‘The Vedas and the Shastras polluted; the Puranas inauspicious, impure; the body, the soul contaminated; the manifest Being is the same. Brahma polluted, Vishnu too; Shankar is impure, inauspicious. Birth impure, dying is impure. Says Chokha, pollution stretches without beginning and end.’
Kabir, radical Bhakti saint and anti-caste poet of the fifteenth centuryFootnote 2
1. Introduction
This paper investigates the shortcomings of international human rights law (IHRL) in understanding and redressing caste by recalling Indian constitutional lawyer and political theorist, Dr. BR Ambedkar’s project of ‘annihilating caste’.Footnote 3 Ambedkar was the first pan-India Dalit leader — Dalit refers to people belonging to the so-called ‘untouchable’ caste — and his views and political project remain one of the most significant forces in Indian politics today. His key insight was that caste is a system of graded inequality which structures the social totality — from knowledge to wealth, land, and dignity. Individual rituals which policed and enforced caste, like social sanctions on the entry of Dalits into temples or inter-caste marriages, were only manifestations of this deeper structure. Therefore, seeking to eradicate caste by changing these practices of ‘untouchability’ one at a time was akin to defeating the Hydra of Lerna by cutting off one of its heads. And the structure of caste was, in the minds of large swathes of the Indian population, divinely ordained by Hinduism and its sacred texts. Therefore, one had to tackle Hinduism at its foundations to annihilate caste.
The failure of IHRL to understand caste is significant because caste-based discrimination is a global issue. Anti-caste NGOs have done a remarkable job of putting caste on the international legal map in the previous three decades. Moreover, the increasing prominence of the Indian diaspora in global politics means legislatures around the world are being confronted with the issue of caste-discrimination. Far from being only a South Asian issue, caste has been the subject of fierce debates in California,Footnote 4 United Kingdom,Footnote 5 and AustraliaFootnote 6 in the last decade. It is hard to get away from Ambedkar’s warning, ‘If Hindus migrate to other regions on earth, Indian caste would become a world problem.’Footnote 7
In Section 2, I trace the debates in international legal forums on caste-based discrimination. I focus on discussions in the Committee on the Elimination of Racial Discrimination (CERD) and the UN Sub-Commission on the Promotion and Protection of Human Rights since 1996. I choose this period because 1996 marked the beginning of an explicit discussion of caste-based discrimination in an international legal forum, when CERD declared in its 1996 Concluding Observations on India that Article 1(1) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) covered caste-based discrimination.Footnote 8 Subsequently, the UN Sub-Commission produced several documents which framed caste-based discrimination as an instance of discrimination based on ‘work and descent’. While caste has been mentioned by other bodies, including the UN Human Rights Committee,Footnote 9 the Committee on the Elimination of Discrimination against Women,Footnote 10 the Committee on the Rights of the Child,Footnote 11 and the European Union,Footnote 12 CERD and the Sub-Commission have remained the focal point of detailed contests over caste in IHRL.Footnote 13 Attempts by the National Campaign for Dalit Human Rights (NCDHR) and the International Dalit Solidarity Network (IDSN), two transnational advocacy networks for Dalit rights, to include caste on the agenda of the World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance in 2001 were foiled by Indian diplomatic manoeuvrings.Footnote 14
The debates in CERD and the Sub-Commission were marked by extensive advocacy from anti-caste NGOs and persistent objections from India. India maintained (and continues to do so) that caste and race were separate categories and therefore caste-based discrimination could not be covered by ‘descent’.Footnote 15 While I trace the arguments in the debates in each forum by referring to a combination of primary and secondary sources,Footnote 16 my focus remains on the legal product of these debates. I use critique as a method of reading these documents to uncover unspoken concepts, presumptions, and concomitant silences animating the doctrinal content.Footnote 17
Section 3 outlines the key ideas of Ambedkar, tracing the moral and political reasons necessitating the ‘annihilation of caste’. I focus on caste as a system of graded inequality of entitlement which is ritualized through untouchability and backed by Brahmanism. As a result, merely reforming untouchability, through practices transgressing norms of purity/pollution like inter-caste commensality, is both inadequate to tackle the caste system and impossible to achieve without confronting the ideological power of Brahmanism.Footnote 18 For this, I draw primarily on three texts, ‘Annihilation of Caste’,Footnote 19 ‘Riddles in Hinduism’,Footnote 20 and ‘The Buddha and His Dhamma’.Footnote 21 While I mention some of the antecedents and afterlives of these ideas, a detailed intellectual history is beyond the scope of this article.Footnote 22 Without minimizing the contributions of his intellectual predecessors and successors, I believe the centrality of Ambedkar is justified given his extraordinary intellect and status as the first pan-India Dalit leader, along with his resurgence in the Indian public space since the 1990s.Footnote 23 Furthermore, this focus on Ambedkar is warranted because his texts exemplify the ideas which IHRL fails to account for, and the contrast between them highlights two competing visions of both understanding and eradicating caste.
The final section attempts to think through the blinkered focus on untouchability from an Ambedkarite perspective. I argue that a close reading of IHRL documents dealing with caste-based discrimination shows a conflation between caste and untouchability. International institutions seem reluctant to acknowledge and condemn the Brahmanical backing of caste. I argue that this reluctance is likely born out of political caution against antagonizing a powerful postcolonial state. Coupled with these geopolitical reasons is an apprehension of accusing a non-Western religious system — in this case, Hinduism — of being responsible for racial discrimination, and therefore being fundamentally incompatible with racial/caste equality. This points to the contradictions of the post-colonial critique of IHRL. While these critics have rightly decried the Eurocentric assumptions undergirding IHRL, we see that their critique also makes it hard to attack systems of oppression which are inextricable with non-Western ‘cultural’ and religious systems. This is, of course, an unintended effect of this critique. Therefore, scholars of international law must ask whether the powerful post-colonial critique of IHRL is being weaponized by postcolonial states like India to shield Hinduism from critical global scrutiny.
Before proceeding, I should clarify that at the heart of this paper is a broad question, ‘what is caste?’ This question has occupied scholars and activists for decades.Footnote 24 While thinking about caste as an important part of a social totality, thinkers (often from marginalized backgrounds) have conceptualized the relationship between caste, race, class, and gender.Footnote 25 This field of scholarship and political action is rich, diverse, and deserves recognition. However, my ambition in this paper is more specific. My aim is to articulate a critique of IHRL through an Ambedkarite framework. My paper is intended to supplement the sharp rise in critical thinking around international law’s relationship to class and race by bringing international lawyers into conversation with Ambedkarite thought on caste.Footnote 26
Some preliminary clarifications regarding categories used in this paper are also in order. ‘Caste’ captures two concepts: varna and jati.Footnote 27 The former refers to the four-fold division of Brahmanical society laid down most famously in Rig Veda: Brahmins (Priests), Kshatriyas (warriors), Vaishyas (Traders et al.), and Sudras (Artisans/labourers). The ‘Untouchables’ lie outside these four varnas and are deemed impure/polluting. Jati denotes the thousands of groups contained within these broad categories (varnas), usually tied to the particular hereditary occupation of the group. However, as I will show, Ambedkar was critical of the deployment of this distinction.
