Sthabir Khora

Abstract

Various routes have been proposed to escape from the caste. The principal routes are the religious, the social and the legal. The case of the problem of caste is one of ‘one leading to another’. Though untouchability is abolished on paper, it will go only with the abolition of caste. Ambedkar, in the ‘Annihilation of Caste’ points out that abolition of caste requires destruction of endogamy which in turn requires the destruction of the authority of the Shastras. This means abolition of Hindu religion. Since that is not possible under a liberal framework, conversion seems to be the answer. However, that too has not worked much. Reflecting on this, this paper opines that there are two way ins – a definitional surgery of Hinduism, and a comprehensive law taking care of indirect discrimination.

A significant proportion would not like to escape from caste

It is the lower castes who wants to escape from caste just like it is the proletariat who would like to escape the class system. If we further extend the analogy of class then we can expect a polarization of OBC into upper and lower OBC. The ‘upper OBC’ may very well be satisfied declaring themselves ksatriya which is the usual practice of underscoring social mobility in the caste system. On the other hand the lower OBC, getting nothing from the caste system, would like the caste system to go. Thus, at the outset, a significant proportion of the population in the caste system would not like to escape from the system.

Really speaking, it helps if the upper castes convert rather than the lower castes. However, if we assume a gap between people’s religious belief and their action, then we cannot assume that followers of a religion, that prescribes egalitarianism, will be actually practicing egalitarianism in their day to day lives. This explains casteism among the muslims and christians in India. This is due to coexistence in a caste environment for centuries. If upper caste converts do not leave their attitude to lower caste converts and non-converts, then conversion does not help the lower castes much. This is not to belittle the enlightening potential of conversion to lower castes themselves. But this does not reduce the violence by upper castes which is the reason to leave Hinduism in the first place. The violence has to be dealt with by law.

The difficulty of a long jump – Hinduism is not ‘a’ religion but a conglomeration of religions

Hinduism is not like caste. It is more like varna. Just like a varna is a conglomeration of castes similarly Hinduism is a conglomeration of religions. The reason why Hinduism has been transformed into a conglomeration of religion is that what was supposed to be originally the name of a place has been transformed into the name of a religion (Sen, 2006). Originally, Hindu meant what in contemporary parlance can be called Indian. Meghasthenes’ ‘Indica’ and AL Beruni’s Al Hind was the name of a place and not religion. Hindu meant those who lived in ‘Al Hind’ just like mumbaikar includes all those belonging to different religions living in Mumbai. ‘The ancient Persians and Greeks called these people(s) “Hindus” and “Indikoi” respectively, and much later on, before and after the rise of Islam, the Arabs called the land beyond the great river al-Hind’ (Lipner, 2005:4). ‘The English word “Hinduism” (and indeed “Hindu”) is of comparatively recent coinage; there is evidence that it acquired some currency in the late eighteenth century in England’ (Sweetman 2003: 56n12 cf Lipner, 2005: 5).

Since Hinduism originally didn’t refer to any particular religion, therefore we do not find a god named Hindu. On the other hand one can find a God called Brahma from which one can derive Brahmanism. Since Hinduism is not ‘a’ religion, there are ample contradictions within Hinduism ranging from asceticism to Carbak philosophy. That’s why reading Hinduism as ‘a’ religion in contrast to an assortment of religions will always run into difficulty. It’s easy to criticize it as well as eulogize it focusing on particular parts. That’s why the best definition that the judiciary can offer on Hinduism is ‘a way of life’. Every religion will entail a certain way of life. But a way of life is not necessarily a religion. It begs the question what kind of way of life. Can a caste free Hindu way of life be imagined?

Defining Hinduism as a ‘way of life’ is not only an innocent inability, but also acts as an interpretive dominance. The interpretive dominance is used to define conversion of a tribal to Hinduism (from Christianity, Islam etc) as ‘reconversion’ based on the assumption that the original religion of the tribal was Hinduism (South Asia Human Rights Documentation Centre,2008). In the legal sphere the juxtaposition of the historical (place) and contemporary meaning of Hinduism (religion) enables clubbing many religions of India under Hinduism. The approach can be called a residuary approach by which if a person doesn’t belong to religions like Islam, Christianity etc then by default belongs to Hinduism.

