to any predetermined script. While she was unaware of Ahmed Hussain’s second marriage to Rameeza, she resisted any suggestion that either her husband or mother-in-law were involved in prostitution.14 My husband was a mason. While working as a mason, he started the business of selling stones. My husband was never acting as a pimp or indulging in immoral traffic. My mother in law was earning as a midwife in Nandikotkur. I came to know of my husband’s death through Qutubuddin. Qutubuddin also told me that the government is giving a compensation of Rs. 2000/-. A policeman had also come to my house. Qutubuddin brought me to Hyderabad for filing the petition. . . . I do not know what language the petition is in. I do not know what is written in the petition. I also did not say anything about Rameeza Bee. If she says she does not lay claim to the compensation given by the government, but I am entitled to the compensation, I am quite happy. . . . They brought me here representing that they will get me Rs. 2000/-.15

The moral family can exist only in juxtaposition to the immoral community.16 The sex workers who deposed before the commission were women who earned 30 rupees for a whole night’s work, women who circulated in the streets of the city at night in search of survival; women and men who depended on the patronage of the state, both as customer (‘passenger’ in Hyderabadi) and protector. The state, in calling Muslim sex workers and pimps to speak on its behalf, and in asserting that Rameeza and her entire family were engaged in prostitution, was in fact setting up a political 14

Statement of Shahzadi Bee before the Muktadar Commission. A parenthetical remark says: ‘The witness appears to be a simple straightforward rustic lady.’ 15 Statement of Shahzadi Bee before the Muktadar Commission. 16 A commissioner of police in Hyderabad, a Hindu Brahmin, commented in the early 1990s that the reason why he used force against prostitutes was to protect the chastity of housewives. He was enraged when it was suggested in the presence of prostitutes who had been locked out of their homes that he should consider restraining the husbands instead. This was at a meeting between this author, four sex workers and the then Commissioner of Police Mr R. Prabhakar Rao, to register a protest against police harassment of sex workers in the old city.

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economy of the community as immoral. Significant to the present argument is the fact that the key players ‘within the state’ were also Muslim.17 At the same time, this very project of constituting the immoral community subverted the moral position of the state, since what emerged quite clearly through the testimonies was that this immorality was created and sustained by the same state.18 What is interesting and politically significant is the impact of this manoeuvre by the state. For the Majlis Ittehadul Muslimeen, for Justice Muktadar, and for other upper-class and middle-class educated Muslim men like him, Rameeza soon came to epitomize the plight of their community. Ironically, therefore, by the end of the entire process, there was a convergence in the representation of the issue between both sides, resulting in the forging of a cultural kinship, with resonances that were diametrically opposed. For the state, Rameeza encapsulated within her body the ‘immorality’ and ‘blasphemous character’ of the Muslim community, a ‘fact’ corroborated by other, similar members of her community. For her people, on the other hand, she encapsulated the trials and tribulations of a community fighting to survive with dignity and integrity. This did not alter the painful impact of the rape on Rameeza. It merely demonstrated that the state might deploy a range of strategies to undermine a woman’s claims to citizenship with tragic consequences for the woman, her family or her community. More importantly, it demonstrated the ways in which the criminal justice system is underwritten by codes of cultural hegemony and patriarchal delegation that disable any possibility of an active engagement by women with systems of justice, and that bind communal ideologies prevailing without to procedural realities within the system. In September 1978, six months after the assault on Rameeza Bee, the Supreme Court delivered its judgement in Tukaram v. State of Maharashtra.19 It acquitted policemen charged with raping 17

The home minister, who personally contacted people in Rameeza’s home-town and in Hyderabad to depose against Rameeza, was a Muslim — M. M. Hashim. 18 All the witnesses produced by the police deposed that they paid mamool to the police on a per-client basis. 19 Tukaram v. State of Maharashtra (1979) 2 SCC 143.

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a 16-year-old adivasi girl, Mathura, in a police station in March 1972. The rhetoric of the trial court and the Supreme Court echoed that of the defence in the Rameeza case, provoking widespread protest and demands for reform in rape laws.20

THE TONGUES OF JUSTICE The experiences of Rameeza Bee and Mathura demonstrated the discursive and, indeed, the conceptual limitations of criminal justice systems that also constitute the common ground between formal and non-state legal systems, so that victim–survivors of rape are confronted with patriarchal, communitarian discourses both in their communities and in courts alike. The 84th report of the Law Commission, submitted in 1980, increased the age below which sexual intercourse would be statutory rape, to 18 years, consistent with the minimum age of marriage. It retained the exception to marital rape, excluded the judicially separated wife from the meaning of wife, retained the recommendations of the 42nd report on custodial rape, and recommended wide-ranging changes in the criminal procedure code (Dhagamwar 1992). In August 1980, the government introduced the Criminal Law (Amendment) Bill, 1980, which included the recommendations of the Law Commission only partially. This was followed by the setting up of a joint parliamentary committee, which, after 44 sittings, presented its report to the Lok Sabha in November 1982. While the amendments were more or less in tune with what women’s groups had demanded, the debates in the Lok Sabha that led to the enactment remained trapped in the very dichotomies that had choked out any space for the restoration of women who had been assaulted: ‘A rape victim is practically given the same status as a prostitute. She bears a stigma in the eyes of the society. She has to hide herself. She cannot openly say what’s happened to her. She 20 An Open Letter to the Chief Justice of India (1979) 4 SCC 17-22. Letter written by Professors Upendra Baxi, Vasudha Dhagamwar, Raghunath Kelkar, and Lotika Sarkar. For an analysis of the use of custodial rape against women who married by choice, like Mathura, and the use of accusations of rape and abduction against consenting adults, see, Baxi et al. (2006).

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has to make a complaint surreptitiously.’21 In the words of another member, Once a lady is raped, not only is she not acceptable by society, but also she is not acceptable by the parents, and instead of helping the lady everybody wants to take undue advantage for which she is not liable or she is not to be blamed and ultimately she has to live a life of a prostitute.22

Framed in this way, within the dichotomy of chastity/lack (loss) of virtue, most parliamentarians believed that a woman’s character was material to the assessment of evidence. Women parliamentarians (two, in this case) who advocated the removal of sexual history and the inclusion of power rape — rape using economic domination — did not find any support. It was necessary, the parliament felt, to expose immoral women and protect respectable men (P. Baxi 2000). The courts spoke in startlingly similar tongues before and after the laws had changed. Several instances exist in which the trial court decisions quoted in the Supreme Court judgement are completely at odds with the decision of the apex court. Yet, the discourse is framed within the same parameters, legitimizing the culture of rape while penalizing/condoning specific instances of rape. A characteristic of judicial discourse on rape is the tendency to periphrasis. Silver constructs, very usefully for us, a definition of periphrasis, which is simply ‘the use of many words where one or a few would do’ [but] has a more devious side. Rooted in the Greek ‘to speak around’, described variously as ‘a figure that simultaneously “under-and-over-specifies”’, or ‘the use of a negative, passive, or inverted construction in place of a positive, active or normal construction’, the circumlocution associated with periphrasis begins to suggest a refusal to name its subject that emphasises the fact of its elision. (Silver 1991: 114)

She goes on to suggest that it is a figure that could be motivated in its usage, thus providing the association between periphrasis, 21 22

Amal Datta, 1983: 421, Lok Sabha Debates, 21 November; see P. Baxi (2000). Nusrul Islam 1983: 393, Lok Sabha Debates, 1 December; see P. Baxi (2000).

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power and rape (ibid.: 114). Consistently, in cases of rape, the linguistic strategy (which is also deeply political) adopted by the judiciary has been the refusal to name the offence. Very often, there is a clinical description of the prosecution’s charge at the beginning of the judgement. Subsequently, the judge is, almost without exception, reluctant to use the word ‘rape’ to describe the act. Rape is represented discursively as an expression of the ‘lascivious propensities of man’, of ‘overpowering moods’, ‘voluptuousness’, ‘erotic impulses’, and ‘lust-ridden acts’, where bestiality defines not rape but lust. Such representations normalize violence in sexual conduct and reify the girl–woman, ‘the little belle’, in a context structured by discrimination and exclusion. Further, this discourse does not take place only in the ‘privacy’ of the courtroom, but is part of and derived from a larger social construction of power, which is predicated on the aggressiveness of the male and the passivity of the female: What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication.23

The ‘inherent bashfulness of women’ is a notion that is reiterated in the Supreme Court over several decades. In 1967, Madholkar and Bachawat deliberated on whether a female child of 7 and a half years could be said to be possessed of ‘modesty’ that could be ‘outraged’. While holding that any act done in the presence of women that is suggestive of sex according to the ‘common notions of mankind’ must come within the mischief of the relevant section in the IPC, Bachawat further observed that ‘the essence of woman’s modesty is her sex and from her very birth she possesses the modesty which is the attribute of her sex.’24 23 Krishna Iyer in Krishan Lal, Petitioner, v. State of Haryana, Respondent 1980 3 SCC 1959; emphasis added. This statement is repeated in State of Maharashtra and Stree Atyachar Virodhi Parishad v. Chandraprakash Kewalchand Jain 1990 AIR (SC) 658; State of Punjab, Appellant, v. Gurmit Singh and Others, Respondents 1996 AIR (SC) 1393; and State of HP v. Lekh Raj and Another 1999 AIR (SC) 3916. 24 State of Punjab v. Major Singh AIR 1967 SC 63.

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The notions of masculinity and femininity carry connotations of power; very often, however, especially in cases of custodial rape, this power is enhanced by the actual and absolute possession of female bodies. The representation of rape as ‘lascivious behaviour’, ‘passion’, and ‘lewd, immoral’ thought/behaviour sets up the pornographic voyeurism that builds the ground for an ideological condonation of rape. It seems that the accused was lustridden and seeing the prosecutrix alone lost control over himself and took her by force. There is nothing surprising in the conduct of a man who is lust-ridden in behaving in a carefree manner trying to make most of the situation of the prosecutrix being alone and helpless. The prosecutrix cried for help and struggled with the accused to save her honour.25

When the act of rape is described as a violent attack on a delicate deer by a wolf, the subtext articulates rape as aggression, and aggression as the defining trait of the species being of man, woman belonging to an altogether different species.26 The result is no more merely an ideological condonation of rape, but a reiteration of rape as the normal conduct of a man as distinct from lust-ridden conduct — a critical validation of a rape culture. Ironically, this happens in the courtroom. The observation that rape is an ‘adolescent exercise’, and that boys of 14 to 16 years of age experience ‘simmering sexual urges’, reinforces the argument that rape and rapability are central to the construction of gender identity in the Indian context.27 What is even more disconcerting, however, is the manner in which the ordinary norms of public discourse in an extremely conservative patriarchal setting are set aside completely in a rape trial. In a particularly disturbing case, the repeated, unsuccessful attempts of the accused to penetrate are discussed in great detail. After the entire re-enactment, and 25

State of Rajasthan v. Shri Narayan (1992) 3 SCC 615; emphases added. Justice J. N. Bhatt in Taufik Ahmed Fauzdar Khan Ansari and Etc., Appellants, v. State of Gujarat, Respondent 1999 Criminal Law Journal 1714. 27 Higgins and Silver (1991) argue this point in the American context. 26

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the active participation of the court in the re-enactment through a willing voyeurism, the court then donned its patriarchal mantle and decreed that there had in fact been no rape, because the rapist did not succeed in penetrating deep enough.28 How deep is deep enough? Ironically, the failure to penetrate on the part of the rapist, his lack of ‘manhood’, is then forgiven as only an attempt to rape. The force, the gagging, the violence, are all wiped out by the failure to penetrate, which alone would place at risk or violate the ‘modesty’ of the woman. The climax is in fact an anti-climax. An opportunity lost. Where is the woman in this entire narrative? Since rape has more to do with collective honour than with individual bodies, legitimate kinship is central to the discourse on rape. The judgement in the case of the rape of Pramila Kumari Rout, for instance, uses as its point of departure the facts of ‘concubinage’ and ‘illicit intimacy’.29 The logic of a rhetorical position on rape, in this case particularly, proceeds on the patriarchal assumption that, having violated the sanctity of matrimony, Pramila Kumari can lay no claim to the integrity/sanctity of her person. Any violation of her body is not really a violation, because she is a woman who knows, and, in knowing, women make the ultimate transgression. Similarly, when a woman is raped, her decision to report the rape is neither spontaneous nor independent, but depends on the family and involves her morality. ‘Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of married woman.’30 In an atmosphere dense with the pervasiveness and constant possibility of sexual assault, judges, when confronted with the reality of rape, a reality that cannot be reined in even by kinship, are disbelieving of the possibility of a woman being raped by a relative: ‘the learned Judge thought it inconceivable that a man would 28

Madan Lal, Appellant, v. State of J&K, Respondent 1998 AIR (SC) 386. Pratap Misra and Others, Appellants, v. State of Orissa, Respondent 1977 AIR (SC) 1307. 30 Justice A. M. Ahmadi in State of Rajasthan v. Shri Narayan (1992) 3 SCC 615 at para. 6, p. 623; emphases added. 29

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come to commit rape with a lady who is his sister-in-law’s sisterin-law after about 6 years without any rhyme and reason and that too in daytime.’31 Or, such an act of barbarity would be unthinkable and counter to the social order for a brother to do it on his sister-in-law. We too agree that if A-2 had done those acts attributed to him then it would have been woeful and despicable of a human conduct.32

The sister-in-law in this case was something of a burden, because not only did she not bring in enough dowry, she was also poisoning the relationship between the brothers. Granting this fear on the brother’s part, the High Court felt that: Even if there was some reason for A-2 to end the life of the deceased with a view to secure peaceful life for his brother, certainly he would not have resorted to the most inhuman method of committing rape on his own brother’s wife that too, along with two of his servant (sic). 33

This only emphasizes the perception that a woman who has ‘known’ sex is by definition not rapable. The legitimacy or illegitimacy of her sexual relations simply underscores the irrationality or impossibility of the crime. The impossibility of rape is epitomized in conjugal sex: ‘Her husband was with her during the intervening period of two days and therefore, it cannot be ruled out that all these injuries have been received by her while cohabiting with her husband.’34 However, when a man rapes a blood relation, particularly a child, there is a shift in the perception of the assault: the alleged sexual assault followed by brutal and merciless murder by the . . . paternal uncle of the deceased victim . . . age . . . 7 years . . . sends 31

Observation of High Court Judge Justice Jasraj Chopra, quoted in the Supreme Court judgement, State of Rajasthan v. Shri Narayan (1992) 3 SCC 615, at para. 3, p. 619. 32 State of TN, Appellant, v. Suresh and Another, Respondents 1998 AIR (SC) 1044; emphases added. 33 State of TN, Appellant, v. Suresh and Another, Respondents 1998 AIR (SC) 1044; emphasis added. 34 Observation by Justice Jasraj Chopra, quoted in the Supreme Court judgement, State of Rajasthan v. Shri Narayan (1992) 3 SCC 615 ar para. 3, p. 620; emphasis added.

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shocking waves not only to the judicial conscience but to everyone having slightest sense of human values and particularly to the blood relations and the society at large.35

The ambivalence in the stand on the rape of a relation by marriage, and the contrasting unequivocality of the stand on a blood relation, must be viewed in the larger cultural context of a clear separation of interests between the two sets of kin. These are interests that not only do not converge but, more importantly, often conflict with each other. Having raped a kinswoman, should the family tie constitute the mitigating factor in sentencing? Rape is violation, with violence, of the private person of a woman — an outrage by all canons. . . . the fact remains that the two families being close cousins are ready to take a lenient view of the situation. Of course, this does not bind the Court in any manner. Therefore, taking an overall view of the familial and the criminal factors involved, we reduce the imprisonment from 4 years to 2 years’ R.I.36

This, then, is a logical corollary of the exception in the definition of rape, which says that sexual intercourse between a man and his wife who is not a minor is not rape, and suggests that rape within kinship is a lesser crime, because what is at stake at both ends is the honour of the same family. The rhetorical devices used by the courts up to this point bear a startling resemblance to caste panchayats, where women are but ‘dumb animals’ who ‘must be tied to the rightful owner’s post’ (Dhagamwar 2005: 50). Developments in the law and the principles of interpretation have recognized the difficulties of corroboration in cases of rape, the presumption about the absence of consent,37 and past sexual history. Despite these developments, the discursive frameworks continued to exclude the realities of women’s experiences till the middle of the 1990s. 35 Justice Faizanuddin in Laxman Naik, Appellant, v. State of Orissa, Respondent 1995 AIR (SC) 1387; emphasis added 36 Justice Krishna Iyer in Phul Singh, Appellant, v. State of Haryana, Respondent 1980 AIR (SC) 249. What is at issue here is not the reduction of the sentence, but the rationalization of that reduction. 37 Section 114A of the Indian Evidence Act.

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BHANWARI DEVI: VIOLENCE AND RESTORATION In 1984, the Women’s Development Programme (WDP) was set up in Rajasthan by the Government of India with the primary objective of empowering rural women to play an active role in development. Bhanwari, from village Bhateri, was recruited as a saathin (a community worker) in the programme in 1985. The programme took up issues related to local government, land, water, the public distribution system, minimum wages, health, literacy, and child marriage — all issues relevant to the area and immediately relevant to the lives of the saathins themselves. Child marriage, for instance, was discussed for the first time in Bhateri as part of the programme in 1986. Bhanwari and the other saathins had married their daughters off before they had attained puberty, prior to joining the programme. Discussing this issue and mobilizing around it as part of the programme led to an agreement among the saathins to postpone the gauna (post-pubertal ritual signalling cohabitation) of their daughters. Bhanwari began to educate her daughter and, by 1989, she had established her presence as a fearless and dynamic activist. She was also now a full-time trainer in the WDP. In 1992, seven years after Bhanwari had joined the programme, the government decided to observe an anti–child marriage fort-night between April and May. Rather than be a part of a meaningless, ritual protest, Bhanwari set about identifying families that were planning to marry off their young daughters during Akha Teej. Ram Karan Gujar, a ward panch with a 1-year-old daughter, was the first person Bhanwari approached. Despite facing hostility from the village elders, Bhanwari persisted, with senior programme and police officers following up and actively preventing the marriage. Tension mounted in Bhateri, with the men of the village (including Bhanwari’s father-in-law) assaulting and abusing Bhanwari and her husband in retaliation for the police action. Bhanwari was acutely aware of the gravity of her situation, and at-tempted to resolve the tension internally in the village rather than lodge a complaint with the police. Although the attempts to ease the situation were unsuccessful, a disturbed peace prevailed

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between June and September that year. On 22 September, Bhanwari’s husband Mohan was physically assaulted and Bhanwari sexually assaulted in the fields while at work. She identified Gyarsa Gujar and Badri Gujar as the men responsible for assaulting her. It was clear that the parties in the village had two positions on the issue of child marriage. While they campaigned for its abolition, they continued to perform marriages in their homes. This was true even of Badri Gujar, one of the accused.38 Bhanwari’s attempt to reconcile rhetoric with practice threw the society into a crisis. Clearly for Bhanwari, the problem of child marriage was not one of dichotomized conflict, but a dilemma fraught with contradictions and multiple perspectives, something she recognized because of her own belated awareness of the ‘problem’. The solution therefore lay in persuasion, which would no doubt create anger and tension, but could be resolved with further persuasion. Spread out as the problem was — not confined to a single caste, not a problem precipitated by men alone, but one that adult women participated in as well — the solution, it would appear, lay in ‘“imaginative integrations and reconciliations”, which require attention to particular context’ (Bartlett 1990: 829). The context is clearly understood as the context of politics with all its complexity: ‘The saathins prefer to work through persuation (sic) and are against any police action because it makes people hostile and impedes the saathins’ work.’39 People’s unwillingness, their anger, their dishonesty even, would present solutions in the ultimate analysis, because new situations are generative and enable practical perceptions (ibid.). Intervening in this situation with the brutal might of the state, and attempting to handle a problem like child marriage through police action, disintegrates and disables a carefully crafted political programme that might hold possibilities that are not immediately visible. For instance, it was, after all, possible for Bhanwari to decide not to perform her daughter’s gauna, and to educate her instead. It was also possible for her to actually take up a case of 38

Report of the meeting (jajam) in Bhateri on 22 June. ‘Bhateri Gang Rape: Dateline’, Archives of Jagori, Delhi, n.d. 39 Letter to the home minister signed by women’s organizations from all over the country, dated 4 November 1992. Archives of Jagori.

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rape in her village early on in her work as a saathin. Even after the police action, Bhanwari focused on a line of reasoning that was particular to the situation she was in. She refrained from registering an FIR when she and her husband were harassed, in the hope that her restraint would retrieve the situation somewhat in her favour.40 What she had not anticipated was that the moment the contentious politics of masculinity and power came into play in battles between states and communities, the use of police force on communities would be met with the policing of women by communities, rape constituting an instrument of policing in this instance. This was not the first time that women became victims in the battles between states and communities. Further, the state action fused communities together with a common purpose, in a context that was otherwise bitterly divided along lines of caste. As early as June 1992, three months before Bhanwari was assaulted, her father-in-law called a Kumhar jati panchayat, which excommunicated her.41 Clearly, while the state initiated action, even elected representatives (MLAs) condemned the action and demonstrated support for the Gujars. There was, in other words, a very complex configuration of power and politics at work in this context, which is immediately relevant to the central argument of this chapter, viz., that rape, even while it is a discrete assault on an individual woman, aims at disempowering and dispossessing her in ways that extend far beyond her body and person. When Bhanwari was assaulted, the drama was played out to its logical end. Nobody in the village was willing to support her. The police were not willing to register her complaint, and, ironically, the very officer who had led the police action as a ‘follow up’ to Bhanwari’s work even asked her if she knew the meaning of ‘rape’. Doctors were not available in primary health centres (PHCs), but Bhanwari knew that she must not change her clothes and must go through the steps necessary for her to see her case through the court, regardless of the trauma of the assault. She thus achieved a 40 41

‘Bhateri Gang Rape: Dateline’, p. 3. From the archives of Jagori, Delhi, n.d. ‘Bhateri Gang Rape: Dateline’, p. 3. From the archives of Jagori, Delhi, n.d.

