Abstract
Caste, a system of social division based on inherited status, has a long history in South Asia. At present, Caste is no longer specific to any religion or region, having been exported to various countries by the South-Asian diaspora, often lacking the equality framework required to address Caste-based discrimination. Caste and race are closely interconnected as comparable systems of oppression and discrimination. However, Caste-based discrimination has been accepted as a form of racial discrimination by the UN Committee since 1996 as a sub-element of discrimination under Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and as a form of discrimination based on work and descent prohibited by international human rights law since 2000. India has consistently held that caste can neither be equated with race nor covered under descent. The conceptualization of Caste in the wide category of work and descent to cover analogous systems worldwide has proven insufficient to address rampant abuses. Caste is not acknowledged as a distinct ground of discrimination due to its complexities, which require a targeted response internationally. Hence, recognising Caste as a sui generis category of discrimination would provide adequate guidance for national approaches to prevent such discrimination and achieve the equality guaranteed in the international legal framework.
1 Introduction
Caste-based social stratification based on inherited status and occupation traces its roots in the Indian subcontinent. The occupation and subsequent hereditary gradation of Hindu society based on the purity scale led to the rigid compartmentalisation of social ranks. Caste may have its origins in Hinduism, but with time, it has transversed beyond Hinduism and South Asia and migrated with the South Asian diaspora to firmly take root in South and East Africa, Mauritius, the Middle East, Malaysia, Fiji, Suriname, the Caribbean, the United Kingdom, North America, Europe and other regions in the world1 Instances of Caste-based discrimination and violence have been reported in many countries. Due to time and resource constraints, the authors will focus on countries such as the UK and the US, apart from India, due to the sizeable South-Asian diaspora in these countries.
Caste and race are both comparable systems of oppression.2 However, Caste, unlike race, does not appear in any universal international treaty, which merits the need to find a place for Caste as a sui generis category under international law for eradicating Caste-based discrimination, sinceit goes beyond the descent-based discrimination that is currently included in international law.3 The complexity of dealing with Caste-based discrimination goes beyond the state of its origin as it involves the interests of different sectors of the diaspora that export the various exclusionary practices, which require efforts on the part of the host societies to understand the problem and take corrective measures. The host states are required to fit Caste within existing anti-discrimination categories without stigmatizing an entire community.
Historically, Caste-based discrimination came to public attention through the Committee on the Elimination of Racial Discrimination (‘CERD’) in 1996, through a report by the Indian state in which the definition was restricted to descent-based discrimination and as a form of racial discrimination4 India has stated it position through its periodic report in the context of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), in which India has stated that ‘descent’ as referred to in Article 1(1) of the ICERD does not cover caste and only applies to race. Hence, scheduled castes and scheduled tribes communities in India will not come under the purview of Article 1(1) of the ICERD. The CERD, in response to India's assertions, observed that the term ‘descent’ mentioned in Article 1 of the ICERD does not solely refer to race, and the situation of the scheduled castes and scheduled tribes falls within the scope of the ICERD. The CERD started dealing with such issues after these observations. In its 2002 General Recommendation 29, it reaffirms that the social stratification and discrimination faced by members of communities based on caste are elements of discrimination based on descent.5
However, General Recommendation 29 fails to provide any reason for including Caste discrimination under descent-based discrimination. It merely reaffirms the fact that Caste is one kind of social stratification based on inherited status.6 In this context, the authors believe that the recognition of Caste cannot be restricted to a form of descent-based discrimination. It needs to be recognised as a stand-alone category like religion and race. Caste has been frequently redefined and drawn into broader discourses about religion and race because of its complex history and its role in socio-political struggles in India and increasingly in other countries like the UK7 and the US,8 where there is evidence of Caste-based discrimination in South Asian communities. Generally, the countries outside India have in place laws and regulations that prohibit discrimination on a range of grounds within their national legislations that necessarily do not include Caste as a ground of discrimination even though there is evidence of caste discrimination in diaspora communities. Hence the relevance of international recognition of Caste - like race - as a sui generis ground has significance. Caste and race may not be fundamentally the same; despite this, they are meant to subjugate people, and liberation from this subjugation and discrimination is essential to the liberation of all people. Even though the early colonial conceptualisations of Caste as race were based on various scientific theories about race, where Caste was primarily seen as a sociocultural construct and race as a biological construct,9 this does not present a complete picture.