Explanation II appended to Article 25 includes Sikhs Jains and Buddhists as Hindus. The Hindu Succession Act of 1956, for instance, applies to:… (c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any other custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. (Sen, 2006:26; footnote)

Such interpretation is based on the premise that they share a lot. But just like racial intermingling happens through sheer co-existence for ages, similarly intermingling of religion has to happen through sheer circumstances of co-existence for ages. This does not mean that there are no separate religions. It can only mean that there is no ‘pure religion’ uncorrupted by others just like there is no pure race.  Court judgments are prime example where quotations from more than one religion are used to buttress a single point or theme. Just because there are linkages between Hinduism, Sikhism, Buddhism it doesn’t mean that they are one and the same just like there is linkage between Judaism, Islam and Christianity doesn’t mean they are considered as one and the same religion. In fact Bronkhorst (2017) opines that Buddhism and Jainism cannot be traced to Brahmanism because of their different places of origin and different concerns.

Buddhism and Jainism arose in a region far from the centre of Vedic religion, and their main concerns were altogether different from those that underlay Vedic religion. Buddhism and Jainism arose in the eastern parts of the Ganges valley… rebirth and karmic retribution, … was clearly the central concern of these teachers and their followers, a concern that had nothing to do with the concerns that find expression in Vedic religion. (ibid:362).

Historically different religions were brought under Hinduism through a process which Mckim Mariott called ‘universalisation’ and ‘parochialisation’. The case of Jagannath is an example. A forward linkage is established between Vishnu and Jagannath by declaring Jagannath as an avatar of Vishnu. At the same time through a backward linkage the origin of Jagannath is traced to Jagannath being worshiped by the Saora tribal. This is how practically the tribals are brought under the Hindu fold interpretatively.  Similarly, a linkage is established between Hinduism and Buddhism by declaring Buddha as an avatar of Vishnu. Such interpretive coup is exclusion through inclusion.

One must indeed perform a very long jump to escape such all inclusive definition of Hinduism. That’s why opting for Buddhism, Sikhism, and Jainism won’t create the desired socio political effect because the converts purportedly are still in Hinduism. Right wing adherents go a step further, play the double meaning of Hinduism (place and religion) and include even Christians and Muslims under Hindu ¹.

Conversion does not obviate the question of definitional surgery of Hinduism.
Freedom of religion doesn’t obviate the need to question the dominant definition of Hinduism. So far, theoretically, the strategy has been to accept the dominant definition of Hinduism and leave Hinduism to escape caste. But questioning the definition of Hinduism itself has not been a strategy.
If Hinduism involves both the great and little traditions (following Milton Singer) then conversion from Hinduism might involve leaving the little traditions as well. The Lingayats have their own priest, the Jain of their own Muni, the tribals have their own priest. A vast section of people have lived without the need for brahmins.
It is better that people claim their own little traditions than leave them because of an overarching definition of Hinduism includeing them.
Both the great traditions and little traditions are included in Hinduism. But if we separate Brahmanism (great traditions) from other local traditions then there is no need for leaving Hinduism. For example, the tribals at present have to leave their own religion technically and legally to leave Hinduism because Sarna is not legally recognized as religion different from Hinduism.

The Hindu identity of tribes is an administrative creation of the Indian state …Notwithstanding the long-standing demand for a distinct religion code for tribes, the state continues treating them as Hindus. (Xaxa, 2017:25).

If brahmanism, Sarna and Lingayat are brought under Hinduism in the sense of ‘Indic religions’ then there is no need to leave Hinduism because in this case Hinduism becomes a classificatory word like ‘indic religions’ and not a specific religion.

Under a liberal framework Abolition of religion is not allowed but surgery is possible

The Indian constitution abolished untouchability through Article 17. However It did not abolish caste system though it is the cause of  untouchability. It protects vedic Hindu religion, of which caste system is an integral part through the right to freedom of religion. Though untouchability is the highest degree of stigma and exclusion that can be attached to a group of castes, there are various types and degrees of stigmas attached to various lower castes. In fact, except the top two varnas like Brahman and Ksatriya, rest all are stigmatized to various extents in the caste system. Even, there are categories of stigmatized Brahmin because they serve very low castes. Thus, from a human rights/dignity point of view, prohibiting only the extreme stigma like untouchability cannot be considered enough and it behooves of the law to prohibit the various levels of stigma as well. To achieve this, the whole caste system in toto needs to be abolished. However that will involve virtually a denial of freedom of religion because caste system derives its legitimacy from Vedas, the most sacred book of Brahmanism. A liberal constitution can not deny right to religion. For example, the courts have not declared the various personal laws based on different religions as unconstitutional violating right to equality.

  Abolishing Hinduism is like abolishing Christianity in Italy- a tall order. Hinduism is the background religion for the Indian constitution and legal system. Only cow is mentioned and no other animal (Article 48). Some Hindu temples are even entitled to get state fund (Article 290A).  ² The central government sanctioned 50 crore for the nabakalebar celebration of Jagannath³. These are direct violations of maintaining arms length distance of state from religion.