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fusion of reason and emotion, even at the most difficult of times. Bhanwari was able to get a medical examination only 47 hours after she was assaulted, because she had no immediate access to people who could support her — her co-workers in the campaign were scattered in different villages, and her husband was himself a victim of assault. The immediate convergence of interests between community, police, judiciary, the state-run medical services, and the executive cannot be understated as ‘negligence’.42 It is necessary to unpack this convergence and the complicity that characterized the sexual assault — both its perpetration and the guarantee of impunity that marked Bhanwari’s journey from Bhateri to Jaipur over four days. This journey ended in her having to deposit the skirt she was wearing at the Bassi police station as evidence, and then walking 3 kilometres to a saathin’s village draped in her husband’s chadar (blanket). One month after Bhanwari was raped, no action had yet been initiated against those accused of the assault. The saathins got together at a public meeting to speak out, not just in solidarity with Bhanwari, but about their own experiences of assault that were till then not public. Manju spoke of being raped and how other saathins helped her to get justice through the panchayat. Gendi spoke about how a man pulled off his pants in front of her in the fields. Her reaction was to drag him to her husband.43 Not only was it then possible in the saathins’ villages to speak about issues like rape, as Bhanwari had done in 1987, and to work with families around issues of child marriage as she had done in her daughter’s case; it was also possible to push the panchayat — a patriarchal body — to deliver speedy justice in a case of rape, and to confront sexual harassment in a manner unimaginable in the more enlightened metropolises. The point to note is not that violence against women is a common experience. Violence is our context. What was the source of hostility in the environment in this case? Bhanwari challenged 42

The letter to the home minister dated 4 November 1992, signed by women’s organizations from all over the country says, for instance: ‘Government doctors, magistrate and other officials were all negligent.’ Archives of Jagori, Delhi. 43 ‘Nyay Karo Ya Jail Bharo: Saathins Break the Silence’, Archives of Jagori, n.d.

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both community and state through her persistence and effectiveness. The anger of communities against the state was deflected onto Bhanwari, while the anger of the state at the effectiveness of a working-class, dalit woman’s activism that surpassed its own practice of linear politics was also trained on Bhanwari. She was thus hedged in on two sides, leaving her completely vulnerable. This returns us to our earlier question whether a campaign against child marriage can in fact be a job description and what the pitfalls of that construction might be in the larger context of a convergence of patriarchies between state and non-state actors — in this case, state and non-state legal systems. Take the trial court decision in this case: Indian culture has not fallen to such low depths that someone who is brought up in it, an innocent, rustic man, will turn into a man of evil conduct who disregards caste and age differences — and becomes animal enough to a assault a woman. How can persons of 40 and 60 years of age commit rape while someone who is seventy years old watches by; particularly in the light of Bhanwri Devi’s acceptance that one of the rapists is a respected man in the village. The court believes that the assertion of the prosecution that Gyarsa, 60 years, Badri, 40 years, committed rape in front of the 70 year old Shravan and 59 year old Ramkaran is not to be believed, especially given that neither the medical report nor the FSL report corroborates this rape. To the contrary, according to the medical report there were no injuries on Bhanwri Devi’s private parts. According to the FSL report, the semen stains on the ghaghra and in the vaginal smear belonged to group ‘AS’, although neither of the accused belongs to that group. In our view, the prosecution, keeping in mind the above circumstances, has not proved its case rationally and beyond doubt that Gyarsa, 60 and Badri, 40 raped Bhanwri Devi while Ramsukh and Shravan, Brahmin and therefore of a different caste from the other accused looked on. The accused Gyarsa and Badri are acquitted of all charges under Section 376 IPC and the accused Ramkaran, Ramsukh and Shravan are acquitted of the charges Section 376/34 IPC. Owing to inconclusive evidence, the accused are given benefit of doubt on the above counts.44

The existence of multiple systems of redress, while disabling women’s entitlements for the most part as Dhagamwar (2005) has demonstrated so powerfully, proved in Bhanwari’s case to be 44

Excerpt from the trial court judgement in the case of Bhanwari Devi.

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a space for restorative justice The trajectory of practical reasoning opens out spaces for negotiation within the particular contexts where women live and work. While the antagonism can take the form of extreme violence against women activists, Bhanwari made the difficult choice of returning to Bhateri and renegotiating her position there by calling a jati panchayat in 1993. There was hostility, of course (her father-in-law claimed she had pushed him into a well); there was suspicion (she had just received ` 10,000 as compensation from the Prime Minister’s Relief Fund), and there was isolation (she had had no social contact with anybody in the village) (Misra et al. 1993). Yet, she called a panchayat, not to demand justice because she had been sexually assaulted, but to restore herself in some way to her own context with dignity. Since that context was specific and one of which she alone was part, she was clear that she did not want any members of the support group that had backed her to be present at that meeting. In February 1995, Bhanwari, along with 12 women from Prempura and Bhateri, decided to participate in the meeting of the newly elected Bhateri panchayat, which consisted of five villages including Bhateri. Among those elected were four women — one scheduled caste, one scheduled tribe, and two Brahmin. To her surprise, the newly elected sarpanch Ramji Lal Ballai, an educated, scheduled caste man, garlanded Bhanwari, calling her the mukhiya sadasya (first member/first citizen) of the village, and she was offered two packets of snacks. The main item on the agenda of the panchayat meeting was the moving of the liquor compound out of the area, something the sarpanch said could be done easily if women petitioned the panchayat, since women suffered most from the drunkenness of husbands.45 Bhanwari had succeeded in her mission. She reported feeling welcome at the meeting and was happy at the outcome. It is true that the neighbouring Bassi panchayat around the same time honoured the men accused of assaulting Bhanwari, and launched a virulent attack on Bhanwari and the groups that supported her. Yet the fact that Bhanwari has 45

Kavita Srivastava, report of meeting of Bhateri panchayat held on 21 February 1995, as told by Bhanwari. Archives of Jagori.

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been able to renegotiate for her space and dignity within Bhateri points to possibilities for restoration that are located outside the patriarchal discourses of honour and chastity that constrain deliberations on justice for women survivors of sexual assault. It is not my intention here to present an uncritical eulogy of caste panchayats, nor to suggest that panchayats can completely replace courts in redressing violation. Rather, my attempt is to show that restoration, remedy and redress (or the lack of it), especially against sexual violence, take place simultaneously on different tracks. Women, then, negotiate their claims on several tracks as well. In Bhanwari’s case, a resolution (however tenuous) was possible at the level of the village, even when the doors of formal justice were shut.46 In contexts of graded and multiple patriarchies, how do women articulate multiple resolutions?

GENDERING JUSTICE Premananda was the founder of the Premananda Ashram, set up in 1989 in Pudukottai district of Tamil Nadu. Premananda moved to India in 1984 with his associates from his native Sri Lanka, where he had been running an ashram, to escape the ethnic conflict. The primary purpose of the ashram was to provide shelter and care to women and children. Most of the ashram inmates, numbering approximately 200 young men and ‘grown-up girls’, were Sri Lankan nationals. In 1997, the court of sessions in Pudukottai, presided over by a woman judge, Tmt. R. Banumathi, found Premananda and six of his associates guilty of deceiving believers by claiming magical powers and misusing the belief reposed in him by disciples. He was charged with cheating them and sexually assaulting several young women residents of the ashram, assaulting and murdering a male inmate, and arranging forced abortions for several women who had been assaulted between the years 1990 and 46

The story of Basanti and Urmila from village Karauli in Rajasthan also demonstrates this. Basanti was raped by Urmila’s husband Mahesh. The all-male panchayat decided that the ends of justice would now be served if Basanti’s husband Raja raped Urmila. Basanti did not accept the verdict. Urmila walked in and declared that her husband should go to each woman in the village and beg their forgiveness. That being unacceptable to her husband, she declared she would not live with a rapist. National Alliance of Women (2006).

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1994.47 One of the seven accused was a woman, all the rest were men. There was an eighth accused, a woman, who had absconded, and two persons turned approvers in the case, both men. Seven charges were framed against Accused 1, Premananda — criminal conspiracy (to commit rape, abetment of rape, causing abortion, and murder); committing rape (13 counts); outraging modesty (four counts); causing the murder of Ravi; wrongful confinement of Ravi; criminal intimidation and threat to cause death; cheating an inmate and inducing him to part with his money.48 The trial began with the evidence let in by the defence. This, in fact, set the tone of the trial that followed. According to the judge, Tmt. Banumathi, ‘in view of the spate of evidence let in by the defence of the alleged spiritual orientation of the first Accused and his spiritual powers, at first, it has become necessary to explode such a myth.’49 Premananda described himself as a ‘spiritual master’, who ‘removes clouds of ignorance from the mind’, thus showing the way to the fulfilment of people’s highest aspirations.50 ‘I made this Ashram for a particular reason — to spiritually uplift the devotees. I made it for the sake of all of you. You want to develop the highest wisdom and attain realization and so I have created an environment conducive to your development.’51 The two tricks that made Premananda well known were the regurgitation of the Shiva linga on Mahasivarathri (lingodbhavam) and the materializing of vibhooti (sacred ash): Ling means a symbol, and udbhava means birth or creation. So the word lingodbhavam actually means symbol of creation. The Lingam has the 47

Premananda Ashram Case: Sessions Case No. 7/1996. Inspector of Police, CBCID, Pudukottai, Crime No. 1183/94 of Viralimalai Police Station. Accused Premananda and others. In the Court of the Sessions of Pudukottai Division. 48 The happenings in the Premananda Ashram came to light when two girls escaped from the ashram and approached members of AIDWA, Chennai, for help. A team of lawyers, part of the People’s Union for Civil Liberties, provided support to the victim–survivors and assisted the prosecution. 49 Premananda Ashram Case, para. 69. This was also necessary given the fact that a number of educated persons and intellectuals were unwilling to concede that Premananda was a ‘sex maniac’. See paras 76, 79. 50 ‘Who Is Swami Premananda?’ www.sripremananda.org (accessed on 8 October 2011). 51 www.sripremananda.org (accessed on 8 October 2011).

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form of a mathematically perfect figure, the ellipsoid. It has neither a front nor a back, and is without an end or a beginning. The lingam is the fittest symbol for representing the formless Divine Essence that is God. Thus, when the lingam emanates from the mouth of a saint like Swami Premananda it is symbolic of the birth in time and space of THAT which is formless and eternal, within a simple geometrically perfect entity, the Lingam. It is said that all things emerge from the Lingam and finally merge into the Lingam. . . . It is said that those who have the good fortune of seeing the manifestation of Divinity in the act of Lingodbhava will be granted complete salvation in this lifetime and that there will be no more rebirths for them.52

Characterizing the Premananda Ashram as one that propagated a dark and despairing philosophy at a time when traditional religion had failed and material conditions were stressful enough for even seemingly rational people to lose their bearings, Judge Banumathi began the proceedings by inviting a magician to perform the tricks that made Premananda’s ‘spiritual powers’ so sought after. Marudumuthu, a magician, demonstrated the lingodbhavam and materialized vibhoothi from his empty palm in the open court. He swallowed two capsules filled with kumkum and then swallowed a banana after placing a 3-inch linga in the centre. After resting for half an hour, he brought out the lingam from his mouth along with the red kumkum. These were magic techniques he had learnt from his father, also a magician.53 In any religion, empty rituals cannot change human behaviour for the better. Most self-styled godmen, instead of advocating spirituality . . . tend to hijack the minds of disciples by external manifestations like materializing vibhooti and other material objects. . . . When the mind believes the same, the mental slits are closed to accepting any new ideas or thinking.54

This demonstration of the deceptive potential of empty ritualism, in my view, is derived from the self-respecter’s critique of 52

http://www.sripremananda.org/english/e1_life/e1c_mahashivaratri.html (accessed on 8 October 2011). 53 Premananda Ashram Case: Sessions Case No. 7/1996, paras 91–99. 54 Premananda Ashram Case: Sessions Case No. 7/1996, para. 79.

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religion, a major aspect of which was the ‘critique of religious practices, of festivals and rituals and happenings’ (Geetha and Rajadurai 1998: 307). While not completely rejecting the space of spiritualism in the human mind, a creative engagement with matters of faith was in effect brought into the courtroom (ibid.: 308), linking the delegitimation of spiritual power to the commission of crimes with impunity. The exploitation of people’s faith in the divine for material gain, Judge Banumathi said, comes within the meaning of cheating under section 420 IPC. The fact of material gain was inferred from the vast assets acquired by the ashram. After displacing Premananda from the realm of the sacred, the trial focused on the sexual assault of the 13 girls and the murder of one man in the premises of the ashram. The young girls, seven of them Sri Lankan and the remaining from Tamil Nadu, had all entered the ashram very young, before they attained puberty. They were confined when they had their first menstruation, immediately after which they were sent to Premananda. One of them, left in the ashram in Sri Lanka along with her three sisters by her widowed mother, said that Premananda had attempted to rape her even before she attained puberty, when she was 11 years old, and had molested her in 1985. All four sisters had been raped by him. There were older women working in the ashram as well, but the complaints of assault came from those who were very young, orphaned and totally dependent on the ashram. Despite their age and vulnerability, the girls resisted. One was punished by being stripped and assaulted in front of the other girls; another was confined in a kennel for three days without food or water; yet another was battered in the dining hall; Krishnaveni was tied to a calf and made to run along with it across the ashram when she attempted to escape. When one of the girls, Sureshkumari, objected to his use of force, Premananda said to her: ‘I am like your father. If I have sexual intercourse with you, you will not beget a child.’55 To another of the victim–survivors he said: ‘I am an incarnation of God. When so many wait for my touch, my touching you means that you have earned merit [punyam] in a 55

Premananda Ashram Case: Sessions Case No. 7/1996, para. 208.

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previous birth.’56 The continued sexual violence involved forcible intercourse and the performance of other sexual acts that the girls found extremely objectionable, but were compelled to engage in nevertheless. In Sugunakumari’s words: ‘He fell on me like a beast and raped me.’57 Ravi, a young Sri Lankan man who threatened to expose Premananda, was beaten to death in the ashram premises. The activities in the ashram included sexual discourses, nude and ribald dancing and ‘other exhibitionist facets . . . which are not elaborated in this judgment fearing vulgarization.’58 The five male co-conspirators also resident at the ashram ‘acted as pimps’, sending girls into Premananda’s quarters by inducing fear of hurt, threat and deception. The woman who was also accused (A3) was a doctor, whose main job was to monitor the menstrual cycles of the young girls, administer abortifacients to the eight girls who got pregnant consequent on rape and, when they failed, to arrange and supervise abortions.59 The defence attempted to multiply evidence on the immorality of the girls who alleged they had been raped. The girls, all unmarried, were found by the medical examination to be ‘accustomed to sexual intercourse’.60 Considering the ashram was a residential facility and the girls had no life outside its premises, alleging immorality on their part, Judge Banumathi said, was in direct contradiction of the defence’s assertion that Premananda was a strict disciplinarian when it came to matters in the ashram. Further, this line of argument was also completely irrelevant, since what was at issue was not that the girls had had consensual intercourse with Premananda, but the claim of total denial and celibacy on his part. 56

Premananda Ashram Case: Shantha, PW 11, Sessions Case No. 7/1996, para. 293. Premananda Ashram Case: Sugunakumari, PW 8, Sessions Case No. 7/1996, para. 268; my translation. 58 Premananda Ashram Case, para. 143 of the Judgement in Sessions Case No. 7/1996. 59 Premananda Ashram Case, paras 106–13 of the Judgement in Sessions Case No. 7/1996. 60 Premananda Ashram Case, para. 29 of the Judgement in Sessions Case No. 7/1996. For an excellent analysis of the ideological foundations of the ‘two-finger test’ in medical jurisprudence, which is said to demonstrate whether or not a woman is ‘accustomed to sexual intercourse’, see P. Baxi (2005). 57

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After the girls were moved out of the ashram into the secure custody of a women’s organization, one of them, Aruljothi, was found to be pregnant. The pregnancy was terminated with her consent, and a sample from the aborted foetus, along with blood samples of the girl and Premananda, were sent to Centre for Cellular and Molecular Biology, Hyderabad. The DNA test confirmed ‘beyond reasonable doubt’ that Premananda was the father of the aborted foetus and Aruljothi the mother. Apart from the fact that Premananda and his associates were found guilty and convicted on all charges, Judge Banumathi observed with a note of regret that ‘the trial only added insult to the injury of the victims. At times, even the Court was helpless on the insinuations passed on the victim girls.’61 The high court, in confirming the convictions for the most part, reiterated the concern that courts must be sensitive and understanding towards victims of rape, adding that women judges and women police officers, being capable of inspiring the confidence and trust of victims of rape, should be entrusted with the investigation and trial of cases of sexual assault.62 It is important not to essentialize the observations of Judge Banumathi as deriving from her biology. Rather, judicial horror in this instance is produced through the location of women in spaces where they are likely to experience patriarchal delegation and therefore are able to comprehend and anticipate its implications. The ‘knowledge’ of the implications of sexual violence, however, could also be read within the codes of patriarchy by women, thereby leading them to justify greater control. But this possibility cannot undermine the significance of the politics of presence and the indispensability of representation in institutions of justice.

61

Premananda Ashram Case: Sessions Case No. 7/1996, para. 474. Chandradevi and Ors v. State of Tamil Nadu MANU/TN/2335/2002 (Criminal Appeal Nos 895, 896 and 897 of 1997 and Criminal M.P. Nos 780 to 782 of 1998). This was also confirmed by the Supreme Court in Kamalanantha and Ors v. State of Tamil Nadu AIR 2005 SC 2132. 62

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‘RAPE IS A VIOLATION OF THE RIGHT TO LIFE’ In 1995, the case of Bodhisattwa Gautam was brought before the Supreme Court.63 This was a case of intentionally contracting a fraudulent marriage, cheating the ‘wife’ and causing abortions. Interestingly, while the rape provisions were not applied to this case, the entire discussion of the case is in the context of rape, not of deception alone. The rape laws that were in force, the court observed, ‘do not, unfortunately, take care of the social aspect of the matter and are inept in many respects’, based as they were on common law doctrines that were weighted heavily against the woman. This already biased formulation, I would argue, was read with ideologies of honour and shame in India, so as to disable completely any possibility of a fair representation of the interests of women who had been sexually assaulted. In a sharp departure from this trend, the court placed rape in the framework of the fundamental right to life under article 21 of the constitution: Rape is . . . not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.64

The ‘right to life’ for the court was a right to live with dignity that would include all those aspects that made life ‘meaningful, complete and worth-living’. The woman herself was reconstituted, not as a contingent, dependent being, but one who fortunately, under the Constitution enjoy[s] equal status. Women also have the right to life and liberty; they also have the right to be respected 63

Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty 1996 AIR (SC) 922. Justice S. Saghir Ahmed, in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty 1996 AIR (SC) 922.

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and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.65

This was also the year when the rules were framed for the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The act came after Ministry of Welfare reports in 1986 showed that over half the thousand rape cases officially registered in India every year concerned women belonging to the scheduled castes and tribes.66 The Supreme Court handled eight cases of rape, including the rape of four minors in 1992. And how long did it take to decide these cases? An average of 13 years. During this period, all the accused except one remained free, and the minors became adults by the time the cases were decided.67 This was the background for the enactment of the special legislation. The definition of atrocity under section 3 of the act included three clauses, which referred explicitly to sexual violence against women belonging to the scheduled castes and schedules tribes: 65

Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty 1996 AIR (SC) 922. There is, of course, an equivocation here as well, especially with reference to the natural roles of women — mother, daughter, sister, wife — and their natural duties to society, to shape the destiny and character of men everywhere, but this equivocation is one that can be glossed over, considering the way in which it took the judicial discourse on rape forward. 66 Indian press reports have commented repeatedly that many such complaints concern allegations of rape by the police, but they are often not investigated, are difficult to prove and very rarely result in prosecutions. The minister of state for welfare informed the Rajya Sabha on 14 November 1986 that of all the 936 rape cases reported between January and June that year, 492 concerned women belonging to the scheduled castes and tribes. The same ministry reported the following year that rape of women belonging to scheduled castes and tribes was particularly common in the northern Indian states. On 5 March 1987, the deputy minister of welfare was reported as saying that Uttar Pradesh headed the list with 229 such cases reported during 1986 and the first months of 1987, followed by 151 cases in Madhya Pradesh and 73 in Bihar during the same period. A December 1986 report tabled before the Rajya Sabha noted 4,400 reports of rape registered by SC/ST women in the four and a half years between March 1982 and October 1986. Amnesty International; see PUCL Bulletin, 8:9/9-88. 67 PUCL Bulletin, 13:12/12-93. National Alliance of Women (2006) provides a detailed report on violence against dalit women.

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3. Punishments for offences of atrocities. — (1) Whoever, not being a member of Scheduled Caste or a Scheduled Tribe, ... iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe . . . or commits any similar act which is derogatory to human dignity; ... xi) Using assault or force on any woman belonging to a schedule caste or tribe with intent to dishonour or outrage modesty. xii) Being in a position to dominate the will of a woman and using that position to exploit her sexually.

The gendered definition of assault drew on the specific experience of sexual assault and sexual slavery that dalit women were subjected to routinely in caste society. It is significant that the definition of atrocity against a dalit woman encompasses the constitutional view that sees the right to life, dignity and bodily integrity as aspects of the right to life that cannot be derogated. In the Chandrima Das case in 2002,68 the Supreme Court extended this interpretation further by invoking the Universal Declaration of Human Rights. Hanuffa Khatoon, a Bangladeshi national and an elected representative of the Union Board, was gang-raped in February 1998 in the railway rest house of Howrah station, and again at a private residence outside the station by a group of men who included railway employees and touts. Chandrima Das, a lawyer, approached the High Court of Calcutta under its writ jurisdiction under article 226 of the constitution of India, claiming several reliefs, of which compensation to Hanuffa Khatoon from the railways was one. The high court awarded ` 10 lakh as compensation. The appeal placed two matters before the Supreme Court, both relating to the liability of the railways to pay compensation. The first related to the fact that Hanuffa Khatoon was a foreign national; the second to the fact that the offence was carried out by individuals, for which the railways could not be held even vicariously liable. Fundamentally, was compensation in this case a matter of public law or was it a matter of private law, considering that non-citizens cannot claim protection under 68 Chairman, Railway Board and Others v. Chandrima Das (Mrs) and Others (2000) 2 SCC 465.