The point to note is that such categorisation of race and Caste under various dimensions of anti-discrimination, affirmative action, or minority rights does not provide clarity for understanding Caste or race, often making such classification arbitrary and random, and necessitating an analysis of how each member state reflects upon such understanding, as this highlights the particular state's understanding of race and Caste and the reason behind the same10 In this context, the understanding of discrimination needs to go beyond the state of origin by not relegating it to a domestic issue and adopting the transnational model of discrimination, which has always had an inherently transnational dimension, which is also the case with Caste. Transnational discrimination may be defined as the continuation of patterns of discrimination exported from the society of origin that mainly manifests itself in the host state. However, the issues that transcend the local boundaries through the migration and movement of persons, such as Caste-based discrimination, have not found a place within the central agenda of international law.
It is instructive to consider the case of the Dalit's struggle for liberation, which revolves around the abolition of Caste, and which, unlike race, originates in prehistoric times. The Caste system has deeply divided society by providing for graded inequality to stabilise and rigidify the social structure11 Caste may have its origins in the religious, economic, or social sphere, but while analysing the sociology of Caste, BR Ambedkar, who was the Chairman of the Drafting Committee of the Constitution of India did not give much importance to its religious origin. He further argues that rationalising Caste through religious texts has no basis in Hindu society was historically divided into classes; however, with time, the mobility among the classes gave way to enclosed units called Castes. Caste, in some ways, is regulated through religion, which also in itself is a separate category of discrimination under international law, but religious discrimination law may not be able to capture Caste-based discrimination in all situations as it is limited to specific circumstances only.12 To understand this aspect, we must look at the origins of the Caste system.
2 Caste system and its origins
Caste is generally understood as a strictly codified endogamous form of social stratification characterised by written rules and rituals laying down separate ranks with a strict hierarchical framework.13Durmont describes Caste as a hierarchical system ranking groups based on a purity/pollution principle of human nature that all accept.14 The religious sanction for the Caste system can be traced back to the Rig Veda, which describes the creation of the human race from the primal man, Purusha. From his head originated the Brahmins, the priestly Caste, who are highest in the social hierarchy, entitling them to read the scriptures and serve God; from his arms, Kshatriyas, who were the ruling Caste consisting of warriors; from the thighs, Vaishyas, the merchant or trading Caste, and from his feet, the Sudras, the servant or the labourer Castes. The Ati Shudras, or so-called ‘Untouchables’ or ‘Dalits’,15 were outside the Caste hierarchy, performing menial jobs. Within each of these Castes are thousands of sub-Castes called Jatis, which are closed endogamous local or regional kinship groups within this hierarchical framework working as an operative unit of the Caste system within a geographical locality.16 To further understand the situation, communities and territories stood outside the Varna system; those within the Varnas were called savarnas, and those outside were called the avarnas. The Untouchables, i.e., the Dalits and the tribals, were avarnas who stood outside the Varna system. However, the Untouchables are part of the social and cultural system of the Jatis, whereas the tribals are neither part of the Jati nor Varnas. The Untouchables were classified as outcasts, not only because of their occupation but also because of their birth. This category also included those who performed activities such as scavenging, cleaning the streets, etc.17
Unlike the Varna System, the concept of Jati is not exclusive to Hinduism but is prevalent in almost all religions practiced in South Asia.18 Consequently, action is required on the part of the host states where such practices have been exported through transnational discrimination as discussed above South Asian Muslims have a similar system of biraderi, a term which means extended kinship, and zat (equivalent to Jati), a group of intermarrying close kin which, depending on the context, may also refer to a group or brotherhood descending from a common male ancestor. There are only four Varnas and a precise number of Jatis, which may merge or sub-divide into indeterminable groups. While the four Hindu Varnas have fixed rankings and are immutable, there is the possibility of movement in Jati. It is, however, worth pointing out that Varna and Jati membership are permanent and hereditary in character, determined by birth, restricting an individual's ability to change one's inherited status. Hence, unlike class, social mobility depends entirely on the status and re-ranking of the entire Caste, and one cannot choose one's Caste and acquire a different Caste than the one is born into.
