California sued Cisco alleging that two employees who migrated from India discriminated against another employee on the basis of caste. While some members of the South Asian-American community claim caste should be a protected category in the United States others claim that doing adding it as a protected category stigmatizes all Hindus. Another way in which caste has become part of the national conversation is as way to understand the oppression of Black Americans. In this episode, we will explore the roots of caste prejudice and discrimination in India and discuss the robust protections exist in the Indian constitution and other law for Dalits. Should the same laws that prohibit caste-based discrimination in India also be adopted in the United States? Is caste an appropriate metaphor for the discrimination faced by Black Americans? These are among the questions Sital Kalantry, a professor at Seattle University School of Law, Aziz Rana, Cornell Law School professor, Anurag Bhaskar a professor at Jindal Global Law School will tackle in this episode. If you are interested in exploring this topic further, click here for some recommended readings.
California sued Cisco alleging that two employees who migrated from India discriminated against another employee on the basis of caste. While some members of the South Asian-American community claim caste should be a protected category in the United States others claim that doing adding it as a protected category stigmatizes all Hindus. Another way in which caste has become part of the national conversation is as way to understand the oppression of Black Americans. In this episode, we will explore the roots of caste prejudice and discrimination in India and discuss the robust protections exist in the Indian constitution and other law for Dalits. Should the same laws that prohibit caste-based discrimination in India also be adopted in the United States? Is caste an appropriate metaphor for the discrimination faced by Black Americans? These are among the questions Sital Kalantry, a professor at Seattle University School of Law, Aziz Rana, Cornell Law School professor, Anurag Bhaskar a professor at Jindal Global Law School will tackle in this episode. If you are interested in exploring this topic further, click here for some recommended readings.
Caste in the United States - Podcast episode
00:00 mins - Sital: Welcome to ‘A Law in Common,’ a podcast of the India Center for Law and Justice at Seattle University law school. My name is Sital Kalantry, I'm a law professor whose research focuses on comparative law particularly examining the intersections of law in India and the United States. Today, we will discuss caste discrimination from a comparative law perspective joining me are Anurag Bhaskar, a professor at Jindal Global Law School, and Aziz Rana, a professor at Cornell Law School.
00:35 mins - Aziz: Thanks so much for having me it's great to be part of this conversation.
00:40 mins - Anurag: Thank you for having me, I am glad to be here.
00:51 mins - Sital: The concept of caste is usually associated with India as well as some other South Asian countries. Caste discrimination has been increasingly, however, receiving attention in the United State media. Isabel Wilkerson’s new book describes caste as an artificial hierarchy that helps determine standing and respect. She believes that racism in the United States is an aspect of the caste system. While Wilkerson thinks of caste only as a metaphor to describe the experience of black Americans, some people who have emigrated from India and other South Asian countries may have actually brought with them, ugly caste-based prejudices and stereotypes, at least, that's what the California Department of Fair Housing and Employment thinks. They bought a lawsuit against Cisco arguing that two Indian-American supervisors discriminated against another employee on the basis of his caste. Cisco refused to investigate the complaints made by the employee that faced discrimination. This has raised a lot of issues within the South Asian American community. On the one hand, a non-profit Equality Labs lobbies universities and others to include caste as a protected category. On the other hand, another group the Hindu American Foundation argues that including caste specifically in American laws stigmatizes Hindu Americans. Today, I will unpack these and other issues from a comparative and constitutional Indian and American law perspective with our incredible guests Aziz and Anurag. So, to frame this, let me start with questions for you Anurag, so, in your work in India, you have advocated for the rights of Dalits in many ways, well, caste itself is a contested concept I'm wondering if you can briefly explain to us the meanings, origin & importance of caste in India.