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the fundamental rights chapter of the constitution? The court held that The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those rights. The applicability of the Universal Declaration of Human Rights and the principles thereof may have to be read, if need be, into the domestic jurisprudence.69

As per the Universal Declaration of Human Rights, 1948, and the Declaration on the Elimination of Violence against Women adopted by the UN General Assembly in December 1993, there had been a grave and serious violation of Hanuffa Khatoon’s human rights under international law, a fact the court asserted it could scarcely ignore. In support of its view, it quoted English cases in which courts presumed that, in the event of ambiguity in domestic legislation, the parliament intended to act in conformity with international standards laid down in the conventions, and not against them. It also invoked discussions held at a judicial colloquium in Bangalore, where the matter was discussed between lawyers and judges and a similar decision had been arrived at with respect to the application of international human rights instruments: ‘Judges and lawyers have a duty to familiarise themselves with the growing international jurisprudence of human rights and particularly with the expanding material on the protection and promotion of the human rights of women.’70 By 1995, the movement for ‘women’s rights as human rights’ had forced public attention worldwide to focus on the question of women’s rights against violence. The context had been provided by the debates at the World Conference on Human Rights in Vienna in 1993, and at the Fourth World Conference on Women in 1995, held in Beijing. Clearly, this had a perceptible impact on 69

Chairman, Railway Board and Others v. Chandrima Das (Mrs) and Others (2000) 2 SCC 465. 70 Chairman, Railway Board and Others v. Chandrima Das (Mrs) and Others (2000) 2 SCC 465, at 26.

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jurisprudence around sexual violence in India, particularly in the Supreme Court. Women’s groups in Delhi approached the Supreme Court of India in 1997 for directions concerning the definition of the expression ‘sexual intercourse’ as contained in section 375 of the Indian Penal Code.71 The key elements of the petition provided by the women’s groups may be summarized as follows. Child sexual abuse, largely neglected by the law, was sought to be brought within the definition of sexual assault. It was also argued that the definition of penetration had hitherto been confined to penile– vaginal penetration, resulting in acquittal or the mitigation of sentences to attempted rape. Instead, penetration must be redefined to mean penetration — anal, with objects, or by any other method — so as to encompass the range of assaults women and children were subjected to. Further, women’s consent should be defined to mean ‘unequivocal voluntary agreement’. The entire effort aimed at bringing boys under the age of 16 and women of all ages within the ambit of a comprehensive law on sexual assault. Further, it was recommended that two sections in the Indian Evidence Act (146 and 155) that referred to past sexual history be deleted. It may be recalled that these sections first came into question in the cases of Mathura and of Rameeza Bee, where past sexual history was used, not to disprove the assault, but to exonerate the accused. These provisions in the law, therefore, were problematized by feminist groups and subjected to a larger critique of the patriarchal basis of criminal law, especially that dealing with sexual assault on women, in the form of either the ‘outraging of modesty’ or rape. Further, the petition drew on the experiences of women put before the Law Commission. Given the facts that the accusation of rape relied heavily on medical and forensic reports, and that it was physically impossible for assaulted women and children to ensure medical examination in the stipulated time, it recommended 71

Sakshi petitioned the Supreme Court. As part of this process, three other organizations, namely, Interventions for Support, Healing and Awareness (IFSHA), the All India Democratic Women’s Association (AIDWA) and the National Commission for Women (NCW) also presented their views on the proposed suggestions. See the 172nd Report of the Law Commission of India on Reform of Rape Laws, 2000.

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that the ‘absence of a medical report in the case of a sexual assault shall not be a factor against the complainant/person assaulted’. While providing additional safeguards against further trauma in the case of children subjected to abuse, the recommendations urged that all officers in every part of the criminal justice system dealing with cases of sexual assault must be trained and sensitized in dealing with these issues. The definition of rape, the Law Commission recommended, should be replaced by a definition of sexual assault, which would mean penetration by any part of the body or by an object into either the vagina, anus or urethra of a person, or performing oral sex against the other person’s will, without consent, with consent obtained through coercive means, or with consent through impersonation/deceit, when the person is not in a frame of mind to give informed consent, and when the consenting person is below the age of 16. The explanation of the definitional section states that ‘penetration to any extent is penetration for the purposes of this section,’ removing the rupture of the hymen as the critical marker of rape/sexual assault. In an attempt to introduce protection against child sexual abuse, a new section, 376E, was sought to be introduced. This section spoke of touching the body of another person with sexual intent, or inviting the other person to do the same, without that person’s express consent, bringing into the ambit of the definition persons who are in a position of trust or authority vis-à-vis a young person. After decades of finding that patriarchal predispositions and biases hindered a basic understanding of women’s experience of sexual assault, with the norm being defined by the male experience, groups across the country have felt the urgent need for judicial and other officers who have an understanding of and empathy with women’s experience of violence and discrimination under patriarchy. Within the judiciary, even long after Mathura, while judges did say that a greater number of women in the judiciary would make a difference in the judicial view of women’s experience of sexual assault, representation continues to be a silent issue where the judiciary is concerned, particularly in the high courts and the Supreme Court. As one judge observed, notwithstanding

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the paucity of women judges, perhaps women judges trying cases of sexual assault on women would put the survivor at greater ease ‘without allowing the truth to be sacrificed’.72 The Premananda case discussed earlier in this chapter demonstrates this possibility. Yet, even the Law Commission report speaks only of greater sensitivity and understanding, not of greater representation.

COLLECTIVE VIOLENCE AND SEXUAL ASSAULT Sexual appropriation and the use of violence through prostitution, rape and physical torture have served to mark the masculinity of the state vis-à-vis the ‘immoral’ (by definition, feminine) community. Women’s bodies (constituting the communal space), by this token, quite literally acquired a territoriality, a spatial character, and existed distinct from and subordinate to the hegemony of the state. The familiar, age-old practice of conquest, where enemy men are killed and enemy women taken into sexual slavery, has been reproduced in characteristic yet bizarre and troubling ways in post-colonial India. Since the mid-1980s, the scale and gravity of the assaults on Kashmiri women and women of north-east India, and on Muslim women in Gujarat in 2002, must be located within the larger framework of collective violence, which has included the disappearance and mass killings of men of these communities and collective sexual assaults on women. In the case of the north-eastern states and Kashmir, the primary distinction drawn in the context of the political situation in these regions has been between (legitimate) force and (illegitimate) violence (Tilly 2003). This is a distinction states and governments make all too easily; but, as Tilly points out, the distinction itself is fraught with insurmountable obstacles. What is the precise boundary between the two? Pertinent to our present concerns, can it be argued at all that the sexual assault of women in custody (even if they are suspected to be militants) comes within the meaning of legitimate force? With respect to the permissible military actions against civilians during times of conflict, can rape or sexual assault upon civilian women be condoned as falling within 72

State of Punjab, Appellant, v. Gurmit Singh and Others, Respondents 1996 AIR (SC) 1393.

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the frameworks of this permissible action? How, then, could the government declare officially — at a UN forum — that there was no armed conflict within the territory of India, while on the ground there exists an extensive human rights documentation of the systematic and widespread use of sexual assault in collective violence against civilian populations and against women who are perceived as combatants in militant groups in these troubled areas of the country. Following the death of an army major in an exchange of fire with militants in Nagaland on 27 December 1994, members of the Task Force of the 16 Maratha Light Infantry went totally beserk . . . venting their wrath on the innocent civilian population of the town. Many women were raped, sexually assaulted, stripped naked and their clothes dipped in petrol to burn their homes. Dr. Yangerla Ao, a doctor and President of the United Women’s Forum examined and treated at least fifteen or sixteen cases of rape and molestation. However, only four women were willing to come forward. The others did not want to testify, partly due to fear of reprisal by the army and partly due to the stigma attached to rape. (Goswami et al. 2005: 35)

The study by the North East Network discusses several such cases between 1966 and 2004 from Manipur, Nagaland, Mizoram, and Assam. It argues that the trauma of assault in each of these cases is aggravated by the taboo on disclosure in communities, tied as rape is to ideologies of honour and shame. It is also aggravated by apathetic governments that guarantee impunity to the perpetrators of sexual assault, and by skewed peace processes, like the Mizoram Peace Accord, that contain no special provisions for women survivors of conflict (ibid.: 108). While most cases have gone completely unacknowledged by the government, a few cases of gruesome assault have been difficult to ignore. However, in these cases, where compensation has followed acknowledgement, the harm has been far beyond redress or remedy. With respect to Kashmir, in the context of increased disappearances, rape and abduction and a heightened presence of the army, Zamrooda Khanday speaks of the ‘terror of the night’ that curtails women’s mobility and has resulted in a sharp rise in stress-related morbidity among Kashmiri women (Khanday 2005).

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In Gujarat, the targeted attack on Muslim women by Hindu men, supported by Hindu women, has been documented by several human rights missions that visited survivors in the aftermath of the carnage in Gujarat in February–March 2002. The resultant fear and the severe curtailment of the mobility of Muslim women and girls continue to persist as serious problems. The tola came from all sides. They were holding instruments like hockey sticks, trishul and pipes. They were wearing chaddas (knickers). They hit the women. The police teargassed us. They told us we do not have orders to protect you. This would not have happened if you did not burn the railway compartment. Tell me, bibi, did we burn the compartment? They threw my sister Shahjehan in the fire. When the children asked for water they gave them petrol to drink and lit a match down their throat. And then, what they did to my sister-in-law’s sister Kausar Bano. She was eight months pregnant. They slashed her stomach and tore out the foetus. Then they held it up and threw it in the blazing fire. They did all this with ease; as if there was all the time in the world. For fifteen hours I lay with the dead. (Testimony of Shah Bano; see Hameed 2005: 317)

Syeda Hameed reports that the testimonies of the aggravated sexual assault on Muslim women in February–March 2002 ranged from rape and gang-rape to the insertion of objects into the body and stripping, followed in a majority of cases by gruesome murder. The violence was pre-planned, organized and targeted, and sexual violence was part of the strategy. The scale of harm put the experience within the frameworks of genocide and political pogroms; it was not merely another form of criminal violence (U. Baxi 2005: 335). Public and mass acts of sexual violence and gender-based crimes such as cutting breasts and uterus, forced nudity, stripping and parading women naked, forcible pregnancy, exhibiting sexual organs in the presence of women, and the mutilation of women’s genital organs, are no longer adequately expressed through the definition of rape in the Indian Penal Code in such contexts. In Tanika Sarkar’s words: The pattern of cruelty suggests three things. One, the woman’s body was a site of almost inexhaustible violence, with infinitely plural and innovative

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forms of torture. Second, their sexual and reproductive organs were attacked with a special savagery. Third, their children, born and unborn, shared the attacks and were killed before their eyes. (Sarkar 2002: 2875)

The complicity of the police and the state government in the aggravated attacks and the continuing impunity granted to them raise urgent questions about the adequacy of ordinary criminal law in the contexts of collective violence. Several witnesses from Baroda reported to the International Initiative on Justice that the police often hit the stomachs of pregnant Muslim women in ‘combing operations’ (house-to-house searches for Muslims), shouting, ‘Kill them before they are born!’ (IIJ 2003: 2). The charge of police participation in the Gujarat violence was corroborated by witnesses from Ahmedabad as well: On April 30th they mobbed us from both sides. We were hiding. The Rapid Action Force came. They threw a child from the third floor. P. S. I. Modi was very bad. He even got inside AA53 area Camp no. 5 and sexually assaulted women in the camp. (Farah, woman survivor, AA32 area, Ahmedabad) In AA56 area, D.C.P. Sawani himself entered the house and beat up small girls, beat up women. One woman who was six months pregnant had an abortion. They said, ‘We will keep all your men and make you prostitutes.’ They used real bad words. (Nahida, woman survivor, now living in AA32 area, Ahmedabad) There was a lot of suggestive sexual violence, verbal [abuse], hitting women on the breasts, targeting private parts, pregnant women were specifically targeted. The policemen also said that the [Muslim] child should not be born. There have been incidents of children being flung across the room. (Sonia, woman activist, organizations BO18 and BO8, Baroda) (ibid.: 2–3)

Where they did not participate, the police and state administration stood by and watched the attacks without offering any protection to the victims. It is in this context that international human rights interventions acquire significance. The CEDAW Committee’s pre-session working group examined the government report and raised a series of queries in October 2006, calling upon the government to respond to them. The opening comment was on Gujarat:

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The Special Rapporteur on violence against women reported that extensive violence against women took place in Gujarat in 2002, and that following the Gujarat riots, a culture of impunity was created where sexual violence was allowed to continue and that women victims of violence were denied access to justice. . . . Please provide information on the events in Gujarat and their impact on women. This should indicate in particular the steps the Government has taken to ensure access to justice and rehabilitation for women victims of violence in conjunction with the Gujarat events. It should also include information on the steps taken to investigate and prosecute perpetrators of violence against women committed during the events; what provisions the accused have been charged under; the status of arrests, if any; the status of trials and the status of convictions; and punishments given. State what victim protection measures were put in place during the trials, as well as the nature of legal aid and support given to victims. What were the obstacles in bringing perpetrators to justice, and what measures were put in place to overcome them, and with what results? In addition, please give details of steps taken by the central and state Governments to put in place gender-specific rehabilitation plans, and the number of women who have benefited from these plans. Also explain the steps taken by the Government to enable economic rehabilitation of the communities and rebuilding of basic infrastructures destroyed during the riots. Also explain what confidence-building measures have been taken for the reintegration of the society.73

In a situation of widespread discrimination, mass crime and the abdication by the state of all responsibility to provide effective redress, international instruments like CEDAW have strengthened the collective voice of survivors and their representatives in forcing accountability on a recalcitrant government: The Committee welcomes the State party’s statement that recommendations from this Committee will be considered for inclusion in the proposed Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005, and recommends the incorporation into the Bill of: sexual and gender-based crimes, including mass crimes against women perpetrated during communal violence; a comprehensive system of reparations for victims of such crimes; and gender-sensitive victim-centred procedural and evidentiary rules. The Committee further recommends that inaction or complicity of State officials in communal violence be urgently addressed under this legislation. (CEDAW 2007: para. 25) 73

CEDAW/IND/Q/3:http://daccessdds.un.org/doc/UNDOC/GEN/N06/467/90/PDF/ N0646790.pdf (accessed on 3 December 2008).

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A NEW LAW ON SEXUAL ASSAULT Thirty years have elapsed since the Mathura and Rameeza cases launched the first major campaign for the reform of rape laws in the early 1980s. However, the experiences of sexual assault that have been reported since then have changed dramatically and in troubling ways. The impunity of armed forces personnel accused of assault poses a major hurdle in bringing justice to survivors in Manipur and Kashmir. Survivors of sexual assault during episodes of collective violence in Gujarat and Kandhamal, or as part of caste atrocities in Rajasthan and Khairlanji, still wait for the scales of justice to tilt in their favour. The problem of custodial sexual assault against intellectually challenged women (Chandigarh) remains trapped in diversionary discussions on capacity and state control over sexuality. Transgender persons (Karnataka) and men in custody and situations of collective/targeted violence suffer from sexual assault and sexual humiliation, aggravated by the deafening silence of law and absence of legal protection. Children — girls and boys — continue to be targets of a range of practices of sexual abuse that we have not even begun to name. All these cases have posed serious problems for rights advocates because of the absence of provisions in the law to prosecute perpetrators. It is in the context of this recent history that women’s groups, lesbian/gay/bisexual/transgender (LGBT) groups and child rights groups across the country attempted in 2010 to formulate a new law on sexual assault. The endeavour is to situate sexual assault within the framework of the constitutional right to life, dignity and bodily integrity, taking into account the evolving international jurisprudence that sees rape as a form of torture when committed in custody or in situations of occupation/conflict. The proposed legislation also attempts to set out the social contexts within which such violence occurs, since it is always in the context of an exercise of power that women, children and persons who are socially vulnerable are targeted. Coercive circumstances — economic, political and social dominance, positions of authority and situations of custody ranging from state institutions to the family — enhance the power of the perpetrator in committing

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the sexual crime. An important part of the discussion focuses on the fact that sexual violence occurs along a continuum that ranges from sexual harassment to aggravated assault. Drawing on the experience of advocates and groups pushing relentlessly for the prosecution of those involved in the mass crimes in Gujarat in 2002, the debates recognize the fact that sexual violence is not limited to penetration alone, but includes sexual humiliation, which has aggravated consequences for the victims and their families. Victims have faced the uphill task of proving that they did not consent to sexual intercourse, and that they were, in fact, assaulted. The first battle in this regard has been to remove the consideration of past sexual history as a factor that establishes the credibility of the complainant. The second major battle has been to determine what constitutes ‘resistance’ to rape. In providing support and redress to victims, rights advocates have found that coercive circumstances often disable any possibility of offering resistance, even where consent is withheld. What is the substantive meaning of consent? While consent simply means ‘unequivocal voluntary agreement’, can it be weighted according to the coercive circumstances the victim may be in? How is the issue of consent dealt with in the case of a woman who is ‘affected by an intellectual, mental or physical condition or impairment of such a nature and degree that she cannot consent or refuse to consent to the activity’? Child sexual assault poses the biggest challenge to the effort of drafting adequate protections. In dealing with aggravated sexual assault, pinning command responsibility on a public servant would lead to a more effective exercise of due diligence in preventing such assault. It is important to study the failures of omission and commission in a range of cases that have been brought to light by human rights groups in order to delineate clearly what command responsibility consists of in cases of aggravated sexual assault. Broadly, rather than viewing ‘sexual assault’ as a mechanical substitute for ‘rape’ in section 375 of the IPC, the effort of rights groups has been to think through the feasibility of formulating a chapter on sexual violence/atrocity that will define a range of forms of such violence in a manner such that the focus shifts away

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from the penetrative logic of the definitions used hitherto, to the assaultative nature of sexual violence. Effecting this shift has implications for procedural law and for the law of evidence as well; it involves carefully calibrating the shift in the burden of proof and eliminating the two-finger test. Both of these procedures are being examined alongside the penal code provisions, with a clear understanding that procedural and evidentiary guarantees upholding universal human rights standards will not be derogated in the course of redefining the law on sexual assault.

CONCLUSION There has been no resolution as yet for the survivors of the Gujarat carnage. There has been no resolution in the north-east either. The perpetrators of mass crimes against Sikhs in Delhi in 1984 were acquitted in a decision that has been condemned widely as a travesty of justice. The questions, therefore, remain. The quantification, measurement or assessment of harm that must determine the course of justice is a central aspect of criminal justice that is deeply problematized in cases of sexual assault, especially in the context of collective violence. But even before the assessment of harm, access to the most basic mechanisms of justice and redress is non-existent in a situation where the state is complicit in the perpetration of assault. This lack of access has characterized all the instances cited in this section. The larger questions that arise relate to evidentiary and procedural standards and special mechanisms to offer protection to survivors that must take note of their aggravated vulnerability in situations that are violently polarized and where they have no political voice. In tracking the shifting legal value of rape in Indian criminal jurisprudence, I have located the ‘crime’ of sexual assault within the specific sociocultural and ideological contexts within which possibilities for justice have been located. The struggles around consent in the colonial period focused on the questions of child marriage and marital rape, where the complicity of the colonial state in ‘traditional’ expressions of violent misogyny and sexual appropriation provided the ground for practices of impunity. Debates around rape were focused on the place

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of the woman in the conjugal home, either as child wife or as child widow; the formulation of rape in criminal law drew on the subjective position of the woman rather than on the objective facts relating to the act. Sexual intercourse transmuted into rape only if the woman was not a wife, and vice versa. Culture was key to the understanding of rape, as it continues to be today. This interplay between culture, honour and sexual violence reached a crescendo during partition, with the abduction of women and their forced recovery, abandonment and even death. After the foundational violence of partition, of which mass sexual assault was a major part, the question of state complicity in sexual assault has continued to pose a major hurdle to the delivery of criminal justice in independent India. The question of community, marginality and discrimination continues to lock women into circles of disentitlement. The justification of sexual assault is sought, even by courts, in the inherent immorality of very young, barely adult, poor women of adivasi, dalit and minority communities. Rameeza Bee’s experience demonstrates this convergence of majoritarian-ism and class privilege, which in her case transmuted sexual as-sault into prostitution. A commodified consent was written into the body of a working-class Muslim woman. Mathura’s experience as a working-class adivasi girl followed an almost identifical tra-jectory at around the same time. The Rameeza Bee case also foregrounds for us the disabling of justice through the operation of plural domains of formal law. It is acknowledged widely that a rape trial is extremely difficult to sustain because of the ideological condonation of rape, and the resistance of families and communities to disclosure. The procedural requirement that completely de-links a fact-finding enquiry from prosecution, and the procedural possibility of moving prosecution outside the state in cases involving survivors of collective violence inflicted by agents of the state, function as instruments of patriarchal delegation, especially when poverty com-pounds vulnerability. The intent is, of course, to anticipate bias in the trial and eliminate all possibilities for prejudging guilt (the ever-present ideological bias conditioned by patriarchy that confounds the possibilities of justice for women clearly does not

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enter this account). In Rameeza’s case, the accused policemen petitioned for a transfer of the case to a neighbouring state on the grounds that a trial in the same state would prejudge them because of the possibility of bias on the part of the judicial officer of the trial court towards the findings of the high court judge. However, the context was somewhat more complex. The protests and popular mobilization around the need to ensure justice to Rameeza were so strong that they could determine the course of the trial or put pressure on the court. The transfer ensured that the groundswell of support for Rameeza was considerably diminished. Enabling provisions in the law are rarely read by courts in an insurgent manner to provide redress to women who have suffered sexual assault. This is a trend that has been visible for over two decades after Rameeza was denied justice. A closer look at the language that courts have adopted in speaking about rape shows us the shocking proximity of judicial discursive frameworks to patriarchal, informal justice systems that construct women as property to be possessed or commodified. In this context, wherever women find that they cannot reverse the denial of justice by courts, the negotiation of the community spaces that they live in and must negotiate on a daily basis presents possibilities of restoration in the face of absolute dispossession, as Bhanwari’s experience demonstrates. Through this entire period, movements for women’s rights as well as later movements for human rights have pushed consistently for greater justice and the elimination of patriarchal bias in courts of law. Towards the mid-1990s, courts had begun to observe that, notwithstanding the paucity of women judges, perhaps women judges trying cases of sexual assault on women would put the survivor at greater ease ‘without allowing the truth to be sacrificed’.74 The conviction of Premananda and his associates by Judge Banumathi demonstrates this potential. Without slipping into an essentializing mode, I would like to draw attention to her concluding observation in the judgement, that the trial only added 74

Justice A. S. Anand in State of Punjab v. Gurmit Singh and Others 1996 (2) Supreme Court Cases 384.