‘Dalit’, a Marathi word, means ‘those who have been broken, ground down by those above them in a deliberate and active way’.Footnote 28 It was used by Ambedkar and popularized in the 1970s by the Dalit Panthers (an Ambedkarite-Marxist revolutionary group) referring to the former Untouchables.Footnote 29 Since the 1980s, anti-caste movements often refer to the ‘Bahujan’ as their political agent, which means ‘those in the majority’ in opposition to upper-castes or ‘Savarna’, in an attempt to capture converted Dalits and other oppressed castes (like Sudras).Footnote 30 While there are important conceptual and political differences between Bahujan and Dalit, for the limited purpose of this article, I use them relatively interchangeably. Under the Indian Constitution, Dalits are referred to as ‘Scheduled Castes’ (SC), whereas ‘Other Backward Classes’ (OBC) roughly corresponds to Sudras.
2. IHRL and caste-based discrimination
In this section, I look at the legal doctrine created around caste-based discrimination by CERD and the Sub-Commission. First, I briefly summarize the position of IHRL on caste-based discrimination in both forums before looking at the slippages between caste and untouchability in international forums in Section 2.2.
While ‘caste’ is not explicitly mentioned in international instruments, it has been read into ‘descent’ despite Indian objections. This is relevant because ICERD defines ‘racial discrimination’ as
any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural, or other field of public life.Footnote 31
Therefore, CERD has effectively called caste-based discrimination a form of racial discrimination by reading caste into ‘descent’.Footnote 32 Ironically, ‘descent’ was added to the ICERD by an amendment proposed by the Indian delegation.Footnote 33 The Indian state had consistently claimed until 1996 that caste-based affirmative action measures for ‘lower-castes’ under Indian constitutional law were saved by Article 1(4) of ICERD. Article 1(4) protects ‘special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection’Footnote 34 from constituting racial discrimination. Therefore, it could be argued that the Indian state was already acknowledging that caste was a sub-category of race, and that caste-based discrimination could constitute racial discrimination under Article 1(1).Footnote 35
2.1. Legal status of caste as ‘descent’
2.1.1. CERD
In its 1996 Concluding Observations on India, CERDFootnote 36 affirmed that caste-based discrimination constituted racial discrimination under Article 1(1) of ICERD.Footnote 37 They did so despite persistent Indian objections that caste was not equivalent to race,Footnote 38 and ‘to confer a racial character on the caste system would create considerable political problems’.Footnote 39 IDSN, a coalition of anti-caste NGOs, criticized the Indian delegation for focusing on an ‘unproductive debate on [the] semantics’Footnote 40 of whether caste was the same as race, instead of recognizing that ‘both types of discrimination produced comparable forms of political, economic, and social exclusion’.Footnote 41 In the 2001 Thematic Discussion on ‘descent’, CERD member Patrick Thornberry argued that ‘descent’ referred to ‘forms of inherited status’Footnote 42 or immutable characteristics other than race, and Indian arguments that the term ‘descent’ in the Convention clearly referred to ‘race’Footnote 43 missed the point. This view was echoed by other members, who pointed out that ‘caste [was] an important aspect of descent but surely not the sum of it’.Footnote 44
Subsequently, CERD passed General Recommendation 29, which affirmed that caste-based discrimination was covered under the rubric of ‘racial discrimination’ in Article 1(1) of ICERD as an aspect of ‘descent’.Footnote 45 The Recommendation abided by Thornberry’s suggestion of ‘creating a set of indicators…to include the notions of hierarchy as opposed to equality’Footnote 46 to identify descent-based discrimination instead of laying down a conceptual definition of caste or descent. Conceptually, the Recommendation proscribed ‘forms of social stratification such as caste and analogous systems of inherited status which nullif[ied] or impair[ed]…equal enjoyment of human rights’.Footnote 47 This concept was given partial content through a list of examples, but CERD did not want to ring-fence the notion of ‘descent’. CERD has reiterated its position in subsequent dealings with India,Footnote 48 as well as Japan,Footnote 49 Bangladesh,Footnote 50 Nepal,Footnote 51 and the United Kingdom.Footnote 52
2.1.2. UN Sub-Commission on the Promotion and Protection of Human Rights
The UN Sub-CommissionFootnote 53 passed Resolution 2000/4 in August 2000 recognizing that discrimination based on work and descent contravened the spirit of IHRL.Footnote 54 Under the mandate of the Sub-Commission, there have been three working papers and a final report outlining that discrimination based on work and descent includes caste-based discrimination. The issue has also been subsequently studied by the UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance.Footnote 55 The work of the Sub-Commission has broadly echoed CERD’s position that caste-based discrimination is an aspect of descent-based discrimination because it is based on immutable, inherited characteristics. However, the Sub-Commission has added an extra dimension to the analysis of caste in IHRL, by noting that ‘a person’s descent determines or is intimately connected with the type of work they are afforded in society’.Footnote 56 In the expanded working paper, the Special Rapporteurs clarified that ‘“work” is understood…as referring to the occupation or functional role of individuals or groups’.Footnote 57 Crucially, the working papers present a richer study of the causal factors and consequences of discrimination based on work and descent, thereby helping us understand the background conceptions of caste at play in the forum.Footnote 58
2.2. Caste and untouchability: Recognition harms
2.2.1. CERD
The 1996 Concluding Observations on India ‘noted that although constitutional provisions…exist to abolish untouchability…and although social and educational policies have been adopted to improve the situation of…scheduled castes and tribes and to protect them from abuses’,Footnote 59 caste-discrimination persists. The Committee registered its ‘particular concern at reports that…scheduled castes and tribes were often prevented from using public wells or from entering cafes or restaurants and…their children were sometimes separated from other children in schools’.Footnote 60 It could be argued that the mention of ‘improving the situation of’ SCs and STs through ‘social and educational policies’ incorporates a structural view of caste, and the particular concern for rituals of untouchability does not undercut the socio-economic aspects of caste. However, a closer reading of the surrounding texts paints a troubling picture.