The Varnas were closely connected with occupation and social function in an ancient society, laying the foundations for a hierarchical division of society. Caste has also been associated with a quasi-physical quality. However, it is not considered a purely physical attribute with physical markers for identification but depends on various factors, including name, residence, occupation including ancestral occupation, skin colour, education, appearance, local knowledge, migration trends, etc.19 Caste and its racist undertones are manifested through the differences between the fair-coloured Aryan Hindus and the dark-coloured Dravidian Hindus.20 Even the Hindu Doctrine of creation refers to the Chatur Varna, a four-colour scheme that orders the four categories into a hierarchy.21 Under this scheme, whichtraces its origin from the Varna Vyavastha developed by the Aryans, white refers to Brahmins, red to Kshatriyas, yellow to Vaishyas, and black to Shudras.22 Such justification has been used to justify the hierarchical view of the Caste system, with the Brahmin being seen as the purest in this perspective. Consequently, the Caste categories were clustered into a closed social stratification, and those seen as inferior were not excluded but accommodated on a lower pedestal.23
In this light, a reference to a Hindu sage called Manu, who brought about the Manu Smriti which reinstated the idea of the Varnas to bring order to society, assumes significance. The Laws of Manu have been referred to by generations and followed by some sections of Hindu society to prescribe the rules for everyday life of all Varnas and Jatis in Hindu India. It even prescribes the occupation as per the divisions under the Varna system. For the Brahmins, the assigned profession was teaching and studying the Veda, the Kshatriya were made responsible for protecting people and sacrificing their lives, the Vaisya were the tradesmen who were occupied with the acquisition of wealth, and finally, the Shudra or the so-called lower Castes were to serve the three upper Castes and never to take up the occupations of higher Castes.24
Despite such restrictions, the Jatis continue to grow in number with an attempt to build links between various Jatis in different regions. The only point of similarity between the Varnas and Jatis is that both are regarded as structural systems. In India, Caste-related discrimination shows no sign of abating, even when egalitarian equality has been recognised as the basic feature of the Indian constitution under Article 14 of the Indian Constitution. The Indian Constitution recognizes Caste and race as standalone categories of discrimination under Articles 15 and 16 of the Indian Constitution, with Article 16 (2) also mentioning descent as a prohibited ground of discrimination. Furthermore, even though the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 was passed in India, the issue of Caste-based discrimination continues, particularly in rural India in the relationship between Scheduled Castes and others. In such areas, the Dalit community members are excluded from village wells, temples, and tea shops and made to feel subordinate to upper Castes, as well as discriminated against in land and housing allocation and prevented from participating in local government institutions.25
Caste identity has also been redefined and politically organised in recent years, and the term Dalit is often used to assert a political identity for achieving social justice. Scholars such as Srinivas and Ghurye claimed that Caste would not disappear from society; instead, it would adapt and transform itself according to changing socio-political needs.26 This is exactly what has transpired, with various Indian diaspora settled outside who continue to have a strong connection with their ancestral practices pertaining to Caste and Casteism. The reason is that Caste identity seeks to operate as a form of solidarity in the host states that which allows members of the same Caste to identify and connect with each other.
In the international context, India has successfully resisted the attempts of Dalit human rights groups to include Caste-based discrimination as a subset of racial discrimination, based on the assumption that race has a physical component, whereas Caste is a social construct.27 At the same time, there is the attribution of colour with Caste, with whites being labeled as quasi-brahmin and Dalits as blacks in the social hierarchy.28
It is to be noted that the discrimination, exclusion, and humiliation faced by millions of people from the Dalit community was not treated as a human rights issue by any United Nations organs or non-governmental organisations until the 1990's, and no international convention specifically covered the problems of Caste-based discrimination. Caste based discrimination has not been recognised as a category in itself, even when people outside India have also faced similar abuse in other countries in South Asia, a phenomenon extending to the UK and the USA which will be reflected upon by the authors.29 The Government of India ensured that Caste-based discrimination was not included at the World Conference on Racism in Geneva in April 2009. This has resulted in the systematic discrimination and subjugation being meted out to those suffering on account of Casteism30 and has not taken into account the views of the people who continue to be subjugated based on these parameters.
In this light, the authors argue that the arguments supporting Caste being a social category warrant a critical reflection. This would enable the international community to take systematic steps to recognise Caste as a social category like religion and colour and dismantle the practice of granting special treatment to members belonging to a particular group or Caste and favouring one Caste as being superior to the other based on unsubstantiated claims.