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insult to injury and the court was forced to be a helpless spectator. This is a strong comment on the gendering of the judicial process. There are instances that bear testimony to the strength and resilience of human rights movements in the country.75 In 1996, sexual assault was read within the ambit of article 21 of the constitution, which addresses the right to life. This finally brought the interpretation in courts in tune with the campaign of movements within the country over almost two decades, and in tune with international human rights standards in 2000. The developments in the legal understanding of sexual assault — both within India and internationally — can only be understood in the context of unrelenting human rights campaigns. Rameeza Bee, Mathura, Bhanwari, the young girls in the Premananda Ashram, and Bilkis Bano witnessed the soaring of protest and public outrage around their cases; at the same time, carefully crafted human rights advocacy forced the institutions of justice to speak to their experience. Similarly, the observations of the Committee on the Elimination of Discrimination against Women were the result of persistent campaigning by human rights lawyers on the need for state accountability and the demonstration of due diligence by the state in the international arena in cases of collective violence. There is a circularity in the development of jurisprudence on sexual assault that must be underscored. Judicial frameworks have continued to locate women’s sexuality within marriage and the family. The Law Commission in 2000 refused to recommend the removal of the exception to marital rape in the Indian Penal Code even while accepting most of the other recommendations of women’s groups for reform in the criminal law on sexual assault. But movements are persistent. So while criminal law does not recognize marital rape as rape, the new civil law on domestic violence includes marital rape within the meaning of domestic 75

The transfer of the Bilkis Bano case to Mumbai is an example. Facing extreme intimidation for pressing charges of murder and mass sexual assault and for identifying members of Hindu mobs that attacked her and her family, Bilkis Bano, with the support of human rights defenders, successfully obtained a transfer of her case to Mumbai from Gujarat. The trial by a special court in Mumbai led to the conviction of 12 persons (including one policeman) in January 2008.

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violence, against which women can seek protection and remedy.76 This was the culmination of a century-old struggle that began around the time Phulmonee Dasi died. Bhanwari did not secure justice in the case of sexual assault in the trial court. However, in a peculiar twist, her experience of assault was taken note of by the Supreme Court in the reduced terms of sexual harassment at the workplace, through a case that has come to signify a major victory for the women’s movement.77 Using the fact of Bhanwari’s vulnerability as deriving from the nature of her employment, women’s groups petitioned the Supreme Court seeking legal redress against sexual harassment at the workplace, in what has come to be known as the Visakha case. The guidelines on the issue of sexual harassment were framed from the standpoint of the situation of a working-class, dalit woman’s vulnerability vis-à-vis the dominant castes, the police and the state/government. The purpose of the writ petition was to seek ‘the enforcement of fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon’.78 Yet, in its very formulation, the Visakha decision writes out of its purview assaults of the kind Bhanwari was subjected to, and also the contexts of unorganized, casual, unregulated work, where the security of person is a critical issue for women.79 The signifi-cance of the Visakha decision, however, lies in the judicial recognition of ‘hostile environments’ as obstructing women’s equal entry into employment. This idea could be extended for a better understanding of the subjugation of women through sexual violence. The politics of collective violence, and the structuring of its contexts by rape cultures,80 continue to pose the biggest hurdles 76

Protection of Women from Domestic Violence Act, 2005. Visakha and Others v. State of Rajasthan and Others (1997) 6 Supreme Court Cases 241. 78 Visakha and Others v. State of Rajasthan and Others (1997) 6 Supreme Court Cases 241. 79 The beneficiaries of Visakha are primarily white-collar workers and professionals, as the case law on this issue demonstrates. 80 ‘A rape culture signifies ways of doing competitive party politics and managing governance in which brutal collective sexual assaults on women remain enclosed in contrived and escalating 77

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to movements for human rights. This is especially because the law continues to read mass sexual assault in the disaggregated terms provided for by the penal code. Patricia Viseur-Sellers’s argument that the prohibition of sexual violence is a peremptory norm under international law (Viseur-Sellers 2002: 287) and is, by that token, binding on national governments, enables a reassessment of the legal value of sexual assault in the context of mass crime. This chapter has sought to explore the field of violence against women, a field that is perhaps more appropriately described by the phrase ‘the violence of normal times’. Fundamentally, what is the relationship between violence and discrimination? The distinction Upendra Baxi makes between C1 and C2 is particularly relevant in understanding the relation between articles 21 and 15. Where groups are unequally placed in relation to each other and/or in relation to the state, the women of these groups bear the consequences of that inequality in ways that are specific and distinct from the ways in which men of the same groups might be affected. At a more fundamental level, women as a class wear the myriad scars of discrimination on their bodies and minds. Therefore, I argue that speaking to the problem of violence against women is perhaps the only way of addressing the problem of discrimination against women effectively. The systemic and systematic violence that women are subjected to is tied inextricably to the deeply entrenched practices of discrimination that guarantee impunity to perpetrators of violence against women. Centrally, the problem of violence against women must be seen in the context of the loss of liberty. What are the consequences of this general and discursive denial of liberty for the guarantee of non-discrimination? What are the meanings of the right to personal liberty for women and what are the possibilities it engenders for a radically different constitutional commitment?

orders of impunity. . . . Rape culture sees violence against women as misfortune, not an act of “injustice”’ (U. Baxi 2005: 341–42; emphases added).

Chapter 12

Rethinking the Constitutional Category of Sex It is not a question of whether we take homosexuality into account or not, but of how we produce homosexuality in our account. . . . If this premise is not acknowledged, then the positions of ‘man’ and ‘woman’ will be taken as given and the work of the production or maintenance of those positions will remain invisible, thus confirming the heterosexual presumption. — Claire Pajaczkowska, ‘The Heterosexual Presumption’ (1993: 193)

A GLIMPSE AT HISTORIES OF SEXUALITIES This chapter opens up the constitutional category of ‘sex’ to scrutiny, drawing on histories of sexuality and sexual identity on the Indian subcontinent, before moving on to a close examination of the interrogation of ‘sex’ as a binary category in law — constitutional and criminal. What do we know about sexual diversity that can form the core of a radically different constitutional commonsense? Scholars have offered a five-sex model, a four-sex model or a three-sex model to understand the range of sexes that have historically existed in societies across the world. Drawing on Brahminical, Jaina and Buddhist texts, Zwilling and Sweet (2000: 100) suggest that a ‘three-sex model was an important feature of the ancient Indian world view’. According to Zwilling and Sweet, the impetus for the development of a three-sex paradigm in ancient India was provided by the reciprocal interaction of three factors: first, biogenetic myths of origin from an originally androgynous or hermaphroditic ancestor; second, an emerging ‘virility obsession’ in the later vedic period, resulting in the manufacture of ritual strategies for combating perceived threats to a fragile sense of manhood . . . ; and third, the development of a technical grammatical terminology. (Ibid.)

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The Rig Veda speaks of a world without distinctions — including sex distinctions — that existed before creation. This sexlessness is expressed through references to a male with a womb (Prajapati, the creator, has a womb and is pregnant); the male mother with breasts; a cow that is a bull at the same time. This points to historical evidence of androgynous thinking from the Rig Vedic period onwards, although shifts occurred in the validation of the androgynous form as patriarchy became more deeply entrenched towards the late Rig Vedic period. It is at this time that we see the emergence of a ‘virility obsession’ that saw manhood as coterminous with semen and sexual potency, a trend that marks the homophobic response to multiple sexualities in contemporary India. It is important, however, to recognize that the robust, equivocal, threesex constructs as well as the validation of a heteronormal binary that demonized such constructs and ousted the ‘third’, are both part of the same historical inheritance and ‘tradition’. Beyond the binary and three-sex constructs that referred to sexual attributes, there was the question of situating those that are not ‘virile’, not ‘male’ and not ‘female’ in sexual performance. We see a fluidity of definitions where ‘not being a male’ often slipped into possessing the characteristics of male and female; we also see a merging of attribute and performance in comprehending gender: It seems . . . that from its earliest recorded uses napumsaka was a polysemous term, carrying connotations of lack of procreative/generative ability, androgyny, hermaphroditism and castration. These already formed a tight cluster of associations which from the very outset overburdened nampumsaka with so much meaning as to make it almost incoherent. (Zwilling and Sweet 2000: 104)

The violence of patriarchy in dealing with the napumsaka (literally, ‘not a male’; later third sex) or the vipumsaka (diverging from the male, but used widely with reference to animal victims) may be comprehended somewhat in the sacrifice of these victims to restore virility or ward off impotence (pandakatva). The masculine woman (vipumsi) also appears in these early texts, especially in the Paraskara Grihyasutra, which cautions one ‘not to laugh at a vipumsi or masculine woman’ (ibid.: 102n4). This injunction is

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significant because it is indicative of the discrimination and stigmatization of the vipumsi, necessitating the caution not to engage in derogatory conduct towards her. From a position of being defined as negation — nastripuman or astripuman (neither feminine nor masculine) — linguistic terminology in the late Vedic period text, the Satapatha Brahmana, introduced technical terms for three grammatical genders in this order: female, male and napumsaka. Zwilling and Sweet observe that this formalizing of the term’s underlying sexual ambiguity and its extension to extra-grammatical contexts ‘constituted the first actual move towards the acceptance of a third sex’ (Zwilling and Sweet 2000: 105). There are references to ‘impotent men’ (sanda and kliba in Brahminical texts, pandaka in Pali Buddhist texts) with long hair and hair ornaments, or wearing the woman’s headdress, who dance as women do. There is evidence of hostility and contempt towards the kliba, and also of the understanding that sexual ambiguity was a result of misfortune, magic, curse or injury. However, in the Satapatha Brahmana the kliba’s gender role disjunction was now viewed in the light of the new interpretation of napumsaka, resulting in a new understanding of the kliba’s sex: no longer was the kliba seen as merely a defective, that is, an impotent male, but as one whose defect signalled a separate sexual status. (Ibid.: 107)

This separate status, Zwilling and Sweet argue, indicated impotence, homosexuality or transvestism (ibid.: 110). While there was a negative value attached to the napumsaka, that state was not seen as an abnormality. Susruta and Caraka saw the napumsaka as a true third sex with a biological origin, and Jaina texts drew a distinction between three sexes in terms of the numbers of muscles, veins and rice grains the mouth could hold (Zwilling and Sweet 2000: 110–11). Nor did any of these treatises speak of preventing the birth or conception of a napumsaka. The Jaina delineation of sexes is more nuanced. Zwilling and Sweet draw our attention to the Jaina use of veda (in place of linga) to denote sexuality, and suggest that this revalorization of veda might indicate Jaina counter-Brahminical strategies in the production

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of knowledge (Zwilling and Sweet 2000: 113). The Bhagavati Sutra introduces a fourth sex category, the purusanapumsaka, who is indistinguishable from a man in physical attributes; but this category possibly describes sexual preference for a man, i.e., samesex preference. Some texts discuss the bisexuality of the third sex. Most importantly, ‘by the fifth century CE, the Jains had severed the connection between the biological characteristics (dravyalinga) of sexuality and its psychological characteristics (bhavalinga) thus theoretically enabling a person of any biological sex to experience any of the three sexualities’ (ibid.: 116). While such persons could not attain extra-sensory knowledge, they could be perfected souls (ibid.: 119). The position of the third sex that emerges from a review of Zwilling’s and Sweet’s essay is one that is delineated, described and recognized as being distinct in its ambiguity, especially in relation to the male and the female. That it was not a valued position is of little relevance to the present argument, because, as we have seen, disability is not valued, and neither is the female, nor the ‘lowcaste’. Further, it is precisely this negation of worth that the idea of non-discrimination seeks to address. The family as an idea and as a material institution is constructed around sexuality and produces normative/legitimate sexualities. In this process, it defines the terms of normative sexuality, stipulates which relations must be devoid of any sexual expression, and institutionalizes these negative norms through taboos on incest, rules governing the definition of prohibited degrees, and appropriate gender conduct. Also significant are the relationship between ability and sexuality, particularly where it concerns the construction of desire and sexuality for persons with disabilities, and the way in which sexual orientation shapes parenting. The norm is fixed in monogamous heterosexual parenting in deeply entrenched ways that might result in the criminalization of transgender parenting by law. Relevant here are the laws of inheritance in the Manusmriti, where klibas (impotent men) are denied the right to inherit property along with physically and intellectually challenged persons (Zwilling and Sweet 2000: 121).

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Although it rarely figures in the debates on biopolitics, the family is a critical site of biopolitics, which establishes specific relationships between science, technology and the family, relationships that are mediated by the state. The use of medical technologies to control bodies, and the ways in which this use ties in with existing systems of dominance and subordination, problematizes the assumption of the ‘neutrality’ of science that is nested in ‘the family’. Discourses around the family and nationalism in India in the late nineteenth and early twentieth centuries, as also the debates around law, throw up the multitudinous ways in which the values of modernity were tied to certain articulations of sexuality. A range of non-normative sexualities and family arrangements were systematically disciplined into more rigidly redefined normative forms (Menon 2007a: xxiv–xxv). But the sexual was part of the nation’s heritage in other ways as well. At a time when Indian nationalism was coping with the imperial allegation of effeminacy, Gandhian ahimsa was predicated on a rigorous refusal of heteronormative masculinity, Western or Eastern. . . . [Gandhi’s] own ‘queering’, as it were, of gender positions is frequently expressed in his aspiration to transcend gender relations or, as he puts it, to ‘mother’ his companions and, in so doing, to become ‘God’s eunuch’. (Gandhi 2007: 108)

Leela Gandhi further argues that the late nineteenth-century socialist Edward Carpenter anticipated Gandhi’s anti-colonialism by bringing his anti-Western polemic to rest on a radical reconfiguration of association, alliance, relationality, and community. This involved the capacity for a radical kinship that ruptured the heterosexual privileging of the sexual over the relational and the social (ibid.: 95). In the realm of art, Amrita Sher-Gill, who famously declared, ‘if Paris belongs to Picasso and Matisse, India belongs to me’ (Maddox 2007: 454), was ‘the first voice that reclaimed and celebrated the space of desire for and by a woman’ (ibid.: 455). The power of the heteronormative construct of sex has always been undermined by the uncontainable fluidity of sexuality and desire, which change radically with contexts of time and place. One of the arguments against decriminalizing consensual adult

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homosexuality has hinged on particular representations of Indian culture and tradition that would be eroded by legitimizing same-sex relations and sexual expressions other than monogamous heterosexuality. In this scenario, it is important to map the transitions and diversities in the discourse on sexuality in India — the emergence of desire, the representations of desire, the overt articulation of violence, and its subterranean constancy in situations of marginality. The homogenizing of the norm and of the ‘other’, the flattening out of the diversities and the complex interconnections among those seen to inhabit the norm as well as those confined to the enclosures of the other, merit serious reflection at this moment of insurgent constitutionalism. Reddy speaks of the multiple and different articulations of ‘difference’ between hijras on the one hand and kothis (male homosexuals who perform a female role in sexual relations with men) on the other, the pivot of identity and self-definition being quite distinct from objective identification: According to hijras, all kada-chatla kothis [were people who displayed] mannerisms without the ‘appropriate’ sartorial and gendered expressions of desire and gendered expressions of desire and excessive sexuality separated them from themselves. Interestingly according to other kothis . . . the single most important difference between them and hijras was religion. ‘We are all Hindus unlike those [hijra] people who are all Mussalmans.’ . . . it was not divine possession that jogins emphasized as the difference between themselves and hijras, but the act of circumcision. And while religion was acknowledged to be one of the differences between jogins and zenanas, what Akbar, [a] zenana chose to highlight was not the act of circumcision but the fact that zenanas ate halal meat while jogins did not. (Reddy 2007: 316)

This brings us back to the discussion on pluralism, plurality and difference that we addressed in the introduction to this book. It also takes us back to the interlocking and constantly intersecting identities that shift with context, time and specific location. Reddy argues that it is misleading to read bodies and desires as primarily sexual, since individuals have ‘different corporeal, moral, religious, economic, political and cultural investments at stake’ that militate against any unidirectional narrative (Reddy 2007: 316). Satya, a transsexual activist, complicates this further: ‘gender identity, even

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in the reality of one person, can shift all the time within a life time. The question should be, how should the law reflect that lived reality?’ (see Sukthankar 2007: 96). It is not merely third-sex behaviour or female behaviour that suffers from confinement and straitjacketing. The understanding of masculinity has been much too confined within the dominant codes of heteronormativity, so that the subjugation of male bodies in particular situations remains unarticulated and unexplored. Radhika Chopra (2007: 177–96) explores the practices of pardah among male domestic workers in north India, pointing to gestural practices that mute maleness — the lowering of the eyes (nazar ka pardah), economy of speech (awaaz ka pardah) and the constant collision of disparate, side-by-side domesticities through which maleness is lost and regained in the small transactions of the everyday. The possibility of the loss and recovery of maleness linked to work performance dislodges the hegemonic patriarchal norm of an unwavering masculinity that is invested with strength, vigour and ability — a norm that is pitted variously against women, the differently abled, and the range of persons who transcend the binary categories of gender/sex. Perhaps because the norm is the ideal, for corporeal practices and representations of them across culture and justice systems, what is lacking with respect to male veiling is a complete set of structured practices that are articulated in the literature on female veiling. The construction of the pardahnashin woman as the repository of Indian tradition, and the strong moralistic undercurrents of female seclusion and veiling, find their way into constitutional moralism with ease, erasing any possibility for thinking through the relationship between masculinist discourses on female veiling and the idea of non-discrimination. In unpacking this thickly congealed discourse, if the gaze on veiling is expanded beyond a focus on clothing to a system that frames bodily styles, speech forms, gestural codes, and spatial locations, veiling by both men and women enables cross-sex interaction through a temporary desexualization. Women’s sexuality in India is organized around the politics of caste boundaries that are maintained assiduously through

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unquestioned caste endogamy. Within the parameters of endogamy, we need to consider the relative degrees of freedom that women of different castes have — for instance, the greater freedom of Bhangi women compared to the seclusion of Darbar women (Franco et al. 2007). Lalithambika Antherjanam speaks of the predicament of Brahmin women in Kerala, which reflects the ‘futility of ascetic efforts to satisfy bodily desire’ (Devika 2007: 243). A close look at women’s songs in rural Haryana reveals that, although procreation is a significant part of the celebration of sexuality, neither procreation nor heterosexuality exhausts the fields of sexual expression. There is a clear homoerotic valence in both all-male and all-female performance that celebrates same-sex desire and brings male and female norms relatively closer (Chowdhry 2007b: 279). It is important, therefore, to understand culture ‘as an arena in which multiple discourses compete rather than as a coercive, incarcerating code’ (Franco et al. 2007: 173). However, heteronormativity has, despite significant ruptures, ‘produced particular forms of family, gendered identities and desire as natural, eternal, historically progressive, through the mechanisms of law and state and the realm of ideas’ (Menon 2007b: 10). The view of the Indian government, that section 377 (IPC) serves the purpose of safeguarding ‘public morality, public health and healthy environment’ because ‘Indian society is yet to demonstrate readiness or willingness to show greater tolerance to practices of homosexuality’, illustrates this hegemony, where the state merely echoes public morality.1 Counter-heteronormative assertions, nevertheless, foreground the ruptures, and implicitly or explicitly challenge the edifice of heteronormativity. Take, for instance, the artist Bhupen Khakhar, whose work is a bold, queer reinterpretation of mythology, the content unambiguously homoerotic (Maddox 2007: 462). In looking at and through the cracks, what one finds is an elision between the West and the rest, between colonial homophobia and the nationalist denials of homoeroticism. 1 Naz Foundation and Others v. Government of NCT of Delhi and Others 2009 (160) DLT 277, para. 13.

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Several kinds of questions arise, therefore, in this very mixed discursive environment. What is the role/place of ‘powerless masculinities’? How is heteronormativity constituted through majoritarianism and validations of caste? What is the relationship between procreative sexuality and sexual expression? What are the possibilities presented by counter-heteronormative assertions for broadening support for the marginalized in the contexts of inequality? What are the specific strategies we can use to shift the focus to the fullness of life and notions of sustainability, instead of looking at life through the prism of loss and risk? ‘It is time,’ Geeta Patel observes, ‘to bring sexuality into the ecology of sustainability and rethink fullness and care, life and futurity,’ in terms that are radically different from the hegemonic reproduction of heterosexuality (Patel 2007: 223). How do non-normative masculinities interrogate the divisions between heterosexual and homosexual orientations? How do we craft ‘a sexual-political agenda that will address “sexuality” without the idea of a permanent divide between “homo-hetero”, “passive-active”, “feminine-masculine”, etc. or going for a peaceful cohabitation of opposites in the name of “bisexuality”’ — an agenda that will break circularity, move beyond binaries, stop circulating empty tautologies, and check intelligent but ceaseless deconstruction? (Bandyopadhyay 2007: 82). One of the crucial tasks confronting constitutional jurisprudence is the articulation of non-discrimination in the case of sexual minorities as tied inextricably to the question of personal liberty. Laying bare the continuities between colonial and nationalist standpoints, on the one hand, and right-wing Anglo-Saxon and Hindutva positions on the other, helps us get around debilitating arguments about cultural relativism that are used to undermine the emergence of a transversal discourse on queer rights as human rights (Narrain 2007: 86). The decision in Naz Foundation is a case in point.

FROM PERVERSION TO THE RIGHT TO LIFE WITH DIGNITY The Naz Foundation judgement in 2009 inaugurated an intersectional jurisprudence, examining questions of constitutionalism

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in relational terms that underscored inclusiveness. By this token, it is not merely a judgement that bears significance for the rights of lesbian, gay, bisexual, and transgender peoples (LGBT). The articulation of LGBT rights paves the way for a more general understanding of discrimination, oppression, social exclusion, and the denial of liberty, on the one hand, and the meanings of freedom and dignity on the other. The Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity, launched on 26 March 2007 (two years prior to the Naz Foundation judgement), were drafted by experts from 25 countries representative of all regions of the world. These principles delineate in painstaking detail the obligation of states to respect, protect and fulfil the human rights of all persons regardless of their sexual orientation or gender identity. On 18 December 2008, the UN General Assembly was presented with a statement endorsed by 66 states from around the world, reaffirming the Yogyakarta principles in substance. It is these international efforts, along with the movement for LGBT rights within India, which provided the context and arguments for the decriminalization of homosexuality. In the 2009 Naz Foundation judgement, the court drew on Ambedkar to reject the argument that homosexuality was contrary to public and popular morality in India. Instead, it sought to uphold constitutional morality, the diffusion of which was contingent on Ambedkar’s ideas of notional change. To quote from the judgement: ‘The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality.’2 Linked to this is the observation of the court on the question of the horizontal application of rights, with specific reference to article 15(2), a barely remembered but critical part of article 15: no citizen shall obstruct another from access to 2

Naz Foundation and Others v. Government of NCT of Delhi and Others 2009 (160) DLT 277, para. 80. All paragraph citations in this chapter refer to this judgement, unless otherwise noted in the footnotes.

