Ambedkar on How the Lawful is Lawless in Hindu Society

If cow protection entails the joining of forces between the moral and the state police, the law will simply allow lawlessness in its name.

In October, 2015, a 2-year-old boy, Vaibhav, and his 11-month-old sister, Divya, were burned to death in Sunped village of Faridabad district in Haryana. On January 17, 2016, Rohith Vemula, a PhD student at the University of Hyderabad, committed suicide. On March 28, 2016, a 17-year-old girl was raped in her school in Bikaner, Rajasthan. All of them faced different forms of torture. The disturbing nature of their fates may outwardly seem to be universal. Human beings face violence, discrimination and frustration anywhere in the world. But Vaibhav, Divya, Rohith and the young girl in Bikaner were Dalits. Their caste names them apart from the world’s victims. Their caste exposes them to a specific, historical form of violence that has no parallel. They are citizens without certain social and cultural permits. They are individuals who are denied their individuality in relation to those from other castes. They are vulnerable subjects for whom freedom primarily meant erasure of prejudice.

Caste facilitates a culture of prejudice within a system of social law. The “law of caste”, to use Dr. B.R. Ambedkar’s phrase, is a “law of heredity”. Ambedkar discovers a cunningly dubious nexus between the social practise of caste and the law of the state. He finds, “even law” allows each caste, “autonomy to regulate its membership and punish dissenters”. The laws of caste –  which are, strictly speaking, the laws of prejudice – define human beings according to social customs enforced upon them hereditarily. These customs live side by side with the law, and their social sanctions not only remain undisturbed but are validated by the law. Custom, Ambedkar points out, “is enforced by people far more effectively than law is by the state”, for custom is “the compelling force of an organised people.” The law can’t repudiate or break away from the shadow of customs, thus having no other recourse but to allow prejudice to live side-by-side. In Hindu society, the law of prejudice haunts the prejudice of law.

On July 11, 2016, cow vigilantes mercilessly beat up seven Dalit men for skinning a dead cow in Una district, Gujarat. 55-year-old, Pehlu Khan, a dairy farmer whose truck was carrying cattle he had legitimately acquired at a fair, was attacked by dozens of Hindutva vigilantes on April 5, 2017, in Alwar, Rajasthan. Unfazed, the Rajasthan home minister – who belongs to the same extended ‘parivar’ of the Sangh that the killers are from – told reporters, “It is illegal to transport cows, but people ignore it and cow protectors are trying to stop such people from trafficking them.”

Currently, 24 states in India have various regulations prohibiting either the slaughter or sale of cows. But the Rajasthan minister’s statement is a perfect example validating Ambedkar’s point about how the legal and the social apparatus collaborate together in enforcing (religious) customs. The state, instead of being alarmed, appears grateful to vigilantes who take law into their hands for protecting what is considered sacred for the majority community. Hindu majoritarianism is currently functioning with enough impunity, with the moral police enjoying tacit sanction from law enforcers of the state. Muslims are currently facing an equal measure of threat and violence as Dalits for being outside the community of sentiments that regard the cow as holy. Muslims are, politically speaking, the new ‘untouchables’ of Indian society.

Enough has been written with scriptural evidence about how Hindus were once beef eaters and indulged in cow sacrifice. Ambedkar forwarded his thesis – of how cow killing became a sacrilege around 4th century CE, when the Gupta kings, who indulged in cow sacrifice initially, made cow killing a capital offence. This sudden change of policy that further elevated the cow to divine status was, in Ambedkar’s contention, meant to counter the popularity gained by Buddhism’s propagation against cow sacrifice. He was astonished that such an injunction came into being “despite Manu”, whose law book did not prohibit cow killing or beef eating. Drawing clues from Chinese travelogues, Ambedkar concluded that the move facilitated the birth of modern untouchability around 400 CE. Those who continued to eat beef were ostracised and classified as untouchable communities.

Emphasising the historical and political – rather than scriptural – nature of the sanction against cow eating, Ambedkar wrote: “They [the Hindus] wanted to oust the Buddhists from the place of honour and respect which they had acquired in the minds of the masses by their opposition to the killing of the cow for sacrificial purposes. To achieve their purpose, the Brahmins had to adopt the usual tactics of a reckless adventurer. It is to beat extremism with extremism.”

The reckless violence of vigilantes today, their extreme measures in carrying out what they consider is their religious and social duty, is a repetition of past behaviour. The behaviour is, however, based on an arbitrary justification of religious sentiments that contradicts (and falsifies) history.

But what does it tell of the law? Isn’t the secular law of the state, despite the legal restrictions against cow killing in many parts, supposed to protect the citizen from religious vigilantes? In Untouchables or The Children of India’s Ghetto, Ambedkar notes that unlike slavery, “that had no foundation in religion”, untouchability is “primarily based in religion.” Even though “Roman law declared the slave was not a person”, the “religion of Rome refused to accept that principle.”  However, since “Hindu Law did not regard the Untouchable a person, Hinduism refused to regard him as a human being fit for comradeship.”

This distinction, in Ambedkar’s opinion, is the reason “why slavery and serfdom have vanished and why untouchability has not.” A conflict between moral law and positive law may ensure the future progress and ethical direction of the latter. But if a group of people aren’t allowed a place within the territory of morality, secular sanctions of the state granting them equality before the law may not be enough. Ambedkar seems to suggest that it is historically harder to overcome the originary violence of religious law. This denial of moral agency to the untouchable, Ambedkar feels, prevented Hindu society from developing a sense of “public” or “social conscience”. Therein lies the ethical riddle behind any absence of guilt in atrocities committed against Dalits. Crimes done “in defence of the social order” are not considered a sin. Yet it makes Ambedkar ask, “Why does the Hindu indulge in lawlessness in suppressing the untouchables as though such lawlessness is lawful?”

In the same essay, Ambedkar gives the analogy of primitive society, where the member of the clan alone has a moral claim within it, and the the “stranger”, even though s/he may be worthy of good treatment, “cannot demand justice”. Any quarrel between clans may result in “war or negotiation”, but it won’t alter the law of the clan. In contrast, “lawlessness against the strangers is… lawful.” Since the ‘untouchable’ is scripturally other, analogically a stranger, in Hindu society, he “cannot claim justice” or “rights which the touchable is bound to respect.”

If the law of the state allows the lawlessness of custom to prosper and endanger those who lie outside the community of sentiments, it simply – and appallingly – vindicates Ambedkar’s deep understanding of the moral problem at hand. If cow protection entails the joining of forces between the moral and the state police, the law will simply allow lawlessness in its name. If the idea of justice gets usurped by clannish modes of seeking retribution, injustice will prevail.

Manash Firaq Bhattacharjee teaches poetry at Ambedkar University, New Delhi. He is a frequent contributor to The Wire and has written for The Hindu, The New York Times, Los Angeles Review of Books, Guernica, Outlook and other publications.