Making a Case for Teaching Caste and Gender in Law Schools

Introduction

What are law schools training their students for? Are we training them to become partisan in the caste, class, gender hierarchy of society or to become defenders of justice? All types of students enter law schools: those who want to become corporate lawyers, who want to be criminal law luminaries and those who want to be human rights lawyers. Law schools must offer all of these students a deeper understanding of society, which would assist them in becoming insightful professionals.

How to enhance law students’ comprehension of the society that we live in? Especially in the case of future justice defenders, how to prepare them to recognize the patterns of injustices around them? How to instil a sense of justice, along with legal training, amongst students who are preparing for criminal law or corporate practice? How to make family law more gender just?

This article argues for making caste and gender integral to the teaching of law for a wholistic justice education. It takes the approach that systemic biases can be confronted more effectively with a practical understanding of daily realities, with a theoretical and historical grounding. As law schools influence the legal profession in the most profound way, from legal content to normativity, it is vital to introduce lawyers to a sociological understanding of caste and gender from the inception of their journey.

This article consists of five parts.

Part I elaborates on the importance of the consideration of caste and gender within the processes of law and why it is vital for justice in India. This part delves into statistics as well as an anthology of recent caste crimes and how the law has dealt with them. It also attempts a theoretical understanding of why the law takes this particular course.

Part II argues for the inclusion of theoretical and practical teaching about caste and gender into legal education in India. It draws on the lessons that feminist legal theory and critical race theory have brought to legal education. Work in this area bears testimony to the fact that law cannot be studied devoid of its sociopolitical context; law is politics.

Part III is an overview of Indian legal education, including the innovative and practice-oriented legal training imparted in the new brand of law schools, and argues that caste and gender remain outside of mainstream legal education.

Part IV explores a methodological question; what should be the content and pedagogy of teaching caste and gender in law schools?

Part I: Caste and Gender in Law

Caste and gender are arguably the two most vital axes of oppression and deprivation in India. This premise makes the lowest caste women the most obvious beneficiaries of constitutional protection. Yet, the structural biases in the legal system prohibit access to justice for those lower in the caste and gender hierarchy. When faced with discrimination and violence, the recourse to legal mechanisms and legal representation is further away from disadvantaged groups.

An overview of the cases of caste crimes in the past two decades shows us that justice has eluded survivors of caste violence, oppression and discrimination. According to the National Crime Records Bureau, 47,064 cases of crimes against Dalits were registered in 2014. This is a significant increase from 39,408 in 2013 and 33,655 in 2012. The National Confederation of Dalit Rights, the apex body of Dalit organizations in India, found that 13,766 Dalits have been murdered between 1991 and 2014, 76,860 have been severely injured in atrocities committed against them and 32,956 Dalit women have been raped. Out of 1,633 cases registered in 2014 in Karnataka under the Prevention of Atrocities Act, none resulted in a conviction. ¹ Rape of Dalit women rose by 500% between 2001 and 2014 in Gujarat. ² Whether the actual numbers of crimes against Dalits have increased or not, the number of reported instances certainly has increased. Conviction rates, however, have not improved. Even in the most gruesome crimes, offenders enjoy social, political and legal impunity. ³

I argue that the root cause of this injustice lies in the convoluted way law interacts with caste. On the one hand, at a subconscious and informal level, caste and gender beliefs and practices are incorporated into legal practice through the biases of law officers and in the functioning of the police and courts, leading to oppressive outcomes for women and lower castes. On the other hand, on a conscious and formal level, caste and gender are missing from the body of the black letter law. This means that apart from the noted specific laws relating to women ⁴ and untouchables/schedules caste/scheduled tribes, ⁵ caste and gender do not inform the legal system. India lacks the jurisprudential efforts at making caste and gender a part of its legal ethos. As a result, upper caste patriarchal normativity percolates into the legal system and goes unchallenged, even unnoticed. Caste and gender, separately and through their intersection, play out as the ‘public secret of law’ ⁶ ; for instance, criminal courts routinely term rapes of Dalit or tribal women as crimes of passion or lust, although it can be observed in case after case that ‘inherent position’ ⁷ as a tribal, poor, labouring female makes some women easier targets of ‘lust’. Such cases are treated as cases of random sexual assault on individual women, rather than hate crimes or political violence against particular communities. Courts refuse to apply the Atrocities Act, which would provide for stricter punishment to the offenders. ⁸ In order to address this deficiency, I argue, the legal system must be conversant with the intricacies of how caste and gender work in Indian society and how they are represented in legal cases. ⁹