CERD members Mr. Garvolov and Mr. Shahi emphasized, while considering the Indian report, that the rights under the Convention must extend to ‘Untouchables’.Footnote 61 Similarly, Mr. Chigovera cited a report submitted to the Committee by the South Asia Human Rights Documentation Centre stating that ‘untouchability was a system in which people were segregated…and that the tradition of untouchability sanctioned widespread discrimination’.Footnote 62 He emphatically proclaimed that there could be ‘no doubt as to whether the case of Untouchables fell within the purview of the Convention’ and urged India to include information about ‘their campaign against injustices caused by untouchability…[as well as] the effectiveness of legislation on the abolition of untouchability’.Footnote 63 In the Thematic Discussion, Mr. Valencia Rodriguez clarified that descent-based discrimination targeted social stratification where ‘groups of people were excluded from society and regarded as “Untouchable”’.Footnote 64 Furthermore, Mr. Kjaerum stressed that descent-based discrimination sought to protect the ‘inherent dignity of human beings’.Footnote 65
One could argue that an expansive conception of ‘dignity’ could include the structural disentitlement of caste. However, the evidence increasingly suggests that CERD members used caste and untouchability relatively interchangeably and conceptualized caste-based discrimination as primarily a recognition harm. Even material deprivations, like access to housing, education, and so on, were framed as dignitarian harms instead of analysing the structurally unequal opportunities for so called ‘lower-castes’. Moreover, the near-exclusive focus on bringing ‘Untouchables’ within the social-religious fold suggests that the problem they thought they were addressing was untouchability.
The General Recommendation laid down that caste-based discrimination could be ‘recognised on the basis of various factors’, and listed examples such as ‘socially enforced restrictions on marriage outside the community, private, and public segregation…limitation of freedom to renounce…degrading or hazardous work…and generalised lack of respect for their human dignity and equality’.Footnote 66 That the paragraph outlining the method of recognizing caste-based discrimination through examples ended with ‘and a generalised lack of respect’, indicates that the Committee envisaged a lack of respect for dignity as the underlying conceptual harm tying together the cited examples. This proposition is supported by the emphasis on descent-based discrimination trying to capture treatment which was ‘degrading’Footnote 67 and based on ‘specific characteristics that were positively or negatively evaluated by society’.Footnote 68
Thornberry, who was a member of the Committee, categorically stated that the ‘Recommendation [was] not against the caste or any other cultural system as such….[instead] the Recommendation [was] on discrimination on the basis of descent’.Footnote 69 Therefore, even though the Recommendation [did] cursorily speak about economic and social rights including the right to education, these deprivations were framed as consequences of untouchability rather than the systematic deprivation of resources and knowledge intrinsic to the caste system. Even in the 2007 Concluding Observations, when the Committee cited an admirably wide variety of caste-based practices, it restricted itself to ritualized expressions of caste in the form of untouchability or hate crimes.Footnote 70
2.2.2. UN Sub-Commission on the Promotion and Protection of Human Rights
Interestingly, the first working paper under the mandate of the Sub-Commission began with citing a National Public Hearing on Dalit Human Rights Violations in Chennai, stating that ‘caste, as an institution itself, [was] a source of gross violation of human rights…[and] the caste system and the equally obnoxious practice of untouchability must be taken seriously’.Footnote 71 However, a subsequent report claimed that ‘untouchability [was] the overarching framework and the essence of discrimination based on work and descent’.Footnote 72 While not stated as explicitly, this logic probably undergirded the decision of the author of the first report to exclude Scheduled Tribes and Other Backward Classes from the study because ‘the discrimination against them…[could not] strictly be said to be based on work and descent’.Footnote 73
This distinction between the deprivation faced by Scheduled Castes versus that encountered by Scheduled Tribes and Other Backward Classes is curious because all three groups share ‘descent as a defining criterion for the ascription of [their] marginalised status and associated discrimination’.Footnote 74 Furthermore, their status is ‘strongly associated with…traditional occupational roles’.Footnote 75 The only plausible explanation seems that the mandate of the Sub-Commission was untouchability, not caste. This was reflected in the Principles drafted in the final report to combat discrimination based on work and descent, which focused on ‘combating segregation’,Footnote 76 ‘effectively punishing acts of untouchability’,Footnote 77 and so on, but did not speak about caste as a system of entitlement which warrants dismantling. Similarly, the recommendations of the UN Special Rapporteur on Minority issues also focused on the tension between caste and ‘principles of human dignity, equality, and non-discrimination…whereby individuals placed in the lowest positions were regarded as “inferior” or “non-human”’.Footnote 78
Another recurrent theme across CERD and the Sub-Commission was the framing of caste as a problem of discriminatory attitudes. In its 1996 Concluding Observations, CERD recommended a ‘continuing campaign to educate the Indian population on human rights…[to] eliminat[e] institutionalised…high-caste and low-caste mentality’.Footnote 79 Similarly, in 2007, the Committee noted ‘with concern that caste bias…[was] deeply entrenched in the minds of wide segments of Indian society’Footnote 80 and therefore recommended India ‘strengthen efforts to eradicate the social acceptance of caste-based discrimination’.Footnote 81 The Final Report on Discrimination based on Work and Descent similarly emphasized that ‘prejudicial beliefs…constitute[d], support[ed], and reinforce[d] discrimination based on work and descent, including notions of untouchability, pollution, and caste superiority’.Footnote 82 The disproportionate emphasis on caste-based discrimination as a problem of psychological prejudice to be defeated through education evidences that the Committee members probably had instances of untouchability in mind while speaking of ‘caste-based discrimination’, rather than caste as a system which structures the social totality.Footnote 83
2.2.3. Unspoken consensus
This conceptualization of caste-based discrimination as untouchability does not radically depart from the Indian assertion before the Committee that caste ‘has its origins in the functional division of Indian society’Footnote 84 and is ‘unique to Indian society and its historical process’.Footnote 85 Both positions leave the caste structure intact and are possibly compatible with the view expressed by the Indian delegate that caste had only ‘become rigid and exploitative…with the passage of time’,Footnote 86 but was ‘originally’Footnote 87 benign. Furthermore, even NGOs lobbying for the inclusion of caste-based discrimination have explicitly and implicitly focused on ‘the practice of “untouchability”—the imposition of social disabilities on persons by reason of their birth’.Footnote 88 In its 2006 Shadow Report to CERD, the NCDHR equated the practice of untouchability with apartheid,Footnote 89 claiming that the systematic material deprivation of Dalits, from ‘illiteracy levels’Footnote 90 to ‘labour market discrimination’,Footnote 91 could be attributed to untouchability.Footnote 92
While rituals of untouchability undoubtedly play a crucial role in each of these processes, the framing of the NCDHR, CERD, and the Sub-Commission suggest that if untouchability were somehow abolished tomorrow, the material situation of Dalits would probably become human rights compliant. This is different from speaking of untouchability as the ritualization of the system of entitlement to knowledge and resources called caste.Footnote 93 There appears a broad-consensus between the three most relevant actors in the IHRL arena, the Indian State, NGOs, and international jurists, that ‘caste-based discrimination’ in IHRL does not refer to the institution of caste.
