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Our Justice System Must Be Biased Till Society Remains Hierarchised

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One of the biggest mistakes people often make while scrutinising situations is that they apply the principles of liberty blindly without understanding equality. They hastily judge a situation completely isolating it from the social realities and power equations that are present in that society. The universality of human rights is undeniable, but we should also be aware of the unequal relations existing in societies and the socio-economic hierarchies that create power structures. These conditions prevent the ideals of liberty to exist in that society.

Therefore, while evaluating each and every event, we have to observe the positions of each party involved, the hierarchies of oppression present, and also how these hierarchies are aiding one party at the expense of the other.

The hierarchies of coercion and oppression are so complex and interconnected that it requires careful analysis to get a complete understanding of the underlying issues and how to dismantle them. But people are often quick to cast aside these difficult analyses and jump into a generalised and easy response that demonises and attacks the individual or community that is already suffering from coercive power hierarchies.

One of the biggest mistakes people often make while scrutinising situations is that they apply the principles of liberty blindly without understanding equality.

We are trained to only raise the ideas of liberty when it questions the power hierarchies that exist in society. Wage theft and exploitation of workers is considered normal, but when a poor underprivileged person from an oppressed community resorts to theft or robbery, the criminal justice system is quick to tag them with the draconian Habitual Offenders Act and other colonial laws to punish them and harass their community for years. The entire police and judicial systems are designed for the protection of those at the top of these hierarchies and their properties, and these legal systems are utilised for the maintenance of these oppressive hierarchies.

How we perceive violence is a result of these power relations. Not all violence is treated equally, only violence that threatens the power structure is condemned and opposition is raised. For example, if a person from an Adivasi community or a de-notified community and a privileged upper caste rich person come to the court in a matter of dispute, the justice system shouldn’t be blind to the social realities and power equation existing between the two.

By the very existence of an unjust social hierarchy in society and the marginalisation that these communities face, justice lies in favouring and protecting the depressed classes. Anything else is further exacerbating the inequalities. This is also applicable when a woman comes out against a man with an accusation. We need to first understand the structure of patriarchy before we analyse this incident and decide.

This is more valid when the man is her boss or husband who holds power. The struggles suffered by those placed at the bottom of these hierarchies cannot be equated with those on the top. When similar punishments are given for similar crimes, the way punishment works for those on top and bottom are different. A fine of Rs. 5,000 for a rich man is not equal to the same amount as a fine for a poor man.

Rape is a heinous crime; but the rape of an underprivileged-caste woman by a dominant-caste man and rape of a dominant-caste woman by an underprivileged-class man are treated differently by society. We witness huge protests for one but complete silence for another. This is because one is considered a norm and can be easily ignored, while the other is considered an outrage. This selective blindness of society needs to be condemned.

When a person of a dominant caste or class commits violence, the system of power that gives him privilege ensures that they remain safe from prosecution, and most of the time, their crime won’t even be considered a crime and treated as normal. The “Men will be men” argument, the use of rape and parading to punish underprivileged-caste women, public attack on marginalised communities, burning of their livelihood etc. are all authorised and treated as a norm and no public backlash occurs, nor there is any prosecution.

The conviction rate for crimes against women and Dalits are so low because of the same reason. Also, when crimes are committed by the underprivileged, the conviction is fast and the outrage is huge. Most of the people who populate the prisons belong to the marginalised communities — most of them are under trial and without money to even pay for their bail.

Social inequalities and structures of exploitation should be considered violence, too. Once we see them exactly as what they are, we will be able to better understand the true nature of the violence committed by different individuals and communities, and decide if they are justified or not. Every power structure that coercively oppresses people and exploits them should be considered violent and any action that challenges these structures should be considered a defence of human rights.

Our idea of justice has been blind for too long towards the social realities and power relations, and people are often proud to badge themselves as being blind to these realities. In an era of deep structural inequality in terms of class, caste, colour, gender, belief and orientation, being blind to these power structures is just reinforcing and accepting these inequalities. Constant will and effort are needed to understand these coercive structures. It is high time that justice opens its eyes and sees the world more clearly, taking into account both liberty and equality.

While analysing events, we have to see first whether the parties involved are equally placed in the social hierarchy, whether they are equally represented in power structures, what the social realities of that particular community are, who is dominant and who is marginalised. Understanding privilege is essential to understanding justice.

Another issue that is prevalent is that people who are in the most powerful places in the hierarchy are often very keen to figure out the coercive practices that exist in the communities that are placed at the bottom and call them out but are completely silent about the exploitation caused by the power structures that they are part of. The talks about Dalit and Black patriarchy, the backwardness of superstitions and tribal rituals, the performance of practices that are considered uncivilised and oppressive are part of such observations.

People in the most powerful places in the hierarchy are often keen to figure out the coercive practices that exist in communities placed at the bottom.

