Capturing Caste in Law

The Legal Regulation of Caste Discrimination

Annapurna Waughray

• Editorial: Routledge
• Año: 2022
• ISBN:
  9781317613633
• Edición: 1
• Categoría: Diritto
• Categoría: Diritto antidiscriminazione

This book is about the legal regulation of caste discrimination. It highlights the difficulty of capturing caste in international and domestic law, and suggests solutions. Its aim is to contribute to the task of understanding how to secure effective legal protection from and prevention of discrimination on grounds of caste, and why this is important and necessary. It does this by examining the legal conceptualization and regulation of caste as a social category and as a ground of discrimination, in international law and in two national jurisdictions (India and the UK), identifying their complexities, strengths, limitations and potential. Adopting a broadly chronological approach, the book aims to present an account of the role of law in the construction of caste inequality and discrimination, and the subsequent legal efforts to dismantle it. The book will be of value to lawyers and non-lawyers, academics and students of human rights, international law, equalities and discrimination, descent-based and caste-based discrimination, minority rights, and South Asia and its diaspora. It will be a resource for legal practitioners and those in the public and non-governmental sectors involved in the implementation, interpretation and enforcement of equality law in the UK – the first European country to introduce the word "caste" into domestic equality legislation – and in countries with South Asian diasporas such as the USA.

Part I
The making and remaking of caste

1 What is caste?^*

DOI: 10.4324/9781315750934-3

Caste is a multifaceted and complex social phenomenon which has to be understood in historical, sociological, cultural, psychological, economic, religious and ideological as well as legal terms. This chapter introduces the concept of caste and examines what is meant by caste, both sociologically and legally. It identifies and explains the operative features of caste as a social and ideological construct, and describes the ways in which it has been conceptualised, theorised and analysed as a sociological and legal phenomenon. The chapter is in three sections. Section 1 starts by introducing the key concepts associated with caste and some of its key features, including a discussion of the concept and practice of untouchability. Section 2 sets out the historical and textual origins of a caste society, while Section 3 summarises the principal sociological theories and interpretations of caste.

1.1 Introductory concepts

Caste is commonly associated with India, where it has existed as a social identifier and as a system of social relations and social stratification for several thousand years,¹ but it also exists in other South Asian countries (Nepal, Pakistan, Bangladesh and Sri Lanka) and the South Asian diaspora, including in the UK and the USA, while communities suffering from discrimination based on descent and “work and descent” – wider international categories of which caste discrimination is a subcategory – exist worldwide.² Discrimination, exploitation, subordination and oppression on the grounds of caste affect over 201 million Dalits in India alone, where they account for over 16% of the population.³ In the UK, a government-commissioned report in 2010 estimated the size of what it termed the ‘low-caste’ (meaning Dalit) population as ranging between ‘a minimum of 50,000 to 200,000 or more’.⁴

* Parts of this chapter appeared in Modern Law Review Vol. 72(2) in ‘Caste Discrimination: A Twenty-First Century Challenge for UK Discrimination Law?’ 1 S Bayly, Caste, Society and Politics in Modern India from the Eighteenth Century to the Modern Age (Cambridge: Cambridge University Press, 1999) 13; GS Ghurye, Caste and Race in India (Mumbai: Popular Prakashan Pvt. Ltd., 1969). 2 See A Eide and Y Yokota, expanded Working Paper on discrimination based on work and descent (DWD), UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights (UN Sub-Commission); UN Doc. E/CN.4/Sub.2/2003/24, 26 June 2003, paras 10–43; Y Yokota and C Chung, final report on DWD; Human Rights Council; A/HRC/11/CRP.3, 18 May 2009. See also UN Sub-Commission, Resolution 2000/4, Discrimination based on work and descent, 11 August 2000; UN Doc. E/CN.4/Sub.2/2000/46, 23 November 2000, 25. 3 Census of India 2011, Total Population, Population of Scheduled Castes and Scheduled Tribes and their proportions to the total population. 4 H Metcalfe and H Rolfe, Caste Discrimination and Harassment in Great Britain (London: Government Equalities Office, 2010) 3, 20. Estimates of the size of the UK Dalit population vary considerably. There are no official statistics on this population.