03:10 mins - Anurag: See, Caste is a form of enclosed and enforced social grouping, in which the members of that group are presumed to have certain exclusive characteristics, and its not necessary that all castes have the same characteristics, each caste is presumed to have different traits, some considered higher and other considered lower, that's the basic definition of caste. We also need to understand that in order to maintain caste boundaries, endogamy has been practiced as a system to maintain the purity of the group, scholars including Ambedkar have written that endogamy and caste are interrelated. That's why we see instances of violence when a young couple tries to cross the boundaries of castes by marrying across castes, caste works as a social grouping system ensuring rigidity that members of the group should not cross the boundary. We must also understand that caste does not have any racial, scientific, or biological basis, it's a socially created hierarchical system, and it has nothing to do with racial identities. Caste has a basis in religion, specifically the Hindu religion, that’s where it started.
The Hindu society is divided into 4 major groups or varnas in the form of a pyramid with Brahmins (priestly class) at the top, followed by Kshatriyas (warrior class), Vaishyas (business class), and Shudras (lower class), and then we have the other community that does not come in this hierarchy and is not included in any of the classes i.e., untouchables and are considered to be outside caste hold and is discriminated against. Each varna is further divided and subdivided into several castes and has a certain hierarchy. We must understand that caste is not specific to India or Hinduism, as we see now, caste has a presence in other countries such as Nepal, Bangladesh, and Pakistan, or even in countries where the Indian diaspora has moved, we see instances of caste happening. I would refer again to one statement by Dr. Ambedkar, who wrote in 1916 that wherever Indians would go they would take caste along with them, and that’s why we see instances of caste coming in other countries such as the US. We also see other religions such as Islam and Christianity in India have somehow also adopted this system of caste. In Muslim society, we see different castes that we don’t have any idea about, certain studies are being done to see how caste traveled from Hinduism to other religions.
07:10 mins - Sital: My experience in traveling to India has been very eye-opening. As a young child, I've experienced it, even within my family, it is only the people from the dominant class that we would have for cooking whereas the person who is cleaning would be from the suppressed class, they were not supposed to be interacted with or touched. In my experience, it permeates all aspects of life in India. Can you describe a little bit more about what a person who is, historically, a person from an oppressed class might face in society? What is their economic situation, education situation, and what other aspects of life it might impact?
08:00 mins - Anurag: if you are born in a caste that considers itself superior or an oppressor, you would automatically have certain privileges, whereas if you were born in a lower class, then, your identity would automatically be stigmatized, you may face certain caste discrimination and so on and the kind of network you interact is also shaped by your own social location. So, if you come from a high caste like you were mentioning, only people from certain castes are surrounding you and the experiences that you have had are different. As I have said, the kinds of experiences are all different. If you understand historically, people from the lower class were subjected to a lot of inhuman practices. In some parts of India, a lower caste person would be supposed to walk with a broom to clean the dust behind him as he walks, I am just giving an example of the kind of or level of discrimination that was happening. In modern society, we see that caste discrimination has evolved in so many ways and I would say that it is a very modern form, a subtle form of discrimination. You could see that a person might even be killed for a small act such as keeping a mustache, riding a horse, etc. The subtle form of discrimination that we see in Indian society is that the members of the Dalit community would be categorized in localities that would be very inhuman to live in. We also see that the acts of discrimination are so inhuman, that members of the Dalit community are subjected to acts of not just simple violence but, acts that would violate human dignity to any extent, so sometimes a person would be garlanded with footwear or made to parade naked or human excreta would be dropped in front of their houses.
10:30 mins - Sital: Wow, it's just very sad to hear all of the horrific acts that still are being perpetuated onto people of oppressed castes. This occurs notwithstanding the fact that the Indian constitution which is over 70 years old, specifically was designed to eradicate caste inequality and empower people of oppressed castes. Give us a very broad overview of Indian laws relating to caste.
11:04 mins - Anurag: There are provisions that grant certain mandatory representation to these communities in education, government services, and the parliament. That's what we call the reservations or the quotas. So, the idea of having quotas was that marginalized communities such as the Dalits were not represented at all in the mainstream services or educational institutions or even the legislature itself. So it was thought that if written provisions are not included in the constitution, then, there would not be any representation from Dalits as the dominant castes were in power. That's why we have mandatory constitutional provisions, that lay obligations on the government to reserve seats in various educational institutions, government jobs, and in the parliament and state legislature for the members of the scheduled castes from the Dalit community and scheduled tribes from the indigenous or Adivasi community. One interesting fact that I wanted to share was that when this provision of quotas or reservations was being drafted in the Indian constitution, Dr. Ambedhkar was the Chairman of the drafting community, he himself came from a Dalit community. He made a reference to the United States legal discourse and he would refer to the US constitutional history of separate but equal policy that was there and he would say that the United States experience tells us that, since they do not have a written provision in the US Constitution for a mandatory reservation or affirmative action policy, you see that in the US, African Americans are time and again excluded from different sectors of the government or the polity. So, we have to learn from their experience around an affirmative action policy and ensure that the same does not happen in India. That’s why we have a written provision in our Indian constitution.