But what they fail to understand is that most of these practices are a reflection of all the oppressive systems that exist around these marginalised and underprivileged communities. When communities live in a deeply unequal society, graded inequality and hierarchical systems will emerge within those communities too. That is why Dalit patriarchy is considered a result of Brahminical patriarchy. Nothing gets created in isolation.

To start scrutinising these hierarchies, we need to first address the margination and underrepresentation of these communities and destroy the power structures causing it. Affirmative action to bring a redistribution of power to those communities who are underrepresented in positions of power is a way to reduce these inequalities. So, the talk about liberty and equal opportunities against these measures by those who already enjoy privilege shows their lack of understanding of the social reality in society.

True liberty can only be achieved when all the power is distributed equally to everyone democratically. Freedom cannot exist in a society that has coercive systems of the power hierarchy. Any such freedom becomes just the freedom of the dominant community to oppress the underprivileged.

When a person of a minority or depressed class commits an act of violence against someone who is placed higher in the hierarchy, they are doing it by pushing every system of power that is trying to drown them into submission. These systems are just to aid the violence of those on top to freely execute violence on those at the bottom and stop them from reacting against the top. Basically, it is aiding violence in one and suppressing in another, therefore, we can’t equate the violence of both these types.

An example is that violence and looting during the #BlackLivesMatter riots by protestors cannot be equated and condemned like the violence and police brutality unleased on the black people by the state power.

Another liberty that is often used to suppress and demonise minorities is the right to free speech. Any statement made by members of the dominant community would be considered free speech and should be free from backlash and scrutiny, while anything that is questioning the power hierarchies is considered blasphemy. Most of the time, free speech is used as immunity to harass and demonise marginalised communities.

Ideally, all speech should be free in a free society, but in an unequal society with graded inequality on different bases, those in power need to understand the responsibility to not harass these marginalised sections. In an unequal society, the speech of the powerful can have a disastrous effect on those who are underprivileged, as we have seen by the hate speeches being used to ignite violence against Dalits, Muslims and women recently.

The reach and impact of each person are related to the privilege they have, and when they make comments on the depressed communities in the name of free speech, it adversely affects these communities. Since the advent of social media, many bigoted comments by these privileged people have been called out and criticised because of the democratising power of these mediums, and the sudden push back these privileged people face for their comments is often cited as an attack on free speech.

When a person who is underprivileged makes the same comment, it can be easily cited as free speech and let go, but in an unequal society, the privileged and dominant people shouldn’t get away with making such responses and should be made answerable to these crimes. For example, when an internationally renowned billionaire author makes hate speech targeting a marginalised community and faces backlash for it, it is democracy trying to hold those who enjoy power and privilege accountable for their actions.

If they want the true right to free speech, first they have to create a society where all people are equal and share equal power. Till then, since all people are not equal, all speech is also not equal. The impact matters and they should be ready to face the consequences for their bigoted remarks.

Because most of the time, freedom is only used by the oppressors to oppress the oppressed, freedom is becoming the freedom of the oppressor. That is the reason minorities are to be granted exclusive rights to ensure equality so that when principles of liberty can be enjoyed by everyone. For example, there is such a huge cry over criminalising marital rape due to its potential for misuse, but the reality of the patriarchal society should put women rights above men’s fears.

An action or performance becomes a symbol of oppression only depending on the social reality of the society where the action is performed. The same act can be considered as both an act of hatred and an assertion of freedom. Religion and practice of religion is a complex phenomenon and any analysis of it here is going to be an oversimplified version. People have various reasons for practising religion and the right to practice religion is a fundamental right.

Most religions have internal hierarchies within them like caste, gender, class and many practices can be called backward and oppressive. But when we are scrutinising these hierarchies and practices, we should not isolate these from the external hierarchies that exist in society. Also, we cannot stand outside the realm of those who actually go through these experiences and judge them. Any discussion of whether these practices are coercive or not should include those who actually are impacted by these practices.

There is such a huge cry over criminalising marital rape due to its potential for misuse, but the reality of the patriarchal society should put women rights above men’s fears.

For example, the burning of the Quran by feminists in Iran can be accepted as an act of rebellion against the coercive system of patriarchy imposed by the Government, but the burning of the Quran by Neo-fascist xenophobic elements in a European nation where Muslims are a minority who targeted and attacked cannot be accepted. Even though both acts are the same, our reaction to both should be different based on the social realities and oppressive power structures present there.

Underprivileged people are often deemed backward and attacked by the privileged for their lack of education. They forget that these people are trapped in poverty and lack education due to the very same systems of power that grants education and power to the privileged class, caste and gender. People who are underprivileged practice superstitions and are deeply religious because they are marginalised. Some people argue that even privileged people are deeply religious and follow rituals. Even though the practice of religion is a matter of individual faith and every person has their own reason to follow them, the act of demeaning and belittling one practice as superstition and another as spirituality is based on the position of power they hold in these hierarchies.

