Caste: A Venom for the Law and Society by Aaditya Mootha and Aryan Raj

People are not wrong in observing Caste. In my view, what is wrong is their religion, which has inculcated this notion of Caste. If this is correct, then obviously the enemy, you must grapple with is not the people who observe Caste, but the Shastras which teach them this religion of Caste.

B.R. Ambedkar

Abstract

This Article seeks to conceptualize the caste system in India which has been prevailing for over thousands of years. In doing so, we have focused on different contexts encapsulating the origin of caste system, its prevalence and discrimination against the one strata of society i.e. the Dalits and the Untouchables. Its hostile presence has been enumerated in detail during the British regime which led to immense struggles within the country and debates focusing on the ideologies of leaders who played vital role in eradicating it. The mitigation of law and caste has been presented to startle the project of social change and social transformation that law has entangled to bring. The change should be affirmative not only in the books, but practically also to ensure the upliftment of each and every individual regardless of caste. In the last, we have  concluded by showing how law and people can galvanize in bringing this revolution. 

Introduction

India has always been a country of contrasting artefacts and entities and thereby we have one of the composite convolutions of foundation, which we all enunciate as caste. It has been solidified so much that it has taken its roots and rides roughshod over our daily life and is crystal clear visible on the basis of traits, morals, marriage, places of origin, taboos and even food. Professor J.H. Hutton who was responsible for conducting and administering the caste census in India in 1931 gives a skeptical definition of caste in the semblance of various features i.e. birth determining a person’s caste; people can’t marry outside their caste placing them in restrictions and the hierarchical arrangement whereby the Brahmans are placed at the top and Shudras at the bottom. It starkly means that a person is squeezed within the boundaries and units and is proscribed from commingling with the people of other castes. 

The origin of caste and its expansion can be trailed from Purusha Sukta where it is stated that God Prajapati concocted the world and diffused Purusha, a man into 4 parts through which the 4 non-identical species were created i.e. Brahmans, Kshatriyas, Vaisyas and Shudras. The differentiation was done on the basis of their work and secondly, the sacraments. Brahmans were apportioned the work of teaching, defense of the people to Kshatriyas, agriculture to Vaisyas and serving of the above 3 castes to the Shudras. The work was allocated to different castes based on the different body parts of Purusha from where they originated. The second subservient difference was based on Upanayana i.e. second birth. Leaving the Shudras, it is believed that all the 3 castes have the right of Upanayana. The prejudice against Shudras was so macroscopic that the Brahmanas use to be steer clear of not sharing food with Shudras or not marrying them otherwise they would be born as a pig in their next life. It was strongly centered that the paths of progress for Shudras should be totally immobilized. These stumbling blocks were not only detrimental for their growth, but presented a system that is entirely pathological and completely subsidized on caste. These 4 castes were collectively referred to as the Chaturvarnya. There was an inception of a caste below the Shudras which came to be known as Avarnas i.e. the untouchables or anti-shudras. The word itself represents something which is polluted, contaminated and is ignoble by birth which cannot be rectified even by the actions. The main creator and the prime mover of the caste system is Manu and he is the main proponent of such division. Dr. Ambedkar was very critical of Manu and was not in consonance with the perspective of Manu placing them at extremity. It was believed by Ambedkar that Manu was irrational in his approach by focusing much on inferences rather than on reasoning and the rationale. Therefore, he was unconvinced about the Code of Manu because of his firm trust that law cannot sanction the venom of casteism.