I would say that even though we have so many laws, there are different forms of discrimination and violence still continue in India, and the members of the Dalit communities and indigenous communities in India lag behind members of other classes of the community be it in economic, educational and even health sectors.
13:38 mins - Sital: One of the things I want to highlight is what Anurag just said and connect it to the topic of our next speaker Aziz. Dr. Ambedhkar, as Anurag noted is one of the founder members of the Indian Constitution, and his experiences in drafting the constitution of India were informed by his experience in the United States as a student at Colombia University where he observed the racism and inequality in the society of African Americans. Now, this global discussion of race comes full circle with Wilkerson’s book on caste which attempts to draw an analogy between the way caste has been historically perceived in India to the United States and the racial dynamics that exist between majority and minority communities here. So, Aziz, can you talk a little bit more about Wilkerson’s book and how she thinks caste is a useful framing for the United States?
15:05 mins - Aziz: She tried in a comparative framework to say that the best way to think of race in the United States is as a caste system. The book is mostly a comparison, comparison between India and the United States, but there is also a third case study which is on Nazi, Germany. But, primarily, it is on India and the US and she argues that we should think of race relations in the US as in many ways a product of the history of slavery and what the history of slavery imports to the US is a caste structure in which your status is essentially dependent on the racial characteristics consistent with which community found themselves as enslaved starting in the early 17th century, and there is a rigid hierarchy, the hierarchy is marked by the dominant caste of folks that are included in the category of white, there is a subordinate caste, people that are included in the category of black as sort of a legacy of a history of slavery, and then there is what she thinks of as a kind of in between or middle caste of other non-white communities whether Hispanic or Asian American or other. Now, her claim is that if we think of race relations in the US as a framework of caste, then racism is really a manifestation of how communities internalize this hierarchy. So, in other words, to internalize a set of beliefs, values, and perceptions about the appropriate place of these different groups in this rank ordering. And, that racism is just an expression of the over-arching American caste system. Even though these are just ideas, ultimately, they are passed down from generation to generation, not unlike the notions of religion, social customs, and history you might see in the Indian context. For Wilkerson, she would say, just like in the Indian context these are quite durable. That is they create durable structures that have real material effects independent of just the individual views that kind of racist prejudices an individual might have. So, this isn’t just a matter of personal prejudice, it’s how all of these different social values create a durable regime type that shapes economic opportunity, health, outcomes, and a variety of different life experiences that are coated effectively based on where you fall in this status hierarchy.
17:43 mins -Sital: So Wilkerson was clearly not the first to view race relations in the United States from the lens of the Indian caste system. Can you talk more about the historical ideas in the United States where caste was imported into the discussions here?