Considering the above explanations, this paper seeks to explore the possibility of classifying Caste as a sui generis category like race for protection under anti-discrimination law at the international level under the International Convention on the Elimination of All Forms of Racial Discrimination. A positive effect of the recognition would be that it would help to solidify group identity, facilitate mobilisation and enhance group power among aggrieved communities such as the Dalits. In the next section, the authors discuss the relationship between Caste and religion and its complexities and argue why religion as a category of anti-discrimination law may not effectively capture Caste-based discrimination in many circumstances.
3 Caste and religion
As has been discussed in this paper, the issue of Caste based discrimination has been seen through a historical lens where India - as the state of origin - has had recourse to steps taken through affirmative action without delving into the fact that it continues to be a structure of advantage and discrimination. Such ignorance has led to a belief that Caste-based discrimination has been tackled both nationally and at the international level, so there is no need for any direct action concerning such discrimination as it is covered under various categories discussed by the authors, including religion. However, subsuming Caste-based discrimination under the category of religion diminishes the seriousness of the violations suffered by the victims due to the issues surrounding Casteism. In India, Caste is associated with Hinduism doctrinally, yet it has percolated into other religions, such as Christianity, Islam, and Sikhism, despite the absence of a doctrinal basis for Caste in those religions. Thus, Caste is no longer a Hindu phenomenon even though its ideological basis is Hinduism. Conversion of Hindus to other religions has resulted in the percolation of Caste to other religions, even when such conversion may have been for emancipation from Caste and Caste-based discrimination. It has proven imperfect in reality as converts to other religions have also carried their Caste status into their new religion. The same is the case with Dalit Christians31 and Ambedkarite Buddhists.32 So, many individuals following diverse religious traditions share Untouchable origins.
The religious legitimisation of Caste is one of the many factors supporting the economic exploitation and social exclusion of the Untouchables which divides Indian society. The Caste system has maintained a certain level of homogeneity through commensality, which has become a distinguishing feature of Caste. Dalits have been religiously justified as polluted. Dalit means broken up, oppressed or ground to pieces in Marathi and Hindi. The notion of pollution/purity is a common feature often associated with beliefs regarding the physical dirtiness or ritually polluting aspect of their ascribed functional roles, often becoming the cause and the consequence of discrimination towards these communities; the potential danger of the communities treated as such becomes more prevalent when the ascribed roles have religious significance, such as being associated with death or burial, etc. Such religiously sanctioned roles derive their existence from the theories of Karma and Reincarnation which means that a person's actions determine the nature of that person's future existence. These theories have problematised the issue of Caste discrimination even more.
However, Dalits in India do not constitute a distinguishable ethnic, religious, or linguistic minority, only sharing their ascribed socio-religious identity as Untouchables. They are divided not only by region and language but also by religion, culture, and ethnicity. Dr. B. R. Ambedkar, a celebrated Dalit lawyer and, eventually, chairman of the Drafting Committee of the Constitution of India, fought to eradicate untouchability and to abolish Caste and not for its preservation.
Caste-based discrimination is increasingly addressed by the UN treaty bodies in combination with other grounds such as religion, as in the case of Dalit converts to Islam or Christianity who, unlike Buddhist or Sikh converts, lose their entitlement to reservations in India, and gender, as the Committee for the Elimination of Discrimination Against Women has identified Caste as a major obstacle to the implementation of the International Convention for the Elimination of Discrimination Against Women 1979 (CEDAW),33 with Dalit women and girls suffering extreme gender-based and sexual violence and gender-related discrimination on grounds of Caste.34 The Committee on the Elimination of Discrimination against Women (CEDAW) also, in its combined fourth and fifth periodic reports in 2014 on India, raised concerns about the increase in the instances of Caste-based violence against Dalit women and issues faced by them in accessing justice and legal aid. Poor implementation of protective legislation such as the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act has contributed to perpetrators committing such abuses with impunity. Dalit women also face intersectional discrimination, which remains inadequately addressed. The Committee, in its General Recommendation 28, noted the lack of a comprehensive legal regime which addresses such intersectional discrimination faced by women.35 The Caste-based social norms of purity and pollution are strictly enforced, leading to prohibitions on inter-Caste marriages even when no such prohibition exists in the domestic laws on such marriages. While social and economic indicators other than Caste have gained prominence recently, inter-Caste marriages still face strong social barriers. Migrant communities in North America and Europe have perpetuated Caste ideologies by seeking out marriage partners within their own Caste from India.36
CERD has also highlighted the gap between the formal abolition of Untouchability and Caste discrimination in India and the continuance of such discrimination.37 Untouchability was abolished and made a punishable offence under the Untouchability (Offences) Act of 1955 which was later supplemented by the Protection of Civil Rights Act of 1976. Despite these acts, the attoricities committed through Caste-based discrimination did not decline and the Schedule Caste and Scheduled Tribe (Prevention of Attrocities) Act 1989 was passed as discussed before.
