Capturing Caste in Law: The Legal Regulation of Caste Discrimination (Routledge Research in Human Rights Law)

"This book will examine the legal regulation of caste discrimination in three key legal spheres: in India (the world's largest caste-affected country and the country with the greatest experience of using law to tackle such discrimination); in international human rights law; and in Britain, the first European country to introduce a prohibition of caste discrimination in domestic equality law. It aims to present a coherent account of the role of law initially in the construction of caste inequality and discrimination, and subsequent legal efforts to address such discrimination. The gaps in existing law, domestic and international, in relation to caste discrimination will be identified and examined. The book will adopt a jurisdiction by jurisdiction / sphere by sphere approach which in practice is broadly chronological approach. First it will examine how the concept of caste and the phenomenon of discrimination and inequality on grounds of caste have been defined, constructed and addressed by law. It will trace the evolution of the religious, social and legal rationales for caste discrimination in India, and conversely the evolution in India of legal remedies for its elimination. Caste is a complex social phenomenon, and this book will explain and address the legal challenges of capturing caste in national and international law. In doing so it will examine the advantages and limitations of existing legal analyses and frameworks for tackling discrimination based on caste. The book will be of great interest to academics and students of human rights law, equality and discrimination law, international human rights law, minority rights and area studies (South Asia and its diaspora). It will also be of relevance to practitioners and those in the public and NGO sectors involved in the implementation and enforcement of equality law in the UK"-- Provided by publisher Cover Half Title Series Title Copyright Contents List of abbreviations Table of cases and decisions Table of legislation List of treaties and instruments Foreword Preface and acknowledgements Introduction Context Conceptual approach Methods and sources Organisation of the book Part I The making and remaking of caste 1 What is caste? 1.1 Introductory concepts 1.1.1 Caste 1.1.2 Descent 1.1.3 Varna 1.1.4 Dalits: outside the varna system 1.1.5 Jati 1.1.6 Biraderi 1.1.7 Caste membership and mobility 1.1.8 Markers for caste 1.1.9 Caste and occupation 1.1.10 Caste and religion 1.1.11 Caste as a cross-cultural concept 1.1.12 Caste in the diaspora 1.1.13 The concept and practice of untouchability 1.1.13.1 Untouchability, pollution and stigma 1.1.13.2 “Touch” as a category 1.1.13.3 Untouchability, social exclusion and violence 1.1.13.4 Is untouchability an integral aspect of caste? 1.1.13.5 Ambedkar, untouchability, Hinduism and caste 1.2 Religious and historical origins of a caste society 1.2.1 Ancient India: Indo-Aryans, the Rg Veda and the origins of varna 1.2.1.1 The Rg Veda and varna 1.2.1.2 Purusa-Sukta: the Creation Myth 1.2.2 Origins of jati 1.2.3 Hierarchy, heredity, endogamy and commensality 1.2.4 Origin of untouchability 1.3 Sociological theories and interpretations of caste 1.3.1 Colonialism and the emergence of caste as a sociological concept 1.3.2 Racial theories of caste 1.3.3 Caste and genetics 1.3.4 Ambedkar’s theory of caste 1.3.5 Louis Dumont and his critics 1.3.6 Post-Dumont: caste as orientalist “invention” 1.3.7 The ‘tenacity of caste’ 1.4 Conclusion 2 The Dalits and the history of caste inequality 2.1 Introduction 2.2 The Vedic period c 1500–500 BCE: varna, dharma and karma 2.2.1 The varna classificatory system 2.2.2 The concepts of dharma and karma 2.2.3 Legal nature of the early Vedic texts 2.3 The post-Vedic and classical period: dharma literature c 500 BCE–700 CE 2.3.1 Dharmasutras 2.3.2 Kautilya’s Arthasasthra 2.3.3 Dharmasastras 2.2.3.1 Manusmrti 2.3.4 Legal nature of the Dharmasastras 2.3.5 The feudal era c 800–1200 CE: mobility versus inequality 2.4 Medieval/Islamic India c 1206–1707 2.4.1 The wider setting 2.4.2 Smrti commentarial texts and digests 2.5 British India, law and caste inequality 1600–1857 2.5.1 1600–1772: Mughal decline and the ascendancy of the British 2.5.2 1772–1857: company rule, Anglo-Hindu law and caste 2.5.3 1858–1900: the Crown and caste inequality 2.6 Nepal: the Muluki Ain (Nepali Royal Law Code) 1854 2.7 Direct British rule and caste reform: 1858–1947 2.7.1 Ambedkar and the Untouchables 2.7.2 The “Scheduled Castes” 2.8 Conclusion 3 The legal regulation of caste discrimination: lessons from India 3.1 Introduction 3.2 Caste discrimination in India: contemporary context 3.2.1 Caste and poverty 3.2.2 Caste and untouchability 