18:08 mins - Aziz: In the mid-twentieth century, actually talking about race through the framework of caste was probably the dominant American sociological position and it was most closely associated with Gunnar Myrdal’s text in American Dilemma. Gunnar Myrdal is a Swedish economist, sociologist, and politician associated with the Social Democratic party in Sweden. They received a huge amount of funding from the Carnegie Foundation to do an extended assessment of US race relations and there were a number of other scholars including significant black figures that were involved in developing the underlying empirical evidence, but, it is closely associated with Myrdal. The eventual book is called the American dilemma, it became the landmark in the study of American race relations. The argument that Myrdal made was that we should think of race as caste and that the issue in the US, the moral dilemma was that there was a fight effectively within the white society or the dominant caste where there was an over-arching egalitarian principle, what he called the high national presets. They are grounded in the decoration of independence, they are committed to the notions of equality, inclusion, and liberty for all. This is what he called the American creed. But, at the same time, there are what he described as the local values, just because they were local, there was not a high national preset, and that doesn’t necessarily mean that they are any less significantly attached to by folks. But, that these were archaic holdovers from a kind of global history of caste in which individuals held on to specific kinds of prejudices that defined groups within a rank ordering based on attributes that they did not have any control over, and they got replicated over time. And, he read the American project as a conflict between these multiple traditions. But, at the same time, he had ultimately an optimistic view of the American story because he believed that over time the general trend was the overcoming of the archaic caste framework and the fulfillment of the egalitarian dimension. So, it was an optimistic story that was closely associated with the post-war, curative racial reforms in the US. This argument faced a really intensive push back and this intensive pushback is intensely from the black scholars. So, black scholars like Oliver Croix who Wilkerson mentions in passing but largely dismisses in her book as well as the entire traditional black argument that said, you could not really understand race in this way because it effectively focused analytically too much on the individual perception and it ignored how race emerged in the US through a specific history of colonial capitalism. In other words, slavery was a product of a regime of labour management, an effort to coerce black labor as a way of essentially exploiting natural resources, expropriating land and building up wealth within a specific colonial society and that if you just focused on perceptions, values, beliefs, then, effectively you would miss the racism, the extent to which racism which is embedded within the political economy of the country. That argument became very essential to what I say is competing for a way of thinking about racism in the US through the framework of racial capitalism. This is something that Tris Princedele talks about, but that has its own history going back to Croix, but, also folks like Eric Williams, Sedrick Robinson, and others. This was a critique of the extent to which it seemed like that approach to caste disconnected issues of race from questions of class and economy. It was also a critique of the version of caste that American white liberals embraced in the mid-century, it was a version of caste that really wasn’t structural. So, in a way what Wilkerson is attempting to do is to claim the arguments from that mid-century, but, give them a structural component. Part of the reason why that version of caste ended up largely dissipating as a dominant way of thinking about race is that it didn’t seem, especially as the country moved toward de-segregation, it didn’t seem like an effective way of grappling with issues of institutional racism. If it is just about precepts, just about moral suasion, like, white Americans choosing their better natures, then why is it that it persists independent of folks actually holding onto extreme prejudicial values? And so, this created internal tensions, and then over time notions of institutional racism, especially within black political thinking and scholarship, ideas of racial capitalism, even if they did not become dominant, ended up displacing many of the conversations that existed around caste.
23:43 mins - Sital: That’s so interesting and a fascinating historical overview, drawing on your expertise and strengths of the debates amongst the different factions of the scholars and Wilkerson as well as contextualizing the US history and what is meaningful at the time and what kind of framework or metaphor or view advances the needs of the society and of a particular group at any given moment. So, I would love to hear your opinion, now that you have framed the debates as to whether you see, at this moment in time, whether there are any gains to be made using caste to describe oppression in the communities based in the US outside of the South Asian community.
24:40 mins - Aziz: Yes, I think there is a scholarly benefit from this and there is also a potential local benefit from this before we get into my view which is the profound weaknesses of the analogy. So, the scholarly benefit is that there is a way in which race relations in the US, especially in the context of anti-blackness and racism against black Americans is often told in the commentary in public debate as an exclusively or nearly exclusively as a domestic issue. And, one thing that I know Wilkerson is doing which is a valuable contribution and that the framework of caste does do is, it locates questions of race within global histories of subordination and it allows us to think in comparative terms about how the US is part of global histories rather than an exceptional nation that stands apart. I think that that’s a real benefit and critical that we think in the US about questions of race within these global dynamics. I also do think that there is a political benefit and it's what Anurag highlighted which is that there are both solidaristic and policy-making benefits that emerge from looking at the experiences of different types of sub-ordinated communities. You know, Ambedkar as Wilkerson notes was in conversation with folks like Debois, who was thinking about the American experience and was drawing both positive and negative examples from the US as a way of thinking about the question of caste in India. So, as a negative experience, we have heard about this, which is the problems of the Constitution and the failure of the constitution to adequately put forward the values of equality. But, as a positive experience, this is something that Ramesh highlights that he was really interested in during the reconstruction period. He was interested in the Civil Rights Act of 1856, and the Civil Rights Act of 1875 as ways in which Americans attempted to create legal frameworks, legislative frameworks grounded in civic inclusion in the context of really sustained and extreme forms of violence and subordination. And so, if we are thinking globally about the problems of subordination, being able to have solidaristic connections across different communities and to think conceptually about what has worked and not worked in different settings is of real value, and that to me, you know the strengths of making these kinds of connections.
