A bottomless social stratification of inequality exists in the form of caste in Indian society. Caste transposes economic, cultural, political, and educational marginalisation. The egregious forms of discrimination that the individuals belonging to the ‘scheduled castes’ (i.e. those who lie at the lowest point in this stratification) face, range from servitude, bondage, manual scavenging, occupational fatalities, selective policing, unaccounted rapes, and murders, among others. Indian diaspora has catapulted the escape of casteism from its domestic limits. Widely ignored on the national plane (except for the vote bank politics dominated by caste-based politics), emigrants have transported caste to the international plane. As a result, millions of individuals in South Asia and beyond remain affected by caste discrimination.
This blogpost outlines the entrenched caste identity among Indians and its migration to international society. It problematises India’s reluctance to address caste as an international legal concern and calls for Indian co-operation and acceptance of international law encompassing caste within its fold. It does so by drawing an analogy of race with caste.
The Hold of Caste
Caste originated as an occupation-specific gradation on the purity scale on the basis of which Indian Hindu society has been socio-culturally sculpted. Having its roots in ancient Indian mythology (like Vedas and Smritis) as an occupational and then hereditary categorisation of the society, caste has been perpetuated and now is retained as a hereditary social rank. The caste system divides the Hindu society into four rigid compartments: Brahmins (Priests and teachers), Kshatriyas (Warriors and rulers), Vaishyas (Traders and merchants) and Shudras (Labourers). Dalits (Sweepers and Toilet cleaners) were not categorised as they were regarded as ‘outcastes’. Caste has nowadays escaped its religion-specificity and traversed beyond the strict framework of Hinduism. Its retention secures a strong religious and social sanction that protects the hegemony of the upper castes. It is a significant descriptor of disparity and a deceptive social construct that retains the “oldest system of human oppression, subjugation and degradation”.
Caste functions on the rationale of graded purity situated in hierarchical divisions. As a “quintessential social and individual identifier”, caste is an important driver of poverty, inequality and exclusion in India. Caste discrimination legitimises apartheid in matters of residential segregation (thus creating a socio-spatial stigma), job discrimination, employment, incarceration, police brutality, access to sanitation, discriminatory wages, and others. Even in matters of choice of a particular stream of study, caste is an important signifier. Insidious casteism is faced even by National Law Universities’ students and by judges in the courts of ‘justice’ too.
Indian society has sustained and nurtured the caste identities because of their dividends for the dominant voices as the “rights and privileges of higher castes become the disabilities of the lower caste” (Thorat).
A Relegated Concern of Caste-Discrimination
In response to the denouncement of the scheduled castes (i.e. those who lie at the lowest point in this stratification), India affords and reserves certain benefits to these castes through Articles 15(4) and 16(4) of the constitution (hereinafter reservations). The effect of these theoretically protective provisions in the Constitution on mainstreaming the socio-economic status of the scheduled caste has been abysmal. The social contempt against reservations hollows its Indian Constitutional promise. The privileged ‘forward’ castes accuse this reservation policy of the Constitution as anti-forward caste that adversely affects their socio-economic rights. An empirical study refuting this prejudice demonstrates that at the systemic level, reservation has not adversely affected the participation of ‘forward’ castes in percentage terms. This contempt against reservations is often wrongly rationalized as an instrument of inefficiency in public administration.
Barbaric forms of caste discrimination have been normalised in India, from denial of water during a drought, being beaten to death in public view for marrying an ‘upper’ caste Muslim woman, to other violent atrocities against Dalits. Even a modest assertion by Dalit males, including sporting a moustache, riding a horse, objecting to the removal of Ambedkar’s poster, eating in front of ‘upper’ caste men, and touching their food plates exasperates the ‘upper’ castes in India. The plight of Dalit women is even worse. Unfortunately, the concerns of the marginalized are not the political mainstream concerns with electoral ramifications.
Existing laws in India do the bare minimum to address caste discrimination. Legal protection from discrimination is mainly theoretical, while caste discrimination remains blatant and even more so in implementing anti-caste laws. Popular decisions of the Supreme Court of India, which are praised by ‘forward’ castes, such as M. Nagaraj and Others v UOI (which rendered the reservation for promotions in public employment a practical impossibility) and Jarnail Singh v. Lachhmi Narayan Gupta (which introduced a creamy layer among scheduled castes) are unfortunate illustrations of the Court’s oblivion to the rationale behind reservations, which remains discriminatory. Shockingly, the Supreme Court has even diluted the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act in cases like Khuman Singh v. State of Madhya Pradesh. The Supreme Court in the case of Dr Subhash Kashinath Mahajan v. The State of Maharashtra has even criticized the ‘abuse of law of arrest in cases under the Atrocities Act’. In fact, most legal provisions for the protection of marginalised sections are alleged of being misused and abused by the marginalised. Even a former Supreme Court judge accuses rape laws of being misused, while the data on conviction rates exposes the amateurishness of this claim.