Most religions respect the social hierarchies present in society and codify them as rituals so that it doesn’t oppose those power structures. The extreme forms of patriarchy and casteism found in various religions are an example of this. Spirituality and religiosity are complex processes with so many factors involved that we can’t generalise the reason why people follow them. Still, the reasons for a privileged person to be religious is different from that of the marginalised.

Religions help form communities of mutual aid that the underprivileged seeks to survive the everyday oppression they suffer under all the coercive hierarchies they live under and hence, like every religion, these rituals form a part of their strong inter-community bond. They are forming these kinships as an act of solidarity with the community that recognises them as human beings.

To categorise people as backward and stupid for following these rituals further aids their marginalisation. Of course, there are rituals within many of these communities that are highly patriarchal and oppressive to some sections, but again, these are a reflection of other forms of hierarchies present around them. Studies have shown that tribal communities were largely egalitarian before they were assimilated into “civilization”.

If we want them to forego these superstitions or rituals, we need to stop blaming them and fight to abolish the hierarchies that systematically denies them access to education and information. If we want to fight for rationality to help these people, fight the social hierarchies that force them to remain in darkness. One more important point to raise here is about what we consider as valuable knowledge and information. Only the information generated and distributed by those who hold power is considered valuable and the knowledge that is held by tribals and other marginalised sections is considered backward and superstitious.

Hijab: A Symbol Of Oppression Of Empowerment?

Another example of how we analyse a situation based on the social reality is the issue of wearing a headcover (burqa or hijab) by Muslim women. In a place where it is forced by the patriarchal power structures, it should be condemned. But in places where it is worn out of personal choice, it cannot be. Many believe that those women who chose to wear hijab do so because of internalised misogyny and are pulling back the feminist movement.

We cannot analyse an action purely on the basis of the act in itself and use our ideas of how people should behave without knowing their realities. When we see a person is doing something that doesn’t make sense to us, we should try to think about the power relations involved and see where the person is positioned with respect to it. In places of oppressive orthodox theocratic regimes, which force women to wear it, the hijab becomes a symbol of oppression.

In places of oppressive orthodox theocratic regimes that force women to wear it, the hijab becomes a symbol of oppression.

In places where xenophobia is rampant, and mutual aid and solidarity among Muslims are built to form a community to ensure their safety, wearing hijab is a symbol of sisterhood and community, a symbol of hope and unity. Of course, forcing someone to wear a hijab is wrong, but people should realise what exactly is forcing them. In one case, it is the oppressive religious indoctrination that forces them, on the other side, it is the oppression, xenophobia, discrimination and fear created by the dominant community that forces these women to find refuge in their religion and community.

The same thing can be oppressive and liberating depending on the situation. I apologise for using all these examples. Since I am not a Muslim woman, I don’t know what all can be the reasons for them to wear or not wear a hijab. But I understand that it should be a personal choice and not be coerced. We can’t decide what is oppressive for someone and what is not. All we can do is help them get the agency to decide it for themselves. The strength and perseverance of hijab-clad Muslim women were visible when they lead the anti-CAA protests in Shaheen Bagh and elsewhere and it broke the myth of lack of agency in Muslim women.

Most privileged people decide what is oppression and what is liberty for someone else without actually trying to talk to the people involved. They simply force their ideas of freedom on people who are underprivileged. They are not ready to do the hard work of actually introspecting the power hierarchies that keep them in positions of privilege. They believe that people are inherently stupid and need to be taught what is good for them.

They consider themselves to be saviours, almost like the “white man’s burden” that was used by Europeans to colonise the world. What they should instead realise is that just providing equality in society by destroying the coercive power structures is sufficient for people to find meaning and understanding of liberty themselves, for liberty is so innate to human nature.

This is similar to how rich people in a capitalist society blame the poor for their poverty. They happily ignore the power structures present that systematically harasses and marginalise people and also forget their own privilege. They dismantle all social security networks that are installed for social and economic mobility in the name of free-market and recreate forms of oppression and coercion to extract labour from the underprivileged in forms equivalent to slavery.

They masquerade debt traps as loans, monopolise industries, destroy democracy, commodify education and healthcare, and create an army of unemployed low skilled workers as a reserve to drive wages down. All these acts of coercion are made legal through lobbying and bribing elected leaders and state machinery. So, instead of questioning these powers of exploitation, when we are only focused on rising in crimes and demand more policing, it just shows our lack of understanding and even willful ignorance of privilege.