27:16 mins - Sital: So, what about the weaknesses? You mentioned there are some conceptual weaknesses that I'd love to hear you highlight.
27:25 mins - Aziz - So, I mean, I think ultimately that both at a level of conceptual analysis, that this is a really flawed framework for thinking about race in the United States and then it also has pretty profound political weaknesses that are still tied to the problems of the mid-twentieth century American invocation of caste. So conceptually, the way that Wilkerson constructs her idea of caste with this notion of dominant, sub-ordinate and in-between is, there is a kind of flatness that really does not take a count on the instability and change of racial formation over the course of half a millennia effectively in the US. And, I think a lot of this has to do with the fact that her analysis, even though it talks about slavery precisely in a way because of the analogy to the Indian example, which is grounded as we heard in religion, custom, various kinds of the social ordinance and then was disrupted in various ways through the history of colonialism and re-constituted. That her example basically ignores the deep involvement of both political economy and colonialism. So, I personally tend to agree with the critiques of the caste approach from the mid-century. You can think about this through two kinds of examples that really don’t fit within her framework, but you really have to be able to make sense of them in order to be able to understand American race relations. So, the first is, some of the early anti-miscegenation laws in the US didn’t look like what you would expect based on her account. So, the very first anti-miscegenation laws, in other words, laws that deal with marriage between people of different races were, in places like Maryland, the context of large plantations & what they did is, you have 1660 anti-miscegenation laws, a historian named, John Fredrickson writes about this, the laws said that if you were a white woman and married an enslaved African worker, it didn’t ban the marriage, but said you would have the same legal status as the enslaved black worker and so would your children. That’s really different than what anti-miscegenation laws did, you know, later on, what we associate with them, that they are really about maintaining racial purity and they are organized in this idea, particularly of white female purity as a way of sustaining a white supremest society. Here, the issue is really about maintaining a coerced and dependent labor supply. The reason why that’s significant is it tells you that there is a transformation that takes place in the American context in the seventeenth century with the emergence of lifetime chattel slavery and bondage of black workers alone as something that then gets replicated through the framework that treats black people as not one part of society, but, a thoroughly subordinated and excluded part of the society. That is a process that is tied to the harnessing of both labor and economic wealth within the country and cannot be explained exclusively through a caste analysis. Another thing is indigenous peoples which really don't take centerstage or claim much of a role in thinking about what's going on in the US in her account. That there is not just this three-part rank ordering, there is this really striking and distinctive patchwork by which different communities that are subordinated find themselves experiencing distinct regimes of management and control. So, when you think about indigenous people, one of the things that’s noteworthy is the rules that the US Federal Government set up for whether or not individuals that are indigenous could claim membership in particular native American nations. This is called “blood quantum” and what’s striking about it is that you had to have a biologically determined tie to blood and you had to have a high percentage of genetic composition, you had to be one-fourth of a specific native American nation in order to be able to be part in many of these rules to claim membership or status within the Native American community.