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public places on grounds of caste, sex and other specified grounds (para. 104). This purposive and intersectional reading of article 15(2), hitherto restricted largely to practices of untouchability vis-à-vis dalits, opens out an important strategy in constitutional interpretation. Applying the UN human rights framework to an understanding of sexual orientation and gender identity, the judgement sets out three categories: (a) non-discrimination; (b) protection of private rights; and (c) ensuring special general human rights protection to all, regardless of sexual orientation or gender identity. Justice P. N. Bhagwati’s delineation of the right to dignity in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others,3 that ‘the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life, . . . expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings,’ provides the starting-point for the discussion of the importance of self-respect, self-worth and privacy to human social life, which is recognized nationally and internationally. Privacy is particularly important in the area of sexual relationships, where the thumb rule is simply that ‘if, in expressing our sexuality, we act consensually and without harming one another, invasion of that precinct will be a breach of our privacy’ (para. 41). The criminalization of homosexuality, the Naz judgement says, condemns in perpetuity an entire class of people, forcing them to ‘live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery.’ It thereby denies them ‘moral full citizenship’ (para. 52). Because section 377 is aimed at criminalizing the private conduct of consenting adults, the court held that it came within the meaning of discrimination, which ‘severely affects the rights and interests of homosexuals and deeply impairs their dignity’ (para. 93). It is ‘unfair and unreasonable and, therefore, in breach of Article 14 of the Constitution of India’ (para. 98) 3

Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Others 1981 AIR (SC) 746.

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The right to public health is another aspect of human rights that is seriously undermined by the criminalization of same-sex behaviour. There are two parts to this right, both of which lead back to the fundamental right to life under article 21. The first is the right to be healthy. In this context, the concerns of the National AIDS Control Organization (NACO) are pertinent. Fear of law enforcement agencies obstructs disclosure, which in turn impedes the functioning of HIV/AIDS prevention programmes and increases the risk of infection in ‘high-risk’ groups. The second part of the right to health is more expansive and includes the right to control one’s health and body, the right to sexual and reproductive freedom, the right against forced medical treatment, and the right to a system of health that offers equality of opportunity in attaining the highest standards of health. Several documented testimonies of LGBT persons speak of the treatment of their sexual orientation as a psychiatric/mental disorder. In this context, the Naz judgement, importantly, affirms the findings worldwide that sexual orientation — homosexual, heterosexual or bisexual — is an expression of human sexuality. ‘Compelling state interest’, instead of focusing on public morality, the judgement says, ‘demands that public health measures are strengthened by de-criminalisation of such activity, so that they can be identified and better focused upon’ (para. 86). Asserting that there is no presumption of constitutionality where a colonial legislation is concerned, the judgement holds that section 377 fails the test of ‘strict scrutiny’, which would require proportionality between the means used and the aim pursued. Further, when it is a question of ‘matters of “high constitutional importance”’, like the rights of LGBT persons, the courts are obliged to discharge their sovereign jurisdiction. In this case, this would involve reading section 377 down to apply only to child sexual abuse, thereby decriminalizing same sex relations between consenting adults.

The Right to Liberty and Non-discrimination Perhaps the most important issue the judgement addresses is the meaning of ‘sex’ in article 15(1) of the constitution of India:

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‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ Does the term ‘sex’ in this context refer to attribute or performance? Is sex to be applied in restricted fashion to gender, or can the multiple resonances of its common usage be taken into account, so that sex is both gender (attribute) and sexual orientation (performance)? This is particularly significant, because, as the judgement demonstrates through an extensive review of case law and principles from different parts of the world, gender and sexual orientation are an intrinsic and inalienable part of every human being; they are constituents of a person’s identity. In the words of Justice Sachs of South Africa, the constitution ‘acknowledges that people live in their bodies, their communities, their cultures, their places and their times’ (para. 47). It is this composite identity of every person that is affirmed through a nuanced reading of ‘sex’ in article 15(1). This duality in the articulation of ‘sex’ is, however, only implicit in the Naz judgement. The explicit articulation in bringing sexual orientation within the meaning of article 15(1) takes the route of analogous discrimination: ‘We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15’ (para. 104). I would like to suggest that the argument of analogous discrimination is distinct and separate from the resonances of the duality, embedded in ‘sex’, which suggests that the body simultaneously occupies multiple locations, like community, culture, place, and time, and might change from time to time, invested as it is with the fluidity and historicity that is characteristic of location. The Delhi High Court, in effect, deploys two sets of very different reasonings to strengthen the claim to freedom of sexuality and sexual expression, with far-reaching implications. The second important aspect of the Naz decision is the invocation of the right to life and personal liberty under article 21: The petitioner submits that while right to privacy is implicit in the right to life and liberty . . . Also based on the fundamental right to life under Article 21 is the further submission that Section 377 IPC has a damaging

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impact upon the lives of homosexuals inasmuch as it not only perpetuates social stigma and police/public abuse but also drives homosexual activity underground. (Para. 8; emphases added)

This submission by the petitioner foregrounds immediately the interlocking of article 15 and article 21 — the perpetuation of stigma bolstered by socially sanctioned state and non-state violence, and the curtailment of liberty. The judgement is replete with cases and incidents that demonstrate this nexus repeatedly. The court cites reports of the Lucknow incident in 2002, according to which four health workers were held in custody for 47 days under section 377 because they worked on HIV/AIDS issues, and part of their mandate was to promote sexual health among the MSM community (para. 21). In Bangalore in 2004, there were reports of aggravated sexual assault on a hijra at a public place and his subsequent torture in police custody. This incident points to the convergence of state and non-state actors in the perpetration of atrocity through the use of sexual violence and unlawful violence in ‘lawful’ custody. There were also other instances where hijras have committed suicide in custody, unable to bear torture and public humiliation (para. 22). The discussion under article 21 by the court, although titled ‘the right to life and protection of a person’s dignity, autonomy and privacy’ (‘liberty’ is conspicuous in its absence from the title), begins with an elaboration of the right to personal liberty, drawing on the decision of the seven-judge bench of the Supreme Court of India in Maneka Gandhi:4 the expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Any law interfering with personal liberty of a person must satisfy a triple test: (i) it must prescribe a procedure; (ii) the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and (iii) it must also be liable to be tested with reference to Article 14 . . . and must also be right and just and 4

Maneka Gandhi v. Union of India 1978 AIR (SC) 597.

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fair and not arbitrary, fanciful or oppressive. If the procedure prescribed does not satisfy the requirement of Article 14, it would be no procedure at all within the meaning of Article 21. The Court thus expanded the scope and ambit of the right to life and personal liberty enshrined in Article 21 and sowed the seed for future development of the law enlarging this most fundamental of the fundamental rights. (Para. 25)

Interestingly, the court does not draw a connection between articles 15 and 21. However, in a sharp departure from canonical jurisprudence, it invokes article 15 in a creative manner, and posits liberty as the first signpost in article 21 rights. This, in fact, points to the crux of my argument, which is that any law interfering with article 21, quite apart from the triple test prescribed above, must be tested against article 15, the test of non-discrimination, which is distinct, in the court’s own account, from article 14, the right to equality.

LAW’S VIOLENCE Against the background of Naz Foundation, it is pertinent to examine the Andhra Pradesh (Telangana Areas) Eunuchs Act, 1919, which specifically targets eunuchs and hijras in far more direct ways than section 377 does. The act is, in fact, a disturbing illustration of the law’s violence.5 The Andhra Pradesh (Telangana Area) Eunuchs Act, 1329 Fasli (Act 16 of 1329 F), is an enactment ‘for the registration and control of eunuchs’. Section 2 of the act provides for the maintenance of a register by the government that would contain ‘the names and place of residence of all eunuchs residing in the City of Hyderabad or at any other place . . . and who are reasonably suspected of kidnapping or emasculating boys or of committing unnatural offences or abetting the commission of the said offences’ (emphasis added). Clearly, the definition of unnatural offences that applied here was that provided in section 377 (IPC), which has now been read down by the Delhi High Court. Section 4 of the act, ‘registered eunuch found in female clothes’, cast a wider net: 5

I borrow the expression ‘law’s violence’ from Sarat and Kearns (1993: 209–73).

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Every registered eunuch found in female dress or ornamented in a street or a public place or in any other place with the intention of being seen from a street or public place or who dances or plays music or takes part in any public entertainment in a street or a public place may be arrested without warrant and shall be punished with imprisonment for a term which may extend to two years or with fine or both. (Emphases added)

Section 5 provides for the punishment of a eunuch with imprisonment if it is found that he ‘has with him or in his house or under his control’ a boy who is less than 16 years old. This boy could well be his child. Section 6 provides that the district magistrate may direct that any such boy be delivered to his parents or guardian, ‘if they can be discovered and they are not eunuchs; if they cannot be discovered or they are eunuchs, the Magistrate may make such arrangement as he thinks necessary for the maintenance, education and training of such boy’ (emphasis added). Sections 5 and 6 deny eunuchs the right to relationship, family, child custody, and reproductive autonomy. Finally, section 7 penalizes consensual and non-consensual emasculation and abetment to emasculation with imprisonment for a term, which may extend to seven years. But section 1-A of this act states: ‘a eunuch shall for the purpose of this Act include all persons of the male sex who admit to be impotent or who clearly appear impotent on medical inspection’ (emphasis added). So, by this token, all impotent men, all ‘emasculated’ men, all male transvestites, and ‘men found in female dress’, attract criminal prosecution for their corporeal defiance of heteronormativity, the cornerstone of which is the potent, virile, sexually active, heterosexual man. The surveillance and colonization of the body and mind of the eunuch through the combined regulatory practices of policing and medical inspection — the denial of life and liberty, in a literal sense — is accompanied by an absolute denial of the right to freedom of speech, dress and aesthetic expression. From a philosophical perspective, instead of allowing space for support that medicalizes the ‘problem’ along the normal–abnormal axis, would it not be more fruitful to consider the possibility that the prevalent understanding of gender-deviant bodies as a problem

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needs to be addressed through group political action rather than medical treatment? (Sukthankar 2007: 97). But that is not all. This law, unarguably, represents the starkest form of sex discrimination and violent exclusion. A ‘eunuch’ is an impotent man; all eunuchs must be registered; no eunuch may wear ornaments or female dress, in private or in public; no eunuch may have a child in his care. It is not clear from this legislation whether parents are permitted to keep a transgender child in their care. Would this child then attract the same criminal provisions? Would parents then become abettors in the crime of allowing freedom to a transgender child? The assumption in the law is that eunuchs are created through ‘emasculation’ and/or ‘impotence’, both of which are treated as interchangeable and the result of conscious decision (in which the consent of the person ‘emasculated’ is irrelevant) — mens rea. This law obliterates the possibility that persons might be born with attributes of both sexes, and might reasonably choose to perform one or the other sex or both; and it obliterates any distinction between sex as attribute and sex as performance. Further, it assumes a self-sustained, closed community of transgender people — an assumption that does not allow for the social coexistence of eunuchs, men and women. And yet this is a forced separation, effected by a draconian law that forces parents and neighbourhoods (even where they are inclusive) to expel transgender kin from their midst lest they invite criminal prosecution. Alternatively, transgender people are forced to adopt a flat male identity in return for social acceptance at every level, and indeed in order to be at liberty. At another level, an examination of this legislation is also important because it tells a story of the law’s construction of difference and the law’s delineation of hegemony based on difference — in this instance, gender hegemony — with a sharp focus on bodily aesthetics and procreative/heterosexual capacities.6 This law tells the story of law’s performance of violence, not as 6

Andrew N. Sharpe (2002) discusses the complexities in the judicial imagination of sex/gender in Australian and US jurisprudence. However, the concerns raised by the AP legislation are distinct.

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punishment for crime, nor as punishment for dissent, but because, as a homogenizing force bearing the weight of Reason, it polices bodies and is intolerant of difference. This law also tells the story of public morality. The Eunuchs Act crystallizes for us the horrifying convergence between discrimination and the loss of liberty, and underscores the criticality of an intersectional understanding of articles 15 and 21 of the constitution of India.

CONCLUSION I have attempted, in this chapter, to examine the category of ‘sex’ beyond the simple classifications of male and female, looking at gender and law in a manner that does not water down the focus on women, but complicates our understanding of discrimination based on sex. The Delhi High Court’s extended delineation of ‘sex’ in the celebrated Naz Foundation case has served as my point of departure. The decision in Naz Foundation maps outs the shifting contours of constitutionalism in India, along with the trajectories of destabilization of categories that hitherto have been assumed to be relatively fixed, both by and in courts. The question that confronts us is, can the sexual be part of constitutional communication? Can it be historicized in constitutional discourses around marriage, relationship and family? Challenging the argument that the right of sexual minorities to non-discrimination is one that is rooted in the experience of the West, in this chapter I have sought to present a cursory, potted history of counter-heteronormative practices in India, offering a view of history that departs from the binary interpretation of sex as male or female that represented the norm in constitutional law before Naz. This is not to suggest that the heteronorm is entirely imposed from without, or that it gets completely dislodged by the potent heterogeneity of the politics of sexualities in contemporary India, rooted in a heterogeneous past. Rather, the ‘internal split of cultural difference within the same culture’ (Spivak cited in Bose and Bhattacharyya 2007: xxiv) brings to view the ‘glaring

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discrepancies in the ways in which ethics play out across class and/ or power structures on the subcontinent’, revealing the critical moments of subalternity that challenge the universal heterosexual norm within the same culture. ‘The entire fabric is not merely constituted of warp and weft but also of rip and tear and missing thread’ (ibid.: xxv). We return then to the point at which we began. How may we map the trajectories of an intersectional jurisprudence of nondiscrimination?

Conclusion: Eliminating Hostile Environments — Non-discrimination, Liberty and an Insurgent Constitutionalism One day the cry and despair of large numbers of people like Bhondua Kurmi will shake the very foundations of the society and imperil the entire democratic structure of our polity and if that happens, we shall only have ourselves to blame. — Veena Sethi v. State of Bihar 1983 AIR (SC) 339 Our Constitution is the mirror of the culture of our country and the expectations of its people. — P. K. Tripathi (see Singh 1989: 479–80) [Should] the colonial interpretation of the laws . . . be followed while interpreting the Constitution? Did the Constitution imply a break with the past, at least with reference to the people and the state and its government? Does the transformation of a person from the status of a ‘subject’ to that of ‘citizen’ mean anything at all when interpreting the scope of entrenched rights in the Constitution? — K. G. Kannabiran, The Wages of Impunity (2003: 59)

This project has been driven by a guiding question: what are the possible contours of a transformative constitutionalism?1 In framing this question, the constitution is not seen as constitutional law; it is not confined to constitutional courts, nor is it accessible to judicial interpretation alone. The constitution is a vision that drives movements for social transformation, and provides a framework for radical struggle on different fronts. It also provides the 1

In using this phrase, I am drawing on the large body of work by K. G. Kannabiran and Upendra Baxi.

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framework for the judiciary to shape the destiny of this country through judicial creativity in the interpretation of general principles (Tripathi 1972: 315). The constitution contains the potential for the subaltern interpretation of constitutional morality by communities that face historical injustice, and by their advocates — interpretations that can subvert the habit of constitutional moralism. Within the range of possible articulations of constitutional morality, the connection between liberty, non-discrimination and pluralism lies at the heart of this work. If, as Bauman argues, ‘freedom is itself a social fact, socially produced and socially endowed with the meaning it happens to carry at a particular time or place’ (Bauman 1997: 28), we need to ‘articulate experiences of new social structures and processes, to render the change meaningful’ (ibid.: 29), to map the evolution of a sociogenesis of liberty, so to speak, at this historical moment.2 To understand the different layers of this connection, I have used article 15 of the constitution of India as my point of departure, examining its scope and problematizing established interpretations of its reach. The interconnections between article 15 and article 21, between discrimination and the curtailment/negation/loss of liberty, are immediate and inextricable. In opening this field out, therefore, it is important to move beyond the traditional reading of equality with life, to look instead at the possibilities of reading non-discrimination with liberty. This move can be accomplished effectively with the use of a differently constructed corpus of materials that enables a different reading. And this is the second part of what I have attempted to do in this book — to dismantle disciplinary protocols and use a range of materials to understand the problem of discrimination in the law. Methodologically, this would mean (redeploying Ranajit Guha’s formulations, with a twist) comprehending apparently 2

Drawing on Norbert Elias, Bauman uses the phrase ‘sociogenesis of freedom’ to refer to ‘those departures and dislocations in social figurations, large and small, which led to successive modifications in the network of dependencies and hence also in the contexts of human interaction, and which the discourse of freedom articulated. It is assumed that every such dislocation created social tensions appearing to contemporaries as an unresolved social problem, either demanding the rejection of past concepts or their innovative use’ (Bauman 1997: 30).

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unanticipated arguments by means of analogy, ‘by an awareness and understanding of a relation between forms. Just as one learns the use of a new language by feeling one’s way from the known elements to the unknown, comparing and contrasting unfamiliar sounds and meanings with familiar ones’ (Guha 1983: 2), so also may we revisit constitutional categories and discourses to map presences and absences, interrogate established usages and propose new ones that draw from the old, through affirmation, extension, negation, comparison, or analogy. Disability, as the first signpost in the analysis of discrimination, already overruns the interpretive boundaries of constitutional jurisprudence on article 15. In looking at the constitutionally inarticulate index of disability, my attempt has been primarily two-fold: to interrogate the assumptions of able-normativity that inform the entire range of ability-based diversities and the redress of claims to non-discrimination; and to explore the specific position of persons with intellectual disabilities, who are constitutionally denied equal citizenship, and whose ‘normal’ habitation is a custodial facility. However, disability rights discourse in and outside courts has tended not to engage with the politics of citizenship. Butler addresses the problem of statelessness in relation to minorities expelled from the state or held in perpetuity in a condition of statelessness (Butler and Spivak 2007). This analysis of statelessness and sovereignty could be extended to politicize the right to nondiscrimination of persons with disabilities. Further, where disability is concerned, discrimination interlocks with the loss of liberty in two distinct ways. For the physically challenged, the routine denial of barrier-free access perpetuates a hostile environment that physically and materially obstructs mobility. The fact of requiring barrier-free access translates by definition into ‘lower levels of efficiency’ that require ‘accommodation’ and ‘incentives’ on the part of employers and institutions.3 For the intellectually challenged and the mentally ill, the problem of discrimination intersects with the loss of liberty through the 3

It is important not to lose sight of the continuities in discursive patterns across the different indices of discrimination. The efficiency argument is used to the same effect in respect of the scheduled castes, women and persons with disabilities.

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denial of fundamental political rights and through the legality of indefinite incarceration. For women with intellectual disability, it leads additionally to the increased vulnerability to sexual assault, and to the likelihood of the state divesting them of any control over sexual/reproductive choice. What is the relationship between consent and custody in the case of persons with disabilities? What are the limits of the state’s contractarian approach to care for the profoundly disabled? The gender aspect of this problem is at the core of the articulation of non-discrimination and liberty: women with disabilities in custodial facilities of the state embody multiple discriminations and constitutional negations. Disability does not find explicit mention in the equality code of the constitution of India. Article 15 reads, ‘The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ Rather than allow this constitutional silence to rupture our reading of constitutional morality, it is more productive to attempt to write disability into the constitutional scheme through a radical interpretation of the constitution. Stepping away from a minimalist approach that restricts disability to the purview of article 14 alone, the decision of the Delhi High Court in Naz Foundation4 gives us the methodological and interpretive tools to examine the substantive correspondence between article 15 and the situation of persons with disabilities, as is evident from state policy. Article 15(2) recognizes the indispensability of barrier-free access (liberty) to non-discrimination. This, along with article 17, which addresses the problem of segregation and exclusion, and article 21, which affirms the expansive right of every person to liberty,5 allows us to weave a tapestry of non-discrimination on grounds of disability out of constitutional threads. 4

Naz Foundation v. NCT of Delhi and Others 2009 (160) DLT 277. The Maneka Gandhi court, especially, rejects previous reductionist readings of the right to personal liberty, affirming this right in the broadest possible terms, and opening out the space for the progressive articulation of this right prospectively. Maneka Gandhi v. Union of India 1978 AIR (SC) 597. 5

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Challenging the dominant view that it is only articles 14 and 16 that are open to the ground of disability, we might return, finally, to the use of analogous grounds in the Naz Foundation decision, and explore the possibility of constructing disability as a ground of discrimination analogous to sex and caste within the purview of article 15.6 Sex and caste are two indices that are specifically relevant because of the overlap in discursive and social constructs between caste, sex and disability, an overlap that is far from irrelevant. Sex-based discrimination, as we have seen, echoes the arguments of frailty, reduced ability, the incapacity of women in comparison with men — arguments similar to the presumptions of weakness, infirmity, incapacity, and dependence of persons with disabilities. Official discourse on caste over the entire period stretching from pre-constitutional to contemporary times appropriates the term ‘disability’ to describe discrimination based on caste — discrimination that manifests itself through segregation, exclusion and the denial of voice and visibility, all of which, as we have seen, are themes that play out in specific ways with respect to disability. Disability has provided the framework for the understanding of self-determination and social ability generally, even in the context of the freedom struggle and the making of the constitution. However, it has remained invisible and inarticulate because it was (and continues to be) foundational. While ‘disability’ serves as a point of reference for classes facing exclusion and discrimination, it has not been invoked self-referentially, that is, to give voice and visibility to people with disabilities. Caste is an issue that has attracted the widest range of scholars in law and sociology. I have sought to compile a sociological corpus on caste, drawing on the logic of the constitution, and foregrounding in the process the intellectual history of non-discrimination based on caste, a history that must serve as a reference point for 6

The use of analogous grounds in non-discrimination jurisprudence first occurred in India in Naz Foundation v. NCT of Delhi and Others 2009 (160) DLT 277, which ruled that sexual orientation was a ground analogous to sex in article 15.