Part II: Inclusive Legal Education: Lessons from Critical Theories

Legal education has been seen to have an important role to play in the establishment of a law abiding, just society. As the mother source of legal practice, law schools have a major influence on the practice of law and the legal system, as a whole. All the future litigating advocates, drafters of legislations, judges, are being trained in law schools. Here is where they learn the legal doctrine, understand their contract law, constitution, civil procedure and criminal procedure. However, law schools also train students into the language, ethos, philosophy of law and, as Kennedy argues, prepares them to accept their own place in the future within the hierarchies of legal profession. ¹⁰ For over a century, American legal education followed the footsteps of Christopher Columbus Langdell who was the Dean of Harvard Law school from 1873 onwards. He successfully turned law into a positivist science by using the ‘case law’ method, wherein general principles of law were derived from cases and then applied to hypothetical situations. Legal education was imparted in the law schools in the same uncritical, authoritarian manner as the hegemonic justice was imparted in the courtrooms.

Both these have been challenged since. The legal realists of the1920s-1940s abhorred the Supreme Court judgements and found it preposterous that judges could make appropriate rules and apply them, devoid of value judgement. ¹¹ They argued that there cannot be a neutral, value-free, mechanical process from precedent to rule to a correct decision. In the 1970s and 1980s, critical legal theorists, a group of Leftist American law professors challenged mainstream jurisprudential traditions as well as legal scholarship. They insisted that law is politics and sought to expose the political presuppositions behind seemingly neutral legal procedures and methods of adjudication. For instance, Mark Tushnet stated that legal rules and principles are formed as a result of the broader ideological battles in society. ¹² Since politics is a dominant motivator of judicial decisions, there is no meaningful distinction between ‘legal reasoning’ and political debate. This political nature of law was extended to the legal education. Duncan Kennedy showed how law schools were intensely political spaces that trained law students to accept the unfairness of the legal processes by imbibing a fallacy called ‘legal reasoning’, which carries the logic of nineteenth-century laissez-faire capitalism. ¹³ Roberto Unger attacked the ‘objectivism’ of traditional legal scholarship. He argued that the privileging of one dominant principle in the work of legal scholarship reflects a conscious or unconscious suppression of an alternative principle or explanation, which can be equally supportable. What justifies this privileging of one principle over another is ideology or political choice, rather than the objective requirement of legal reasoning. ¹⁴

Critical legal theory branched out into feminist legal theory and critical race theory—both of which are standpoint theories that assert that knowledge stems from social position and those at the bottom of the social ladder are at a unique standpoint to understand the world from a nuanced perspective and generate knowledge thereof. ¹⁵

As Bell Hooks puts it,

Living as we did—on the edge—we developed a particular way of seeing reality. We looked from both the outside in and the inside out. We focused our attention on the center as well as the margin. We understood both. This mode of seeing reminded us of the existence of a whole universe, a main body made up of both margin and center. ¹⁶

Critical race theorists insisted that ‘what is understood as objective or neutral is often the embodiment of a white middle-class world view’. ¹⁷ It deepened the nuances of critical engagement with legal education by insisting that law must embody the outlook of the oppressed. Black scholars distanced themselves, stating that race is missing from the theorization of ‘Crits’ (as they were known). Richard Delgado, for instance, argued that Crits are unable to help minorities because firstly they are white middle-class men employed in premier law schools. Secondly, their theories miss the minority experience when they disregard the concept of rights as a bourgeoisie tool or reject piecemeal progress in favour of total revolutionary turnover. He asserts that a functioning rights framework is vital for blacks in America as each is a case of vindication of those rights for individuals, families and communities. ¹⁸