Caste and Untouchability under the British Raj

The pursuits of the Britishers were smack dab towards enhancing their administration in India, rather than on eliminating the caste system and its repercussions. G.S. Ghurye in his book ‘Caste and Class in India’ mentions explicitly about it and elucidates that “most of these activities as must be evident were dictated by prudence of administration and not by desire to reduce the rigidity of caste, whose disadvantages were not patent to them- on the whole , the British rulers of India who have throughout professed to be trustees of the welfare of the country, never seem to have given much thought to the problem of caste.” It was the rising of 1857 that made Britishers to even perpetuate the divide. The epitome of this great disaster can be highlighted by the example of army. Britishers use to employ a large number of Mahars, an untouchable caste in their army, constituting about 1/3rd of their total army. But after the mutiny, Britishers thought it was better to ignite the divide and therefore put an end to the recruitment of untouchables in order to quench the anger of Upper-caste Hindus. The political situation persistent in the country also led them to determine the various castes, communities and groups in 1872 census. This census completed the perception of caste and took its material form in 1911 when the separate identity was given to the lower castes, known as depressed classes. The Britishers placed their politics of ruling into the domains of caste and paved the way for class struggle. The data collected by Sumit Sarkar on casteism in Bengal relating to the identification of number of castes shows drastic figures. Till 1905, there were only 24 items under the ‘Castes and Tribes’ which went upto 140 titles in 1920. The condemnation meted out to the lower castes made them to join caste movements, drifting them apart from the tenet of nationalism. They started sundering from the nationalist movements which they presumed to be only associated with High caste Hindus, as criticized by Prafulla Chandra Roy. This was the time when Gandhiji returned to India and took plight of the rampant casteism and evil motives of the Britishers in unfurling it. In order to remove the slur of calling the low caste as untouchables, he gave them the denomination of Harijans or the ‘Children of God.’ Ambedkar was different in ideology from Gandhi because of different values, beliefs and the ways in which both struggled towards enforcing the common spirit. The differences arose further when the Madras Legislative Assembly introduced the ‘Temple Entry Bill.’ in order to entitle the depressed classes to worship at temples as a result just after the Poona Pact. Gandhi supported the Bill, but turned his back on the promise of fasting to enforce the entry of Untouchables in Guruvayur temple in Kerala which according to Ambedkar was not the real progress for Dalits and was just putting off their attention from the high-priority issues of civic and economic equality. The Guruvayur Satyagraha received great enthusiasm from the popular leaders like Vallabhbhai Patel and Kasturba Gandhi which gained widespread support in the local daily ‘Mathrubhumi’ leading to the publication of an article titled ‘Will the doors open? – Vaathil Thurrakumo? A.K. Gopalan who was leading the Satyagraha procession proclaimed that “Don’t query caste, speak not or even think about it. Temple entry is the birth right of all Hindus.” As a result of unprecedented Satyagraha and incessant demand for allowing the entry of lower castes, the Temple entry Proclamation as issued on 12th November 1936 which led to the offering of prayers standing shoulder in shoulder on that day casting of the social evils. 

Law and Caste: In the Post Colonial Period and Modern Era

The parallel bonding of law and caste is very convoluted, because law is committed towards imparting justice, liberty and equality whereas caste is an apparatus or an institution holding beliefs, values and certain specific goals for its people which has led to intricacies and contraventions in our society. The caste framework in reference to the Indian context can be disinterred into 2 issues i.e. caste in tie-up with the Indian Constitution and the role of caste in demanding reservations plus the actions to suppress caste based discrimination and subservience. 

All the liberal constitutions in the world prohibits discrimination on grounds of religion, race and sex but Indian Constitution is the one which has affixed the word caste in Article 15(1). The caste as a ground is also put within the spheres of Article 16(2) proscribing discrimination based on caste and went further in Article 17 abolishing untouchability, but all these rights have been framed after going through the long dictions, so as to bring the sensibility and making the people to enjoy their right in a more pragmatic way. The second bone of contention in India is with related to reservations. In the Constituent Assembly also, the members were originally in approbation and favor of using the word ‘backward class’ instead of ‘caste’ with reference to providing reservation in the government sectors. Though the term ‘backwardness’ was not included but it came to be challenged in the court in M.R. Balaji v. State of Mysore where Article 15(4) was challenged, wherein the caste was considered as a lone criteria for determining backward classes. The 5 judge bench of the Supreme Court rejected the classification done by State of Mysore stating that the application of the word ‘caste’ may be incongruous if the caste system itself is to be culminated. However, many cases occurred in which the courts single mindedly held caste as the only criteria for ascertaining backwardness. It was in the year 1979 that Second Backward Classes Commission came out with the survey of 52% population as Specially and Economically Backward Classes (SEBC’s) and recommended for a 27% reservation in addition to 22.5% which was already there for Scheduled Castes and Schedule Tribes. This recommendation as readily accepted by VP Singh’s government which led to a huge outcry in the country. It came to be challenged before a 9 judge bench in Indra Sawhney & Others v Union Of India. The majority proclaimed that reservation as admissible after analyzing the constituent assembly debates and speeches of B.R. Ambedkar. They reasoned that reservation is actually in favor of a social group which has been discriminated against. But, the majority actually failed to counter the problems of caste in reality because eventually, the caste has lost on the ritual forefront but has gained a prominence in the political posterior. Moreover, caste as an ineluctable component cannot be separated because caste itself eventuates from the contours of law.

Conclusion

Caste is like hypothesis which cannot be defined legally and is deeply ingrained in the form of classism, exclusion and many other aspects. Though several holistic changes have been made to it by imparting several laws to prohibit its lethal effects, but has not resulted in much elevation. Casteist behaviour is not exceptional or abnormal, but is a result of people’s orthodoxy and narrower approach. The battle against the caste should not be for power, but for identity, humanity and for repossession of human dignity which can be profounded by the law.

About Authors

Aaditya Mootha

First year

National Law University, Lucknow

B.A.LL.B (Hons)

Aryan Raj

First year

National Law University, Lucknow

B.A.LL.B (Hons)

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