About the Authors: Jeevan Justin and Sidharth Pattnaik are 5th Year B.A., LL.B. (Hons.) and B.B.A., LL.B. (Hons.) students respectively at National Law University Odisha. They are interested in International Human Rights Law and Transitional Justice.
Image by Arun Anoop available here.
The fight for the dignity and fundamental rights of the Dalits persists. The Dalits are people belonging to the lowest caste in the Indian caste system, and they face the most oppression. Among the Dalits, caste has fostered and maintained poverty and deprivation, caused by historical injustice and justified by socio-religious traditions. The injustice has sparked many movements that sought to protect and enforce the dignity of the Dalits. These movements have resulted in the fundamental rights of this community being enshrined in the Constitution. However, while this community’s fundamental rights are enshrined in the Indian Constitution and the International Human Rights Conventions, there is great difficulty in enforcing these rights. Not only are domestic enforcement mechanisms failing, but international mechanisms also have limited effect. As such, Dalit rights movements continue, still fighting for dignity and justice.
These enforcement failures maintain the oppressive hierarchy by limiting the number of avenues that challengers of the hierarchy can pursue. What are the causes of these failures? The failure of the domestic mechanisms can be attributed to the fact that the maintenance of the caste system is advantageous to the social, economic, and political interests of those in power. When domestic mechanisms fail, one turns to international law to seek help. However, there seems to be no help forthcoming from that quarter.
The failure of the international human rights mechanisms can broadly be attributed to the supremacy of state sovereignty over human rights enforcement and the failure of existing top-down enforcement mechanisms. This is compounded by India’s reluctance to cooperate adequately with the institutions tasked with enforcing International Human Rights Law (IHRL). A poignant example of this reluctance is India’s stance during the 2001 World Racism Conference. India adamantly diverted attempts of international interference in caste issues, arguing that caste-based discrimination does not fall within the ambit of the Convention on Elimination of Racial Discrimination.
What recourse, then, do Dalit rights movements have? We believe the answer lies in wielding IHRL as a weapon to help the local social movements for equality and justice. In this article, we lay out how anti-caste movements in India can access and benefit from IHRL and its institutions in the first section. In the second section, we discuss how these movements can access IHRL through “translators.” In the last section, we discuss the role of law schools in enabling such access and benefits.
Will the invocation of IHRL be useful at all?
The perceived inaccessibility of international human rights mechanisms acts as a barrier to using them as tools and sources of support for social movements. However, accessing these institutions and adopting IHRL hold distinct advantages for such movements, increasing both political opportunities and resource flow. At the international level, there are several bodies set up to monitor and ensure States’ compliance with IHRL. By framing local injustice as violations of international human rights law, local movements can access these bodies through mechanisms such as the UNHRC Complaints Procedure. These bodies can then be urged to address injustices or, at the very least, “name and shame” the violating States. Such framing and subsequent attempts to obtain redress can add to such movements' perceived legitimacy and effectiveness. Further, there has been an increase in the number of international fora where activists and social movement organizations can interact. Such interactions help develop individual and organizational networks through which material resources, movement strategies, and useful information spread, which leads to the creation of a transnational network of allies who can help leverage various tools to force governments into compliance.
Hearteningly, studies have found that the mere ratification of human rights treaties by states raised the status of human rights principles, allowing civil society actors to leverage treaties to force governments to address their human rights violations. In other words, social movements can function as de facto enforcement mechanisms to improve local practices.
How can local social movements use IHRL?
The integration of IHRL and language within social movements happens through the process of vernacularization. Essentially, the human rights concepts that have been formulated by international human rights bodies are adopted by local actors in ways that are effective in their local contexts. As can be seen from the work of Sally Merry, this has been particularly prominent in the movements for women’s rights. For instance, an NGO in India implemented women’s rights principles by paying poor women to make kites that warned against sex selection policies, and by encouraging them to join other women’s groups to protest the relocation of slum dwellers after a flood. In other words, the implementation of international human rights obligations in local contexts is fought for, and sometimes achieved, through vernacularization. Dalit movements can adopt similar strategies, perhaps by enforcing the principles of dignity and non-discrimination in local social practices.
An additional element to consider is the identity of those engaged in vernacularization. Merry calls them “translators,” and they perform a key function; human rights spread more effectively and with greater legitimacy if they are adopted to local culture and systems of law. However, Merry contemplates transnational actors who can, and do, move among different geographical spaces, and may not be indigenous to the struggle they are currently participating in. Their loyalties are suspect, sometimes tied more to funding and opportunities for wealth and power. In the Indian context, this is visible in the NGO sector and those engaged in voluntary work, as this field is dominated by privileged castes.
In contrast, we contemplate a particular kind of individual who functions as a translator. This individual would belong to the people he is fighting for and would be someone who has overcome great hurdles to gain the knowledge and capital required to operate in transnational legal spaces. From Merry’s work, it becomes clear that, to qualify as a translator, the person in question must have knowledge of international and national human rights law and possess the ability and capital required to access international human rights fora, along with the obvious willingness to ally oneself with and work for a social movement. In other words, the particular kind of translator required is a “legal scholactivist,” who becomes an actor within both the international and national legal fields.
Therefore, the success of such a scholactivist depends on the dynamics of the international legal field itself and the ability to assimilate within a global cosmopolitan class, which in turn requires the acquisition of symbolic capital. One of the ways in which such symbolic capital and access can be acquired is through legal education. This is exemplified by Cynthia Farid’s case study of Kamal Hossain. Hossain earned the opportunity to study in the United States and in Oxford by being an exceptionally meritorious student. Later in life, he was able to leverage the network of colleagues he had formed through his English bar qualification and Oxford education to help with the struggle for international recognition for Bangladesh and his own international law practice. However, it must be kept in mind that Hossain belonged to an elite family in Bangladesh, which made his journey much easier.
What role do universities play?
In India, such access and capital is acquired by studying at the country's elite law schools. However, mere entry is not sufficient because those from the lower castes only form a small minority at these institutions and face discrimination and lack of institutional support, making it more difficult for them to thrive. Therefore, the elite law schools must provide institutional support to such students through special programs and take stringent steps to dispel the discriminatory atmosphere completely.
Secondly, all universities have social responsibility, and have historically been sites for the construction and dissemination of new aesthetics, beliefs, and codes of conduct. With respect to the human rights discourse, it is not sufficient for universities simply to be facilitators (engaging in teaching and as a site of research, usually distant from the real world). Universities, particularly law schools, must consider themselves actors, with the power to educate, address, protest, and bring change in the light of human rights violations.
Such a transformation requires not only a change in attitude, but also in curriculum and pedagogy. Teachers must strive to educate students not merely on dry legal theory, but also on the broader challenges facing their nation and most importantly, teach critical thinking. The results of this endeavor must not be evaluated in terms of form, but also in effect. In contrast to the prevailing trend, more students must be inspired to try to ally themselves with efforts for social changes, rather than joining the prevailing rush for corporate placements. It is a common belief that one cannot do good and earn a livelihood, but it must gradually be dispelled.
Conclusion
When these changes are realized within elite law schools, we will see the emergence of new scholactivists, who have the potential to change the flawed, unjust and unequal social fabric of the nation. In the current state of the world, there are few tools as powerful as human rights language that local social movements can use. What is required is a lasting social change. New networks, political opportunities, and resources will undoubtedly be useful in the quest for such a change. This battle will be neither short nor easy. However, once those bearing the brunt of the oppression are empowered to fight for themselves, with all the weapons they can acquire, the tide will surely turn.