Feminist legal theory showed how legal ethos and institutions revolve around the male standard, wherein men are the focus and women are the ‘other’. Feminists have mounted a powerful critique of the idea of ‘reasonable man’ that is premised on the behaviour of a man, rather than a reasonable person. ¹⁹ Provocation and self-defence have been particular focuses of feminist analysis, where suspicious husbands murdering their wives get away with using the defence of ‘grave and sudden provocation not amounting to murder’, whereas, wives, after years of abuse and domestic violence, are not seen to be provoked to kill their husbands. ²⁰ Law routinely treats masculinity and its varied expressions as reasonable, as seen in rape trials ²¹ and other responses to sexual harassment. ²²

Feminist legal theorists found that all aspects of legal learning are fraught with the male presumption. Frug ²³ shows that contract law textbooks have an overwhelming number of male characters. Moreover, male characters’ legal problems arise from diverse situations, including business and jobs, whereas female characters have legal problems arising from limited activities associated with their sex or family relationships. Ingulli suggests that to teach inclusive business law, one needs to consider how ‘neutral laws’ affect women, races and castes differently. ²⁴ For this, textbooks should be carefully chosen and complimented with other materials that can balance out their patriarchal bias. ²⁵

While anti-racist and feminist theorization enriched the understanding and teaching of law, black feminists were dismayed to find that the last one in the hierarchy—the black woman—hardly featured anywhere. They asked— if all blacks are men and all women are white, where are the black women? They insisted that the American legal framework frequently rendered black women legally ‘invisible’. For example, American Courts have consistently refused to allow class action suits for issues specific to black women, especially with regard to employers penalizing them for their hairstyles and physical features. But since their experience cannot be classified under ‘women’ or ‘black’ since neither black men nor white women share their experience, they may fall through the gaps of anti-discrimination laws and provisions of class action that allow a social group to litigate collectively. ²⁶

Kimberle Crenshaw coins the term ‘intersectionality’;

Experiences of women of colour are often the product of intersecting patterns of racism and sexism and how these experiences tend not to be represented within the discourses of either feminism or anti-racism. Because of their intersectional identity as women and as coloured people within discourses that are shaped to respond to one or the other, women of colour are marginalized within both. ²⁷

Mari Matsuda tries to find answers in ‘multiple consciousness’ that would ‘allow us to operate both within the abstractions of standard jurisprudential discourse, and within the details of our own special knowledge’. ²⁸

Melissa Rae Goodnight ²⁹ considers the ways in which critical race theory be used to research social inequality in India and states that there are apparently several intersections between experiences of casteism and racism, but also important differences in how these phenomena operate across contexts.

This section has reviewed the challenges to legal doctrine, practice and education posed by various critical waves in the United States and Europe. As a result legal education there has journeyed a long way. Pertinent experiments have been under way to weave race, class and gender into core courses in a manner such that they inform the learning of doctrinal law. ³⁰

Similarly notable attitudinal revision is needed to make caste and gender a part of core course teaching, rather than continuing to sideline them into ‘optional courses’. This does not just mean that specific courses on caste or gender should be inserted into syllabi as core courses. ³¹ Instead, it means to encourage amendment to the pattern and objectives of legal education, and to make it more reflective of sociopolitical realities in the country.

Part III: Indian Legal Education

While efforts at inclusive legal education have seen mixed outcomes in the West, India has been grappling with trying to make legal education a meaningful pursuit since the 1950s, when the newly independent nation started forming itself into a democracy. In 1958, the Law Commission of India published a report that declared the country’s legal education as ‘not calculated to produce either jurists or competent legal practitioners’ as neither did the teachers have the necessary qualifications, nor did students pass exams genuinely. ³²