Notice that it is fundamentally different than the framework for black people across much of the south in the period during Jim Crow where instead, you’d have one-drop rules, where if you were one-sixteenth African American, you were counted black and subjected to subjective forms of exclusion and discrimination. Well, why is that? That’s because, within the context of how communism and colonialism have joined together in the US, the treatment of these communities was fundamentally different. What are you trying to do with indigenous people? You are trying to claim indigenous land and that project of expropriation means rejecting the idea that native American nations are independent sovereign political communities occupying the same territorial land mass with a right to control that land and that context assimilation, making it harder to claim membership in a Native American nation actually facilitates the project of settlement and territorial conquest. African Americans or black people are coerced labor supply, a dependent labor supply whose function is to engage in the hard forms of work that maintain the economic, wealth, and development for this internal society under conditions in which you can maintain control over their work and in that circumstance, you want to make it very hard for black people to be able to be incorporated as civic equals because incorporation as civic equals undermines the ability to sustain the labor supply. Those interconnections tell us that something else is going on in the history of American racial formation that can’t necessarily be mapped onto a millennia story about kind of flat caste and it also tells us that these racial relations are unstable, they change over time and the context of political struggle and that they end up going through very distinct periods in which again, a flatness of caste can’t articulate why it is that racial formation is continuously being transformed and you see these different networks or patterns across these different communities.
34:30 mins - Sital: This is super insightful and I am wondering whether at this moment you think that there might be a better analogy in thinking about racial formation in the united states because clearly, the limitations of caste have ignored the economics of slavery, the capitalistic formations of slavery. But, is there a better analogy that you might link up all of the different aspects that you think are important?
35:02 mins - Aziz: I think so and part of it is because of the conceptual weaknesses of this approach which is basically unfortunately reviving the mid-twentieth century’s liberal framing of caste has a real political effect. So, somebody like Wilkerson absolutely will say against the mid-twentieth century folks that talked about caste that this is structural, that the ideas create these durable experiences, but nonetheless because her framework is still really constructed around values, beliefs, preferences that end up getting replicated to pass down generationally over time. When it comes to, well how do you address it? The policy suggestions are ultimately about winning hearts and minds within white society, within the dominant caste. And, then, the framework of the harm is also really distinctive. So, if you read the book, if you read her analysis, a lot of the framework of the harm has to do with the way in which caste undermined meritocracy. In other words, there is something wrong with the person who has capacities, gifts, and social standing that suggests that they should have access to professional prestige and power. You know, somebody that wants to be a president or a professor or a business CEO, because of how they are constructed within a caste framework, treated as if they are somebody belonging to a social lower class. And, to me, that is a deeply limited way of thinking about the actual harms that folks across different racial backgrounds experience in society which are really tied to the structural replications of the inequality and hierarchy in which you have, even through an ideal theory of meritocracy, there are a very small number of people that actually exercise power and prestige. That should not be the way that society is organized. So, I think she tends to focus on, ultimately on the changing opinion within white society, so, therefore, the thinking of racism is really a function of white people effectively not living up to better accounts of social valued meaning and is also is I think a limited way of thinking about both harm, but also the kind of free society that we might want. My own views are that there is a better way of thinking about it and this is connected to my own work, i.e., to understand racial formation in the US is closely tied to what I call, a settler empire, but there are many different scholars, some of which I have mentioned already, that have historically, more recently done work in this wing, so that the US was distinctive because it was a settler colonial experiment initially, by the British in North America that combined really rich internal accounts of equality, freedom for those that were associated as the insiders with external projects of subordination and exclusion and it was organized, principally around the extraction of land from indigenous peoples and the use of coerced labor for black workers and an expansive & very durable idea of the race ended up emerging as the justificatory framework around the colonial structure. Over time, you saw how it evolved, developed, and shifted, but, in many ways, we are still dealing with the legacies of this combination of colonialism and capitalism that continues to create durable structures that tie together political economy with ideas. And this means that racism in the US is not just about preferences and values. It's about the economic institutional frameworks and it can’t be solved just through projects of moral suasion or the dominant caste giving up their caste privilege, it can only be solved through pretty profound transformations to help the economy and how the economic organization is constructed. We can now switch gears, I know that Sital, you are the interviewer, our host. But, I have a few questions for you as well, perhaps bringing together the conversation we have been having so far, would that be ok?
39: 46 mins - Sital: Yes, absolutely.
39: 47 mins - Aziz: So, in your work, you have looked at the forms of discrimination in both Indian and American contexts thinking in comparative terms, and in particular, I am thinking about your work on gender bias when it comes to fetuses. So, the question of sex-selective abortions in India and also in the US. I think this could actually provide us with a really useful lens for thinking both about the utility of caste when applied in a context outside of south Asia, but also about the internal debates effectively within the South Asian American Community. So, maybe as a quick question, before getting into it, could you just say a little bit about what are the various views on the topic of caste discrimination in the US among the South Asian diaspora community?