In this context, Caste has been identified as an obstacle to de facto equality in the enjoyment and exercise of human rights under universal international treaties such as the Convention on the Rights of the Child (CRC), the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on Economic, Social and Cultural Rights (ICESCR).38
Looking to the West, in the European context, Caste and religious discrimination can be discussed in relation to Article 9 of the European Convention of Human Rights (ECHR), which provides everyone the right to freedom of thought, conscience, and religion. Still, the manifestation of religion and belief is a qualified right.39 Religious anti-discrimination law protects individuals from discriminatory conduct by public or private actors based on religious beliefs. So, rights provided under Article 9 ECHR may cover Caste-based discrimination originating from religious belief, denying access to public places to individuals belonging to a certain Caste.40 This depends on whether a person's ascribed Caste status is integral to the religion or belief or is a characteristic distinct from the religion or belief. Dalits living in various parts of the world are defined by their Caste status rather than religion. Scholars also argue that conflating Caste status with religion is a mis-conceptualisation, although Caste as an institution finds doctrinal support in orthodox Hindu texts.
4 The need for international recognition of caste-based discrimination
Issues surrounding Caste-based discrimination have been highlighted in the past; at the same time, the CERD has raised the issue of descent-based discrimination as a sub-set of Caste in several state party reports for several countries such as Senegal, Mali, Ghana, and Japan, as well as the South Asian countries like Nepal and Bangladesh.41 In 2000, the UN Sub-Commission on Human Rights passed resolution 2000/4 on Discrimination based on Work and Descent, according to which discrimination based on work and descent is a form of discrimination prohibited by international human rights law, and requested that governments ensure that all necessary constitutional, legislative and administrative measures, including appropriate forms of affirmative action, be put in place to prohibit and redress discrimination based on work and descent.42 Similarly, in August 2002, the CERD issued General Recommendation XXIX on descent-based discrimination and recommended the appointment of a Special Rapporteur on Discrimination based on Work and Descent.43 Similarly, the Committee on the Elimination of Discrimination against Women refers to Caste in its 'General recommendation No. 28 on the core obligations of States parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women’, but does not include it as a specific ground of discrimination under Article 2.
Surprisingly, the ICERD is the only universal international treaty in which ‘descent’ appears as a prohibited ground for discriminatory treatment, and no other United Nations convention or covenant lists it as one of the grounds in their non-discrimination clauses.44The issue here is that even though descent-based discrimination has found a place in the treaty, it certainly does not safeguard all possible scenarios attached to the phenomenon of Caste-based discrimination, which is multi-layered, as discussed in this article.
