Routes

The Indian government’s reaction to the recent UN Special Report on Minorities makes clear the limitations of its anti-imperial human rights history.

On March 15 last month, the UN Human Rights Council met for its thirty-first session in Geneva. The meeting was dominated by discussion of an important new report presented by the Special Rapporteur on Minority Issues, Rita Izsák-Ndiaye, on discrimination based on caste and analogous systems of inherited status. As per UN guidelines, the Rapporteur on Minority Issues is generally an independent investigator appointed to document systematic instances of discrimination along religious, ethnic, racial, and other group-based lines, and to make recommendations both at the international level and to a select number of countries. Izsák-Ndiaye’s recent report marks an important turning point within this vein. It is by far the most concerted effort to bring caste into the framework of international human rights law. Over the past three weeks, the document has started circulating amongst activist and legal circles in South Asia, within the diaspora, and beyond.

The March session of the UNHRC was not the first time that caste has been discussed at an international forum. There is by now a remarkable two-decade long history of how activist groups like the Dalit Solidarity Network and the National Campaign on Dalit Human Rights alongside international organizations like Human Rights Watch have been able to frame the issue from being a regional problem specific to South Asia to a global concern, starting with the 2002 Durban Conference of the UN’s Committee on the Elimination of Racial Discrimination (CERD). CERD’s recommendation in 2002 to directly address caste and descent-based forms of discrimination through international mechanisms has provided the primary precedent for subsequent action by the UN. It has also had something of a spillover effect onto domestic jurisdictions, with the European Parliament passing a resolution to recognize and combat caste-based exclusion in 2013 and, in the same year, the UK government amending Section 9 of its 2010 Equality Act to mandate specific legislation on caste. Indeed, the need to comply with CERD has been cited in the landmark case Chandhok & Anor v Tirkey (2014), the first successful caste discrimination lawsuit brought before a UK employment tribunal.

Despite becoming increasingly established, however, the globalization of anti-caste law has consistently been met with opposition from South Asian states, especially from India and Sri Lanka. In 2002, Indian government officials vehemently insisted that caste could not be reduced to either ethnicity or race, and so had no place in a UN forum devoted to the latter. If anything, the official response to Izsák-Ndiaye’s report has been even more dismissive. During the March 15 session, India’s Representative to the United Nations criticized the report as a “breach of the Special Rapporteurs’ mandate” (the Representative’s response to the Special Rapporteur is available here, starting at 37:59). By expanding the scope of minority status to include groups vulnerable to caste discrimination—and thereby highlighting gaps in the implementation of constitutional safeguards—the report rendered suspect the entire “credibility of the UN Special Procedure” system. The Sri Lankan government went even further, directly questioning the Rapporteur’s methodology and asserting that untouchability practices do not exist at all in the country.

In themselves, these responses are not surprising given the history of nationalist engagement with the UNHRC through the 2000s. But coming immediately in the wake of Rohith Vemula’s tragic death in January and the ongoing crisis at Hyderabad Central University and other institutions, Izsák-Ndiaye’s report has a particularly timely importance for the Indian context. And the state’s rejection of the report’s legitimacy says volumes about the trajectory of its engagement with international politics since the 1950s.

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Like all attempts to deal with caste in a non-South Asian legal context, the UN Report struggles with defining the term. With their intellectual roots in nineteenth-century European practices of taxonomy, the classificatory schemes of postwar human rights have found it difficult to address a diffuse non-Western concept that is analogous but not wholly reducible to categories of ethnicity, race, and religion. Izsák-Ndiaye justifies including caste under the label of ‘minority,’ broadly understood, because the condition of groups marginalized by systems based on birth and descent is structurally similar to those excluded through other axes of identity. In both cases, a group is seen to possess some inherent characteristics which justify subservience to a dominant socio-cultural and religious community (which may or may not be in a numerical majority).

The report separates caste-based discrimination into two broad forms: civil and political, and economic, social, and cultural. The first category includes physical violence and threats to person and property; the denial of fundamental civil liberties such as political participation and access to the judiciary; and discrimination within religious spaces and ceremonies. The second category includes restrictions on economic mobility and the right to work; segregation in housing; as well as unequal access to water, sanitation, health services, and (in the case of 2004 Indian Ocean Tsunami or last year’s Chennai floods) emergency humanitarian assistance.

None of these details should be surprising to anyone who follows politics within South Asia and its diaspora communities. The UN Report’s main contribution is to present the information in a systematic way that allows us to see patterns across countries and to recognize the specific international and domestic laws which are being violated through the framework of caste. Izsák-Ndiaye cites new data from the 2014 National Crime Records Bureau of India about the shocking (and rising) levels of brutal physical violence–lynching, harassment, and sexual assault—committed regularly against Dalits, acts that go against the most fundamental tenets (Articles 3-5) of the UDHR. Enforced practices of manual scavenging, slavery, and bonded agricultural labor on Dalit and tribal (adivasi) communities in Nepal, India, Pakistan, and elsewhere violate commitments to workplace non-discrimination and workers’ economic choice expressed in International Labor Organization (ILO) conventions since 1957. Finally, discrimination within healthcare and basic medical services, common in many rural hospitals across South Asia, contradicts commitments regarding equal access to health added to the Convention on Economic, Social, and Cultural Rights in 2000.