1.1.1 Caste

The word “caste” comes from the Portuguese casta, meaning species, race or pure breed. It was first used in India in the sixteenth century by Portuguese traders to distinguish between Moors (Muslims) and non-Muslims, and to denote the system of communities based on birth groups which the Europeans encountered in India.⁵ As scholars such as Galanter and Ballard show, while caste is by no means the only feature of South Asian social organisation on the subcontinent or in its diaspora – individuals have multiple overlapping affiliations of kinship, language, region and religion as well as caste – nevertheless, in a traditionally highly compartmentalised social order, caste remains significant as an identifier and as a mechanism for and a source of social stratification, stigmatisation, social exclusion, inequality and discrimination on the subcontinent as well as the diaspora.⁶

5 Bayly (n 1) 105–107; U Sharma, Caste (New Delhi: Viva Books, 2002) 1; M Galanter, Competing Equalities: Law and the Backward Classes in India (Berkeley and Los Angeles: University of California Press, 1984) 7; S Guha, Beyond Caste: Identity and Power in South Asia, Past and Present (Leiden: Brill, 2013) 19–30. 6 R Ballard, ‘The Emergence of Desh Pardesh’, in R Ballard (ed.), Desh Pardesh: The South Asian Presence in Britain (London: Hurst & Co, 1994) 5–9; Galanter (1984), ibid., 7–17; O Mendelsohn and M Vicziany, The Untouchables: Subordination, Poverty and the State in Modern India (Cambridge: Cambridge University Press, 1998). On caste as a meaningful concept in the UK see Howat ET al., ‘Measuring caste discrimination in Britain – a feasibility study’ (March 2017) para 4.1. For a critique of the position that caste is a figment of the Western imagination see D Sutton, ‘ “So-Called Caste”: SN Balagangadhara, the Ghent School and the Politics of Grievance’, 26(3) Contemporary South Asia (2018) 336–349.

1.1.2 Descent

Descent is an international legal category which includes but is not limited to caste. Legal usage of the term originates in the 1833 Government of India Act, which prohibited discrimination against Indians (“natives”) in employment with the British East India Company on grounds of religion, place of birth, descent or colour.⁷ Indians were distinguished from Europeans by virtue of their “descent,” meaning their racial and ethnic origins. As a ground of discrimination, it was included in the Government of India (GOI) Act 1935 and subsequently in the Constitution of India (COI) 1950. In 1965, it was included (at India’s behest) as one of five limbs in the definition of racial discrimination in the UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),⁸ prompted in part by India’s concern to address discrimination against persons of Indian origin in apartheid South Africa. The UN Committee on the Elimination of Racial Discrimination (CERD) – ICERD’s monitoring body⁹ – has affirmed that discrimination based on descent includes discrimination ‘on the basis of caste and analogous systems of inherited status’.¹⁰ In 2000, the former UN Sub-Commission on the Promotion and Protection of Human Rights declared caste discrimination prohibited by international human rights law, as a subset of a new international legal category, namely discrimination based on work and descent.¹¹

7 A Lester and G Bindman, Race and Law (Harmondsworth: Penguin, 1972) 383; S Wolpert, A New History of India (Oxford: Oxford University Press, 2009, 8th edition) 219–220. See also Chapter 4. 8 Adopted 21 December 1965. In force 4 January 1969. 660 UNTS 195. “Racial discrimination” is defined in Article 1(1) as discrimination based on race, colour, descent or national or ethnic origin. 9 See https://www.ohchr.org/en/hrbodies/cerd/pages/cerdindex.aspx (visited 5 January 2022). 10 CERD, General Recommendation 29 on Article 1, Paragraph 1 (Descent), 22 August 2002, UN Doc. A/57/18 (2002) 111. CERD first affirmed that caste falls within the ambit of descent in 1996 in its concluding observations on India’s ninth to fourteenth state reports; see CERD, Concluding Observations – India; UN Doc. A/51/18 (1996) paras 339–373. 11 UN Sub-Commission, Resolution 2000/4, Discrimination based on work and descent; see (n 2).

There is no agreed sociological or legal definition of caste, in South Asia or beyond. Castes are typically described as closed, endogamous,¹² hereditary-membership status groups, traditionally related to occupation, characterised by separation and ranked within a strict hierarchical framework ‘in which status is usually privileged over power and wealth’.¹³ Traditionally, marriage between castes and the sharing of food and drink (commensality), in particular the taking of water by so-called high castes from so-called lower castes, are prohibited.

12 Endogamy is the practice of marrying within a specific social group, by custom or by law; it ‘confines the ties of kinship and marriage within a small and defined group and thereby enables it to maintain clear social boundaries with other groups of the same kind’; A Beteille, ‘The Peculiar Tenacity of Caste’, EPW (31 March 2012) 41–48, 44. 13 H Gorringe and I Rafanell, ‘The Embodiment of Caste: Oppression, Protest and Social Change’, 41 Sociology (2007) 97–114, 102. See also S Jodhka, Oxford India Short I...