Even the word ‘descent’ traces its origin from the Indian amendment that added the word ‘descent’ into the Convention as a prohibited grounds to raise objections towards the words ‘national origin’ that were earlier in place under the definition of racial discrimination. The arguments given at that time were that the Indian Constitution guaranteed equality to all Indian nationals without discrimination. Article 15(2) was refered to, which related more particularly to freedom of access to public places; Article 16(2) prohibited discrimination in employment and included as a prohibited ground, discrimination in public employment, distinct from Caste, while Article 17 abolished untouchability in all its forms. At that time, Article 1(1) of the draft International Convention on the Elimination of All Forms of Racial Discrimination which contained the word ‘national origin’ was submitted to the Economic and Social Council by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities in 1964.45 In response, the Indian representative at that time, in the debates of the Third Committee, described how the Indian Constitution provides for ‘special treatment for the underprivileged groups of India, a special form of discrimination designed to undo the wrong done to these groups in the past’46 and the word ‘national origin’ is biased and needs to be replaced by ‘descent’. The term's intended meaning and scope could have been clearer from the travaux preparatoires. Considering that descent was included as a prohibited ground of discrimination for public employment, distinct from Caste, race, gender, and religion, it shows that India did not intend descent to include Caste in Article 1(1) ICERD.47 However, while Caste was not discussed during the drafting of Article 1(1), it was discussed in relation to the drafting of Articles 1(4) and 2(2) on temporary special measures which provide for or require States to take extraordinary measures for the development and protection of certain racial groups or individuals belonging to them. The CERD's usage of descent as a ground to address Caste discrimination has not been well received, particularly by India, even when the CERD has observed that the ICERD must be interpreted and applied by taking into account the circumstances of contemporary society.48
At the national level, Articles 15,16 and 17, and similar provisions under the Constitutions prohibit discrimination based on Caste and discriminatory activities such as scavenging, sweeping, and bonded labour as discussed earlier. Specifically, in the context of India, the Dalit issue must be seen separately from being an issue of gender, poverty, or sexual violence. Generally, the reasons cited for non-inclusion as grounds for racial discrimination surround the projection of Caste as a temporary, processional, and internal issue because India is a welfare state that has implemented affirmative actions to counter discrimination.49
The lacuna of such justification is the ignorance of the transformations that the Caste system has undergone, from the ancient Varna system to the contemporary Jati system, also explained in the paper. Similarly, Caste is projected as a subcontinental phenomenon, rapidly spreading to other countries, which goes against the spirit of protecting human rights from an international perspective. It is to be noted that Caste-based discrimination affects millions of people worldwide as it has been exported to many diaspora countries, and in the absence of clear protection against Caste-based discrimination internationally, there is a lack of specific legal protection for Caste nationally in many countries under their existing anti-discrimination laws as will be explained in the next section by focusing on the UK50 and the USA. As a result, the three pillars of the UN, i.e. security, development, and human rights, are being violated, and this requires system-wide, coordinated engagement to eradicate the differential impact of discrimination on the various groups within different societies to strengthen the human rights mechanisms and develop practically oriented measures and strategies to combat Caste as a form of discrimination.51 The recognition of Caste-based discrimination by UN bodies in India and other countries reflects the global scale of the problem, even when the Indian government has always insisted it is a domestic issue.52
In March 2016, the Special Rapporteur on minority issues presented a report on caste-based discrimination to the Human Rights Council, which was the first comprehensive report examining Caste-based discrimination as a global phenomenon. In that report, the Rapporteur covers specific areas of the impact of discrimination in Caste-based and analogous systems in relation to core human rights along with initiatives and good practices to address caste-based discrimination. In response, several states have stressed the importance of including measures against Caste discrimination in the SDG 2030 framework to fulfil the promise of ‘leaving no-one behind’. However, the progress on this still awaits the need for further action at the international level.
5 Caste-based discrimination in countries with Indian diaspora
The presence of Caste discrimination in countries with a South Asian diaspora goes beyond South Asian countries, where enforcement mechanisms have been taken to protect their citizens from this form of discrimination both in private and public spheres. One such example is the Equality Act 201053 in the UK that explicitly recognises Caste as an aspect of race after the government amended the Act in April 2013, effectively changing the power of Section 9(5) into a duty, thereby making Caste a protected feature within race. Such arecognition still does not recognise Caste as a standalone category and supports the belief that Caste discrimination can be specifically captured by the existing forms of discrimination based on race or religion54
The term ‘caste’ denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity. It is generally (but not exclusively) associated with South Asia, particularly India, and its diaspora.55
This change was brought about through Section 97 of the Enterprise and Regulatory Reform Act 2013 in the UK, which required the addition of Caste to the Equality Act 2010 by secondary legislation as 'an aspect of the protected characteristic of race’.56 In its background is the mobilisation of the Dalit communities in the UK against the lack of legal redress available to them in the UK, accompanied by the growing awareness in the 2000s of discrimination on the grounds of Caste among the international community.
In the UK, the Indian diaspora shares a colonial history between the two countries which has been the reason behind the surge in the number of those settling in the UK and consequently has led to a high number of legal proceedings faced in the host state, i.e. the UK, which will be reflected upon in this section.
