TOPIC – CASTE: A VENOM FOR THE LAW AND SOCIETY

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. 1 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.2 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

1
Ambedkar, Dr. Babasaheb Ambedkar: Writings and Speeches, Vol.1, 6 (2nd ed. 2019)
2
S. Chandrasekhar, ‘Caste, Class and Color in India’, 62(2), The Scientific Monthly 151 (1946)
top and Shudras at the bottom. 3 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 4 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 5. 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 6. 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 Upanayana7 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 8
with Shudras or not marrying9 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 10.
These stumbling blocks were not only detrimental11 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 12, 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 13. 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

3
J.H. Hutton, ‘CASTE IN INDIA’,32(1), Annals of the Bhandarkar Oriental Research Institute, pp. 295-297
(1951)
4
Ambedkar, Dr. Babasaheb Ambedkar: Writings and Speeches, Vol.7, 9 (2nd ed. 2019)
5
Ibid,32
6
Jayantanuja Bandyopadhyaya (2007), ‘Class and Religion in Ancient India’, New Delhi, Anthem Press.
7
Ambedkar, supra note 5, 36
8
‘India’s Caste System’, BLOOMBERG, Oct.25, 2019, available at
https://www.bloomberg.com/quicktake/india-s-caste-system ( Last visited on 10-03-2020)
9
Albert Swindlehurst ,‘HINDU LAW AND ITS INFLUENCE’, 27(7), The Yale Law J. 859 ( 1918)
10
C.D. Singh, ‘Dr. AMBEDKAR PERCEIVES CASTE SYSTEM AS INHERENTLY PERNICIOUS’, 72(2), T.
Indian Journal of Political Science, 523 (2011)
11
Ibid
12
Gopal Guru, ‘Archaeology of Untouchability’, 44(37), Economic and Political Weekly, 49 (2019)
13
Charles J. Naegele (2008), ‘History and Influence of Law code of Manu’, Thesis and Dissertations.
unconvinced about the Code of Manu14 because of his firm trust that law cannot sanction the
venom of casteism.

DEFENSES AND DEFLATION OF THE SYSTEM

It is a pity that Caste even today has its defenders. The defenses are many. It is defended on
the ground that the Caste System is but another name for division of labor and if division of
labor is a necessary feature of every civilized society then it is argued that there is nothing
wrong in the Caste System. Now the first thing is to be urged against this view is that Caste
System is not merely division of labor. It is also a division of laborers. It is a hierarchy in
which the divisions of laborers are graded one above the other. This division of labor is not
spontaneous; it is not based on natural aptitudes. Social and individual efficiency requires us
to develop the capacity of an individual to the point of competency to choose and to make his
own career. Some have dug a biological trench in defense of the Caste System. It is said that
the object of Caste was to preserve purity of race and purity of blood. Now ethnologists are of
opinion that men of pure race exist nowhere and that there has been a mixture of all races in
all parts of the world. Especially is this the case with the people of India. Mr. D. R.
Bhandarkar in his paper on Foreign Elements in the Hindu Population has stated that “there is
hardly a class, or Caste in India which has not a foreign strain in it. There is an admixture of
alien blood not only among the warrior classes—the Rajputs and the Marathas—but also
among the Brahmins who are under the happy delusion that they are free from all foreign
elements and to argue that the Caste System was eugenic in its conception is to attribute to
the forefathers of present-day Hindus knowledge of heredity which even the modern
scientists do not possess. A tree should be judged by the fruits it yields. If caste is eugenic
what sort of a race of men it should have produced? Before independence, it was a nation of
9/1Oths of which were declared to be unfit for military service. This shows that the Caste
System does not embody the eugenics of modem scientists. It is a social system which
embodies the arrogance and selfishness of a perverse section of the Hindus who were
superior enough in social status to set it in fashion and who had authority to force it on their
inferiors.

14
‘The turning point in Ambedkar’s quest for emancipation’, FORWARD PRESS, Dec.24, 2019 available at
https://www.forwardpress.in/2019/12/the-turning-point-in-ambedkars-quest-for-emancipation/ ( Last visited on
10-03-2020)
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 system15 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 16.” 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 army17. 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 census18. 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
Bengal19 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. 20
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
15
G.S. Ghurye (1957), ‘Caste and Class in India’, Bombay, Popular Book Depot
16
Ibid
17
Sasha riser- Kositsky, ‘The Political intensification of Caste- India under the Raj’, 17(1), Penn History
Review, 37 (2009)
18
R.B. Bhagat, ‘Caste Census, Looking Back, Looking Forward’, 42(21), ‘Economic and Political Weekly,
1903 (2007)
19
Sekhar Bandyopadhyaya (1990), ‘Caste, Politics and the Raj, Bengal 1872-1937’, Calcutta, K.P. Bagchi &
Co.
20
Ibid, 189
spirit. The differences arose further when the Madras Legislative Assembly introduced the
‘Temple Entry Bill.21’ 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 Proclamation22 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 law23 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 society24. 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
21
Rengaraju G., ‘Struggle for Temple Entry in Tamil Nadu 1872-1955’, Ph D. Thesis, Bharathidasan University,
175 (2005)
22
K Aneesh, ‘Literature and Social Mobilisation: Reading Kerala Renaissance’, Indian History Congress, pp.
748-756 (2014)
23
Gautam Bhatia, ‘Caste and the Law’, Yale University (2019)
24
Kanhaya L. Sharma, ‘Is there today Caste System or there is only Caste in India’, 178, Polish Sociological
Review, 245 (2012)
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 Mysore25 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
Commission26 came out with the survey of 52% population as Specially and Economically
Backward Classes (SEBC’s)27 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 India28.
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

25
AIR 1963 SC 649
26
Nirupama Pillai, ‘Who are the Other Backward Classes’, 19(1), Student Bar Review, 43 (2007)
27
Ramaiah A., ‘Identifying Other Backward Classes’, Economic and Political Weekly, pp. 1203-1207 (1992)
28
AIR 1993 SC 477
for identity, humanity and for repossession of human dignity which can be profounded by the
law.