Scheduled castes experience a similar social inclusion (via the Constitution) and ideological exclusion in India and outside that Muslims experience in post-Cold War popular and political imagery in Europe and America. Both experience a similar systemic marginalization in social negotiations, political spaces, and economic bargain, and there even exists an intersectionality between the two. The capability of legal protection in addressing casteism is a comfortable assumption rooted in a bigger assumption of law being a panacea and turns a blind eye to the reality and enormity of it.
The Migration of Caste and International Law
Migration has effused caste’s organic weight and diluted its religion-specificity. Primarily associated with South Asia, casteism has traversed to Australia, the United Kingdom (UK) and the United States. Ethnographic empirical work has shown such a re-institutionalization of caste following the Indians’ migration to UK that scholars have called for the adoption of relevant domestic legislation in the UK so that such caste-specific concerns can be addressed. Despite having turned into a global phenomenon, caste has not been able to reflect on the research radar of international law scholars. The Third World Approach to International Law (hereinafter TWAIL) scholars who employ a critical, anti-hegemonic, anti-hierarchal framework for international law, have not attempted to address caste discrimination either.
India has relegated caste discrimination in the national discourse and refuses that the issue falls within the scope of the Convention on the Elimination of all Forms of Racial Discrimination (hereinafter CERD). The CERD Committee has enquired into caste-based discrimination (under discrimination on the basis of ‘descent’) and shared its concerns regarding the domestic implementation of CERD for the protection of human rights of the marginalized castes in its concluding observations for India, Nepal, Pakistan, Bangladesh and the UK. Although most States concur with the interpretations of the treaty bodies, India is an exception. Precisely, India opposes CERD’s interpretation and argues that caste cannot be seen as falling under the term ‘descent’ of CERD Article 1(1). India’s stance reveals its insecurity regarding an international scrutiny as was the case on some previous occasions. This distrustful refusal seems to be the result of two primary unconvincing claims. First, the erstwhile Solicitor General of India asserted that ‘caste is not of racial origin and is unique to Indian society’, overlooking the General recommendation XXIX on CERD’s Article 1 adopted in its 61st session. He added that ‘caste has been addressed in the Indian Constitution’, reiterating the panacea assumption. This refusal also echoes the national ego of laws that evades any possible redressal through the compliance with an international legal framework. Second, in support of the said refusal, Dipankar Gupta, an Indian sociologist, shared simplistic reasons of lineage and genealogy to not equate caste with race. This detached claim degenerates the interpretative potential of Article 1 of CERD by limiting it to a biological analogy, ignoring the parallel social realities.
Caste as an accident of birth qualifies as a discriminatory form under CERD. Though different phenomenologically, caste resembles race functionally. The theoretical underpinnings of caste discrimination draw its cognate relationship with racism. The difference in etymology and functionality of the two does not rule out the similarity and sometimes, even congruence, of operation of both. There is no apparent harm for India to let ‘caste’ be interpreted within ‘descent’, letting CERD Committee’s interpretation prevail over a statist politically skewed (mis)interpretation. Nonetheless, these theoretical arguments have slim chances to become the actual solutions, even more so because they have not been flagged enough by the scholars. Ambedkar, a socio-political scholar and Dalit activist, had warned the Indian Government to take the plight of the depressed castes to the League of Nations. He had drawn glaring similarities between caste discrimination and the discrimination faced by the African Americans. But his works themselves are relegated and under-read in the caste dominated academia. In addition, the critical pulse of TWAIL scholarship has not reflected on caste marginalisation. On States’ radar, less prioritized human rights treaties such as Convention Against Torture, and Convention on Enforced Disappearances have shriveled in comparison with the high prioritized trade and foreign investment treaties. The myopic economic dividends of such treaties for a few weigh higher than the human rights of all in a neo imperial State.
Concluding Remarks
Recognition of race as a praxis of discrimination and the non-recognition of caste as a similar discriminatory practice is a blatant denial of a genuine equivalence. Discrimination on the basis of race prevents the recognition of people as subjects of international law and the respect of their rights, and there seems to be no reason why caste should not be seen in the same way. India’s refusal to acknowledge discrimination on the basis of caste as incompatible with human rights law reflects the myopic statist view of international law which limits international law to a consent-based system. CERD Committee’s legally coherent interpretation should not be subdued by a political and incoherent interpretation of ‘descent’ due to the insecurities and ego of Statist claims.