3. Ambedkar: Annihilating caste
Ambedkar’s famous, revolutionary text, Annihilation of Caste, was first published as an undelivered speech. In 1935, a ‘radical’ offshoot of the reformist Arya Samaj,Footnote 94 the Jat-Pat Todak Mandal (Forum for break-up of caste) invited Ambedkar to deliver the keynote address at their annual conference in Lahore (formerly undivided Punjab) in 1936. This invitation was already controversial among the predominantly upper-caste Hindu members of the Mandal. Upon receiving the text of Ambedkar’s speech, the Mandal wrote to Ambedkar lamenting that he had ‘unnecessarily attacked the morality and reasonableness of the Vedas and other religious books of the Hindus…which [had] absolutely no connection with the problem at issue’.Footnote 95 Instead, they suggested that ‘the word “Veda” be left out’Footnote 96 because several members of the Mandal believed in ‘remodelling the Hindu religion’.Footnote 97 Ambedkar, in his inimitable style, replied ‘that the portion objected to [was] not only the most relevant but [was] also most important’.Footnote 98 The dispute reached an impasse and Ambedkar self-published the speech in 1936 after the Mandal withdrew their invitation to him.
In this section, I summarize three key interrelated insights of Ambedkar: caste is a socio-economic system of entitlement built on graded inequality; caste and Hinduism are ‘consubstantial’Footnote 99 ; therefore, caste can only be annihilated, not reformed. This is, of course, a simplification of Ambedkar’s thought. However, this simplification serves the important heuristic purpose of showcasing the shortcomings of IHRL. For that limited purpose, I think this distillation of Ambedkar’s thought is defensible.
3.1. Caste, graded inequality, and entitlement
In Riddles, Ambedkar argued that what he called the Hindu Social Order has two core characteristics. The first is the division of society into the chaturvarna (four varnas) system. Crucially, the second is a relationship of graded inequality between these groups.Footnote 100 He once described the Hindu caste order as a multi-storeyed building with no staircase, entrance or exit, where everybody had to die on the floor they were born.Footnote 101 South Asian studies scholar Christophe Jaffrelot points out that this graded inequality is reproduced at the granular level of jatis, all of which co-exist in complex inter-relationships of hierarchy and dominance. Each group closes the door on groups below them in the hierarchy and has the door closed on them by groups above them.Footnote 102 This means that
There is no such class as a completely unprivileged class except the one which is at the base of the social pyramid. The privileges of the rest are graded. Even the low is privileged as compared with lower. Each class being privileged, every class is interested in maintaining the system.Footnote 103
The entire caste order is pervaded and maintained by what Ambedkar called the ‘infection of imitation’,Footnote 104 that is, Brahmanism. Each caste group (here the distinction between varna and jati is only one of scale) seeks to guard its own material and moral privileges in the larger social system in opposition to other groups below them in the caste hierarchy, or ‘the higher the grade of a caste, the greater the number of [their] rights’.Footnote 105 Therefore, Ambedkar argued that caste is characterized by an ‘ascending scale of reverence and a descending scale of contempt’.Footnote 106 In other words, ‘all are slaves of the caste system…[b]ut all the slaves are not equal in status’.Footnote 107
The consequence of the proliferating virus of caste among the social order is that each caste vehemently and, often violently, protects the interests of its own caste. Ambedkar states that a caste ‘society’ is, therefore, a contradiction in terms, because caste is suffused with an ‘anti-social spirit’.Footnote 108 Each caste ‘liv[es] for itself and for its selfish ideal’Footnote 109 akin to a ‘warring group’.Footnote 110 Consequently, ‘a Hindu’s public is his caste…his responsibility…[and] loyalty is restricted only to his caste’.Footnote 111 The in-built contempt for other castes means there are no ‘organic filaments’Footnote 112 within Hinduism binding it together as a community. Instead, ‘Hindu society…is only a collection of castes’.Footnote 113 Therefore, while each caste adheres to the logic of purity and pollution and untouchability remains a largely sacred line, it is difficult to identify clear ‘victims’ and ‘oppressors’ within the caste order because of the all-encompassing infection of Brahmanism.
Ambedkar’s nuanced analysis of the kinds of rights and privileges contained within the caste system is pithily encapsulated in his response to the reformist defence of caste as a division of labour. Most famously articulated by Mohandas Gandhi, the argument was that caste was an efficient division of labour in society which was not necessarily linked to the unequal dignity of the labourers. Instead, Ambedkar sharply argued that caste is a ‘division of labourers into watertight compartments’.Footnote 114 This points to both the material and moral aspects of the caste system. As a Mahar, a Dalit caste in Maharashtra, Ambedkar had grown up suffering the indignities of caste. Even after a special legislation enabled him to attend an upper-caste school, he was made to sit on a gunnysack outside the classroom to maintain the ‘purity’ of the educational space.Footnote 115 However, Ambedkar steadfastly maintained that merely abolishing the practice of untouchability through ‘inter-caste dinners and inter-caste marriages’Footnote 116 would not ‘break up the caste system’.Footnote 117
Babasaheb, as Ambedkar remains popularly known, was convinced that the caste system was a method of organizing entitlements in society, to wealth, knowledge, land, dignity and ultimately, socio-economic power.Footnote 118 The rituals of untouchability helped reproduce and reinforce the system by violently policing caste transgressions. Throughout his intellectual and political life, Ambedkar railed against caste-HinduFootnote 119 reformers, from the Arya Samaj to Mohandas Gandhi, who elided over questions of restructuring entitlements in society by arguing that untouchability was an errant practice which merited reform within the Hindu fold.Footnote 120 Instead, anti-caste intellectuals — from Jotirao and Savitribai Phule in nineteenth century Maharashtra to Ambedkar and EV Ramaswamy (Periyar) in the twentieth century — focused efforts on increasing access to knowledge and wealth for Bahujans along with combating the injustices of untouchability.Footnote 121
The Dalit Panthers, who sought to read Ambedkar with Marx, declared in their revolutionary manifesto that to ‘eradicate untouchability, all the land [would] have to be redistributed…[and] age-old customs and scriptures [would] have to be destroyed and new ideas inculcated’.Footnote 122 This was because ‘Hindu feudal rule ha[d] in its hands all the arteries of production, bureaucracy, judiciary, army, and police forces’Footnote 123 and ‘landlords and rich peasants [had] social prestige along with wealth’.Footnote 124 Combatting caste requires confronting and dismantling Brahmanical control over knowledge, resources, and power in society. Therefore, the famous political slogan of Ambedkar, which continues to be chanted across the subcontinent today, was to ‘Educate, Agitate, and Organise’.