To address the issues of legal education, the National Law School of India Act, 1986 was passed in Karnataka and the first National Law School opened in Bangalore in 1986. In the next two decades, National Law Universities opened in 15 states. With their novel pedagogies of teaching how law works in practice, their investment into moot courts, and mandatory internships in law firms and with NGOs and judges, they offered a unique learning and teaching ethos. ³³ As autonomous universities authorized to confer their own degrees under the UGC guidelines, they were expected to rewrite the format and scope of legal education in India. ³⁴

These universities opened admissions to students after class 12 and started tutoring them into social science and law subjects through a five-year course, instead of three years at the Master’s level, as per the earlier pattern. ³⁵ Law at the National Law School would be a joint, five-year BA, LLB programme and students had to complete over sixty courses to graduate. Rather than the lecture method, teachers would encourage student participation and insist on writing, research and analysis. Subjects would be taught in an interdisciplinary manner, with a particular focus on the intersectionality of social science and empirical research, with law. To promote the idea of serving the needy, all students would be required to take a series of clinical and legal aid courses through the five years. ³⁶

The new five-year law school model followed by the national law schools and other new institutions, ³⁷ alongside the older one of a three-year LLB degree after graduation display two distinct models of legal education in India. Most law colleges in India follow the ‘learning by rote’ pattern of imparting education. Most law graduates then become lawyers on the job after they enter legal practice and become litigators in courts, legal officers in companies, or lawyers in corporate law firms. The problems of this model—crowded classrooms, a lack of rigour in teaching, a lack of understanding of socio-economic problems, and a lack of preparation for practice—still persist.

Apart from preparing practice-ready lawyers, imparting socially relevant legal education was the key to this new National Law University model. Madhava Menon, the Founding Director of National Law School of India University (NLSIU), travelled through the United States in 1984 visiting law schools and experiencing their patterns of legal education. He was thrilled by the clinical legal education. He found students working closely under the mentorship of passionate teachers, working directly on behalf of clients – conducting legal research, drafting memos, writing briefs and sometimes even appearing in court. Upon returning, Menon supported the public interest developments that were occurring at home ³⁸ and wanted to build a law school that could help sustain this movement. The creation of the NLSIU was the culmination of his efforts. ³⁹

Despite this noble and ambitious beginning, social justice lawyering does not seem to be dominant in national law schools. Students are preparing for the job market, dominated by corporate law firms. Both student expectations and delivery by law schools are guided by the employment criteria of corporate law firms, and thus affect the type of education and skills students cultivate during their time in law school. ⁴⁰ Heavy fees that some elite law schools charge reiterate this by creating the expectation of a job that justifies the monetary investment put into education. ⁴¹ As a result, career and placement opportunities after graduation and internships during the course are mostly in the corporate sector. Very few possibilities of working with human rights lawyers, policy organizations or think tanks are offered to students, and as serious career options. ⁴² Moreover, such opportunities are not particularly valued. Thus, a student who manages to get a job with a top human rights lawyer does not enjoy the same glory as a student who lands a contract with Amarchand. ⁴³

Thus, even in NLUs, the objective of creating socially conscious lawyers takes a backseat when forced to face the job market, and the question of careers of students. Some would argue that being a ‘street lawyer’ has its thrills and perks, or that the expanding network of legal, policy NGOs and law universities may absorb lawyers as researchers, lobbyists and academics with comfortable monetary compensation and other benefits, including a better work-home-life balance and a chance to contribute to society. However, dominant social, parental and educational discourse still expects students to land highly paid corporate jobs. Subjects in disciplines of social sciences and humanities, including politics, sociology, history, while taught, are perceived as almost unnecessary must-dos before the ‘real’ law subjects such as Law of Crimes, Civil Procedure and Company Law begin. In this environment, the study of caste and gender within the doctrine and practice of law seems like an irrelevant and far-fetched demand. All this may be augmented by the dismal proportion of students belonging to lower castes and communities, which fails to create an alternate discourse, or a social challenge, within the law school establishment. ⁴⁴

Basheer and Sharma (IDIA Diversity Survey: 2013–2014) report that while caste and gender may be discussed in national law schools, real eventual impact on the legal fraternity is low. A National Law School survey on diversity in Indian law schools concludes that the female students (51.74%) outnumber male students (47.76%). While the toppers in law schools are women, the number of female lawyers in courts is markedly less than the number of male lawyers. The lack of gender in syllabi corresponds to the low success rate of women in the legal profession. ⁴⁵ Ballakrishnen and Samuel ⁴⁶ note that traditionally women were conspicuous by their absence in the legal academia. Currently junior faculty positions are filled by women, yet senior academic positions as well as academic administration is still away from their reach. Further, resistance towards using feminist legal method as a teaching methodology means that ‘gender’ is offered as a one-off subject rather than incorporated into all law subjects.