I Want Revolution, But ‘My’ Revolution

Now, coming to another side, few people are so addicted to the idea of equality that they want a proletariat revolution immediately and according to their terms and ideals. They see every struggle only through the lens of class and ignore all the other social hierarchies that exist. They are blind to other social realities and power equations and are in a haste to put the blame on the people themselves and assume that these people don’t have the intelligence or agency to break the shackles themselves.

So, instead of educating the people and helping them realise their voices and identifying their chains, they want to be the leaders and saviours, the voice of the voiceless, but what they are doing is snatching away the voice of the oppressed people and using them as mere pawns in their own rise to power. Since most of these saviours come from the dominant social and gender group, the equation of power remains unchanged even if agitation happens as the decision-making power still resides in the hands of the few.

The right way to proceed is to be patient with the people and try to understand the structural hierarchies present in the society and also the forces of coercion which are subjecting these people to remain ignorant of their oppression and helping them realise their voice themselves, helping them identify what true democracy is and how to make and take decisions of their lives themselves instead of dictating to them what they ought to do.

Forcing an ideology in itself is oppressive. Instead, teach people to recognise hierarchies of oppression and let them emancipate themselves. If the hierarchy is forcing them into servitude, then support them in breaking those hierarchies instead of diminishing them for being weak. For example, forcing Uighur Muslims into giving up their religious practices forcefully is a human right violation.

If there are issues in the religion, let people identify them themselves and choose the change they want. Creating an environment free of coercion and force is essential for independent thought and the development of the human mind and rationality. Instead of deeming people as stupid and forcing change upon them, the people should be given resources to develop critical thinking.

It is easier to just lead people from the front as heroes, it is much harder to spend time and effort to create a culture of participatory democracy where people don’t need leaders and they can decide what their future will be on their own and be free from all forms of coercive structures. We must give up on the idea of saviours who will come and save the poor and downtrodden. All humans have the understanding and agency to decide their lives themselves. Effort must be put in by to bring out that innate ability in people so that they can decide intelligently for themselves rather than casting these people who are incapable of decision making and deciding what is good for them. Hero worship and blind allegiance to an ideology/person can itself create an authoritarian regime.

However altruistic and benevolent and egalitarian it is, the idea of democracy is murdered and liberty will be non-existent in such a system where power is centralized. People don’t need a party or a group of intellectuals to decide how to live their life. If you want to help people, first understand the hierarchies that oppress them, then help them identify these hierarchies and power structures, and help them create a democratic culture of decision making and distribution of power that helps them destroy these power structures.

“Educate, Agitate, Organise” — B R Ambedkar

A woman holds a portrait of BR Ambedkar during a sit-in protest against the Citizenship Amendment Act (CAA) in Kolkata. Credit: Getty Images

This should be the way to go forward. The time for developing a culture of collective democratic thinking in all spheres of life, be it social, political or economic, is essential. Democratic decision making by decentralisation and equal distribution of power is the only way to counter these power structures. Freedom and equality cannot be forced on people. Each person should decide what is freedom themselves and the community of free individuals will decide what true equality is. The recent anti-CAA, BLM and farmers’ protests have shown us an era of leaderless struggles based on solidarity and mutual aid.

All privilege results from some form of hierarchy. Class privilege stems from economic hierarchy, caste privilege comes from the social structure that supports a caste hierarchy, gender privilege comes from patriarchy and so on. Analysing a situation or event purely based on that incident without recognising the hierarchies involved is doing injustice towards the ones who are underprivileged and remain lower in the hierarchy.

It will be better for society when each of us starts recognising the actual social conditions and power relations that exist, and then recognise the issue and try to solve it. Being willfully blind to these power relations and claiming to be neutral or impartial is just aiding the established hierarchy. Being neutral in an unequal society is injustice.

Most people are oppressed by one hierarchy or another, and they almost always identify these structures. But they are still blind to the privileges they have in another hierarchy. For example, upper class/caste women suffer from patriarchy but are blind to their class/caste privilege; underprivileged-caste men can recognise caste but can be blind to patriarchy. Being blind to our privileges stops us from scrutinising and identifying all the different forms of hierarchies that exist around us and divides us internally in our fight against oppression.

The understanding of the hierarchies that oppress us should be translated to the understanding of the other hierarchies that exist elsewhere. Every power structure or hierarchy need to be scrutinised for their legitimacy and all coercive hierarchies should be dismantled for there to be a free and equal society. We need to understand as long as any of these hierarchies exist, we will never be truly free and equal.

No discussion about rights and justice is complete if it excludes the demands and views of the people who are most exploited due to it. We cannot create a just and free world from a top-down approach forcing our ideals of liberty on people. We should stop monopolising information and education so that each individual will be able to assert and decide for themselves what is in their best interests.

“Liberty without equality is privilege and injustice, equality without liberty is slavery and brutality.” — Mikhail Alexandrovich Bakunin

Note: This article was originally published in The Anarchist Library.
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