3.2. Caste and Hinduism
Babasaheb knew first hand that caste and untouchability permeated the sub-continent across religions. Upon his return from Columbia University, he struggled to find accommodation in Mumbai, even being turned away by friends from New York. Eventually, he rented an apartment under the guise of being a Parsi. When Ambedkar was found out as a Dalit, he was forcefully evicted. In his Autobiographical Notes, Ambedkar notes of the incident, ‘I can even now vividly recall it and never recall it without tears in my eyes…It was then for the first time I learnt that a person who is Untouchable to a Hindu is also Untouchable to a Parsi.’Footnote 125 Similarly, on a visit to the Daulatabad fort in Hyderabad in 1934, Ambedkar was attacked by a mob of incandescent Muslims when he tried to drink water from a public tank. Again, he observed, ‘this will show that a person who is Untouchable to a Hindu is also Untouchable to a Mohammedan’.Footnote 126 In AOC, he also frames the ‘social problem between Catholics and Protestants’ in Ireland as ‘…essentially a problem of caste’.Footnote 127 However, Ambedkar maintained that caste among Hindus was unique because it has ‘religious consecration’.Footnote 128
For Hindus, Ambedkar remarked that ‘caste [was] a religious dogma’,Footnote 129 and unlike non-Hindus, ‘religion compels the Hindus to treat isolation and segregation of castes as a virtue’.Footnote 130 Hindus were threatened with being outcaste (virtual excommunication) and socio-economic boycotts, a form of ‘non-cooperation by the powerful against the powerless’,Footnote 131 if they broke caste rules. This earthly threat was coupled with the divine threat of endlessly paying for the sin of defying Brahmanical scriptures in recurrently brutal births and rebirths. This was because ‘caste [was] the natural outcome of certain religious beliefs which [had] the sanction of the Shastras, which [were] believed to contain the command of divinely inspired sages…endowed with a supernatural wisdom’.Footnote 132 Consequently, Ambedkar stressed that ‘Hindus observe caste not because they [were] inhuman…[but] because they [were] deeply religious’.Footnote 133 While subsequent sociological literature has contested the reasons for which people follow caste, Ambedkar’s central point about Hinduism and caste being interdigitated remains compelling.Footnote 134
Ambedkar’s analysis was rooted in extensive readings of Brahmanical religious texts, and Ambedkar’s writings were littered with references to the sanctions prescribed in these texts, from the Manusmriti to the Rig Veda to the Bhagavad Gita, for transgression of caste rules.Footnote 135 Nonetheless, Ambedkar was attuned to reformist arguments which sought to re-interpret these texts. He understood the neutering effects of these arguments, and emphasized that ‘it [was] no use seeking refuge in quibbles…what matter[ed] [was] how the Shastras [had] been understood by the people’.Footnote 136 Hence, he spoke both sociologically and from experience when he declared that ‘to the Untouchables, Hinduism [was] a veritable chamber of horrors’.Footnote 137 Therefore, he warned that it was a ‘dangerous delusion’Footnote 138 to equate caste among Hindus in the subcontinent with other systems of ascriptive moral inequality like race. Such a conflation risked missing the uniqueness of caste having religious sanction.
Ambedkar went one step further, claiming not only that caste had a ‘divine basis’,Footnote 139 but that caste and varna formed the ‘soul of Hinduism…[because] there [was] nothing else in Hinduism to distinguish it from other religions’.Footnote 140 In Riddles, Ambedkar claimed Hinduism had no common customs, beliefs, gods, or creed.Footnote 141 Caste was the ‘essential feature of Hinduism’,Footnote 142 and therefore, graded inequality the ‘official doctrine’Footnote 143 of Hinduism rather than ‘the result of historical growth’.Footnote 144 In his studies of the history of sub-continental religions, Ambedkar noted that Hinduism was able to absorb, contain, and co-opt most challenges to itself, including the theory of non-violence in Buddhism, but was fundamentally incapable of absorbing challenges to caste and untouchability.Footnote 145 Therefore, Ambedkar’s challenge to Hinduism was directed at both its practices and its fundamental principles:
If I am disgusted with Hindus and Hinduism, it is because I am convinced that they cherish wrong ideals and live a wrong social life. My quarrel with Hindus and Hinduism is not over the imperfections of their social conduct. It is much more fundamental. It is over their ideals.Footnote 146
For Ambedkar, the elevation of Hindu texts to the status of not being ‘made by man…[and therefore being] free from failings, faults, and frailties’,Footnote 147 transformed Hinduism from a ‘religion’ to a series of commandments backed by sanction. As a result, the ideology of Hinduism had made the minds of Hindus impervious to ‘reason and morality…the two most powerful weapons in the armoury of a reformer’.Footnote 148 Therefore, the only solution was revolution — which meant challenging Hinduism as a religion of inequality and indignity.