An exception to this is the expansion of clinical legal education in colleges all over the country. The Bar Council of India insists on every university having a Legal Aid Clinic, because of which courses of a clinical nature are offered. These courses do attempt to teach socially relevant law and speak of poverty and disadvantaged people. However, do they speak of caste, gender and class as the systems that keep people poor and disadvantaged?

Clinical legal education is premised on the idea that law schools should connect their substantive education to professional practice, and this connection should include a firm understanding of and commitment to responding to the needs of underserved members of the community. ⁴⁷ Access to justice depends upon economic status, even in the United States, where, despite legal aid, majority of litigants face courts without the services of a lawyer. ⁴⁸ Clinical legal education has always been viewed as a tool to fill this gap, ⁴⁹ so much so that the terms ‘legal clinic’ and ‘legal aid clinic’ were used interchangeably in the 1920s–1930s, when clinical programmes picked up momentum.

The concept of clinical legal education, its structure and public service content in India draws from the American clinical legal education movement. However, while clinical programmes in the United States have tended to shift their focus away from legal aid and public service goals, to broader academic goals consistent with integration of clinical legal education into the law school mainstream, the clinical programmes in India have remained firmly rooted in the legal aid movement. ⁵⁰

Since 1997, the Bar Council of India has made it mandatory for each law student to take four clinical legal courses. This was supposed to serve a dual purpose. First, reaching out to poor people and helping them with their legal problems, thus trying to achieve free and accessible legal representation. ⁵¹ The second aim was to make law students aware of the economic disparities in India, making them more sensitive towards the cause of the poor and disenfranchised. ⁵² While this is indeed a noble cause, it lacks the sharpness of a critical lens of who the poor are. What makes them poor and who keeps them poor? The words ‘poor’ and ‘disadvantaged’ veil the oppression present in our society. While the benign nature of this discourse makes it accessible to students and faculty without stirring up controversy, it fails to address the issues of hierarchy and exploitation that plague Indian society.

How to change this scenario? How to mainstream the learning of caste and gender in law schools? Consciousness raising amongst law faculty could be the first step. Research articles and policy papers (such as this present article) would offer the law teachers an opportunity to reconsider their teaching content and ideology. Recognition of a problem is the first step towards looking for solutions. Faculty discussions and symposiums are the next stage where interested teachers come together to devise ways to reorient their subjects. ⁵³ This is an ongoing process which ought to be continuous and democratic; I have noticed that younger faculty members with fresh ideas often are enthused to experiment with novel teaching methods. Caste and gender cannot be taught with a dogmatic lecture method. Teaching methodology for dormant ideas and contested subjects must be innovative and interactive, wherein students conduct surveys of their families and classmates and learn how a caste patriarchy operates in the twenty-first century. They can engage with rich genre of Dalit autobiographies that offer glimpses of life at the bottom of social hierarchy. I have discussed teaching methodology for caste, gender and law in detail elsewhere.

Part IV: Situating Caste and Gender Across the Law School Curriculum

This section considers how to mainstream teaching of caste and gender in law schools. Over the years, I have taught specific subjects that teach caste or gender or both as electives. My experience and lessons learnt have been noted elsewhere. ⁵⁴ Here I am hoping to evaluate the possibilities of teaching these subjects in the mainstream law subjects. I argue that all law subjects including torts, contracts, property and family laws ought to add in some sense of caste and gender making them integral to mainstream law, as they are to mainstream life.