However, historical example exists of surgery of religion to make it compatible to a liberal space. Mustafa Kemal Ataturk did not abolish Islam in Turkey. But he performed enough surgeries to make it compatible with a secular public space.

On 1 November 1922, the Sultanate was abolished, on 29 October 1923 the Turkish Republic was proclaimed, and starting on 3 March 1924 a number of crucial laws leading to a series of institutional changes were passed: education was left to the monopoly of the state, the Caliphate was abolished and the religious schools (the medrese) were outlawed.(Fuat Keyman,2007:222)

In India, Pandit Nehru, unlike Kemal, didn’t translate his enormous charisma into changing the society. But suppose he wanted, then his charisma would have been put to test because many around him were strong believers in Hinduism and caste system. However, its not as if no example exists in India of definitional surgery. In the Ramakrishna Mission judgment (1986) The Calcutta High Court declared Ramakrishnaism as different from Hinduism and a religion in its own right. The argument by the RKM lawyers was that Ramakrishna founded a “universal” religion which was “meant not for the members of any particular caste, creed or religion but for the entire mankind.” (Smith (1993) cited in Sen, 2006 :19). The Court declared, ‘In order to be a follower of Sri Ramakrishna, non-Hindus are not required to embrace Hinduism and to undergo Suddhi or other form of purification. He could continue to profess and practice his own religion and at the same time be a follower of Sri Ramakrishna’s faith’ (Sen, 2006 :20). Actually, the Sarna religion and many belonging to the little traditions will be much more fitting cases than Ramakrishna Mission for claiming independence from Hinduism.

Escaping caste through conversion is more a sociological matter than theological

Conversion to satisfy religious and spiritual need and conversion to escape from caste, which is a socio political need, are two different things. The former demands a theological engagement while the latter a sociological one. Theological analysis will be mostly a textual analysis but sociological or historical analysis will not take the text at its face value. Theology won’t question whether Ram existed or not. That is the job of history. The implication of agni pariksa on women’s rights is not the job of theology but sociology. Thus, theology won’t have a problem of proving tribals as Hindu on the basis of some ancient or medieval texts. But sociology will consider it a problem of declaring the dalit/tribal as Hindu on the basis of certain texts which they themselves have not heard of. While constructing an all embracing view of Hinduism one is legitimizing texts which much of the mass might never have heard of. How many might have heard of the many smritis except manu smriti under the circumstance that dalits were traditionally prohibited to study them! Even manu smriti was given a boost during colonial period. ‘whatever its historical status, however, most scholars today agree that it (Manu Smriti) took on unprecedented status as an “applied” legal document only under early British rule’ (Dirks, 2001: 34). when Sir William Jones, who was a judge of the Supreme Court of Bengal appointed by the Crown, threw his weight behind Manu Smriti as the Institutes of Hindu Law (Rocher, 2010), Manu smriti acquired a status disproportionate to its actual stature in India in terms of people’s awareness and acceptance of it in contrast to customs. This can be considered as the starting point of marginalisation of low caste and tribal customs under an all encompassing definition of Hinduism.

Just like law on paper and law in action is differentiated, similarly religion as per the text and religion in practice should be differentiated. Why should my experience of Hinduism have less weight than Hinduism defined in some abstruse scriptures existing somewhere in Himalaya! Irrespective of any positive statements in the Shastras about low castes, the low castes have always experienced Hinduism the caste way. Therefore, even if caste is defined away as an aberration of Hinduism based on some shastras, low caste have not experienced it like that and this should have some weight in defining Hinduism.

Once we move from theology to sociology, agency is shifted from intellectual elites to people. People must have a voice in defining themselves. Therefore even if Durga puja is celebrated by all including the high castes, dalits and tribals, the dalit and tribals can not be stripped of their right to not to identify themselves as Hindu. No matter how similar I am to you I must retain the right to be me.

Liberalism cannot destroy caste but it can blunt its sharp edges through robust rule of law

Annihilation of caste borders on a ‘3G (third generation) positive right’ project. In a negative right the duty bearers are other individuals and the state. But in a positive right (socio economic right) the duty bearer has to be exclusively the state. Caste doesn’t exist at individual level but exists always at a corporate/group level and therefore whatever solution has to be proposed about caste, that has to be always at the level of corporate/group like group inter-caste marriage or group conversion. But in a liberal framework the individual becomes the focus but not the group and therefore a annihilation of caste is not possible within a liberal framework. It will restrict the limits to which state or group can interfere on the individual autonomy. If we assume individual agency (love marriage), then we should not forget group agency (arranged marriage). Sociologically the power of individual can not be greater than group.