3.3. Annihilation of caste
The combination of religion, sin, and excommunication rendered caste reform within the Hindu religion impossible because in an argument between sub-humans and the Gods, there could only be one winner. Ambedkar warned that ‘a caste [could] easily organise itself into a conspiracy to make the life of a reformer hell’Footnote 149 by mobilizing the ideological power of Hinduism and regulating group membership. He argued that caste in Hinduism had been constructed by Brahmins to resist reformist efforts. For instance, the Manusmriti categorized ‘rationalism as a canon of interpreting the Vedas and smritis…to be as wicked as atheism, and the punishment provided for it [was] excommunication’.Footnote 150 Since caste was prescribed in the Vedas and Smritis, ‘appeal to reason [could] have no effect on a Hindu’.Footnote 151
This was in direct opposition to a strand of caste reformism, advocated by the Arya Samaj, the Hindu Mahasabha,Footnote 152 and Gandhi, among others. They argued that caste was integral to Indian ‘tradition’ and ‘culture’, and defended the chaturvarna (four varnas) system as a functional division of labour in society where a person’s status would theoretically be judged by his worth [‘guna’] and not his birth.Footnote 153 Gandhi argued for a moral reappraisal of the worth of different kinds of labour, stating that the ‘callings of a Brahmin and a scavenger [were] equal, and their due performance carrie[d] equal merit before God’.Footnote 154 Therefore, he framed Untouchability as a moral failure of upper-caste Hindus which needed to be overcome.Footnote 155
Ambedkar fiercely opposed this framing, arguing that to speak of a chaturvarna system based on worth was not only incongruous but disingenuous.Footnote 156 The labels of Brahmin, Kshatriya, Vaishya, and Shudra had millennia-old meanings and could not be wished away. Moreover, he asked Gandhi, ‘How are you going to compel people who have acquired a higher status based on birth, without reference to their worth, to vacate that status?’Footnote 157 Furthermore, he argued that to frame untouchability as a moral failure of individual Hindus was to miss that with Hindus the problem was ‘the entire basis of their relationship to [their] fellows…[therefore] there [could] be a better Hindu or a worse Hindu but a good Hindu there [could not] be’.Footnote 158 In practice, Ambedkar pithily observed, there would be little distinction between the brutal caste system (as jati) and the idealised chaturvarna in Gandhi’s Rama Rajya (Kingdom of Lord Rama).Footnote 159 Babasaheb insisted that there would ‘be out-castes as long as there [were] castes’.Footnote 160
Ambedkar pointed out that neither Hindu social reformers nor Communist political revolutionaries, operating in India since broadly the late nineteenth century, had achieved much success in reforming Hinduism. This, he argued, was because these groups had failed to recognize and combat the social and religious power of caste. He declared that ‘you [could not] have political… [or] economic reform unless you kill[ed] this monster [of caste]’.Footnote 161 Even the oppressed could not unite to overthrow the system unless caste was annihilated because caste militated against inter-caste fraternity, especially among Bahujans. Moreover, Hinduism convinced the oppressed that their circumstances were the result of actions in a previous birth.Footnote 162 This, combined with the Brahmanical monopoly on knowledge, meant that caste deprived the oppressed of their ‘political weapon…in suffering; and [their] moral weapon…in education’.Footnote 163 Ambedkar once quipped, ‘If Lenin had been born in India, he would first eradicate casteism and untouchability from among workers.’Footnote 164
For this ‘emancipation of the mind and soul’,Footnote 165 the religious sanction for caste must be confronted. Appeals to reason or morality were wholly inadequate and failed to understand the ideological power of Brahmanism. Therefore, Ambedkar prescribed that the enemy to grapple with was ‘not the people who observe[d] caste, but the Shastras which [taught] them this religion of caste’.Footnote 166 Arranging occasional inter-caste dinners or marriages was ‘like forced feeding brought about by artificial means’.Footnote 167 The only tenable political solution was ‘to destroy the belief in the sanctity of the Shastras’.Footnote 168 Babasaheb realised that the political project he was outlining would be difficult, if not impossible, to achieve. Nevertheless, he emphasized:
Whether the doing of the deed takes time or whether it can be done quickly, you must not forget that if you wish to bring about a breach in the system, then you have got to apply the dynamite to the Vedas and the Shastras, which deny any part to reason; to the Vedas and Shastras, which deny any part to morality. You must destroy the religion of the shrutis and the smritis. Nothing else will avail.Footnote 169
A pivotal element of this political project was the exit of Dalits from the Hindu fold.Footnote 170 At the Second Round Table Conference in 1931, Gandhi and Ambedkar clashed over who was the legitimate representative of Untouchables on the issue of separate electorates for the community.Footnote 171 When Gandhi rebuked Ambedkar for his sharp criticism of the Congress, Ambedkar remarked, ‘Gandhiji, I have no Homeland. No Untouchable worth the name will be proud of this land.’Footnote 172 Similarly, whenever Savarna Indian nationalists sought to remind Ambedkar that he was ‘part of the whole’, he would reply, ‘But I am not a part of the whole, I am a part apart!’Footnote 173 This insistence on resisting Hindu assimilation was because Ambedkar had realised since the late 1920sFootnote 174 that Dalits could never claim equality within Hinduism.Footnote 175 Hence, he declared that ‘the object of [Dalit] struggle is our liberation from Hinduism’.Footnote 176
As a result, Babsaheb was sceptical of temple entry movements, the chief concern of Gandhi’s Harijan Footnote 177 Sevak Sangha formed after the Second Round Table Conference. Untouchables had often been banned from entering Hindu temples because their presence was deemed polluting. The aim of reformist movements was to facilitate the entry of Dalits into Hindu temples, thus symbolising their acceptance into the Hindu fold. However, Ambedkar remained wary of temple-entry movements because he was convinced that Untouchables could never be equals within Hinduism.
Even when Ambedkar participated in temple entry movements, he would stress that the Dalit’s ‘problem would not be solved by temple entry…. politics, economics, education, religion-all were part of the problem’.Footnote 178 His participation in such movements was often motivated by pragmatism to ‘energise the Depressed Classes and make them conscious of their position’.Footnote 179 His search for a religion consistent with the principles of Liberty, Equality, and Fraternity led him to Buddhism, which he partly remade in the image of his principles.Footnote 180 In 1935, Ambedkar rued with his characteristic defiance, ‘I had the misfortune of being born with the stigma of an Untouchable…but I will not die a Hindu’.Footnote 181 In 1956, he fulfilled this promise when he led a mass conversion of over 600,000 Dalits to Buddhism under an oath crafted by him.Footnote 182
4. IHRL and caste: Epistemic limitations and post-colonial anxieties
This section seeks to bring together the insights from the preceding two sections. I argue that looking at the established IHRL doctrine on caste through an Ambedkarite lens raises two questions. First, whether the tendency of IHRL to reduce caste to individual harms of recognition is due to the epistemic limitations of IHRL. Second, this case-study prompts one to probe whether the powerful postcolonial critique of IHRL unintentionally allows postcolonial states like India to escape legitimate international scrutiny. I offer preliminary answers to these questions, and open the way for future scholarship to investigate these difficult questions more thoroughly.Footnote 183
4.1. Caste and Hinduism in IHRL
In international legal debates around caste-based discrimination, there has been a conspicuous silence around Hinduism. The Indian state has consistently framed caste as a cultural question. Crucially, NGOs ‘pragmatically accepted’Footnote 184 the approach of couching problems of untouchability in the spacious framework of discrimination based on work and descent. Part of the condition for international recognition was the deracination of caste by ‘identifying populations outside India and the Hindu cultural sphere who suffered this form of discrimination’Footnote 185 to prove, in the words of one activist ‘that addressing caste-based discrimination [was] not just a politically-motivated attack on India, but a genuine and under-recognized human rights issue affecting a number of different societies’.Footnote 186 The IDSN, for instance, argued that ‘discrimination based on work and descent [was] usually embedded in a discernible context of religious, moral, or cultural beliefs…[but appreciation of] such context [was] not necessary for identifying discrimination’.Footnote 187 This was coupled with a strategy to invoke continuities with the apartheid regime,Footnote 188 probably keeping the historical legacy of CERD in mind. While these are clever advocacy strategies which have largely borne fruit, they leave little room for appreciating any uniqueness about caste among Hindus.Footnote 189
The most direct engagement with Hinduism’s role in caste was undertaken in the First Working Paper under the UN Sub-Commission’s mandate. This paper mentioned the debate about the religious basis of caste between Ambedkar, ‘a learned and respected Indian leader and advocate of the rights of Untouchables…[and] Mahatma Gandhi, the spiritual leader of India’.Footnote 190 The author of the working paper proceeded to cite Gandhi to assert that ‘caste has nothing to do with religion…it is a custom whose origin I [Gandhi] do not know and do not need to know’.Footnote 191 In a strange move, the author concludes rather abruptly that ‘the debate as to whether caste is or is not derived from Hindu scriptures need not detain us’,Footnote 192 not because it is untrue, but ‘because 85 per cent of India’s 1 billion people remain Hindu…[and] only a few million followed Dr Ambedkar and became Buddhists’.Footnote 193 That Ambedkar may not have succeeded in annihilating caste and Hinduism does not seem like a good reason to dismiss the concerns about the germ of caste constituting the soul of Hinduism.