All law students study the Indian Constitution by the third year of the five-year course. Constitutional guarantees of life and liberty, and of equality before law come with specific mention of religion, ethnicity, caste and gender. Here students are introduced to the idea that these axes of discrimination exist in our society and that Constitution stands against those. Since all legal doctrine and practice goes through the funnel of constitution, this is a great start.

How to follow this up in other subjects? Some subjects such as family law have a more obvious opening into gender concerns; how family is guided by patriarchy is discussed here. Caste is not that obvious but upon scrutiny we find that caste notions are ever present in the way marriage and endogamy is understand by litigants and judges. Caste determines which kind of relationships are assumed to be marriage and which are not. For instance, the live-in relationship between an employer and his domestic worker is not assumed to be marriage-like, even though it carries the same facets as a live-in relationship between two young professionals. ⁵⁵

Criminal law offers much opportunity to recognize how caste and gender play a role in the organization of crime and deviance. It has been noted that by Anup Surendranath that a majority of men on the death row are Muslim or Dalit. ⁵⁶ This shows that the criminal law system—from police to prosecutors and judges—is skewed against those from poorer class, lower castes and minority religions. Criminal law is also tilted against women defendants; domestic violence as a defence of provocation or the ‘battered wife syndrome’ has taken forever to be accepted by the Courts. Strikingly law has yet to conceptualize the ‘tortured mothers’ syndrome’ who murder their babies. Several such cases come up every year before the legal machinery. ⁵⁷ Women often commit suicide along with their children with an altruistic motive—since they believe that their children are suffering or that after they are gone, their children will have no one to care for them. ⁵⁸ Many of these women are facing domestic violence or disputes with their husbands. ⁵⁹ Criminal law along with psychology can be employed while reviewing and teaching such concepts.

Contract law teaches cases of clash between tribal communities and mining companies. The lawyers for the company argue that contractual obligations ensue since the tribals signed off their land and rights. Recent research and writings expand the scope of this subject. ⁶⁰

Duncan Kennedy argues that this is taught as ‘legal reasoning’ to law students as if it should be something different than moral reasoning, but this is merely teaching law students to accept the injustice of the legal system, which we ought not to do as law teachers. ⁶¹

Oishik Sircar has noted the dilemma that a law teacher faces while working with the Jindal Global Law School and, at the same time, discussing the conflict between Jindal mining projects in and tribals thereof. ⁶² In the same vein, while teaching environmental law, perspectives from eco-feminism would enrich the understanding of students about why the environment and species are endangered and how to modify that.

In land law or property law, we have to note how landlord castes decide land use—customary rights to land, pathways, and water bodies are all caste based.

Lastly, if we leave caste and gender as specific subjects rather than parts of the main subjects, we keep students from developing a law and society perspective. Rather than a holistic experience of studying law, we have compartmentalized learning of different subjects, which further alienates students from lived reality and the role of law in our lives. Incorporating knowledge of discrimination into law teaching will yield insightful lawyers.

Conclusion

This article argues that caste and gender must be mainstreamed in legal education to foster insightful and socially conscious lawyering. Referring to the social conditions with benign terms like poverty or disadvantaged masks the causal connections between social reality and the reasons for it, which in turn makes justice elusive.

Moving forward, we want to instil a ‘way of seeing’; an understanding that an alternative worldview exists to the one we are used to, and that if we merely try, we can see much more of the world. Mari Matsuda urges lawyers to consider the world from the viewpoint of the oppressed. She states,

The multiple consciousness I urge lawyers to attain is not a random ability to see all points of view, but a deliberate choice to see the world from the standpoint of the oppressed. That world is accessible to all of us. … We can choose to know the lives of others by reading, studying, listening, and venturing into different places. For lawyers, our pro bono work may be the most effective means of acquiring a broader consciousness of oppression. … Holding on to a multiple consciousness will allow us to operate both within the abstractions of standard jurisprudential discourse, and within the details of our own special knowledge. ⁶³

In this endeavour, empathy is a key trait for a competent lawyer and judge. It is not a weakness, but a gift.