Historically, there has been a Dalit presence in Britain since the 1960s, and they have continued to face discrimination not only due to being immigrants but also from their fellow immigrants who belong to the so-called upper classes. A significant case in this regard is Tirkey v Chandhok & Anor,57 which involved an Indian domestic servant employed in a private home in the United Kingdom. The issues surrounding this case were related to employment rights and unlawful discrimination, which the claimant, Ms. Permila Tirkey, alleged had occurred for reasons pertaining to her ethnic origins, including her perceived status in the Caste system. It was held that such discriminatory conditions pertained to her dignity, and the idea of Caste being included as a ground of racial discrimination was reinstated.58
Considering the USA, Indian immigration has soared, mainly since the 1980s in the form of highly skilled professionals. Several studies carried out show that Dalit lives are rarely at the center of discussion in the South Asian diaspora in the US and the relative dearth of scholarship on Dalits and their lived realities are indicative of this marginalisation. They face a multitude of challenges, being doubly marginalised as immigrants and as Dalits. Their chances of being assimilated may be thwarted, not only by racism in the US but also by Casteism in their own ethnic communities. Their challenges are multilayered, as they are ‘a diaspora within the diaspora.’
However, recently, in the United States, the California State Legislature has sent a bill to the Governor, which, if passed, would make it the first state in the US to recognise Caste as a basis of discrimination.59 The Cisco lawsuit that was filed a few years ago mobilised the state legislature to pass such a bill. In that case, two of the company's supervisors were found guilty of discriminating against a Dalit employee. Even though this bill is being opposed by some members of the South Asian community on the grounds of it being against the Hindu community and unnecessary given the presence of religion and ancestry as grounds of protection, the mere fact that the bill is on the verge of becoming law testifies to the increased significance of recognising Caste as a standalone ground of discrimination at the international level. Amidst all these developments, the diasporic populations continue to be divided along caste lines. The continuing connection with their ancestral homes has affected their futures.
6 Dalit human rights
After discussing the origin of Caste-based discrimination in India, and at the international level in the UK and the USA, a reflection on the identity of the Dalit community's resistance to the violations suffered by them assumes significance given the fact that India's Caste system is perhaps the world's longest surviving and most rigorously enforced system of social hierarchy, which imposes limitations on social status, and access to resources for individuals and families. This fact is accompanied by the stiff resistance that the Indian government has shown internationally against any attempt to include Caste as a basis of discrimination. In 1996, in its consolidated 10th-14th Periodic Report, submitted under Article 9 of the ICERD, the Indian government argued that Caste-based discrimination did not fall within the definition of discrimination contained in Article I, paragraph 1 of the Convention. It contended that “the term 'Caste' denotes a 'social' and 'class' distinction and is not based on race. Its purpose was to achieve the functional division of Indian society during ancient times”.60
In response, the Dalit organisations from 1982 to 1998 have brought the issue of Caste-based discrimination before several universal international human rights bodies such as the UN Sub Commission on Human Rights, the UN Working Group on Indigenous Populations, the UN Special Rapporteur on Racism, Racial Discrimination, Xenophobia, and Related Intolerance, the Vienna World Conference on Human Rights, the Beijing World Conference on Women's Rights, the UN Committee on the Rights of Child and the World Conference on Human Rights.61 The aim behind bringing the discussion on Caste-based discrimination within the ambit of human rights was to raise awareness of the continuing impact of Caste-based discrimination and pressure the Indian government to implement existing policies to curb discrimination and violence against Untouchables and to recognise them as a group whose plight in the form of slavery, bonded labour and atrocities is not seen as an internal problem.62
The Dalit community has achieved limited but significant progress as a social and political category among transnational NGOs, international organizations, and foreign governments since the 1990s, both inside and outside India. One of the most prominent causes of the success has been the role of the Dalit activists in putting in place a united Dalit network within India and the subsequent creation of a transnational solidarity network.63
The first opportunity for universal recognition came in 1996, with the CERD's observation that the ICERD covered the situation of the Indian Dalits.64 Then, in 1997, Human Rights Watch published a report called The Broken People65 that focused on India's untouchables, which played a crucial role in forming a new Dalit advocacy coalition. However, Caste discrimination was not the primary concern of the document; its focus was more on the abuse against the Dalit community members who wished to set themselves free from economic and social subjugation and assert themselves.