Other mentions of religion have been fleeting. In a passing comment, the Committee had asked the Indian state if caste as a social system ‘was to some extent the result of religious belief’Footnote 194 in 1988. However, the question went unanswered. In the 2001 Thematic Discussion, Thornberry expressed scepticism about ‘assertions that caste systems had a millennial religious basis’,Footnote 195 not because of the veracity of the assertions, but because that ‘argument enhanced their scope and power’.Footnote 196 The UN Special Rapporteur on Minority issues pointed out that ‘caste’ under IHRL had ‘transcended religious affiliation…[and] may be based on…a religious or secular background’.Footnote 197
Similarly, the expanded working paper under the mandate of the Sub-Commission noted that ‘while in the case of the caste system of South Asia, there [was] a strong association with Vedic prescriptions in Hinduism, it [was] less clear in other cases’.Footnote 198 And because the South Asian caste system was only an example of discrimination based on work and descent, there was no conceptual link between such discrimination and religion under IHRL. Therefore, even though the working papers spoke extensively about notions of purity and pollution being imbricated with discrimination based on work and descent,Footnote 199 they did not link the ideological basis of these notions to religion.
Several jurists framed caste-based discrimination (untouchability) as being a problem rooted in ‘social norms’Footnote 200 steeped in a ‘millennia-old tradition’Footnote 201 which could not ‘be justified today’.Footnote 202 Mr. Kjaerum argued that the dignitarian harms of untouchability meant ‘the underlying causes could not simply be attributed to culture, religion, or tradition, but were a human rights issue’.Footnote 203 Some jurists blamed ‘discriminatory customs and institutions’Footnote 204 which were ‘deeply rooted in societies and cultures’Footnote 205 for discrimination. The imprecise use of words like ‘social’, ‘culture’, and ‘tradition’ seems a consequence of the reticence of the jurists to name the Brahmanical elephant in the room. This reluctance can also be gauged from Thornberry’s defence of the Committee against charges of cultural imperialism. He argued that ‘the sense of belonging and meaning provided by a caste was greatly weakened when caste members contested the validity of their condition’,Footnote 206 and while ‘the Committee ha[d] a high level of respect for cultures’,Footnote 207 when dealing with caste the Committee must ask ‘whose culture was involved’.Footnote 208 Clearly, the Committee felt it was treading on dangerous ground.
4.2. Epistemic limitations of IHRL in facing the Brahmanical Hydra
I have shown how IHRL’s conceptualization of caste-based discrimination predominantly targeted practices of untouchability. However, as Bahujan intellectuals have emphasized for centuries, untouchability is merely the ceremonial expression of the unequal moral worth of individuals intrinsic to caste. This expression can find innumerable outlets. For instance, in the early twentieth century, most Mahar workers in textile mills in Maharashtra were placed in the spinning department because the weaving department required workers to hold needles in their mouth, and the saliva of a Dalit was deemed contaminating.Footnote 209 Similarly, between 1930 and 1942, whenever the Indian National Congress wanted to delegitimize a provincial election organized by the British colonial state, they would field mock Dalit candidates to dissuade caste-Hindus from contesting the elections. Popular slogans included, ‘Who will go to the Legislatures? Only barbers, cobblers, potters, and sweepers’Footnote 210 .
Even Dalit refugees from West Pakistan to the newly formed Indian state were treated differently from caste-Hindu and Sikh refugees. The latter were resettled in permanent houses or provided land in villages while the former had to settle for temporary (kaccha) houses and were presumed to be landless.Footnote 211 Ambedkar himself had been able to attend school because of a legislative measure seeking to abolish segregation in schools but encountered other forms of humiliation even after getting his foot in the door. Therefore, trying to abolish untouchability by recognizing and clamping down on individual practices will likely be fruitless because ‘pollution stretches without beginning and end’ — as suggested in the epigraph. Brahmanism inspires creativity for dehumanization. The blinkered focus on untouchability elides over caste as a system of graded inequality where neat categorizations of victim and oppressor are difficult. As a result, the work of the UN Sub-Commission explicitly excludes Scheduled Tribes and Other Backward Classes from the purview of its study on discrimination based on work and descent. This exclusion is probably because these groups are not understood to be at the ‘bottom’ of the caste hierarchy. However, these groups also suffer the indignities and material deprivations of the caste system. IHRL remains unable to recognize this oppression.
The structure of IHRL remains predominantly to identify individual harms which can be remedied by holding states accountable. As international legal scholar Susan Marks has argued, IHRL is poor at identifying structural harm even when the human rights movement is self-avowedly seeking to uncover the ‘root causes’ of oppression.Footnote 212 Therefore, the problem is deeper than the Sub-Commission or CERD not paying enough attention to caste as social structure. Arguably, the episteme of IHRL is blinkered and restricts itself primary to recognition harms, leaving questions of distribution out of sight.Footnote 213 The diffuse nature of distribution harms arguably makes them harder to capture for IHRL. One could point to counter-histories of socio-economic rights in the UNGA between the 1950s-1970s to evidence that IHRL can address structural issues of material inequality.Footnote 214 However, the decisive turn in IHRL since the 1970s to political rights focusing on recognition harms away from socio-economic rights redressing distribution harms arguably reflects the deeper epistemological problems within human rights.
