Dr. Srinivas Burra
Cambridge University academic Priyamvada Gopal’s tweet, ‘White lives don’t matter. As white lives,’ on 22 June 2020 became controversial. Explaining that ‘Whiteness does not qualify someone to have their life matter; the life matters but not the whiteness’, she made a comparison between her Brahmin background and whiteness. In her view, one could not say Brahmin Lives Matter in the same way that Dalit Lives Matter.
The Black Lives Matter (BLM) movement, after the death of George Floyd, led to focusing the attention of international law on various manifestations of racism. This article reflects on the relationship between racial discrimination and caste discrimination in international law and BLM’s relevance to the Dalit Lives Matter assertion. There is a conceptual similarity between these two forms of discrimination in international law as they are united by their prohibition and comparison under racial and other forms of discrimination.
Caste discrimination as racial discrimination
The caste system is a division of society into hierarchical social groups. In the Indian context, Hindu society is divided into four Varnas: ‘Brahmins’ (priestly castes), ‘Kshatriyas’ (warrior castes), ‘Vaishyas’ (trading castes), and lastly ‘Shudras’ (working castes). A fifth category of people was previously known as ‘untouchables’ or ‘outcastes’ and are often referred to as Dalits in contemporary political and academic parlance. It is understood that castes have emerged from this Varna system. Caste discrimination affects an estimated 260 million people worldwide, most of them in South Asia. Dalits constitute the largest caste-affected group in South Asia.
In the language of human rights law, caste discrimination leads to violations of civil, political, economic, social, and cultural rights. However, caste is not specifically mentioned in any international human rights treaty. As a result of the absence of the express legal recognition of caste-based discrimination, it has not significantly appeared in international law debates. This changed from the 1990s as the caste issue began to gain attention.
It started in 1996, when, in its periodic report, India stated its position on caste discrimination in the context of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). India underlined that ‘descent’ referred to in article 1(1) of the ICERD does not cover caste and only applies to race; thus, scheduled castes and scheduled tribes in India do not come under the purview of article 1(1) of the Convention. In its Concluding Observations, the CERD countered India’s view and stated that ‘the term “descent” mentioned in article 1 of the Convention does not solely refer to race, [and that] the situation of the scheduled castes and scheduled tribes falls within the scope of the Convention.’ The CERD continued to deal with the issue after these observations. In a more authoritative statement, in its 2002 General Recommendation 29 it reaffirms “that discrimination based on ‘descent’ includes discrimination against members of communities based on forms of social stratification such as caste…”
These developments inform us that, at least from the CERD point of view, caste-based discrimination is clearly covered under the ICERD. However, in its 2006 periodic report, India reiterated its position “that ‘caste’ cannot be equated with ‘race’ or covered under ‘descent’ under Article 1 of the Convention.” In its defence, India relies on its Constitution, which makes a distinction between race and caste by referring to them separately as prohibited grounds of discrimination. Despite opposition from India, where, every day, lower caste people are subjected to overt forms of caste discrimination, human rights and other bodies continue to deal with caste discrimination at the international level as a form of racism.
Caste discrimination as other forms of human rights violations
While the CERD categorically identified caste discrimination as one of the forms of racial discrimination under the ICERD, other human rights mechanisms have also dealt with it as falling under different forms of discrimination. Several treaty bodies are of the view that caste discrimination falls under the terms ‘social origin’, ‘birth’, and/or ‘other status’. Likewise, in 2009, The Human Rights Council issued a report based on the studies conducted by the UN Sub-Commission on the Promotion and Protection of Human Rights. This report considers caste discrimination as ‘discrimination based on work and descent’.
Another significant development is the 2016 report of the Special Rapporteur on Minority Issues, which includes a thematic analysis on the topic of minorities and discrimination based on caste and analogous systems of inherited status. The Special Rapporteur states: ‘while many caste-affected groups may belong to the same larger ethnic, religious or linguistic community, they often share minority-like characteristics, particularly their non-dominant and often marginalized position, stigma, and the historic use of the minority rights framework to claim their rights.’ However, India and other South Asian States are not in favour of this categorization.
Establishing international solidarity
Views comparing Black Lives Matter with Dalit Lives are now echoed in India. Kancha Ilaiah Shepherd observes that ‘India is yet to see a full-fledged movement against caste on the scale of Black Lives Matter, even though both racial and caste discrimination have a common aspect linking their past, present and perhaps future too – the notion of inferior and superior.’ Similarly, the Dalit assertion faces certain challenges at the international level in drawing adequate attention to caste discrimination. Two of these challenges are particularly relevant from the point of view of international law.
The first challenge relates to the fragmentation of the legal responses. The absence of explicit reference to caste discrimination in international law led to a multitude of responses in classifying it under the existing legal categories. Hence, CERD considers it under the ‘descent,’ and other treaty bodies place it under different categories like ‘social origin’, ‘birth’, and/or ‘other status’. Similarly, the Human Rights Council’s report reasons it as ‘discrimination based on work and descent’, whereas one of the UN special rapporteurs deals with it as a minority issue. This fragmented response is not in itself a legal challenge, as human rights issues generally have overlapping features. However, to address a human rights violation, it is necessary to have a comprehensive legal response addressing the core of the breach, with overlapping issues addressed in relation to the core issue. In the absence of this, there is a possibility that overlapping issues will be addressed as independent fragments without a core. Among the existing legal instruments, ICERD seems to cover the significant core of caste discrimination. However, it may be challenging to establish a consensus among States. India, for example, which has a large number of people affected by caste discrimination, disagrees with the equation of caste with race. It would be equally challenging to conclude a new treaty specifically focusing on caste discrimination.
The second challenge consists in legally conceptualizing caste discrimination and its implications, in relation to its political and social dimensions. The Special Rapporteur on minority issues, while recognizing that the caste system’s existence is linked to the religiously sanctioned social structure of Hinduism in South Asia, goes on to say that currently “the term “caste” has broadened in meaning, transcending religious affiliation.” She further observes that “Caste and caste-like systems may be based on either a religious or a secular background and can be found within diverse religious and/or ethnic groups in all geographical regions, including within diaspora communities.” The Special Rapporteur seems to suggest that irrespective of the context in which caste originates, its manifestations have similarities that need to be addressed. In South Asia, particularly, in States like India, the caste system is linked to Hinduism and spiritual issues. Manifestations of caste discrimination are also deeply embedded in religious practices. This historical assertion, with its contemporary political implications, is closely linked to the efforts against caste discrimination. However, that may not be the case with the caste system in other parts of the world. Hence, any attempts to deal with caste discrimination in international law need to consider these varying factors.
A comprehensive international legal response, overcoming these challenges, is what Dalits aspire to attain and for which international solidarity with similarly placed identities is needed. That is where similarities lie between Dalit Lives Matter assertion and the BLM movement.
Srinivas Burra is an Assistant Professor at the Faculty of Legal Studies, South Asian University, New Delhi. Earlier, he worked with the Asian African Legal Consultative Organization and the International Committee of the Red Cross.