40:40 mins - Sital: Ya, I find it very interesting and fascinating the diametrically opposite views within organizations based in the South Asian community in the US. So, one organization namely Quality Labs argues that caste discrimination is pervasive in the US among Indians, Nepalese, and other communities where it is historically based and argues that the US should enact laws to address it, lobbying university systems to make caste as a protected category as well as broader norms. And, another group, the Hindu American Association argues things that are quite the contrary saying that existing laws already protect anyone experiencing caste discrimination through the national origin, through race, and also the incidents of this kind of discrimination are low. So, they argue that highlighting caste in the US stigmatizes the Hindu-American community by suggesting that all of them participate in this kind of social hierarchy that is pervasive, discriminatory, backward, and heinous. And, those to me frame the larger debates occurring right now within the community.
42:11 mins - Aziz: Maybe we can talk a little bit about your book “Women’s Human rights in Migration.” which focused more specifically on prohibitions on sex-selective abortions that were being passed in the US on the basis of purported discrimination against female fetuses, especially in the South Asian American community. Could you talk a little bit about the argument from that book, also how claims about discrimination in South Asia in that context then transferred into claims of discrimination within the US and the utility of having those conversations migrate from a South Asian context to an American one?
43:00 mins - Sital: Thank you for raising it and thank you for talking about the book, I definitely approached this issue with my own prior biases in my own prior lens that I formed looking at how the US was passing laws to prohibit sex-selective abortions. Abortions, as many of you know have unfortunately been a trend over many decades in India as well as China which is the targeted termination of female fetuses in an effort to give birth to a son without the parents wanting to have too many children. And, in my work, I evaluated the claims being made here in the US by state legislative representatives who argued that people from India and China are coming here and they are bringing these sexist customs with them. They are sexist and India prohibits this kind of sex selection through their laws and US should adopt the same laws. So, that kind of unnuanced narrative played out, and in the book, I provided a framework to say that, Yes, when you have these global norms, where this concept of human rights and human right violations are migrating globally disconnected from their original context, and when they emerge in this different environment, I think it's problematic to view them as the same. We tend to do so, you know, I am a human rights scholar, and the principles of universalism suggest that when we think of caste discrimination or caste problems in India, we should think of it similarly in the US. But, what I have argued or created a way to approach this context of migration of norms & laws of sex selection is to take a comparative law approach and I think this would provide better insights on how we protect the human rights issues that float from one place to another. So, the rich comparative law framework that most scholars adopt looks not just at laws but also at the impact of the practice that the laws are trying to address, the causes of the practice, and the consequences of what we are trying to regulate. In addition to all these other contexts and to comparing the two contexts to justify why a law in one siding might be appropriate or not appropriate.
45:58 mins - Aziz: Then, how would you react to the introduction of laws in the US to prohibit caste discrimination? In fact, there has been a recent article in Time Magazine, that argued that India has laws to prevent caste discrimination and the US really should do the same. What do you think?
46: 19 mins - Sital: You know, I think it is absolutely true that Anurag gave us the overview of rich constitutional protections for Dalits and other oppressed castes and cultures. You know, yes, it is in India, there are even quotas for oppressed castes, they get reservations, they get to be at government positions and educational institutions, and they get to rectify historical inequality. Of course, I do not think that we can wholesale adopt those laws, it is not really meaningful, quite simply because India has chosen to regulate something or sanction something. Its practice doesn't automatically mean we should do the same. It requires a much deeper analysis of the reasons why those laws and norms exist in that country and what the law was meant to prevent or promote. Caste has deep historical roots that prevail in all aspects of society in India as we talked about. And, caste discrimination as we see it on the other hand, in the US, it is not present in the mainstream population, right? People don't necessarily categorize the Indian community here on the basis of their name or the place they come from in India, they do not map discrimination that way in mainstream society. And, to that extent, it occurs it is perpetuated by one member of the Indian or South Asian community on another member, right, which isn't to say it's not problematic, it is important to understand the distinctions as we turn to regulating and creating norms. Another point I think should be considered or the nuance that may be lost is that even within the South Asian community, there is much more depth than we think, right, there is first generation and second generations. So, the people who as foreign-born who packed their bags and came to the US, as Ambedkar said might carry their prejudices with them, but, in the second generation, typically those prejudices are lost or forgotten. I am the second generation anyway, I don’t map people in India on the basis of where they live or who they are, or what they are. In my view, these nuances have to be considered in the debate which hadn’t been considered among these two accounts of caste and caste discrimination that I have talked about here in the US.