3.2.3 Economic and occupational inequality 3.2.4 Caste and educational inequality 3.2.5 Violence 3.3 Constitutional vision 3.4 Caste, equality and non-discrimination: the legal framework 3.4.1 “Protective” legislation 3.4.2 Affirmative action: India’s “reservations” policies 3.4.3 Other measures 3.5 India’s policies assessed 3.5.1 Overview 3.5.2 Reservations 3.5.3 Legislation 3.5.4 Scheduled castes and religious restrictions 3.6 Lessons learned: looking ahead Part II Caste and international human rights law 4 Caste discrimination and international human rights law standards: International Convention on the Elimination of All Forms of Racial Discrimination 1965 and the UN human rights treaties 4.1 Introduction 4.2 Caste in international human rights instruments: International Bill of Rights 4.2.1 Background 4.2.2 Caste in the Universal Declaration of Human Rights 1948 (UDHR) 4.2.3 Caste in the ICCPR 1966 and ICESCR 1966 4.3 Caste in ICERD: drafting and text 4.3.1 ICERD: context and background 4.3.1.1 United Nations General Assembly Resolution 44(I) 1946: treatment of Indians in South Africa 4.3.2 ICERD Article 1(1): racial discrimination 4.3.3 UN Declaration on the Elimination of Racial Discrimination 1963 4.3.4 ICERD and the meaning of descent 4.3.5 ICERD Articles 1(4) and 2(2): special measures 4.4 CERD and caste: interpretation and practice 4.4.1 Caste discrimination in India as an emerging issue 1965–1986 4.4.2 CERD concluding observations on India’s 1996 report 4.4.3 CERD: competence to interpret 4.4.4 CERD and the meaning of racial discrimination: General Recommendation 14 (1993) 4.4.5 CERD and the meaning of racial segregation and apartheid: General Recommendation 19 (1995) 4.4.6 CERD and the meaning of descent: General Recommendation 29 (2002) 4.4.7 Beyond General Recommendation 29 4.5 Descent 4.5.1 Origins of descent as a legal category 4.5.2 Descent in Indian jurisprudence post-1947 4.5.3 Descent and evolutionary interpretation 4.5.4 Domestic jurisdiction, sovereignty and caste 4.5.5 Beyond India and beyond caste: CERD and descent-based discrimination worldwide 4.5.6 Caste and descent-based discrimination: other treaty bodies 4.6 Conclusion 5 Caste discrimination and international human rights law standards: UN Charter bodies 5.1 Introduction 5.2 UN Charter mechanisms 5.2.1 UN Sub-Commission on the Promotion and Protection of Human Rights: discrimination based on work and descent 5.2.2 UN draft principles and guidelines for the effective elimination of discrimination based on work and descent 5.2.3 UN Special Procedures 5.2.3.1 UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance 5.2.3.2 Other UN Special Procedures 5.2.3.3 Competence of the UN Human Rights Council and its Special Procedures to consider caste discrimination 5.2.4 Universal Periodic Review 5.3 International Labour Organisation: discrimination on the basis of social origin 5.4 UN World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance 2001 5.4.1 Durban Review Conference 2009 5.5 Decade of Dalit rights UN 2011–2020, conference 24–28 June 2011: work and descent, not race 5.6 Dalit rights as minority rights and indigenous people’s rights 5.7 Conclusion Part III Legal regulation of caste discrimination in the UK 6 Caste in the UK 1950–2009 6.1 Introduction 6.2 The South Asian presence in the UK 6.3 Dalits in the UK 6.3.1 Numbers and groupings 6.3.2 “New” Dalit organisations 6.4 Caste and caste discrimination in the UK 6.4.1 Migration and caste: the early days 6.4.2 “Chain migration” and caste 6.4.3 Survival of caste awareness: critical factors 6.4.4 Caste and caste discrimination in the UK: evidence from 1950–2009 6.4.5 Caste and marriage in the UK 6.4.6 Caste and education 6.4.7 Caste in the UK disputed 6.5 Awareness of caste discrimination prior to the Equality Bill 2009 6.5.1 Caste discrimination as an overseas issue 6.5.2 Caste discrimination as a domestic issue 6.6 Conclusion 7 British discrimination law and caste: From the Race Relations Act 1965 to the Equality Bill 2009 7.1 Introduction 7.2 UK discrimination law model 7.2.1 Purpose of discrimination law 7.2.2 Meaning of discrimination 7.2.3 Regulated fields and the “public-private” divide 7.2.4 Discrimination: grounds-based approach 7.3 Caste and racial discrimination 7.3.1 Race Relations Act 1976 7.3.2 Caste and race 7.3.3 Caste and ethnic origins 7.3.3.1 Content of “ethnic origins” 7.3.3.2 Mandla v Dowell Lee (1983): wide interpretation of “ethnic origins” 7.3.3.3 Caste and the Mandla criteria 7.3.3.4 Revisiting Mandla: R (E) v Governing Body of JFS (2009) 7.3.3.5 Caste and JFS 7.4 Caste and discrimination based on religion or belief 7.4.1 Religion or belief as a ground of discrimination 7.4.2 Meaning of direct discrimination based on religion or belief 7.4.3 Caste discrimination