equal by law, unequal by caste - International Dalit Solidarity Network

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270 Wisconsin International Law Journalunder attack as an affront to liberalism and “meritocracy,” theintrinsically anti-merit nature of the caste system offers an alternativespace in which conversations about “merit” can take place.India also presents a unique challenge for those human rightslawyers and advocates who operate exclusively in the framework ofinternational human rights law as a mechanism for achieving socialchange. International human rights laws and mechanisms, with theirover-reliance on the role of the state, and their almost unquestioned faiththat the right laws will do the trick, are ill-equipped to take on systemsthat define equality in the inverse, and in which human beings are borninherently unequal. Finally, a closer look at caste, worthy of academicinquiry in its own right, provides a powerful reminder that race andethnicity are not the sole dominant constructs around which social andeconomic oppression is organized to the detriment of a sizeablepopulation of the world. 62B. OVERVIEW OF THE CASTE SYSTEMIndia’s caste system is perhaps the world’s longest surviving andmost rigorously enforced system of social hierarchy. The caste systemencompasses a complex ordering of social groups on the basis of ritualpurity. Caste is descent-based and hereditary in nature. 63 It is acharacteristic determined by one’s birth into a particular caste. Castedenotes a traditional system of rigid social stratification into rankedgroups defined by descent and occupation. 64 While the particular rankingof castes may vary among regions, the extremes of the spectrum arefixed with Brahmins sitting atop the hierarchy and Dalits, or so-calleduntouchables, at the very bottom. 65The caste system is an intrinsic part of Hinduism, the dominantfaith practiced by Indians. According to Hindu scripture, individuals areborn inherently unequal into a graded caste-based structure that definestheir status and opportunities in life. Caste-based discrimination is also62636465It is estimated that there are 240 million Dalits in South Asia alone, and that many populationsaround the world suffer discrimination under caste-based or analogous systems of socialexclusion. A GLOBAL CONCERN, supra note 1, at 54.BROKEN PEOPLE, supra note 21, at 24.A GLOBAL CONCERN, supra note 1, at 2.BROKEN PEOPLE, supra note 21, at 25.
Vol. 26, No. 2 Equal by Law, Unequal by Caste 271openly practiced by Sikhs, 66 Christians, 67 and Muslims against Dalits whohave converted to these faiths in an effort to escape their persecution.Though the origins of the caste system have long been a subjectof dispute, 68 as has the question of whether it tracks racial groupings, 69the following theories are worthy of note. Caste is said to have its basisin the Hindu religion, as it is referred to in scripture. In the BhagavadGita, Lord Krishna proclaims: “the four castes have been created byMe;” 70 similarly, the Manu-Smriti sets out the main castes as each havingbeen created from a different part of God’s form, and codifies therespective God-given duties of each of these castes. 71 Alternativesociological theories posit the caste system as a ritual solution to theVedic cultural preoccupation with distancing oneself from pollution. 72 Apopular, but contested, suggestion has been that this Vedic culturearrived in India with the migration of the Indo-Aryans, from whom theBrahminic “upper castes” are allegedly descended. 73 Still others havefocused on the role of British colonial rule in cementing caste-baseddivisions. 74Differences in status are traditionally justified by the religiousdoctrine of karma, a belief that one’s place in life is determined by one’sdeeds in previous lifetimes. 75 Traditional scholarship has described thismore than two thousand-year-old system within the context of the four66676869707172737475Ronki Ram, Social Exclusion, Resistance and Deras: Exploring the Myth of Casteless SikhSociety in Punjab, 42 ECON. & POL. WKLY. 4066 (2007) available athttp://www.epw.org.in/uploads/articles/11111.pdf (last visited Aug. 15, 2008).Prakash Louis, Dalit Christians: Betrayed by State and Church, 42 ECON. & POL. WKLY., 1404(2007).See, e.g., RATNA G. REVANKAR, THE INDIAN CONSTITUTION—A CASE STUDY OF BACKWARDCLASSES 14 (1971).See J. C. NESFIELD, BRIEF VIEW OF THE CASTE SYSTEM OF THE N.W.P. AND OUDH (1885). Cf.H. H. RISLEY, THE PEOPLE OF INDIA (1915); G. S. GHURYE, CASTE AND RACE IN INDIA 101—23(1932). For more recent discussion, see J. L. Mountain et al., Demographic History of India andmtDNA-Sequence Diversity, 56 AM. J. HUMAN GENETICS 979 (2005).Bhagavad Gita 4.13.THE LAWS OF MANU I, 87 (George Bühler trans., 1969).J. H. HUTTON, CASTE IN INDIA: ITS NATURE, FUNCTION AND ORIGINS 180 (4th ed. 1963).GHURYE, supra note 69, at 142; EDWIN BRYANT, THE QUEST FOR THE ORIGINS OF VEDICCULTURE - THE INDO-ARYAN MIGRATION DEBATE 49 (2001).See Kevin Brown, Affirmative Action in the United States and the Reservation System in India, inRELIGION AND PERSONAL LAW IN SECULAR INDIA 251, 253-54 (Gerald James Larson ed., 2001)(arguing that the traditional caste system was first “seriously disturbed” during British colonialrule by British divide-and-conquer efforts to reinforce existing religious and caste divisions). Seegenerally NICHOLAS B. DIRKS, CASTES OF MIND: COLONIALISM AND THE MAKING OF MODERNINDIA (2001).WENDY DONIGER O’FLAHERTY, KARMA AND REBIRTH IN CLASSICAL INDIAN TRADITIONS 209(1980).
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