Remembering Rohit Vemula: Why it’s time for new law against caste discrimination

The absence of legal recognition of institutionalised caste discrimination and harassment has thwarted the development of discrimination jurisprudence in India.

17th January, 2025, marks the ninth year since Rohith Vemula’s institutional murder. Dalits and Adivasis across India continue his fight, the latest being the struggle waged by Gopal Das against the Indian Institute of Management, Bengaluru (IIM-B). The reportage around the legal processes availed in the battle between Gopal Das, an Associate Professor of marketing, and IIM-B reveal the roadblocks to justice that leaves thousands of Dalits and Adivasis helpless within the existing legal framework.

It started with the Director of IIM-B, Rishikesha T Krishnan disclosing the caste status of Gopal Das, in a mass email. The thoughtless act, according to Gopal, turned the workplace environment hostile and humiliating for Das. He complained that he was denied opportunities, excluded from institutional activities, forced to withdraw elective courses and PhD programs, and restricted from accessing institutional resources. Further, his applications for promotion were also withheld due to pending inquiry into complaints of harassment.

Convoluted legal strategies  in absence of appropriate laws

In the absence of any straightforward legal remedies, in 2023, Das challenged the withholding of his promotions in a case that remains pending before the High Court of Karnataka.

After trying multiple avenues to challenge the harassment and discrimination, Das sent a formal letter to the Office of the President of India detailing his experiences. The President’s Office directed the Chief Secretary, Government of Karnataka, to initiate a formal investigation. Following this, the Directorate Civil Rights Enforcement (DCRE) was directed to begin its probe in March 2024.

The IIM-B management in its defence has alleged that promotion of Das was stayed due to complaints of harassment received from doctoral students. After the DCRE began the investigation, the institute has also initiated a probe into financial impropriety in raising travel claim bills. Das invoked the High Court’s writ jurisdiction to obtain a stay on this inquiry.  Parallely, the Director and Dean of faculty, IIM-B, has also filed a civil suit for an injunction to prevent Das from making public statements through the media.

In November, the DCRE completed its inquiry and submitted a detailed report to the Principal Secretary of the Social Welfare Department, confirming that there was a disclosure of the caste status of Das, and that the Director, Dean and other faculty members of IIM-B have contributed to workplace discrimination by denying him equal opportunities. It also found that IIM-B had failed to comply with statutory norms by not establishing an institutional mechanism to address grievances of Scheduled Caste and Scheduled Tribe employees.

Subsequently, the Social Welfare Commissioner issued a direction to the Bangalore Police Commissioner to register an FIR against the Director, Dean (Faculty), and six other faculty members of IIM-B for insults and abuses under the SC/ST (Prevention of Atrocities) Act. The High Court of Karnataka, was quick to stay the proceedings arising out of the DCRE inquiry against the faculty members accused of discrimination and harassment. It held that DCRE lacks the jurisdiction and authority to inquire into allegations of harassment of persons belonging to SC/ST communities.

The court did not consider the fact that the DCRE was initially set up as a Civil Rights Enforcement Cell by the Government of Karnataka to monitor and supervise the enforcement of the Untouchability (Abolition) Act, 1955 (later renamed as Protection  of Civil Rights Act, 1955).

As noted by the High Court of Karnataka in S. B. Walikar v. State of Karnataka, the function of the cell includes coordinating the work of all agencies entrusted with the task of taking action on complaints of harassment, ill-treatment, social boycott and atrocities, etc., on the members of Scheduled Caste; and also to investigate instances where the legal rights and entitlements of SC/STs are either violated or not implemented or were only partially implemented.

In the case involving Das, it’s important to understand that justice has been rendered unnecessarily expensive, tiresome and complex by the lack of statutory framework that addresses systemic caste discrimination/harassment.

Systemic casteism: death by a thousand cuts

The ordeal that Gopal Das was put through at IIM-B is referred to as systemic or institutionalised discrimination and harassment. Discouraged by the criminalisation of certain forms of untouchability and caste atrocities, the oppressor castes have resorted to using more sophisticated institutional norms, processes and policies designed to maintain hegemony and exclude Dalits/Adivasis . 

Simply put, it is no longer necessary for Savarnas to resort to horrific violence to nudge Dalits/Adivasis out of education and gold-collar professions, towards scavenging and slavery for survival. The seemingly impersonal, indirect institutional mechanisms suffice to maintain the caste order, even as individuals may continue to present an affable personal demeanour.