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constitutional jurisprudence. There are insurmountable problems that arise from relying on materials that assume the normativity of the ‘upper-caste’ experience in deciding cases on the rights of the excluded castes. I attempt an exploration of these complexities through a textual analysis of cases on reservation for the scheduled castes and scheduled tribes. In caste-based discrimination as well, we see a clear intersection between discrimination and liberty through the medium of article 17 of the constitution of India. Untouchability is the form that the loss of liberty takes in a context of caste-based discrimination. As Tripathi suggests, ‘although prohibition of segregation or of untouchability is, from one angle, enforcement of the right of equal protection, it must be appreciated that it is denial of personal liberty from another’ (Tripathi 1971: 190). This loss of liberty then quickly travels the road from untouchability to collective violence. Mass assault has been addressed in the introduction to this volume, while the problem of liberty has been examined in the context of governmental action on untouchability initiated and sustained by S. R. Sankaran, the subaltern administrator, in the mid-1970s in Andhra Pradesh. The discussion also situates ‘the law’ differently, speaking to the need to engage with plural sites of law and justice, not limiting interventions to courts. Having said that, with three articles in the fundamental rights chapter of the constitution speaking to the problem of untouchability, segregation and forced labour (which includes, importantly agrestic slavery and ‘manual scavenging’), it becomes urgent to recover a sociology and social history of untouchability as well as the resistance to it. This history of constitutional categories is indispensable to the development of a jurisprudence of non-discrimination by courts. Articles 15(1) and 15(2) set out the context for articles 15(3) and 15(4), with article 17 unequivocally reinforcing the guarantee of non-discrimination through a proscription of its most extreme form. The place of article 17 — ‘constitutional criminal law’ — in comparative constitutional law remains unparalleled, as Baxi aptly points out (U. Baxi 2010: 63). In appreciating this history, courts need to draw on subaltern social science that gives meaning to these categories and recovers the histories that necessitated the

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formulation of the categories in the first place. It is also important to build on the findings of subaltern research that provides a nuanced understanding of untouchability as graded discrimination that is practised vertically and horizontally (Navsarjan and RFK 2010). The insurgent application of article 17, then, will effectively proscribe vertical segregation and promote the horizontal social intercourse so critical to a robust pluralism. The history of the dispossession of adivasis is a long and tortured one. However, while official discourse focuses on ‘backwardness’ and exploitation by non-tribals, the language of discrimination is strangely not as explicit as it might be. Social movements, on the other hand, have identified discrimination by the state, directly and through the concerted denial of due diligence, as the experience of the range of adivasi communities. The problem of liberty here is expressed either through their ousting from land, or through confinement in settlements, or through the tacit support to ‘settler populations’ that dispossess adivasis on a day-to-day basis. This dispossession takes many forms. The sexual exploitation of adivasi women is an especially aggravated form that has a long history, from the period of colonial anthropology to the contemporary appropriation of land from adivasi communities. The marriage of a non-tribal man to an adivasi woman presents a problem of choice where the woman is concerned, and a problem of sealing out the ‘dikus’ where the community is concerned. Almost all patrilineal tribes assimilate the offspring of out-marrying adivasi men and oust the offspring of out-marrying adivasi women. On the face of it, this is in keeping with the patrilineal requirement of patrilocality, which characterizes Hindu society as well. There is, however, an important difference. This practice has a very different impact on adivasi women than it does on dominant-caste Hindu women. The Hindu social context that is discriminatory against adivasi communities (a historical fact recognized by the constitution and by special legislations like the Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989) will not open out to include in-marrying adivasi women. Adivasi women cohabiting with Hindu men are also vulnerable to extreme forms of collective assault by the dominant community that absolves non-tribal men

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of any responsibility.7 Moreover, the adivasi social context that is discriminatory against women — as other communities are — pushes these women out and seals off its boundaries. The women are therefore ousted from normal sociality. This is a problem with the law, both written and customary — a problem that is left unresolved by the court’s validation of discriminatory custom. In refusing to apply the principle of non-discrimination, the court and the state crystallize and solidify custom,8 which is negotiable and flexible in practice. Random interviews with adivasi groups in Andhra Pradesh, for instance, reveal a sharp disjuncture between the official statement of custom in these communities and the actual workings of custom at the community level, a flexibility that is negotiated in recognition of histories of exploitation of adivasi women by non-tribal men.9 The gap between the official and the actual is the space occupied by constitutional morality, a space that can be bolstered and expanded through processes of democratic deliberation with community-based groups. Adivasi communities have generally been classified in terms of occupying a ‘prior stage of economic development’. However, a close look at issues of sustainability and the philosophy of interconnectedness of all life forms, along with the focus on a harmonious relation with ecology and environment that is now propagated by environment struggles, point to the origin of these struggles in forest and nomadic adivasi communities. For these communities, the continuity between forest bureaucracies during colonialism and after reflects a crisis of the curtailment of liberty and the seamlessness in practices of discrimination, segregation, stigmatization, and exclusion. Here, too, as in the case of caste, the convergence between diligent administrators and communities of resistance is critical. 7

We may recall here the case of the 25-year old Bhil woman Nandabai, who was stripped and paraded naked by the family members of the dominant-caste man who was in a longterm relationship with her. Kailas and Others v. State of Maharashtra Criminal Appeal No. 11/2011 (Arising out of Special Leave Petition [Crl] No. 10367 of 2010). Judgement delivered by Justices Markandey Katju and Gyan Sudha Misra on 5 January 2011. 8 Society for Protection and Enforcement of Adivasi Right and Another v. State and Others 2002 AIR ( JHA) 17. 9 Discussions with members of Adivasi Aikyavedika, Andhra Pradesh, in 2009–10.

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The inclusion of ‘tribe’ within the purview of article 15(1) particularly invites more careful examination. The racial and territorial identification of the category of ‘tribe’ encapsulates the convergence of discrimination and loss of liberty as the historical experience of adivasi communities, given the inextricable links among safeguards in relation to racial discrimination and territorial protections. The territorial identification of tribes takes two constitutional forms: areas that fall under Schedule V of the constitution, and areas that fall under Schedule VI. These two are related in terms of the imagining of autonomy and self-governance. However, there are structural differences in state formation, rooted in the dispersal of adivasi communities across different states that were designated as Partially Excluded Areas (Schedule V) and the states of north-east India that were designated as Excluded Areas (Schedule VI) under the Government of India Act, 1935. The derogation of the right to personal liberty in these two areas takes clearly distinct forms. Dispossession through displacement and non-tribal enclavement are characteristic of the experience of Schedule V areas, and dispossession through militarization and the indefinite use of the Armed Forces Special Powers Act constitute the experience of the Schedule VI areas (see Baruah 2010; U. Baxi 2010). Neither forced displacement nor indefinite military occupation can be disconnected from the problem of discrimination against adivasi regions by the state. In other contexts where this law is used, territoriality is tied to religious community, as in the case of Jammu and Kashmir. To return to the problem of the strict application of 15(1), which is the approach courts have used, especially in putting ‘disability’ out of the purview of 15(1), the circular manner in which ‘tribe’ is brought in without a specific mention strengthens the case for the inclusion of disability, and infinitely bolsters the argument of analogous discrimination. The long-standing debate on secularism in the courts merits constant reiteration. In a significant move, the Supreme Court recalled Upendra Baxi’s intersectional definition of secularism, which goes to the heart of the matter. Baxi defines secularism to refer to the proscription of practices of exclusion with respect to

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the caste system in Hindu society, the distancing of the state from religion, the regulation of secular activity associated with religious practice, and the guarantee of the freedom of conscience in a manner in which none of the provisions of part III are violated.10 The critical discussion on secularism as a basic feature of the constitution was debated in the Supreme Court in S. R. Bommai in a context where the derogation of the right to liberty was tied to discrimination under article 15(1) by the state, and under article 15(2) by mobs of kar sevaks acting in concert. Wide-ranging research has shown the diversity among Muslims in India, and also the overlaps between stratification systems among Muslims and the Hindu caste order (this is also the case with Christians, but this project focuses on the Muslim experience). There has been painstaking documentation of diversity among Muslims, and the fact of diversity has been written into the official record through the purposive transfer of social science research into legislative and judicial deliberations. This has been accomplished by a radically constitutional administration, represented by P. S. Krishnan in the case of Andhra Pradesh. Despite the existence of this diversity, which is also evident in the reservation for Muslim backward classes in different states, Hindu majoritarianism homogenizes entire minorities through reductionist discourses of conversion and prepares the ground for genocidal massacre on an unprecedented scale. Collective violence, then, is the form that the derogation of liberty takes with reference to religious minorities. But specific cases also demonstrate that a majoritarian jurisprudence can result in discrimination and the derogation of liberty for women of minority communities. The court may, through an inversion, become the site of violation, a possibility that must be eliminated. It is also important to map the reorientation of communal relations arising out of a shift in economic relations, as well as to trace the continuities between communal tensions and other forms of civil strife, which may serve ‘to indicate the deeper social processes that are at work throughout Indian society and are producing an unusual exacerbation not only 10

S. R. Bommai and Others Etc. v. Union of India and Others Etc. 1994 AIR (SC) 1918.

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of communal tensions but all varieties of social and civil conflicts and tensions’ (Imtiaz Ahmed 1984: 906). In looking at gender, the observation of the majority in Madhu Kishwar v. State of Bihar, that ‘rules of succession are indeed susceptible of providing differential treatment, not necessarily equal. Non-uniformities would not in all events violate Article 14,’11 takes us to the heart of the matter. Does differential treatment and nonuniformity in the matter of succession constitute discrimination or does it not? What we witness here is an appropriation of the ‘special provisions’ standard and its negative application to justify discrimination. In an attempt to resurrect a sense of justice, I have returned to the problem of an intellectual history of non-discrimination. Given the majoritarian slant in judicial discourse, especially evident in the reiteration of Hindu scriptures and the exposition of Manu-based worldviews in constitutional matters concerning women, the first step in treading a different path is to bring in the history of the early resistance to these worldviews. This would radically change the reference point of ‘tradition’ and give women breathing space outside the scriptures. Since discrimination against women is most evident in the habit of violence, this project has attempted to map the habitations of violence before moving to an extensive analysis of case law on non-discrimination. Where women are concerned, the derogation of liberty takes the form of sexual assault — the incarceration of women through sexual control and sexual violence. The final part of the section on gender, and indeed the entire project, focuses on sexual orientation and sexual minorities. The extension of sex discrimination to a field that is not contained in the binary of male and female suddenly renders gender into a hyper-articulate index of discrimination. The contestation of binary categories of sex on the Indian subcontinent has a long and rich history that has been overlaid by the homogenizing force of section 377 of the Indian Penal Code from the mid-1800s. Recovering that history enables a more layered understanding 11

Madhu Kishwar v. State of Bihar 1996 AIR (SC) 1864; emphasis added.

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of the constitutional category of sex that has not been defined in article 366 of the constitution, and as such remains open to reinterpretation and revalorization. Although the Naz Foundation decision represents a radical advance,12 the problem of liberty even in the context of sexual minorities is far from resolved, as the law restraining eunuchs shows. Discrimination on grounds of sexual orientation restrains liberty through micro-practices of social intercourse that proliferate and are in a sense ‘uncontainable’. This is especially the case where orientation is not physically marked and self-evident, but behavioural or performative. What are the ways in which hate speech and subtle bodily moves communicate horizontal discrimination, and thereby restrain liberty? How might we dismantle hostile environments that are built by practices of social boycott like the loud silence on the right to non-heterosexual choice, or even the refusal to name sexes beyond the binary? The terms ‘social boycott’ and ‘untouchability’ encode practices that may thus easily be replicated vis-à-vis newer or existing social groups that for one reason or another become targets of discrimination: for example, persons affected by HIV/AIDS, sexual minorities, or religious minorities. The extension of the terms of caste discrimination to women is rendered relatively easy by the scriptural or textual equalization of a woman, in specific contexts, to the untouchable. This happens, for instance, in the case of the woman in times of reproductive cycle pollution. The use of the term disability in discussions of the caste system is extremely significant both to an understanding of the caste system and to an understanding of disability, and helps us move away from looking at ‘disability’ as inherent in the physical constitution of the person with disability. That is, it is not any more the parameter of abnormality that should inform our understanding of disability; rather, it is the fact of the imposition of social conditions of the loss of liberty that creates disability. Each of the indices of discrimination examined here has been the subject of international conventions. The movements against discrimination within the country have engaged in deliberations 12

Naz Foundation v. NCT of Delhi and Others 2009 (160) DLT 277.

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at national and international levels to sharpen the focus on such discrimination. The UN Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of Racial Discrimination, the Rome Statute of the International Criminal Court, the UN Declaration on the Rights of Indigenous People, the Convention on the Elimination of Discrimination against Women, and the Yogyakarta Principles — all of these identify quite clearly the relationship between non-discrimination and liberty, the non-negotiability of both, and the indispensability of the exercise of due diligence by state actors to prevent derogations entrenched in discriminatory social contexts. Domestic legislations and case law have recognized the centrality of international conventions, notably the Persons with Disabilities Act, 1995, the Protection of Women from Domestic Violence Act, 2005, the Visakha decision,13 and the Naz Foundation decision,14 to name a few instances. There are also legislations that have drawn on the long-standing resistance to injustice and dispossession, like the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), which embody the essence of a transformative constitutionalism. New social movements focusing on disability rights, dalit rights, minority rights, adivasi rights, women’s rights, and the rights of LGBT communities have used these conventions and laws to combat public morality in governance and civil society. How is the non-discrimination–liberty guarantee relevant to the idea of development? The five indices identified as sources of discrimination — caste, sex, race, religion, and place of birth — open this guarantee out to dalits, adivasis, women, sexual minorities, and religious minorities; a sixth index forms the inarticulate premise of the constitution — disability. Each of these indices marks persons/communities who inhabit disentitled life-worlds. Each index has served historically as a separator of citizen–subjects from citizens, the former trapped under the wheels of the development juggernaut set in motion by the latter, who monopolize not only resources but also the reins of government, holding the state 13 14

Visakha and Ors v. State of Rajasthan and Ors 1997(7) SC 323. Naz Foundation v. NCT of Delhi and Others 2009 (160) DLT 277.

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captive. Violence and asymmetrical power relations, needless to say, are deeply entrenched in these worlds. In order to re-state the idea of development, it is necessary to unpack the fields of discrimination and thereby plot the meanings of non-discrimination and liberty that are central to justice claims. More specifically, how does discrimination produce exclusion from the idea of development as justice? The idea of non-discrimination, I argue, is distinct from the idea of equality, and cannot be reduced to an expression or a subset of the equality principle. In suggesting this, I draw on the decision of the minority in Kharak Singh,15 later affirmed in a series of judgements including Maneka Gandhi,16 that article 19 and article 21 are independent fundamental rights that overlap and are not mutually exclusive. It is important to develop this view further to say that each article in the constitution is independent and interdependent — that no fundamental right, indeed no article, can be seen as being carved out of another, or as being a subset of another. Although ‘the attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than attenuate their meaning and content by a process of judicial construction,’17 scholarship and jurisprudence on non-discrimination have tended to be restricted and reductionist, viewing the important right to non-discrimination as a mere facet of equality (see Seervai 2007: 435–692). To take one thread of equality jurisprudence in India, if arbitrariness is antithetical to equality and therefore a violation of article 14, it takes the opposite route in the case of non-discrimination, where the derogation of the right is accomplished not through arbitrariness in state action but through a systematic, planned and systemic deployment of power in an organized fashion, horizontally (between classes inter se) and vertically (by the state), so as to divest communities/classes of the right to liberty. As is evident from the excerpt from Madhu Kishwar quoted earlier,18 discrimination is not contained by the ‘arbitrariness’ principle (delineated at length 15

Kharak Singh v. State of Uttar Pradesh 1963 AIR (SC) 1295. Maneka Gandhi v. Union of India 1978 AIR (SC) 597. 17 Maneka Gandhi v. Union of India 1978 AIR (SC) 597, para. 5. 18 Madhu Kishwar v. State of Bihar 1996 AIR (SC) 1864. 16

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in Maneka Gandhi) in interpretation, and therefore cannot be seen as a subset of equality alone.19 On the other hand, ‘arbitrariness’ acquires an amplified meaning if understood from the standpoint of non-discrimination. Any reading of any part of the constitutional guarantee of nondiscrimination that truncates its meaning may be said to be arbitrary because it interprets the right against itself and thereby negates it. The ‘basic structure’ doctrine safeguards the constitution from any abridgement through legislative amendment.20 This safeguard would render any jurisprudential/interpretive abridgement impermissible. I have sought to demonstrate, through a close reading of case law, the specific ways in which the doctrine of permissible classification often foregrounds discriminatory practices even while it guides equality jurisprudence. Would it then be apt to turn around the formulation of the relationship between article 14 and article 15, to say that it is the principle of non-discrimination that comes into play where group indices like sex, race, caste, place of birth, and religion are concerned, rather than the principle of equality? Article 15 recognizes in substantive terms that groups are unequally placed and that this has physical and material consequences for the groups located at the bottom of the social order. It also recognizes that there are several simultaneous channels of deployment of discrimination, which, unlike inequality, produce definite forms of corporeal vulnerabilities. A layered application of the principle of non-discrimination, which progresses from the simple enunciation of equality (article 14), through significant elements of difference and plurality (article 15), to the deployment of coercion and force (articles 17, 21 and 23), roughens up the smooth and flat terrain of equality, and enables a more comprehensive appreciation of the principle of non-discrimination: These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to 19

Maneka Gandhi v. Union of India 1978 AIR (SC) 597. His Holiness Kesavananda Bharati Sripadagalvaru and Others v. State of Kerala and Another AIR 1973 SC 1461.

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protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a ‘pattern of guarantees on the basic-structure of human rights’ and impose negative obligations on the State not to encroach on individual liberty in its various dimensions. It is apparent from the enunciation of these rights that the respect for the individual and his capacity for individual volition which finds expression there is not a self-fulfilling prophecy. Its purpose is to help the individual to find his own liability, to give expression to his creativity and to prevent governmental and other forces from ‘alienating’ the individual from his creative impulses.21

Against this backdrop, this project began initially as an attempt to map the ‘distinct’ fields of discrimination set out in article 15, and to explore the relation of each field to the question of liberty as set out in article 21 of the constitution of India. The primary distinction was between ‘common’ fields (like gender and disability) and ‘discrete’ ones (religion, tribe, caste). As each field began to open out, however, this neat classification was immediately thrown into crisis. This was because: (a) within the common fields, there are glaring invisibilizations (‘de-notified tribes’, women with intellectual disabilities, transgender persons) that remained separate, isolated and excluded within larger political and juridical/legal articulations; and (b) the categories that were presumed to be discrete showed up connections not only with the common categories of gender and disability (which are anticipated in the formulation), but between the so-called discrete categories that no longer remained separate and distinct. The intersection of caste with religion, tribe with caste, tribe with religion, religion with caste, religion with tribe, and the intersection of class with each of these categories and combinations of categories, produced a mosaic of plurality saturated with power that the guarantees of non-discrimination and liberty need to reach out to. This occurs in a situation where governmentality and juridicalization have historically tended to impose homogeneity, through constructs that serve the ideological function of defining normativity outside of lived experience. 21

Maneka Gandhi v. Union of India 1978 AIR (SC) 597, para. 4. The invocation of a seamless history ‘from Vedic times’ has become emblematic of constitutional hermeneutics in India that truncates the reach of the political even while delineating the basic structure of the constitution.

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Any attempt to examine the different sites of non-discrimination and liberty must be guided by the view that ‘the tests of reason and justice cannot be abstract. [They] have to be pragmatic.’22 Such attempts must evolve new interpretive protocols and strategies to grasp the complexity of the problem at hand. These involve, importantly, the amplification of interpretive tools that have been devised in or in relation to courts, but have been confined to a specific application. Moving away from a disaggregated approach to understanding non-discrimination and liberty, and instead adopting a holistic, cross-sectoral, intersectional approach that looks at connections and possibilities that might enrich the scope of non-discrimination, involves a shift that forces a re-examination of a range of materials hitherto inadequately explored in constitutional jurisprudence and legal research on non-discrimination. This shift draws on the delineation of the ‘basic structure of the constitution’ set out in Kesavananda Bharati: The basic structure may be said to consist of the following features: (1) (2) (3) (4)

Supremacy of the Constitution; Republican and Democratic form of Government; Secular character of the Constitution; Separation of powers between the legislature, the executive and the judiciary; (5) Federal character of the Constitution. The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed. The above foundation and the above basic features are easily discernible not only from the preamble but the whole scheme of the Constitution.23

The standard interpretation of article 15(1) has given undue weight to the word ‘only’, while not considering the jurisprudential implications of the concluding phrase ‘or any of them’. Can we read the reduction of ‘or any of them’ to ‘only’ in article 15(1) as the reduction of plurality to a single universal? Although the 22

Maneka Gandhi v. Union of India 1978 AIR (SC) 597, para. 216. His Holiness Kesavananda Bharati Sripadagalvaru and Others v. State of Kerala and Another AIR 1973 SC 1461, paras 316–18; emphasis added.

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constitution contains and expresses plurality, the assertion of a universal reason expels the plural constitutive elements that cannot be contained within the abridged space of what is now recognized as constitutional law. Proceeding on the assumption that the constitution can contain no surplusage, and that all words and phrases are intended to convey meaning — an assumption that might offer radical possibilities for the interpretation of nondiscrimination — a re-examination of article 15(1) leads us to conclude that the phrase ‘or any of them’ enables a consideration of intersectionality in non-discrimination jurisprudence that need not any more be limited to one of the stated indices alone. Article 15(1) could also be interpreted to mean that discrimination is prohibited on a single ground or on a combination of grounds, listed in the clause and not listed, with the court then bearing the responsibility of examining discrimination on one ground in conjunction with other factors. This opens out the scope for a jurisprudence that takes note of multiple discriminations. The idea of ‘hostile environments’ is critical to an understanding of the interlocking of discrimination and the curtailment of liberty. From relatively ‘benign’ forms of harassment and hate speech — against dalits, adivasis, Muslims, women, sexual minorities, and the differently abled — to incarceration, assault and atrocity, and further to the disabling of legal redress and remedy, hostile environments are entrenched in contexts of discrimination and have an immediate, negative effect on the exercise of the right to liberty by communities/classes that are the targets of discrimination. An illustration of this negation may be found in the comments by the Supreme Court of India in a 2011 case where a woman belonging to a scheduled tribe was assaulted by a group of nontribal people: We are surprised that the conviction of the accused under the Scheduled Cases and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was set aside on hyper technical grounds that the Caste Certificate was not produced and investigation by a Police Officer of the rank of Deputy Superintendent of Police was not done. These appear to be only technicalities and hardly a ground for acquittal, but since no appeal has been filed against that part of the High Court judgment, we are now not going into it. . . .