Caste is a stratifier. Empirically no stratifier exists in a pure form. We won’t be able to find caste, class, gender or religion in a pure form in empirical situation. It’ll all be intermixed. Therefore if one escapes from one stratifier, one may end up in the lap of another stratifier. For example if a lower caste stays in Hinduism, he is oppressed along caste lines. But if he moves to Islam or Christian he might face oppression along religious lines. The Scheduled Castes loose the protection of Reservation and SC/ST (Prevention of Atrocities) Act 1989 when they convert to Islam or Christianity. Its like the case of a female who changes into a male by some technology to escape from oppression towards the female gender. But, next he is called for military conscription because he is a male. Abolishing a stratifier then becomes a case of ‘one leading to another’. There is not a discrimination free Shangri la.

To top it all, these stratifiers at the same time are also identities. A liberal framework allows identity like caste which is prized possession of individuals. Identities are mostly third generation rights like religion, caste, ethnicities etc which gives some control to the group over its members.

Since one cannot abolish all the actual and potential stratifier-cum-identities, which liberalism will never allow, the next alternative is to remove the sharp edges of stratifiers which hurt people. This is the way in. When Kerala government appoints priest on the basis of reservation, it’s a case of ‘way in’, not way out’. But liberalism do not put all its faith on only civic virtue to do this. Those who think that civic virtue alone will eat away caste consciousness should remember that the rich can be oblivious of money, the powerful can be oblivious of power and the privileged can be of privilege. Sociologically speaking one takes note of the deviation, not the norm. The apparent sign of an absence of caste consciousness can be deceiving. The lower castes will always be conscious of caste.  Civic virtue is welcome; but in case civic virtue doesn’t work there has to be rule of law.

This is what a comprehensive anti discrimination law, which takes care of direct as well as indirect discrimination, does. The smartest way of discrimination and exclusion in a liberal society is the indirect way and not the direct way. Exclusion is mixed up with individual autonomy to make it difficult to separate and prohibit (Doyle, 2007). This will be illustrated by the case of marriage. Caste system sustains through endogamy. However the state cannot prescribe who to marry and who not to marry though a girl’s acceptance or rejection of potential marriage partner may be based on caste consideration. Often it is brazenly mentioned in the marriage advertisements that SC/ST are simply not welcome as potential marriage partners. Under a liberal framework you are allowed to glorify yourself, but not at the expense of others. In a matrimonial advertisement you can write ‘brahmins only’, but you cannot write ‘everybody else except the SC/ST’ because that is denigrating to the SC/ST’. This is what is casteism- glorifying own caste by denigrating others. Any ‘ism’ is simultaneously ‘for’ and ‘against’ something. The net result of all this is that caste system and consequent stigma of lower castes continues through endogamy. This is how individual autonomy sustains social exclusion. Thus a bourgeois-liberal law, standing guard for individual autonomy, may be the significant hurdle for social inclusion. Exclusion is perpetrated in the name of individual choice and autonomy. Marginalized groups are excluded from civic intercourse. They are prevented in an indirect way from housing ownership, rental market, club, jobs in the private sector etc. The dilemma is, to what extent individual autonomy to be curtailed to promote social inclusion! While there is a vibrant legal discourse and laws redressing indirect discrimination in the west dating from 1971 (Griggs v. Duke Power Co., 401 U.S. 424 (1971);Tobler, 2008)⁴, there is yet to be frequent academic discussion about it in India! It is impossible that Indian elite will be unaware about the legal developments in the west.   But the lack of discussion of such remedy shows the elite apathy to provide suitable legal remedy for the marginalised.

Conclusion

Probably, over a long period, such a regime of anti discrimination law will turn the caste to a ‘difference’ from ‘identity’. Something can be obnoxious as an ‘identity’ but not as a ‘difference’. Privileges flow from identity but in ‘difference’ ‘difference’ ipso facto is the Privilege. We talk about caste, class, gender privileges but not privilege flowing from the latest fashion. When caste becomes a sort of ‘difference’, it becomes a sort of conspicuous consumption. When a Brahmin NRI deals with an American in a discrimination free public sphere both identities work more like difference rather than identity as no privilege flows from it. The combination of civic virtue and rule of law will ensure that the constitutional morality of Ambedkar saps the caste ideal while more robust laws saps its material and behavioral basis.

End Notes

Have you like this article?