Although subtle and invisible, such casteism is acutely felt by targeted individuals. They are designed to frustrate and infuriate the targets and make them appear to be overreacting to nothing or exaggerating. Over time these translucent barbs and barriers demoralise Dalits/Adivasis. Their performance takes a hit. It dissuades them from socialising and participating in decision making processes. This institutional setup makes many quit and some, like Rohith Vemula end up losing their life.

Even considering the absence of conscious ill-will, institutional discrimination might be a function of routine, normalised or subconscious motivations, as argued by Lu-in Wang in her work ‘Discrimination by Default: How Racism Becomes Routine’. She argues in the context of black oppression in America that when individuals at the helm  of operating institutions are ignorant of how their decisions or actions may empower or disempower individuals from oppressed communities, it is discrimination by default rather than design.

Regardless, of whether caused by ignorance or ill-will, the harms and impediments that Dalits/Adivasis continue to suffer—everyday microaggressions, nitpicking, loss of opportunities, financial set-backs, improper evaluation of work, arbitrary exercise of discretion, discrimination in task assignments, etc.—need to be recognised and accounted for.

Limits of criminal justice system in addressing systemic casteism

The Protection of Civil Rights Act, 1955 (“civil rights law”)  and SC/STs (Prevention of Atrocities Act), 1989 (“atrocities law”) are the primary laws governing certain overt forms of caste discrimination and harassment in India, by placing criminal liability on individuals.

The main object of the Civil Rights Act and the Atrocities Act is to prevent overtly inhumane and gruesome forms of casteism by penalising individuals. It does little to eradicate caste, root and shoot. It is time to question the relevance of such laws for the socio-economically mobile Dalits/Adivasis, operating in the urban economy—as they are more likely to confront caste as institutional barriers or subtle snubs. 

Besides, certain expressions of caste are too onerous to be proved in a criminal trial as noted by the Centre for Law and Policy Research (CLPR), in its policy brief ‘Tackling Caste through Law’. For example, how do you criminalise Savarnas for performing purification rituals after a Dalit person leaves a room. How do you stop people from perpetuating the caste denialist rhetoric against reservations saying that Dalits/Adivasis are lazy incompetent and lack merit. How do you establish that institutional norms and processes are often a guise to deny Dalits/Adivasis opportunities to grow, improve and accumulate capital? Is there a way to document how easily the same rules are bent for Savarnas? How does one account for the appropriation of Dalit/Adivasis knowledge systems by savarnas in academia? It is practically impossible to document such acts given their fleeting yet pervasive nature.

Moreover, penal provisions may be disproportionately retributive in the context of systemic discrimination without meaningfully compensating for the harms suffered and losses incurred. Even though the Atrocity laws provide for compensation for loss of life, limb and property, it is intended for specific and explicit acts of violence defined as ‘atrocities’ by the statute.

For instance, in the case of Kshipra Kamlesh and Shiv Shankar Das, two highly qualified academicians belonging to the SC community, lost years of research work to a calculated theft. The Bombay High Court has held that ‘property’ under the Atrocity laws includes ‘intellectual property’ and directed the Government of Maharashtra to assess the damages and grant appropriate relief to Kamalesh and Das. Instead of celebrating the court’s judgement and siding with the cause of the marginalised, the state government has approached the apex court challenging the said Bombay High Court’s order on the ground that there is no provision in the atrocity laws to provide such reliefs.

The need to reimagine rights and remedies

The existing anti-caste legal framework treats Dalits/Adivasis as mere objects of beneficial/protective legislations. While that has been useful in some regard, it is also crucial to think about how caste functions in the seemingly neutral and casteless arena of private/ civil laws—which govern rights, and liabilities arising between individuals out of contractual or familial relationships.

This is all the more important in light of the shrinking public sector and the neoliberalisation of the Indian economy without annihilation of caste. BR Ambedkar forwarns us against in ‘What the Congress and Gandhi have done to the Untouchables’: “[Untouchables] can be used as shock-absorbers in slumps and deadweights in booms, for in slumps it is the Untouchable who is fired first and the Hindu is fired last and in booms the Hindu is employed first and the Untouchable is employed last.”

Beyond the formal sector, comprising less than 10% of the economy, Dalits/Adivasis remain vulnerable in an informal and unorganised economy strongly determined by caste. Negotiating contractual relationships with Savarnas in such a context is highly inequitable. There is no way to stop a big fish from swallowing a small fish in the wild. But humanity is supposed to answer to a higher calling. What mechanisms can a civilised state put in place to prevent this inequity in contracts between the ruling castes and the oppressed castes?