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In fact, we feel that the sentence was too light considering the gravity of the offence. . . . The parade of a tribal woman on the village road in broad day light is shameful, shocking and outrageous. The dishonor of the victim Nandabai called for harsher punishment, and we are surprised that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Sessions Judge.24

By looking at liberty in relation to hostile environments, we also revalorize liberty itself beyond the limiting scope of individual liberty, which is always theoretically available in our society, but practically far out of reach. Eliminating hostile environments and setting the standards of non-discrimination is possible through the exercise of due diligence by the state. The principle of ‘due diligence’ is set out in international conventions like CEDAW as indispensable to the realization of non-discrimination. However, the S. R. Sankaran Government Orders on untouchability demonstrate the ways in which this principle might be operationalized and accomplished. These GOs also anticipate the enunciation of this principle in international law, and point to the possibility that international human rights law draws on strategies developed through the diligent local application of constitutional morality, just as it draws on philosophies of justice that are rooted in the local. Finally, the problem of violence. The interlocking of discrimination with the loss of liberty is fundamentally violent, both in social context and in processes of legal redress. This is where the relevance of the concept of oppression (Young 1990) also lies, because it encapsulates the interlocking of discrimination, the denial of liberty and the perpetration of atrocity with impunity. In exploring violence and the operation of the law, what strike us are the ways in which struggles for human rights and civil liberties have taught us to use institutions of justice, particularly the courts, creatively to wrest political rights in a democracy. The influence of these struggles is immediately apparent in jurisprudence as well, with courts having to reckon with subaltern constitutionalism, 24 Kailas and Others v. State of Maharashtra Criminal Appeal No. 11/2011 (Arising out of Special Leave Petition [Crl] No. 10367 of 2010). Judgement delivered by Justices Markandey Katju and Gyan Sudha Misra on 5 January 2011.

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which ‘crystallizes [a multitudinous register of diverse] citizen practices of reimaging democracy, politics, and the fullness of democratic citizenship’ (U. Baxi 2007: 20). In marking the moments of violence and its resurgence in the era of modernity and globalization; in grappling with the troubling realities of ‘crimes of honour/passion’ that we are witness to in our time; in attempting to make sense of the complex contemporary contexts of violence — in all these endeavours, it is necessary to recall the languages of traditions of resistance, and resurrect the ‘critical traditionality’ that has historically interrogated and continues to interrogate the traditional ‘habitations of modernity’.25 This multilayered context of discrimination, and the intersecting multiplicity of oppressions and the negations of liberty, are at the core of the problem of justice that needs to be addressed in constructing an idea of development. While most aspects of ‘development’ find constitutional mention through the directive principles of state policy, Kannabiran’s argument that the directives are justiciable is immediately relevant, because it challenges the frequent assertion in constitutional pedagogy that the directive principles are not justiciable, unlike fundamental rights. Given the specific and increasing manifestations of discrimination and its self-perpetuating potential, the idea of development must enlarge the field of constitutionalism and proliferate its tools, in order for development not to remain, as it has for the most part, a counterconstitutional project that perpetuates discrimination and the loss of liberty. Although the field of justice may be opened up in illimitable ways, it is productive to use constitutionalism as the filter through which the idea of justice as immediately relevant to the idea of development may be constituted. What aspects of constitutionalism are indispensable for this idea of development to bloom and grow? If we agree that pluralism and diversity without prejudice are 25

Ashis Nandy uses the term ‘critical traditionality’ to describe ‘a critical re-appraisal of tradition [that] enables India to maintain continuity with its past while acquiring the capacity to respond to the present, as well as to resist the post-Enlightenment European weltanschaunng of domination’ (Parekh and Pantham 1987: 15). The phrase ‘habitations of modernity’ is borrowed from the title of Dipesh Chakrabarty’s book (Chakrabarty 2002).

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ideally the pulse of a vibrant and just society, and therefore central to the idea of development, how does the constitution speak to this imperative? The constitutionalism approach to the problem of development helps frame development as a bounded endeavour, and hence allows us to frame justice and freedom as spatially and socially hedged in and held together by the state, which is the locus of responsibility in terms of protection against harm, the distribution of good and the realization of capabilities — in short, a key repository of constitutional morality. These are not responsibilities easily or willingly borne by any government, but they are undeniably state responsibilities that discipline and can be used to discipline governments. Civil liberties and other human rights movements, also key architects of a dynamic constitutionalism, have demonstrated this to us from time to time. There have been concerted citizens’ struggles to reconstitute ‘courts’. Through a deliberative process, India has over the past 30 years witnessed the opening out of the trial beyond the narrow confines of the courtroom. The Muktadar Commission of Enquiry to investigate the custodial rape of Rameeza Bee in Andhra Pradesh in 1979 marks the early history of this struggle for justice. The Citizens’ Tribunal that investigated the violence against Muslim people in Gujarat 23 years later is the most recent milestone. Between these two points, there have been the courts of law that have tried, convicted and acquitted persons accused of discriminatory assault, while statutory commissions like the Law Commission of India, the National Human Rights Commission and the National Commission for Women have intervened in specific episodes/issues, straddling as it were the deliberative spaces of citizens’ tribunals and the formal domains of courts. There are real difficulties in ‘dealing’ with the violence that is rooted in this context. The different layers in which violence is embedded, and the indispensability of the painful exercise of peeling off each layer in order to ‘see’ and cope with the impact at the individual level; the different layers to which the impact of violence penetrates; the different layers through which memory must plough, in order to capture the full meaning of the experience

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of violence — all these make survival and recovery a daunting task, especially for communities facing discrimination. How do we begin to make the law ‘work’ for the survivors of discrimination? How do we frame the question of redress in cultural contexts where biology interlocks with stereotype in specific ways, the violence in each arena being viewed in terms of ‘nature’ and ‘desserts’? What this project underscores is the need to eliminate the disjuncture between what is theoretically possible and what is actually within reach. The tools for an insurgent constitutionalism have been crafted in courts, by the bureaucracy and by legislatures in response to subaltern resistance. It would not, therefore, be accurate to posit the idea of insurgent constitutionalism in opposition to spaces that are vested with the authority to set out or interpret the law within the framework of the constitution. Nevertheless, it is also true that, on a balance, the legislature, executive and judiciary too often weigh against marginalized communities and subaltern politics. The present project, therefore, seeks to map constitutional law’s Other — insurgent constitutionalism. This Other is located sometimes within the fields of constitutional law — judicial and administrative; sometimes it may be found within trial courts, which ironically maintain a jurisdictional and hierarchical distance from constitutional courts; sometimes in the heart of popular struggles. Any project that grapples with the idea of a ‘transformative constitutionalism’ (U. Baxi 2008) must necessarily spill over boundaries. However, most often, research and writing on discrimination have focused on a single aspect. This is especially true of legal scholarship (see Crenshaw 1989). Notwithstanding significant shifts, the problem of discrimination is rendered more complex by the fact that institutional apparatuses — panchayats, policing, courts, prison administration, and forensic science in India — exclude marginal communities/classes quite literally. The discursive formations that emerge from this structure, not unexpectedly, tend to be exclusionary. Sociological scholarship is yet to address itself to the problem of discrimination in all its complexity. Again, it has tended to focus narrowly on a specific aspect of the problem, and has not begun to engage with the constitution or the law in

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the analysis of discrimination. Further, the corpus of sociology and social anthropology that focuses on aspects of discrimination is constructed in deeply problematic ways that infiltrate the jurisprudence on non-discrimination that draws on this corpus. An important part of this work has been to demonstrate the possibility of reconstructing the corpus of materials, legal and sociological, on non-discrimination. It is necessary to acknowledge the pitfalls of grand theory (Mills 1959) and grand narratives (Douzinas et al. 1991). However, exploring the scope of constitutionalism in contemporary Indian society requires the crafting of analytical tools and methods that enable an understanding of issues within a large canvas. Further, while specializations certainly facilitate a richer critical engagement with problems of marginality and exclusion, as also diversity, a specific, single-focus approach to the study of non-discrimination results in problems that are both theoretical and practical. It is in looking at the problems of disability, caste, tribe, religion, and gender, and the diversities within each, that we get a clearer view of the constitutional project of non-discrimination in its entirety. At the level of practical engagement, this also facilitates the conceptualization of alliances between anti-discrimination struggles. This methodological and pedagogical shift merits some elaboration. In making sense of diverse sources, each with its own established interpretive protocols, it is important to move away from the ‘doctrinal’, ‘precedent’-driven approaches that are common to both sociology and constitutional interpretation. This is because these established modes of reading texts prescribe strict limits to the act of reading and the possibilities for interpretation that such reading will yield. Instead, crossing genres and tracing the haziness of boundaries, reading against the grain and mapping the faultlines in the way justice figures in the dominant imaginary as well as in institutions entrusted with the ‘delivery of justice’, enable a different construction of the legal and sociological corpus. These strategies allow us to move away from the limited field of judicial discourse to an exploration of the exciting ways in which ‘ethnographies of constitutionalism’ may be fashioned (U. Baxi 2008).

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Departing from monolithic constructions of constitutional and statutory interpretation, this project disrupts the method of the law by looking outside the ratio decidendi, obiter and precedent, at the stories that cases tell us (case-law ethnography). It looks for the law outside the courts — in executive action, commissions of enquiry and policy initiatives, for instance. It displaces the dominant texts of social anthropology (particularly with reference to caste), looking instead for texts that tell us the prehistory of the constitution, and a dynamic history of social change in the Indian subcontinent. The difficulty, however, lies in the fact that both the legal and the sociological materials are uneven across these categories. While, for instance, the historical materials on gender and caste are rich and varied, the search for different materials on tribes yields uneven results with a concentration on the colonial period. Historiographies of disability remain to be written, while the sociology of disability in India is only now beginning to draw the attention of scholars. With regard to majority–minority discourses, Hasan argues persuasively in favour of looking at the Muslim intelligentsia as makers of history as much as the Hindu intelligentsia. He sees this as a way of stepping out of the frozen confines of essentializing narratives. This would involve uncovering materials that interrogate the idea of a singular Muslim community (an idea that appears in Muslim writings as well), examining the depth, vigour and variety of Muslim revivalism, and delineating the implications of social conservatism and the consequences of resistance for innovation, change, dissent, and interpretation (Hasan 1996: 207). This unevenness in materials is reflected in the attempt to piece together an intellectual history of non-discrimination. An intersectional approach across different indices of discrimination enables an understanding of one index in relation to another. It synchronizes the intersectional interpretive method suggested in the reading of article 15(1) with an interweaving of intellectual histories in understanding patterns of discrimination. This approach also has the potential of enriching our understanding of the scope of analogous grounds of discrimination, which involves the

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application in jurisprudence of precisely this method of reading texts. On a more general level, this method identifies quite easily for us the gaps in the materials, pointing to the possibilities of future research. There are grounds that have not yet begun to figure in judicial discourse on non-discrimination, even to the extent of the absent category of disability. The case of persons affected by HIV/AIDS is an illustration. Referred to as the ‘new untouchables’ (Krishnan 2003), practices of segregation and stigmatization bring discrimination based on HIV/AIDS status within the purview of article 15(1) using the route of analogous grounds. In attempting to trace the stigmatization of illness on the subcontinent, however, both the history of representation (literary, cultural and legal) of mental illness and the stigmatization of leprosy help us understand public morality in relation to HIV/AIDS, and thereby help us combat it better. Also important is a consideration of the intersection of HIV/AIDS status with other established indices of discrimination, for instance, gender. As the UN Special Rapporteur on Violence against Women observes pertinently, the pandemic represents a medium where the complex manifestations of gender inequality as it impacts on women are observed. Discrimination against women, due to gender inequality, is multiple and compounded at the intersection of patriarchy and other sites of oppression, which subjugate women to a continuum of violence, making them susceptible to HIV/AIDS. (Erturk 2005: 2)

The easy recourse to public morality, jurisprudential dissociation, and the truncated, disaggregated reading of the constitution by constitutional courts need to be ceaselessly resisted by its Other within and outside courts, so that ‘a social and economic revolution can gradually take place while preserving the freedom and dignity of every citizen’.26 An insurgent constitutionalism based on the subaltern experience is necessary in order for non-discrimination and liberty to blossom as incontrovertible constitutional guarantees and in order for constitutional morality to actually pave the way for ‘notional change’ and social transformation. 26

His Holiness Kesavananda Bharati Sripadagalvaru and Others v. State of Kerala and Another AIR 1973 SC 1461, para. 310.

Bibliography A. STATUTES Andhra Pradesh Cooperative Societies Act, 1964 Andhra Pradesh Reservation in Favour of Socially and Educationally Backward Classes of Muslims Act, 2007 Andhra Pradesh (Telangana Areas) Eunuchs Act (1329 Fasli), 1919 Armed Forces Special Powers Act, 1958 Bombay Court Fees Act, 1959 Bombay Court of Wards Act, 1905 Bombay Prevention of Hindu Bigamous Marriages Act, 1946 Bonded Labour (Abolition) Act, 1976 Central Educational Institutions (Reservation in Admission) Act, 2006 Constitution (1st Amendment) Act, 1951 Constitution (93rd Amendment) Act, 2005 Contagious Diseases Act, 1968 (Act 14 of 1868) Criminal Tribes Act, 1871 (Act 27 of 1871) Criminal Tribes Act, 1911 Dowry Prohibition Act, 1961 (Act 28 of 1961) Employees’ State Insurance Act, 1948 (Act 34 of 1948) Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993 Factories Act, 1948 (Act 63 of 1948) Forest Act 1 of 1326 Fasli (1940) Government of India Act, 1935 Habitual Offenders Act, 1959 Hindu Marriage Act, 1955 Indian Divorce Act, 1869 Indian Evidence Act, 1872 Indian Lunacy Act, 1912 (Act 4 of 1912) Indian Penal Code, 1861 Industrial Disputes Act (IDA), 1947 Madras Removal of Civil Disabilities Act, 1938 (Madras Act 21 of 1938) Madras Temple Entry Authorization and Indemnity Act, 1939 Maternity Benefit Act, 1961 (Act 53 of 1961) Medical Termination of Pregnancy Act, 1971

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Mental Health Act, 1987 Muslim Women (Protection of Rights on Divorce) Act, 1986 National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 Panchayats (Extension to the Scheduled Areas) Act, 1996 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Pre-conception and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 Protection of Civil Rights Act, 1955 Protection of Human Rights Act, 1993 Protection of Women from Domestic Violence Act, 2005 Representation of People Act, 1950 Rights of Dignity, Effective Participation and Inclusion of Persons with Disabilities Act, 2010 (Draft Statute) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 Suppression of Immoral Traffic in Women and Girls Act, 1956 Workmen’s Compensation Act, 1923

B. CASES (All reported cases have been accessed from www.indlaw.com. Equivalent citations have been provided below.) A. K. Gopalan v. State of Madras 1950 AIR (SC) 27. A. M. Shaila and Another v. Chairman, Cochin Port Trust and Others 1995 (2) LLJ 1193. A. N. Rajamma v. State of Kerala and Others 1983 LAB IC 1388. Air India Cabin Crew Association with Air India Officers Association and Another v. Yeshaswinee Merchant and Others and Air India Limited and Others 2004 AIR (SC) 187. Air India v. Nergesh Meerza and Ors AIR 1981 SC 1829. Akhil Bharatiya Soshit Karamchari Sangh (Railway) Represented v. Union of India and Others 1981 AIR (SC) 298. Albert Davit Limited v. Anuradha Choudhury (Ms) and Others 2004 (3) LLJ 608. Alfred Baid v. Union of India 1976 AIR (Del) 302. Amalendu Kumar v. the State of Bihar and Ors AIR 1980 Patna 1. Amita v. Union of India 2005 (13) SCC 721. Anil Yadav and Others v. State of Bihar and Others 1981 (1) SCC 622. Anima Roy v. Prabodh Mohan Roy AIR 1969 Cal 304. Anuj Garg & Ors v. Hotel Association of India & Ors (2008) 3 SCC 1. Apparel Export Promotion Council v. A. K. Chopra 1999 (1) SCC 759. Arati Ray Choudhury v. Union of India and Others 1974 AIR (SC) 532.

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C. WEBSITES Associazione Italiana Amici di Raoul Follereau. http://www.aifo.it/english/reso urces/online/books/cbr/incedu-india%20NCPEDP%20audit.pdf (accessed on 3 December 2008). Centre for Enquiry into Health and Allied Themes. http://www.cehat.org/ humanrights/caselaws.pdf (accessed on 3 December 2008). Convention on the Elimination of All Forms of Discrimination against Women. CEDAW/IND/Q/3:http://daccessdds.un.org/doc/UNDOC/GEN/N06/ 467/90/PDF/N0646790.pdf (accessed on 3 December 2008). Department of Conservation, Government of New Zealand. http://www.doc. govt.nz/upload/documents/science-and-technical/SFC203.pdf (accessed on 2 July 2010). Disability India Network. http://www.disabilityindia.org/colorBlindness.cfm (accessed on 10 October 2011). Disability India Network. http://www.disabilityindia.org/Guidelines%20&%20s pace%20standards%20for%20barrier.htm (accessed on 2 December 2008). Indlaw.com. http://www.indlaw.com (accessed on 27 October 2010). Human Rights Law Network. http://www.hrln.org/issue.php?id=6&pil=1&pilid =109 (accessed on 3 December 2008). India Together. http://www.indiatogether.org/2005/dec/ajo-mediawdd.htm (accessed on 27 April 2010). India Together. http://www.indiatogether.org/2006/jan/edu-speced.htm (accessed on 3 December 2008). Macroscan. http://www.macroscan.com/cur/sep06/cur110906Nutrition_Concerns. htm (accessed on 25 July 2010). Ministry of Human Resource Development, Government of India. http://www. education.nic.in/Elementarynew/ssa/ssa_5.asp (accessed on 3 December 2008).

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D. OFFICIAL PUBLICATIONS AP Commission for Backward Classes, BC Commission Report on the Inclusion of Socially and Educationally Backward Classes among Muslim Community in the list of Backward Classes in the State of Andhra Pradesh. http://www.bcwelfare. ap.gov.in/chapter4.htm (accessed on 11 September 2011). Andhra Pradesh Civil Services Code (compiled by Padala Rama Reddi), Hyderabad: Asia Law House and Panchayat Publications, vol. 3, 8th edn, 2003. Constituent Assembly Debates, 1 September 1949. http://parliamentofindia.nic. in/ls/debates/vol9p23b.htm (accessed on 20 July 2010). Constituent Assembly Debates: Official Report, New Delhi: Lok Sabha Secretariat, 1989, vol. 1: 9 to 23 December 1946. Koneru Ranga Rao Committee on Land Issues of the Poor. 2006. Land Committee Report, Government of Andhra Pradesh. Law Commission of India, Review of Rape Laws, 172nd report (March), New Delhi: Government of India, Ministry of Law and Justice, 2000. Proceedings of the Fourth Legislative Council of the Governor of Madras, 12 March 1932 (4 MLC 1932). Report of Justice Sri P. Ramachandra Raju, one-man commission of enquiry into certain demands made by a section of scheduled castes for categorization, Government of Andhra Pradesh, May 1997. Report of the Dr Justice K. Punnayya Commission to Enquire into the Practice of Untouchability against the Scheduled Castes and Scheduled Tribes, Hyderabad: Government of Andhra Pradesh, 2000. Report of the Expert Group on Prevention of Alienation of Tribal Land and Its Restoration, Hyderabad: National Institute of Rural Development, 2006. Report of the Justice Muktadar Commission of Inquiry to investigate into the death in police custody of Ahmed Hussain and the rape of Rameeza Bee. Hyderabad 1978 (unpublished). Report of the National Commission on Scheduled Castes and Scheduled Tribes, August 1998. Report of the Sub-committee Appointed by the Ministry of Panchayati Raj to Draft Model Guidelines to Vest Gram Sabhas with Powers as Envisaged in PESA, New Delhi: Government of India, 2007. Report on Identification of Socially and Educationally Backward Classes in the Muslim Community of Andhra Pradesh and Recommendations (P. S. Krishnan Report), Hyderabad: Government of Andhra Pradesh, 2007. Report on Implementation of the Recommendations of Andhra Pradesh State Harijan Conference, Government of Andhra Pradesh, 1976 (The S. R. Sankaran Government Orders). Social, Economic and Educational Status of the Muslim Community of India: A Report (Sachar Committee Report), New Delhi: Government of India, Prime Minister’s High Level Committee, 2006.

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About the Author Kalpana Kannabiran, well-known sociologist and legal scholar, is currently Director of the Council for Social Development, Hyderabad. She was part of the founding faculty of NALSAR University of Law, where she taught sociology and law between 1999 and 2009. Dr Kannabiran is a founder member of Asmita Resource Centre for Women, set up in 1991. She was awarded the VKRV Rao Prize for Social Science Research in the field of Social Aspects of Law by the Indian Council for Social Science Research in 2003. Dr Kannabiran’s work has focused on understanding the social foundations of non-discrimination in India. She has edited The Violence of Normal Times: Essays on Women’s Lived Realities (2005) and co-edited Challenging the Rule(s) of Law: Essays on Colonialism, Criminology and Human Rights (2008). Kalpana Kannabiran was Member of the Expert Group on the Equal Opportunity Commission, Government of India, 2007–2008.