Defenders of IHRL might claim that this turn was a result of political battles over the nature of rights rather than any inherent epistemic limitations of rights as a framework. Nevertheless, even during the high-point for socio-economic rights in the 1960s, we saw that these rights were expressed aspirationally by postcolonial states. A couple of things are worth noting here. First, that socio-economic rights needed the backing of the Soviet Bloc and the newly emerging Third World to even make an appearance on the international legal map. And the kinds of economic inequality targeted by these states was primarily international, rather than socio-economic inequality within nation-states. Therefore, the most successful push for socio-economic dimensions to rights came through the articulation of Permanent Sovereignty over Natural Resources as the economic expression of self-determination. Even though socio-economic rights had been included in the Universal Declaration of Human Rights (UDHR], they were relegated to a separate convention in the form of the ICESCR (in part) because the enforceability of socio-economic rights was deemed questionable.Footnote 215
Second, the biggest pushback against socio-economic rights was that it was simply inappropriate to talk of economic inequalities through the language of rights. IHRL could not hold nation-states accountable for failing to provide the same material opportunities — like education, housing, and so on — to segments of their population. I recognize that establishing the epistemic limitations of IHRL would require a detailed philosophical investigation — one which is beyond the scope of this article. However, the case study of caste does seem to evidence the claim that IHRL might be epistemically unable to see social structure — its focus on individual instances of harm might make it prone to missing the woods for the trees. This is particularly exacerbated in cases where the ‘structure’ in question has a significant economic component. Some international lawyers have tried to address this gap,Footnote 216 and I do not mean to suggest that this problem is insurmountable. However, the case study highlighted in this paper underlines the nature of the problem itself, in a context which has so far been largely ignored by international legal audiences.
4.3. Hinduism: The obstacle at every turn
The other problem I have tried to highlight is the reluctance of IHRL institutions to acknowledge how caste and Hinduism are interdigitated. In 1951, Ambedkar’s Hindu Code Bill, which sought to transform the religious laws surrounding Hindu marriages and inheritance, was defeated due to conservative opposition. After resigning from his post as Law Minister, he proclaimed:
To leave inequality between class and class, between sex and sex, which is the soul of Hindu society, and to go on passing legislation relating to economic problems is to make a farce of our Constitution and to build a palace on a dung heap.Footnote 217
In Sections 2.2.3. and 4.1., I documented the reluctance of the three primary actors in international legal forums — the Indian state, jurists, and NGOs — to acknowledge the imbrication of Hinduism with caste. This deracination of caste was done to fit caste-based discrimination into the broader rubric of ‘descent’ based discrimination. As a result, the Committee and Sub-Commission could skirt charges that they were targeting a Global South state. However, as anti-caste intellectuals, including Ambedkar, have been saying for decades, the practice of untouchability cannot be ended without confronting the religious sanction behind the practice. An understanding of the existential stakes in the minds of people practicing untouchability remains pivotal.
However, the location of these institutions in the Global North, and the historical complicity of international law and human rights in the colonial project in the nineteenth and twentieth centuries, probably meant these institutions were hesitant to confront Hinduism. This ‘confrontation’ with Hinduism would mean acknowledging that Hinduism might be fundamentally incompatible with caste equality, and therefore for the purposes of IHRL, racial equality. The powerful post-colonial critique of IHRL teaches us that as a general rule, IHRL institutions should not investigate the morality of non-Western religious systems. These processes would be nearly impossible to conduct and would be structurally prone to a series of biases. This leads to a contradictory position — the critiques against Western ‘universalism’ emphasizing the particularity of ‘cultures’ end up providing a shield to caste, Hinduism, and the Indian state. Of course, if one were to ask Makau Matua or other prominent critics of the false universalism of IHRL about caste, they would likely be firm critics of the caste system.Footnote 218 The contradictory effect of the post-colonial critique of IHRL combined with the political caution against antagonizing ‘a founding member of the Non-Aligned Movement…[which opposed] racial discrimination in all its forms, including apartheid’Footnote 219 means that IHRL institutions remain toothless in confronting Hinduism. This raises questions about whether IHRL has moved from Western values masquerading as universal values, to a universalized system of cultural particularisms.
Nonetheless, that IHRL cannot be the dominant framework for annihilating or even understanding caste, does not mean it is a mere ideological smokescreen. Arguably, the international recognition of Dalit pain, even if blinkered, is morally valuable in and of itself. Moreover, it pricks the ‘Indian Ideology’Footnote 220 that the Indian state is the world’s largest liberal democracy characterized by unity in diversity. Dalit voices on the international stage expose the violent underbelly of this ‘unity’. One need only note the treatment meted out by the Indian state to activists who speak about issues of inequality, oppression, and exploitation on the international stage to learn that international interventions are not futile.Footnote 221 These can also be important for furthering anti-caste mobilization within particular regions. And as I indicated in the introduction, the issue of caste is gaining global prominence. There have already been fierce debates about passing anti-caste legislation in the UK and US (California) — both of which have significant Indian diasporas.
5. Conclusion
In 2014, Arundhati Roy argued that caste had escaped comparable international scrutiny to apartheid because caste remains ‘fused with Hinduism, and by extension with so much that is seen to be kind and good-mysticism, spiritualism, non-violence, tolerance, vegetarianism, Gandhi, yoga, backpackers, [and] the Beatles’.Footnote 222 In this article, I built on the burgeoning scholarship analysing the engagement of IHRL with caste and the role played by NGOs in this process, particularly since 1996. While there have been some calls for a caste-specific international human rights treaty,Footnote 223 the work of CERD and the UN Sub-Commission remains the most serious consideration of caste in IHRL.
This article conducted a close reading of the legal texts and debates surrounding caste-based discrimination in CERD and the Sub-Commission from an Ambedkarite perspective. For this purpose, I drew on key ideas crucial to the political project of annihilating caste. The focus was that caste remains a system which structures the social totality — from knowledge to resources to opportunities — and the ritualization of that system through the practices of untouchability continue to be joint at the hip to Brahmanical Hinduism. Therefore, caste-liberation requires not a reform of the system to smoothen out the rough edges, but the destruction of the edifice of caste. This requires acknowledging and confronting the religious sanction for caste.
The record of the Sub-Commission and CERD revealed that they made two significant departures from an Ambedkarite analysis of caste. First, they largely equated caste-based discrimination with the practice of untouchability. As a result, the emphasis remained on the recognition harms of such discrimination. Even when material deprivations were referred to, they were framed as consequences of untouchability rather than a constitutive aspect of the caste system. Second, international jurists seemed to tip-toe around the religious sanction for caste. However, by refusing to take a stand against Hinduism, they implicitly adopted the Gandhian/Hindu-nationalistFootnote 224 framing of untouchability as a ‘social’ or ‘cultural’ quirk, rather than an expression of the unequal moral worth intrinsic to the Brahmanical caste system.
I argued that these moves raise serious doubts about the effectiveness of IHRL in tackling caste and untouchability. This is because rituals can be remade and refashioned unless the material and moral system undergirding the rituals is dismantled. As the Indian diaspora becomes a significant player in global politics, increasing numbers of legislatures around the world are being confronted with the problem of caste discrimination. The debates I have pointed out, particularly about ‘caste-as-structure’ versus ‘untouchability’ as competing conceptions of understanding caste will continue to play out in these different forums.
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