So the most valuable upshot of the Special Rapporteur’s investigation may be to enable increased global activism on the part of anti-caste movements. Framing the problem of caste as a violation of already accepted international norms opens up a new set of legal standards with which to hold states accountable. Of course, there are clear drawbacks to this legalistic turn. The report itself is very much a product of the liberal understanding of freedom underlying contemporary international law—‘liberal’ in the post-Cold War sense recently critiqued by the philosopher Robert Meister, as a minimalist political theory committed exclusively to individual security from violent atrocity and external interference. The report speaks of caste discrimination and not of caste oppression. It calls on legislative and judicial bodies to secure non-discrimination in the economy, state-society interaction, and political life in order to enable equal access to a set of basic goods, but stops short of calling for redistribution or the targeted material empowerment of the lower-caste urban and rural poor. An anti-discrimination based internationalist politics that strategically uses the language of the UN might, then, be much less economically transformative than the long tradition of Indian anti-caste socialism from Jotirao Phule to Ambedkar and beyond.

Nevertheless, the symbolic value of the report is to emphasize the obligations of a state towards a universal ideal of human equality. Engaging critically with the UN Human Rights Council would, for any government, entail first recognizing the legitimacy of the international community to question domestic structures of violence and exclusion. It would mean a cosmopolitan politics appreciative of exchange and interaction as sites for self-criticism. It is this reflexivity, I think, which the Indian government has failed to demonstrate through its outright rejection of the UN Report’s legitimacy. In his remarks to the Human Rights Council on March 15, India’s Representative to the United Nations criticized the report for transgressing on the state’s prerogative to define and govern its populations. He characterized allegations of structural discrimination against Dalits based on religion, social norms, and cultural life as a “series of sweeping judgements.” For the Special Rapporteur on Minority Issues to turn attention to caste set a dangerous precedent for subsequent UN investigations to exceed their prescribed authority. It made the issue seem much widespread than Indian law itself recognized and gave an international human rights body normative superiority over a domestic jurisdiction.

There is a biting irony in India’s appeal to national sovereignty in order to delegitimize an international investigation into caste violence. The legal architecture of the UN’s anti-racism policies, first within the UDHR itself and then the important 1963 General Assembly Convention, is in many ways an Indian creation. In December 1946, the Indian delegation to the UN, headed by Vijaya Lakshmi Pandit and encouraged by both Jawaharlal Nehru and Gandhi, pushed through a motion in the General Assembly mandating South Africa’s apartheid regime to bring its racialized citizenship policies into conformity with international norms of civil liberties. At the time, the motion was seen as an “Asian victory” against the deeply racist alliance of the British Empire, the United States, and South Africa. Recently, historians like Mark Mazower have seen it as an even more pivotal moment in the struggle for decolonization, marking the point when an international legal-administrative structure meant to consolidate global white supremacy was first appropriated to unsettle the exclusions of liberal imperialism. Even as the political efficacy of global governance collapsed from Cold War realpolitik through the 1950s, human rights bodies came to have substantial symbolic importance in the fight for anti-racist and anti-colonial justice.

We must not, of course, overstate the radical nature of India’s inaugural act in the United Nations (if anything, new archival research by Vineet Thakur at the University of Johannesburg suggests underlying prejudice on the part of some Indian diplomats towards low-caste laborers in South Africa). But it is critically important to understand the historical role of India’s opposition to white government in South Africa. The rejection of apartheid through institutional mechanisms meant that the founding of the independent Indian state was closely connected with the emergence of an anti-imperial, anti-racist politics of global human rights. This became a major governing logic of Afro-Asian anti-colonialism from the late 1940s to mid-1960s, manifest in its call for Third World solidarity and its commitment to using international platforms like the United Nations to demand self-determination for colored peoples—a dynamic well explored in Roland Burke’s important recent book Decolonization and the Evolution of International Human Rights (2010).

What we have seen over the past month, with the Indian government’s rejection of a UN inquiry into caste even as the country’s university campuses are convulsed in conflict over institutional complicity with caste violence, is essentially the intellectual and conceptual limit of this anticolonial nationalism inherited from the mid-twentieth century. Seventy years after 1946, we have arrived at a point where a state that pushed vehemently to make global governance into a mechanism for protecting vulnerable communities resists having the same language of anti-racism and minority rights turned onto itself. International politics could be a domain for overturning structures of European domination in the 1940s, but its emancipatory potential is decried now that it tries to highlight the deep-rooted failures of the postcolonial state towards internal minorities. The antipathy to international oversight on caste discrimination reveals the constitutive and uncritical acceptance of the nation within the dominant strain of twentieth-century cosmopolitanism. It shows the inability of an internationalist project defined primarily in opposition to European domination to recognize its own internal forms of exclusion.

The international human rights framework has come under withering criticism since the end of the Cold War for eroding sovereignty and state capacity. But there is surely more to it than that. Given the specific historical relationship between India’s emergence as an independent state and its appropriation of global governance, it is of no small importance that anti-caste and minority rights activists’ engagement with the UN report on discrimination highlights structural violence in a way that is not wholly reliant upon Indian law and legislation—and, indeed, demands accountability and compliance with transnational standards from them. We can hope that this is one way to work towards a new and different cosmopolitanism, one in which the postcolonial world’s interaction with the global community is no longer monopolized by the majoritarian nation.

This blog post was written by Tejas Parasher.

Tejas Parasher is a PhD student in political theory at the University of Chicago. His research focuses on comparative constitutionalism in Asia, international law, and issues of human rights and economic inequality. He can be reached at tparasher@uchicago.edu.