Swati Singh Parmar is an Assistant Professor in International Law at the Dharmashastra National Law University, Jabalpur, India.
You are saying, “Having its roots in ancient Indian mythology (like Vedas and Smritis) as an occupational and then hereditary”
Your “ancient” India starts at Vedas & Smritis. How about the era even before? We must know, once there was no caste in India. And there was no Hinduism either. Indians lived their way of life, only during the British time, those who are not Christians, Muslims and Sikhs were collectively called Hindus and their religion became Hinduism. So Hinduism has many faiths in it.
Among the faiths the casteism belongs to brahmins, part of their varnashma dharma. Likewise sanathana dharma, manusmrithi, aagamam, mahabaratam, ramayanam, bagavit gita, horoscope, zodiac, panjanga, good/bad times, pooja, thidhi, vegetarian all are brahminical stuff.
Brahmins influenced the Indian kings, to inject their faith into non-brahmins. Those days people has to follow the religion of the kings, else get detained. And why does Brahmins did that? The reason is very obvious, what we see in today’s India. Brahmanism simply takes control of everything in it’s path, if you accede you can survive as it’s slave. If you oppose it will suppress or even eliminates you.
The scheduled castes are the aboriginals of India, first opposed the Aryan invasion. And brahmanism is punishing them till date. Other non-brahmins who accede to brahmins are living as slaves (sutras).
Is there any way out ? Yes there is. Decentralise the Hinduism. Divide it into brahminical & non-brahminical. Like Islam, Christianity, let Brahmanism be another religion. Let brahmins leave Hinduism with all there stuff mentioned above. It’s there faith, they have their right to follow it; but they have no right to impose it on non-brahmins. Live and let live.
This is a very relevant article!
One of the most basic things that we can do as a member of human race is to treat the person next to you as a human being worthy of dignity and respect. The very existence of caste undermines this. How can I convey the pain and humiliation someone goes through her daily life, feeling insecure and stigmatised because she happened to born in a so called low caste. From the school days ( for those minority who are “privileged” enough to access school) , through college life, in academia, in workplace, in choosing life partner, the silent indignation and the crushing bitterness of caste identity follows you even if you try to disconnect from it. The saddest thing is that, even if you choose not to reveal your identity, society has a way of whisking it out and judge you on that basis. Can you even contemplate how hurtful it is to be treated with indignity because of no mistake yours? can you feel the pain? the depression? the fear? the insecurity? For the ones who take pride in their so called upper caste identity, this is not an issue at all. From my learning, the very legal purpose of caste in today’s society is to identify whether the person is eligible for reservation or not. Given this fact, why are the so-called forward- caste people still clinging on to their caste identify and perpetrating this stigma? The backwardness of the backward class will never end so long as the so called forward class ends their casteism and MEAN it.
If the articles that the author had linked in her post narrating the plight of the victims had not sensitised you as to the pain and loss suffered by the ones who are at the receiving end of this rotting menace of casteism, I don’t know what will.
I extend my sincere regards to the author who took her time and effort to voice the cause of the voiceless. Maybe ‘voiceless’ is not the right term because as Arundati Roy says, there is no such thing as voiceless, There are only the deliberately silenced or the preferably unheard.
Much power to you Ma’am!
Thank you for your kind comments. I am glad that I could capture a few glimpses of the issue. Though I realise that given the complexity and enormity of the caste-related issues, my post does the bare minimum. I completely agree with Arundhati Roy’s position – they aren’t voiceless but either deliberately silenced or preferably unheard.
This is a timely post on a relevant issue. Caste discrimination has been entrenched and normalised not only in India but outside too.
Thank you for your comments. We all have been complacent in producing the caste realities.
there are factual and conceptual mistakes made by the author in this article dalits are mention here as a toilet cleaners but from the vedic period in India until British period start people used open space as toilet. When there are no toilets there are no toilet cleaners as well.
caste system is misunderstood grossly and used as a tool to defame Hinduism.
As described in the article caste system is not vertically arranged on the purity scale rather it is an horizontal arrangement where in each group associated with the particular occupation for societical harmony arranged with no intermingling between the group.
Each group has its own advantages and disadvantages. For example Brahmins were never allowed to become rulers barring very few exceptions which can be numbered. is it not a discrimination?
so without reading entire shastra it is difficult to talk. Author has liberty to talk on today’s situation not the history
well! what about cases where so called high caste are getting victimized. There are many cases where person from high caste is victimised. Only thing should be economic criteria for redressal
Thank you for your comment. Are you referring to cases where a person is victimised because she/he belongs to a ‘high’ or ‘upper’ caste? If yes, please feel free to share some data on the same. I will definitely try to study it. The framers of the Indian Constitution never meant the ‘reservation’ policy to be a poverty-alleviation program. It was meant to instil some degree of socio-economic equality for the marginalised (to the otherwise unequal society). The same is documented well enough in our Constitutional Assembly Debates, which are freely available online.
really truthful, courageous n professional analysis of Prof.Swati’s article that uncovers the the real NUT of CASTE DNA Embedded Structures that got Patronised n Practiced Conciuosly n Protected Legally in many Colours n Shades throughout South Asian Continent, particularly in India.