as religious discrimination 7.4.4 Where caste and religion overlap 7.4.5 Religion or belief as a defence to discrimination 7.5 Conclusion 8 Caste discrimination and the making of the Equality Act 2010 8.1 Introduction 8.2 Equalities Review and Discrimination Law Review 8.3 Equality Bill 2009 8.3.1 Organisation of the legislation 8.3.2 The “caste amendment” 8.4 Objections to caste discrimination legislation (1): no evidence of a problem 8.4.1 Context 8.4.2 Evidence-based policymaking 8.4.3 Equality Bill Consultation 8.4.4 Commons Committee stage: June–July 2009 8.4.5 Commons Report stage and Third Reading: December 2009 8.4.6 Enter the Equality and Human Rights Commission 8.4.7 Lords Second Reading: December 2009 8.4.8 Lords Committee stage: January–February 2010 8.4.8.1 Lord Lester’s amendment – “descent” as an additional limb of “race”: January 2010 8.4.8.2 Lords Committee stage, January–February 2010: debate on caste 11 January 2010 8.5 Objections to caste discrimination legislation (2): existing law already covers caste discrimination 8.5.1 Commons Second Reading, May 2009: caste discrimination already unlawful 8.5.2 Lord Lester and descent 8.5.3 Equality and Human Rights Commission – support for descent but opposition to caste: January 2010 8.5.4 Race, caste, descent and the Equality Act 2010 8.5.5 Leaving the matter to the courts 8.6 Objections to caste discrimination legislation (3): “proliferation of the protectorate” 8.6.1 Rationing protection 8.6.2 Caste as a new protected characteristic 8.6.3 New characteristic, new subset, or neither: Lords Committee stage, January 2010 8.6.4 The solution: caste as a subset rather than a new characteristic 8.7 Meeting on caste and the Equality Bill, House of Lords: 4 February 2010 8.7.1 Background 8.7.2 The research conundrum 8.7.3 Wording the provision 8.7.4 Dalits faced with a compromise 8.7.5 The twin-track approach 8.8 Finalising the Equality Act: an “intermediate solution” 8.8.1 Lords Report stage and Third Reading 8.8.2 Consideration of Lords amendments and Royal Assent: 6 and 8 April 2010 8.9 Objections to caste discrimination legislation (4): political and ideological objections 8.9.1 Cultural intrusion and the “privacy barrier” 8.9.2 Community cohesion and “divisive” legislation 8.9.3 An anti-Hindu conspiracy? 8.10 Conclusion 9 Caste discrimination in the UK: beyond the Equality Act 2010 9.1 Introduction 9.2 From the Equality Act 2010 to the public consultation on caste and equality law in Great Britain, 2017–2018 9.2.1 NIESR study: ‘Caste discrimination and harassment in Great Britain’ 9.2.2 Government response to the NIESR study 9.2.2.1 The coalition equality agenda: reducing “red tape” and costs 9.2.2.2 Government regard for anti-legislation views 9.2.3 Dalit and anti-caste activism in response to the NIESR study 9.2.4 Enterprise and Regulatory Reform Act 2013 9.2.4.1 Enterprise and Regulatory Reform Bill: Thornton amendment 9 January 2013 9.2.4.2 Government decision not to exercise the “caste power”: 1 March 2013 9.2.4.3 Enterprise and Regulatory Reform Bill: Harries amendment 9.2.4.4 Enterprise and Regulatory Reform Bill: government amendment in lieu – from caste “power” to “duty” 9.2.4.5 Enterprise and Regulatory Reform Bill: the “sunset clause” 9.2.4.6 Enterprise and Regulatory Reform Act 2013: expectation, opposition and prevarication 9.2.4.7 Equality and Human Rights Commission: Caste in Britain 9.2.5 Case law on caste 9.2.6 Public consultation on caste and equality law 2017–2018 9.3 Factors bearing on the legal regulation of caste discrimination in Bsritish law 9.3.1 Caste and the multicultural conundrum 9.3.2 “Community cohesion” and “faith communities” 9.3.3 Caste and the “Hindu community” 9.4 The legal regulation of caste discrimination in the UK: lessons learned 9.5 Conclusion Conclusion The persistence of caste Caste in India Capturing caste in law Caste in the United Kingdom Looking ahead Caste discrimination as a global issue: the necessity and limits of law Bibliography Index 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 conceptualisation 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 other countries with South Asian diasporas such as the USA. caste;,discrimination;,India;,UK;,international,law;,human,rights;,prejudice caste,discrimination,India,UK,international law,human rights,prejudice 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. 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. This book suggests solutions for capturing caste in international and domestic law, examining legal conceptualization and regulation of caste as a social category in international law, India and the UK. It considers how effective legal protection from and prevention of discrimination on grounds of caste can be secured, and why this is important.