Despite Caste-based discrimination not being the central theme of the report, a significant development triggered by Human Rights Watch's report was the formation of the National Campaign on Dalit Human Rights (NCDHR),66 a federation of NGO Dalit advocates from 14 states all over the country, mainly from South India. In March 2000, the International Dalit Solidarity Network (IDSN)67 was created as part of a transnational advocacy campaign to include Caste in the agenda of the 2001 World Conference against Racism.68
In 2001, before the Durban Conference, the NCDHR wanted to gain international recognition for the problem of Caste-based discrimination on behalf of the Dalits in India and beyond.69 However, the Indian government protested, claiming that race is a Western concept that cannot be compared to Caste; the basis of such claims is the conceptual difference between the two, as discussed in this paper. Such a comparison misses the point that these NGOs endeavoured to connect Caste and race in Durban via a global human rights regime. Thus, the endeavor was to propose a universalistic discourse rather than a regional discourse, as the equation of Caste and race was made in a moral and not a biological sense, emphasizing the victim's point of view.
However, the controversies surrounding the descent clause as instigated by the Dalit groups led the Committee on Elimination of Racial Discrimination to organise a thematic discussion in August 2002, one year after the Durban Conference in which 20 NGOs, government representatives from India and Nepal as well as members of the Sub-Commission for the Promotion and Protection of Human Rights participated to discuss whether descent-based discrimination is equivalent to Caste-based discrimination. In a subsequent closed session, the Committee agreed on a broader understanding of ‘descent’ encompassing various forms of discrimination due to inherited status without confining itself to Caste.70
In contrast, according to the views of B.R. Ambedkar, the chairman of the drafting committee of the Constitution of India and who belonged to the Dalit community, Hinduism could never be purged of Caste.71 The rationale for such a belief traces its roots from the fact that Caste hierarchies are based on beliefs and practices that manifestly violate the modern human rights movements. Such notions include the idea that some groups deserve less respect and fewer rights than others, which is a direct challenge to a fundamental underpinning of human rights, that all human beings are equal and deserve the same respect, dignity, and rights.
7 Conclusion and the way forward
This paper has offered a new framework for addressing caste-based inequality by emphasising equality of opportunity and reducing inequality in law, policy, and social practice, and ensuring socio-economic inclusion by recognising caste as sui generis category of discrimination in international law.
The reason which has been highlighted is the fact that Untouchability and Caste-based discrimination have percolated to other religions which have no doctrinal sanction for the same, such as Islam, Christianity, Buddhism, and Sikhism, leading to double marginalisation in certain cases where the religious adherents are the minority in their respective jurisdiction. Caste-based discrimination has been recognised as a form of racial discrimination based on descent under the ICERD and as a sub-category based on work and descent under international human rights law. It is important to understand that these categories may have provided the opportunity for international human rights bodies to engage with issues of Caste discrimination. Still, such discrimination can be more effectively dealt with by conceptualising Caste as a sui-generis category like it is in India. Caste as an institution is unique in terms of its characteristics, such as its inherited status, rigidity, and identity, which cuts across religious, ethnic, and racial identities, resulting in social stratification, discrimination, and subjugation. Caste has also been exported to countries that lack the necessary framework to address Caste-based discrimination as discussed by the authors. Hence, international law should provide guidance in such cases for adequate protection against such discrimination.
Caste is recognised as a standalone ground of protection from discrimination in the Indian constitution in addition to race and religion. The need of the hour is to realise that the reluctance of the Indian government is affecting its credibility in the fight against racial discrimination at the international level, as Caste-based discrimination may not be an internal or transitory matter, as argued in the paper. There needs to be a dedicated effort towards ending India's opposition towards including Caste as a sui generis category of discrimination, without which the object of the ICERD cannot be achieved. At the same time, the role of other actors like the Indian judiciary and the International community is integral in pushing the government to acknowledge the need for the categorisation of Caste as a ground internationally to protect the Indian diaspora residing in other countries as discussed in this paper and to ensure equal rights for all.
Going forward, the international recognition of Caste will be a positive step for India to project itself internationally as a custodian of human rights. This is especially significant since Caste has been recognised as a protected category under its Constitution, which, when translated at an International level, will reflect the seriousness of the issue and efforts to eradicate it. It is only by bridging the gap at the international level that International law can strengthen the protection of the human rights of all, and India must play its role in achieving the aim of eradicating Caste-based discrimination.
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