In Full Light of Human History n Sense,CASTE is nothing but ‘ the Most Foxy,Crafty, Manipulative,Inhuman n Cruel Inventive form of RACISM against the NATIVE INDIANS in this vast part of the world to Occupy n Rule them Permanently that became so Successful, Unchallenging n Undefeatable,even after more than Three Thousand Years that in turn brought so much of unSpeakable n unTraceable GENOCIDE n HUMAN RIGHTS Abusives against hundreds of millions of Native Indian Ethnic Group Peoples of South Asia.’
In the whole of Human History, we never find such a most inhuman n cruelest, most criminalised n barbaric genocide acts for such a long of period constantly against any people anywhere in the world,like this.
I think,International Human n Civil Rights’ Organisations, Societies, Courts n Governments come together can only bring some concrete Solutions for it’s undisputedly an International Very Very Serious Human Rights n Self governance Problem of hundreds of millions of Native Indians who are called now as ‘Dalit Indians’ by History Scholars.
More History Scholars,Human n Civil Rights Organisations n Lawyers’Articles,
Debates n Non Cooperation Movements on international big platforms n powerful Governments’
Implementing Acts against Human Rights Violations in any country anywhere can only stop this n bring Dalits Human Rights, Justice n Development for ‘Indian Dalits’ whose population is more than North America or any other large nation’s population in the world,except China.
I like very much this great article of Swati n your VOlkerrechtsblog providing n I appreciate you for this
Great Article n Great International Blog!
Thank you for your compliments.
i am not sure which vedas you read, there is nothing like dalit caste. the link you share has no relevance.
comparing somebody’s willingness to tag his caste on number plate doesn’t entails caste discrimination.
your research is a waste of academic time.
One main characteristic of the Scheduled Castes has remained to be explained. And that is the untouchability. this characteristic is a unique thing being the very inhumane treatment given to the Scheduled Castes who were formerly Untouchables. The change in name has not changed the treatment the Hindus give to them. This untouchability needs to be explained to the world scholars to understand the dire inhumanity status of the Caste System still prevailing in India.
Thank you for your comment. I do agree that untouchability, though banned constitutionally, exists socially. Its forms and ramifications have changed, but broadly, it manifests in the same old way. As this blog post deals broadly with caste discrimination, I could not specifically deal with untouchability here. Untouchability among the Indian diaspora, as a separate study with focused issues, remains to be taken up. I am sure that there is some scholarly work on the same, though less and late.
True scholarly work, congrats Swati. The so called upper never wants to leave exploitation of poor lower caste people. They r leach of the society. They never wants this issue comes at international stage.
Biggest problem is that they will make whole world caste based as they have migrated in most of the countries and they start relating affluent people of that country as upper caste and finally they will divide population in Varna and caste.
Further these people r looting india more than British and accumulating wealth in western countries as they know one day indian will come to know and they will have tough time.
All politicians, bureaucrats, business and wealthy upper caste r buying properties abroad and settling their wards in those countries and lower caste people r without jobs and poor.
They r deliberately closing and killing public sector as lower caste get jobs due to reservation and in private they r holding all top posts and they recruit people from own relation with hefty salary.
In private only labor jobs r available for lower caste.
Thank you for your generous comments. Glad that your liked reading.
What I don’t understand is how they are justifying caste discrimination is not similar to racism. It’s literally based on birth and so called upper caste bully and discrimate against the people of ‘lower’ birth. Are the idiots justifying this by saying that there is no physical proof in casteism as seen in racism ? I m curious as to what is their excuse.
Caste discrimination and racism may be two different processes, but they operate similarly and have a similar genesis (rooted in birth, as you mentioned). It is then difficult to understand why ‘caste-based discrimination’ cannot be dealt with in ‘descent’ under CERD. Some have given nonconvincing arguments, which you may find in the hyperlinks in the post.
Dear Swati,
Very meticulously penned article ,encompassing very many pertinent details.Your knowledge about the subject is phenomenal.Had an educative reading,the article.Will be sharing with my friends as well.
Wishing you lots of compliments n best wishes in all your future endeavours ,in your professional field.
Keep it up.God Speed.
Thank you for your kind compliments. It’s so encouraging.