49:22 mins - Aziz: And so, in thinking about this question, whether there should be a specific prohibition on caste discrimination, do you even see any harms or drawbacks of adopting it in campus codes, employment, and other laws? How should we approach, it if it actually does get instantiated in the law?
49:41 mins - Sital: Right, some things as you know, you are the constitutional law scholar, laws can address some forms of discrimination, and laws can’t address other forms. So, one of the claims that are made by the Dalit Cisco employee is that when the dominant class employee finds out that I am from India and in this particular location and this particular caste, then I am not invited to social occasions or I am not invited to bring food and so I feel I am facing discrimination which is super problematic and wrong and absolutely appalling. And, US laws don’t force people to interact with each other if they don't want to. I don’t have to necessarily let anyone to the step of my door that I don’t want to interact with on a personal level. But, when it comes to employment or job progress or something that the government does, well, then that becomes something that laws can regulate and in fact, there are many scholars, and articles in law reviews that argue that in the employment context, Title VII probably already protects people from caste discrimination because it can be seen as a version of national origin or race discrimination. So, it may well not necessarily be needed to add a new category and may be doing so, highlights the problematic aspects of South Asian or Indian culture. But, on the other hand, I feel that such discrimination shouldn’t be tolerated and I don’t necessarily have a problem with additional prohibitions even if the incidents of caste discrimination are low, even if the consequences and the problems in society that people face if they are from oppressed castes traditionally from India, they don’t really face the same consequences in the US. Regulation may not be necessary, but, in my view, I think, it may not usually be hugely problematic to add it. But, I think we should study it and have a deeper nuanced discussion about it rather than simply taking these polar opposite positions.
This has been a terrific conversation, I really enjoyed speaking to and learning from my guests, Prof. Bhasker and Prof. Rana. Thank you to both of you for being here and taking the time.
52:40 mins- Aziz: Great to be here
52:40 mins- Anurag: Thank you
52:42 mins - Sital: To conclude, I want to highlight some of the important themes we discussed today, we learned from prof. Bhasker how caste continues to be a way to structure society in many parts of India. Those from the oppressed castes face violence and discrimination in their daily lives despite the fact that there are robust legal prohibitions built into the constitution and other laws. As people migrate from India and other countries where notions of caste are prevalent, some of them, no doubt bring their prejudice with them to the US. Some scholars argue that the same laws that protect oppressed castes and groups in India should also be imported to the US. In my other work on legal transplantation of laws particularly on the prohibitions over sex-selective abortions that have migrated from India to the US. I have argued that we need to examine the harmful practice that the laws are aiming to address in the context where it arises. In order to determine if legal regulation is necessary for the US. Notions of caste have been propelled into the national conversation in another way by Isabel Wilkerson’s book. Prof. Rana however argues that the use of caste to describe race relations has a number of limitations, including the fact that it fails to account for the capitalist origins of racial formation & racism in the US. A caste lens also has limitations on the solutions that can be proposed for racial inequality. There has been and continues to be a global dialogue of race and caste between the US and India. Authors have examined caste in India to inform their understanding of race in the US as we discussed today. On the other hand, one of the principal drafters of the Indian Constitution, Dr. Ambedhkar keenly observed race discrimination in the US and it impacted how he structured the Indian Constitution.
This podcast is an effort to continue this global dialogue between India and the Us. If you enjoy this episode, feel free to listen to our other episodes on comparative surrogacy, bankruptcy, religion, and much more. Thank you so much