Index able-bodied norm, 55–56; degrees of deviation, 58–59 accessibility, 83 acute psychiatric trauma, 78 adivasi(s): acquisition of lands, 261; cohabiting with Hindu men, 450; communities, 242, 262, 451; animated deliberation on distribution of benefits, 203–4; diku (the outsider) (see diku (the outsider)); experience across generations, 202; forced displacement (see forced displacement); official accounts of situation, 252–63; relationship to land, 244, 247; violence in Kandhamal, 24 adultery: definition of, 345 Agnihotri, Anita, 258 Alavi, Hamza, 2 Allahabad High Court, 339 All India Cabin Crew Association, 364 All-India Services Competitive Examinations, 224 Ambedkar, B. R., 6, 126–35, 147, 165, 185, 272 Anand, Bejjipurapu, 234 Andhra Pradesh Judicial Services Rules: rule 12 of, 29, 62 Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959, 267 Andhra Pradesh Scheduled Castes Cooperative Finance Corporation Ltd, 226 Andhra Pradesh State Harijan Conference (1976), 221

Andhra Pradesh (Telangana Area) Eunuchs Act, 1329 Fasli (Act 16 of 1329 F), 439 Andhra Pradesh (Telangana Areas) Eunuchs Act, 1919, 439 Antherjanam, Lalithambika, 432 Anthropological Survey of India, 283 anti-caste worldviews, 125, 142–47 Anti-pardah Women’s Conference (1941), 307 Anwar, Ali, 275 AP Commission of Backward Classes (APCBC), 285 Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity: Yogyakarta Principles on, 434 Arora, Ravi, 66 asprsya, 139 Athenian democracy, 8–9 autonomy: denial to disable persons, 85; strengthening non-discrimination through, 265 Ayodhya: Allahabad High Court decision, 4; Hindutva mobilization in, 4 Babri Masjid: demolition of, 4 backward class(es): Constitution (1st Amendment) Act, 1951 (see Constitution [1st Amendment] Act, 1951); meaning of, 194; reservation for, 80 Backward Classes Commission, 175 barrier: meaning of, 118

Index Baruah, Sanjib, 44 Bauman, Zygmunt, 16, 445 Baxi, P., 377 Baxi, Upendra, 3–4, 6, 39, 45, 189–91, 207, 346, 449, 452 becoming/belonging: politics of, 34 Bee, Rameeza, 377–87 Bhandari, Dalveer, 199 Bhangi women, 432 bigamy practice, 343 Bihar Government: creation of, two sex-segregated branches, 341 Biswas, A. K., 174 Biwako Millennium Framework, 88 Bombay High Court, 63, 78 Bombay Prevention of Hindu Bigamous Marriages Act, 1946, 343 Bonded Labour (Abolition) Act, 1976, 154 Brahminical theory of miscegenation, 139 Brahmins: customs of, 129–30 Brahmin women: enforced widowhood on, 316 (see also Phule, Jotiba) Braille, 98 Broadcasting Corporation of India, 98 Brown, Wendy, 40 Butler, Josephine, 318 capabilities approach: delineation of, 111 capability poverty, 253 care coordination, 84 Carpenter, Edward, 429 carriage of persons with disabilities (CAR), 97 caste hierarchy, 326 caste-race analogy: modern resistance to, 150–61 caste(s), 124; Ambedkar: demand for annihilation of, 208; and sociology of, 126–35; Brahmin construction, in, 136; definition of, 135; features of, 136; horizontal segmental

497

division, 164; reconstitution of sociology, 125; tracing of connection between law and, 161–62 caste system: analysis of, 206; features of, 164; modern resistance to, 147– 50; tendencies inherent in, 137 Central Civil Services (Leave) Rules, 352 Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007), 196 Central Empowered Committee, 259 Chakkiliyar caste, 157 Chakravarti, Uma, 138 Chamars, 134 chattel slavery: African-American experience of, 126 Chattopadhyaya, Bankimchandra, 312 Chattopadhyaya, Debiprasad, 336 cheris, 219 Chib, Malini, 107 child marriage, 305 child sexual abuse, 410 Chopra, J., 119 Chopra, Radhika, 431 Christian dalits: violence in Kandhamal, 24 Civil Disobedience, 43; Gandhi’s idea of, 44 class: definition of, 195 collective violence, 412–16 colonialism, 3; Hindu society under, 309; women experience in Hinduism, 305 Commission on Bonded Labour, 154 Committee on the Elimination of Racial Discrimination (CERD), 151–52, 207 Communalism, 4 communal representation, 172 communal violence, 4, 294–99 Communal Violence (Prevention,Control and Rehabilitation of Victims) Bill, 2005, 416

498

Tools of Justice

community/caste panchayats: women representation in, 372 Connolly, William E., 30–33 consensual adult homosexuality, 429–30 consent: meaning of, 104 constitutional communication, 2 constitutionalism, 3 constitutional jurisprudence: nondiscrimination, on, 40 constitutional morality: and constitutional moralism, 40; signposts of, 8–11 constitution of India: article 9 of, 51; article 14 of, 80; article 15 of, 11, 17, 447; article 15(1) of, 119, 436; article 15(2) of, 118, 165, 447; article 16 of, 80; article 16(1) of, 193; article 17 of, 11, 165, 218; article 19 of, 97; article 21 of, 16, 18, 51, 67; article 21A of, 94; article 38 of, 51; article 39 of, 51; article 41 of, 51; article 47 of, 52; article 246 of, 52–53; article 326 of, 51; interpretation of, 37–41; voice to counter-hegemonic imaginations of justice, 1 Constitution (93rd Amendment) Act, 2005, 196 Constitution (1st Amendment) Act, 1951, 196 Contagious Diseases Act, 318 Convention on the Elimination of Discrimination against Women (CEDAW), 12, 415–16 Court of Wards Act, 339 creamy layer, 200–3; principle to educational institutions, 198 crimes against humanity. See also Rome Statute of the International Criminal Court: definition of, 329–30 Criminal Law (Amendment) Bill, 1980, 387

Criminal Procedure Code (CrPC), 67; section 433A of, 70–71; section 428 of, 70 Criminal Tribes Act, 1871, 261 Criminal Tribes Act, 1911, 248 dalit–bahujans society, 134, 161 Dalitization, 161 Dalit Panther movement, 326 dalit(s), 160; discrimination against, 19; lands of, 235; political kinship networks of, 207; pressing for proportionate reservation, 157; segregation of villages, 158; Tsundur, in (see Tsundur, dalits in); women, 325–26 dalit women: gendered nature of caste experience for, 158 Das, Achyutananda, 174 Dave, Anil, 286 de-casteized society, 134 Declaration on the Elimination of Violence against Women (1993), 409 Delhi High Court, 61, 64 Department of Personnel and Training, 67 depressed classes: social code against, 131 deprivation, 15. See also Sharma, B. D. deprived group: meaning of, 14 Desai, I. P., 189 Devadasi movement, 318–22 Devi, Bhanwari, 27, 371, 394–400 Dhanda, Amita, 68, 73, 76 Dhanuks, 134 differently-abled women, 104–5 dignity: denial to disable persons, 85 diku (the outsider), 245. See also Adivasi communities Directive Principles of State Policy, 7 disability, 446; association with criminality, 112; audits: public and healthcare services, of, 83; distinction between ill health and, 84;

Index India, in, 28; constitutional position, 51; delineation of, 61; double negation of, 80; Indian Blind Sports Association and Special Olympics Bharat (see Indian Blind Sports Association and Special Olympics Bharat); official discourse on, 63; problematizing ability, 53–57; problem with policy, 88–93; rehabilitation measures, for disable persons, 100–2; within social contract, 53; state-run-channels, role of, 98–99; Wheelchair Sports Federation of India (see Wheelchair Sports Federation of India) disability-based discrimination, 49 Disability Rights International report, 85 Disabled Children’s Action Group, 85 disabled-friendly buses, 97 discourses of conjugality, 106 discrimination: based on religion in post-colonial India, 272; definition of, 11–15; fields of, 279–82; against persons with disabilities, 80; relationship between tolerance and (see Tolerance, relationship be-tween discrimination and); road to atrocity, 18–25; tackling through law, 34 displacement, 6 Dr Justice K. Punnayya Commission Report, 230–39 Dubois, Abbe, 319 Duhita, 334 Dumont, Louis, 164 Durban conference (2001), 207 Eashwaraiah, V., 286 economic rehabilitation, 101–2 educational institutions: shortfall of, 340 educational rehabilitation, 101 Education of Disabled Children and Youth report, 95

499

Election Commission: directives to state secretaries, 102 electroconvulsive therapy (ECT), 78 eminent domain concept, 260 Employees’ State Insurance Act, 1948, 352 Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, 216 encircling, 81 enforced widowhood, 305 equality: denial to disable persons, 85 Equality of Opportunity, 57–67 Equal Opportunity Commission, 14 exogamy custom, 128 expression of individuality, 109 extermination, 330 Factories Act, 1948, 364 female infanticide, 305, 308 Fenelon, James V., 244, 260 10th Five-Year Plan (2002–07), 86 11th Five-Year Plan (2002–07), 98; women with disabilities, situation of, 94 forced displacement: adivasis, of, 257 Foucault, Michel, 34, 36–37 foundational violence, 3 Fourth World Conference on Women (1995), 409 Furer-Haimendorf, Christoph von, 246–47, 249–51 Galanter, Marc, 188 Gandhi, Leela, 429 Gandhi, Mahatma, 215, 429 Gandhi, Maneka, 438 Gauba, K. L., 43 gender, 93; within caste society, 158 gender division: labour, of, 362–67 gender identity: UN human rights framework, 435 gendering justice, 400–5 genocidal massacre, 294–99

500

Tools of Justice

Ghai, Anita, 107 Goel, D. S., 356 Govindaraju, Chittraju, 112–13 Guha, Ranajit, 6, 141, 244–46, 445–46 Gujarat massacre (2002), 4, 39, 415–16 Gupta, Dipankar, 155–56 Habitual Offenders Act, 1959, 261 Hall, Thomas D., 244, 260 handicapped persons: reservations for, 58 Harijans, 136 Hasan, Mushirul, 280 Hawking, Stephen, 82 heteronormative construct: sex, of, 429 Hinduism: moral concepts in, 140; natural concepts in, 140 Hindu Mahasabha, 275 Hindu majoritarianism, 4 Hindu marriage, 310 Hindu Marriage Act, 344 Hindu women: debate on position of, 307 Homo Hierarchicus, 164 homosexuality, 34; criminalization of, 435 hostile environments concept, 25–27 House Register, 91 Hyderabad Tribal Areas Regulation of 1359, 247 Ilaiah, Kancha, 134, 160–61, 326, xiii imitation process, 132 impotent men, 427 Inahara, Minae, 54–55, 116 Indian Blind Sports Association and Special Olympics Bharat, 100 Indian Divorce Act, 1869, 346 Indian Evidence Act, 410 Indian Lunacy Act, 1912, 68 Indian Medical Association, 331 Indian Penal Code: Macaulay’s draft of: clause 359 of, 373, 375; clause 360 of, 373–74; section 149 of, 24;

section 372 of, 318; section 373 of, 318; section 375 of, 410, 418; section 377 of, 432, 439; section 497 of, 345 indigenous bourgeoisie, 2 Industrial Disputes Act and Workmen’s Compensation Act, 64 infirm body, 29 Institute of Psychiatry and Human Behaviour (IPBH), 78 insurgent bureaucracies, 217 Integrated Education for Children with Disabilities scheme, 91 International Classification of Functioning, Disability and Health (ICF), 83 International Convention on the Elimination of All Forms of Racial Discrimination, 151 International Year for Disabled Persons, 91 Iyer, Krishna, 181, 185 Jaina: delineation of sexes, 427 Jeffreys, Sheila, 328 Joothan. See Valmiki, Omprakash judicial enforceability, 7 Kaka Kalelkar Committee, 284 Kandhamal: violence against Christian dalits and adivasis in, 24 Kangaroo Courts, 257 Kerala High Court, 63, 193 Koneru Ranga Rao Committee, 256 Kumari, T. Meena, 286 Kumar, Vivek, 137–38 Kundera, Milan, 20 labour: gender division of (see Gender division, of labour); place in caste system, 133 landed classes, 2 law: tracing of connections between caste and, 161–62

Index Law Commission of India: martial rape, 422; 42nd report of, 377; 84th report of, 387 Lesbian/Gay/Bisexual/Transgender (LGBT) groups, 417, 434, 436 liberty, 16–18; strengthening through autonomy, 265 Life Insurance Corporation (LIC), 354 lunacy and mental deficiency, 52–53 lunatic asylum, 70 Madras High Court: Champakam Dorairajan petition in, 166–73 Madras Removal of Civil Disabilities Act, 1938, 213 Majoritarianism: impact on religious minorities, 273 Mandal Commission, 284–85 Mandalism, 157 manual scavenging: Supreme Court direction, to state governments, 215–16 marginality: fields of, 279–82 marital rape, 377 Marwari girls, 306 masculine woman, 426 Maternity Benefit Act, 1961, 352 Meherat Rajputs, 276 Mencher, Joan, 133 Mental Health Act of 1987, 79 mental illness, 77 mental retardation, 77 metropolitan bourgeoisie, 2 metropolitan societies: epistemic legal racism, 3 Ministry of Human Resource Development, 95 Ministry of Labour, 92 Ministry of Panchayati Raj, 269 Ministry of Rural Development, 256 Ministry of Social Justice and Empowerment, 61, 92, 96 Ministry of Welfare, 59 Minow, Martha, 30–33

501

Mizoram Peace Accord, 413 Mohammedan Hindus, 275 Mukherjee, Prabhati, 139 Muktadar Commission, 371, 373, 377–87 Muslim backward classes: identification in Andhra Pradesh, 282 Muslim League, 275 Muslim women, in India: survey of, 280 Muslim Women (Protection of Rights on Divorce) Act, 281 Nagan Gowda Committee report, 175 Nanda, R., 78 Nandigram, 258. See also forced displacement Narmada Bachao Andolan, 259 National AIDS Control Organization (NACO), 436 National Campaign for Dalit Human Rights, 153 National Campaign for Women, 373 National Commission for Scheduled Tribes, 242 National Commission for the Protection of Child Rights, 94–95 National Commission of De-notified, Nomadic and Seminomadic Tribes, 261 National Dalit Women’s Federation, 326 National Family Health Survey (NFHS), 282 National Federation of the Blind, 60, 66 National Handicapped Finance and Development Corporation (NHFDC), 86 National Human Rights Commission (NHRC), 88, 373 National Policy for Persons with Disabilities, 2006, 88–89, 98

502

Tools of Justice

National Policy on Disability Rights, 54 National Trust Act, 1999, 89, 99 Naz Foundation judgement, 28, 433– 34, 437, 439 Negri, Antonio, 6 Negro slave: America, in, 148 neo-liberal managerial state, 6 nityasumangali, 318. See also Devadasi movement Nizam of Hyderabad, 246 non-Brahmin castes: laws of imitation, 129 Non-disabled women: conjugal relationships with disable men, 107 non-discrimination protection: specification of grounds for, 13 non-discrimination, to women: origin of, 305 Nussbaum, Martha C., 8, 53, 105, 109–11, 116, 344, 368 other backward classes (OBC), 28; Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007) (see Central Educational Institutions [Reservation in Admission] Act, 2006 [Act 5 of 2007]); Mandal Commission (see Mandal Commission) Pajaczkowska, Claire, 425 panchamas, 139 Panchayat Samitis, of Andhra Pradesh: allocation of geneal revenues, for SCs, 226 Panchayats (Extension to the Scheduled Areas) Act, 1996 (Act 40 of 1996 (PESA), 268–70 Panikkar, K. M., 214 pardah–pativrata, 305 Parliamentary Committee on the Welfare of the Scheduled Castes and Scheduled Tribes (1971), 218

partition: experiences of women during, 371 Patel, Geeta, 433 pativrata, 334 patriarchy: violence of, 426 pattadars, 247 peasant insurgency: against oppression by colonial rulers, 6 (see also Guha, Ranajit) personal liberty, 67 person productivity, 111 Persons with Disabilities Act, 1995, 12, 63–65, 80, 88; principle of equality of opportunity, 88–89; recommendation for seats reservation, for disable person in institutions, 95; section 26 of, 95; section 41 of, 54; section 45 of, 96; statement of objects and reasons of, 66 Phule, Jotiba, 126, 151, 316–17, 322, 334–35 Phule, Savitribai, 323 physical infirmities, 91 physical rehabilitation, 100 pluralism, 30–34 plurality, 30–34 plural minorities, 276–79 Polavaram, 258. See also forced displacement political democracy, 185 political enforceability, 7 politics of becoming framework, 30 poramboke, 220 Pothier, Dianne, 13–14, 104 power: and violence, 36–37 (see also Foucault, Michel) primitive tribal groups (PTGs), 242 Proctor, Robert, 107 prostitution, 328–29 Protection of Civil Rights Act, 1955 (Act 22 of 1955), 215, 217 Protection of Human Rights Act, 1993, 88

Index Quit India, 1 Radhakrishna, Meena, 243, 248, 262 Raghuram, G., 286 Railway Board: model for reserved and unreserved vacancies, 178–79 Rajasthan: Bhanwari Devi case, 27 Rajasthan Public Service Commission, 183 Rajyalakshmi, Kandukuri, 322 Ramabai, Pandita, 308, 323, 326 Ramamirthammal, Muvalur, 322–23 Ram, Jagjivan, 214 rape, 389; Law Commission on, 411; representation of, 390; violation of Right to Life, 406–12 Ratnamala, M., 258 reading deficiency, 59 Reddy, A. Gopal, 286 Reddy, Chinnappa, 182, 191 Reddy, Sudhakara, 96 Rehabilitation Council of India, 93 Report of the Expert Group on Prevention of Alienation of Tribal Land and Its Restoration, 252 Representation of People Act, 1950, 102 reservation, 184–88 Rights of Persons with Disabilities Bill, 2011: section 2(iv) of, 118 Right to Liberty, 294–99, 370 Right to Life, 433–36; and nondiscrimination, 436–39; rape as violation of, 406–12 Rig Veda, 426 roaming habits: criminal tribes, of, 248 Rome Statute of the International Criminal Court: Article 7 of, 329; Article 25 of, 330 Rukmabai, 323 Sachar Committee (2006), 279, 282 Salwa Judum judgement, 271

503

Samaddar, Ranabir, 2, xii Samata, 268 Sangari, Kumkum, 315, 371 Sankaran, S. R., 217–30 Santhal rebellion (1855), 244 Sardar Sarovar project, 258–59. See also forced displacement Sarkar, Tanika, 376, 414 Sarukkai, Sundar, 140–41 Sarva Shiksha Abhiyan (SSA), 95; Ministry of Human Resource Development (see Ministry of Human Resource Development) sati, 305; law against, 314; traditions of, 315 Satyashodhak Samaj, 148 Scheduled Castes: Central Educational Institutions (Reservation in Admission) Act, 2006 (Act 5 of 2007) (see Central Educational Institutions [Reservation in Admission] Act, 2006 [Act 5 of 2007]); Dr Justice K. Punnayya Commission Report (see Dr Justice K. Punnayya Commission Report) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, 20–21, 24, 154, 158, 228, 233, 407, 450 Scheduled Tribes: Article 342 of constitution of India, 242 Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, 269 self-conscious movement, 33 Sen, Amartya, 203, 308 Sen, Haimabati, 323 sex discrimination jurisprudence, in India, 336; discrimination at workplace, 348–49; equal treatment, 356–59; relationship rules, 352–56; rules of efficiency, 349–51; special reservation provisions, for women, 359–61; equality in relationship, 342–47

504

Tools of Justice

sex ratio: imbalances in, 128 sex-selective abortions, 330–31 sexual assualt, 370, 412–19 sexualities: histories of, 425 sexual labour, 140 sexual orientation: UN human rights framework, 435 Shah, Ghanshyam, 189 Shannar Hindu women, 148 Sharma, B. D., 15 Sheikh, Zahira, 39. See also Gujarat massacre (2002) Sher-Gill, Amrita, 429 Shinde, Tarabai, 306, 309, 323–24 Singha, Radhika, 374–75 Singh, Jaipal, 1 Singur, 258. See also forced displacement siwa-i-jamabandi, 247 Small Farmers Development Agency Programme, 221–22 social boycott, 455 social construction of disability: meaning of, 104 Social contract theory, 53 social democracy, 185 socially and educationally backward classes (SEBCs), 197, 284 sociological imagination, 45 soshits (the oppressed), 186 Srinivas, M. N., 125, 131–33, 137 Srushti, 56 state custody: meaning of, 263–65 Students Federation of India (SFI), 234 Supiot, Alain, 163 Suppression of Immoral Traffic in Women and Girls Act, 1956, 328 Supreme Court, 80, 216; women groups, in Delhi, 410 Sweet, Michael J., 8, 425–28 Tarde, Gabriel, 129 teacher service: Tamil Nadu board resolution on, 352

Teltumbde, Anand, 19, 202–3 Thakur, Ashoka Kumar, 196–200 Thapar, Romila, 274, 332–33 tolerance: relationship between discrimination and, 35–36 torture: custody, in, 77 touchables, 209, 213 trespass notion, 249 tribal communities: classification of, 253 Tripathi, P. K., 208–9, 215, 445, 449 Tsundur: dalits in, 21 Twenty-Ninth Report of the Commissioner for Scheduled Castes and Scheduled Tribes, 260 unequivocal voluntary agreement, 410 UNICEF study, 84 Union Public Service Commission (UPSC), 67; establishment of, 174 United Nations Convention on the Protection of Rights of Persons with Disabilities (UNCRPD), 12, 82; Article 12 of, 85; ratification of, 86 United Nations Convention on the Rights of Persons with Disabilities (2008), 54 Universal Declaration of Human Rights (1948), 151, 409 University Commission Report, 340 University Grants Commission (UGC), 93 unsoundness of mind, 52, 57; criminal procedure for, accused persons of, 68 UN Special Rapporteur on Racism and Racial Discrimination, 153 untouchability, 140–41, 157, 325, 455; abolition of, 214; constitutional category of, 209–17; Dr Justice K. Punnayya Commission Report (see Dr Justice K. Punnayya Commission Report); judicial discourse on, 207–8

Index untouchable(s). See also Asprsya; Harijans: habitations and inhabitants, 210–11; landless labourers, 211 UP Court of Wards Act, 339 Uttar Pradesh government: decision on social background, of interview board candidates, 174; reservation for handicapped persons, 58 Valmiki, Omprakash, 210, 212 Vasanthi, N., 55, 64–65, xii violence, 36–37 Visakha judgement, 25. See also Hostile environments concept visually challenged: public employment to, 60 Wheelchair Sports Federation of India, 100 wheeling, 81 widowhood: challenging enforced, 316–18 widow remarriage, 317

505

women: with disabilities, 106; sexuality in India, 431–32 Women’s Development Programme (WDP), 394 workplace: discrimination against women at, 348–49 World Charter for Prostitutes’ Rights, 328 World Conference against Racism (WCAR), 150, 153 World Conference on Human Rights (1993), 409 World Health Organization, 82 World Report on Disability (WRD), 82, 84 writing deficiency, 59 Yogyakarta Principles, 434 zero rejection policy. See Sarva Shiksha Abhiyan (SSA) Zilla Parishad, of Andhra Pradesh: allocation of general revenues, for SCs, 226 Zwilling, Leonard, 8, 425–28