Studies show that the economic participation of SC/STs has been possible only when absolutely necessary by circumstance or by law. For example, Dalits/Adivasis may be employed at Rs 20 only because a Brahmin would cost Rs 100 for the same employment. Once recruited, the latitudes offered to Brahmins are rarely accorded to Dalits/Adivasis. Additionally, it is completely lawful in India for private establishments to publish discriminatory adverts which offer employment or/and house rentals for “Brahmins only”.

One wonders how reasonable it is to expect Dalits/Adivasis to function and thrive in such an economy, as free and equal business agents?

There is also very little scholarship on caste in the context of private laws on the lines of Dylan C Penningroth’s article ‘Race in Contract Law’ which delves into the role of race in the development of contract law jurisprudence in America. Penningroth frames Black/coloured people as legal actors or users of law who pushed the contours of contract laws in their fight against subordination. Such work becomes useful to draw an account of the law’s role in ‘constructing, naturalizing, and justifying inequality’.

The ongoing case of Echo Recording and Studio v. Illaiyaraja, is a popular case in point. Regardless of his success and talent as a musician, Illaiyaraja’s ability to negotiate a contract to safeguard his interest seems to be unequal to that of his Savarna counterparts. That’s a function privilege. It is of course easy to assert that caste has nothing to do with such individual carelessness, but those of us who know, know.

This is how caste-blind private laws enable indirect perpetuation of caste privilege, rendering the constitutional promise of ‘equal protection of laws’ a hoax for the Dalits/Adivasis.

Could compensating for stigma discourage prejudice?

Ambedkar’s studied remark on the economic advantages of caste in ‘What the Congress and Gandhi have done to the Untouchables’, remains relevant, he writes:

 “As an economic system it permits exploitation without obligation. Untouchability is not only a system of unmitigated economic exploitation, but it is also a system of uncontrolled economic exploitation. That is because there is no independent public opinion to condemn it and there is no impartial machinery of administration to restrain it. There is no appeal to public opinion, for whatever public opinion there is it is the opinion of the Hindus who belong to the exploiting class and as such favour exploitation. There is no check from the police or the judiciary for the simple reason that they are all drawn from the Hindus, and take the side of the Exploiters.

Those who believe that Untouchability will soon vanish do not seem to have paid attention to the economic advantages which it gives to the Hindus. Untouchable cannot do anything to get rid of his untouchability. It does not arise out of any personal fault on his part. Untouchability is an attitude of the Hindu. For Untouchability to vanish, it is the Hindu who must change. Will he change ?”

The CLPR Policy brief recommends that caste discrimination be recognised as civil wrong with specific reliefs such as monetary compensation or directive orders, enforceable through courts. Although certain kinds of losses borne by Dalits/Adivasis are perhaps unquantifiable. For instance, Gopal Das has suffered various hostilities since his caste location was disclosed in a mass email, including set-backs to his illustrious career as an academician. How does one think of justice when such a disclosure might mean more opportunities and reverence for a Brahmin, but mean contempt and humiliation for a Dalit?

What sort of additional consideration for SC/STs might off-set the stigma and artificial barriers imposed by the Chaturvarna social order? What would a proportionate, yet adequate consequence be for persons who cause such harms or perpetuate stigma? Would mandatory caste sensitisation programmes help create a more harmonious institutional environment and foster fraternity?

And would making institutions financially liable discourage prejudice and complicity in perpetuating caste on behalf of individuals?

Call for a law against caste discrimination and harassment

The absence of legal recognition of institutionalised caste discrimination and harassment has thwarted the development of discrimination jurisprudence in India. It is also why there is a dearth of qualitative data on the same. For instance, is the person performing the purification ritual to cleanse the space occupied by a Dalit observing his religion or practicing discrimination? What compels authorities to recognize such an act as a form of humiliation?

There have been long standing demands for such a law, popularised as Rohith Act, since Rohith Vehmula’s institutional murder. There have been multiple attempts to draft such a law by the National Campaign on Dalit Human Rights (NCDHR) and the SC department of All India Congress Committee (AICC-SC). There have also been political promises by the Indian National Congress to enact such a law. However, these drafts have not been shared in public for a discourse on the aims, objectives and framework of such a law—possible definitions, guiding principles, rights, duties, responsibilities, remedies, mechanisms, enforcement mechanisms etc.

One hopes that the legal quandaries discussed above, serve as an impetus for rekindling the  conversation on a law against caste discrimination and harassment. For without such a law the arbitrary wishes of Savarnas will remain law for Avarnas, to paraphrase Ambedkar.

Courtesy: The News Minute

Note: This news is originally published on thenewsminute.com and is used purely for non-profit/non-commercial purposes, especially for human rights.