California Dreamin’ on Caste
The legislative proposal, Senate Bill no. 403, has been approved overwhelmingly by the California Senate and awaits the assent of the State Assembly. It would amend several existing laws on discrimination in California to add the protected characteristic of caste. SB 403 illustrates the travel of the identity politics of caste to the United States from India, where it has a much longer pedigree. Vamsee Juluri recently argued that this pedigree is represented in the United States among those who claim a “progressive” South Asian identity. Together with their academic supporters, these “South Asians” also oppose a Hindu identity politics, espousers of which tend to object to SB 403. The reach of American imperialism, of which the term South Asia is also a geopolitical emanation, could provide a fillip to the way caste politics develop in the future.
SB 403 ranges across several areas to which discrimination laws apply, including: public actions by the State of California; employment; how businesses treat customers; and education. The Bill defends a very peculiar proposition, which none of its critics have yet identified. It sets up an idea of a fictional social structure, the caste system, and makes discrimination based on that structure unlawful. Furthermore, it applies when discrimination is based on a perception that a person belongs to that social structure. This comment picks out the fictional aspect of the putative social structure — the caste system — and discrimination consequent to the perception that a person belongs to it, as two dimensions that make the Bill produce results that its proponents have not anticipated, and which ought to lead them to resile from their project. In short, I argue that the caste system is a fictional social structure and its attribution to a group of people based on the perception that group members discriminate on caste grounds can be used to target the very proponents of the legislation.
Caste in the California Assembly
SB 403’s wording expresses certainty about the existence of the caste system and consequent discrimination. For example, it asserts:
Caste discrimination at work and school continues to exist in California.
Caste discrimination manifests as workplace discrimination, housing discrimination, gender-based violence, and other physical and psychological forms of violence.
Caste discrimination occurs across industries, including technology, construction, restaurant, and domestic work. In these sectors, caste discrimination has included harassment, bias, wage theft, and even human trafficking.
It is not required that the Bill refer to evidence or research for these claims although, if it had to be given, it would not be possible to provide because it does not exist. Instead, legislators and their instigators have relied on rhetoric about caste oppression. This mirrors other recent precedents in the spread of legislation on caste discrimination. The British and Seattle laws were similarly accompanied by wild claims of oppression and discrimination but were short on evidence of its tangible impact.
Take, for example, the claims of violence in SB 403. While data regarding caste-differentiated violence in California or the United States are lacking, data in India do exist, showing the extent to which different crimes occur against differently grouped people. That data has often been cited as though it justifies claims of disproportional subjection to violence by people from Scheduled Castes and Scheduled Tribes. In India, SCs and STs are legislated classes containing lists of different social groups added on over time, mostly going back to the British colonial period. The criteria for inclusion on those lists are arbitrary. While those groups included in these categories are generally assumed to be “low caste,” the criteria for their inclusion do not justify claims to their position in any alleged caste system. As Jakob de Roover argues, India’s Constituent Assembly had simply accepted the colonial division of the Indian population into ‘Caste Hindus’ and ‘Depressed Classes,’ even though the colonial administration had failed to find empirical tests that allowed it to identify the ‘Depressed Classes’ as a distinct set of castes. So, when the class of STs is indiscriminately taken to refer to Dalits (a proxy term for oppressed castes), those using it to position the groups included in it within a caste hierarchy make unjustifiable leaps. Inclusion on these lists, or lists of the newer category of Other Backward Classes, are today precipitated by electoral considerations or violent demonstrations, again suggesting that criteria other than position in a caste hierarchy are at play.
Nevertheless, claims of widespread violence against SCs and STs abound, and the official Indian data are often cited as backing them up. Research by Nihar Sashittal shows how these claims are based on a form of concept creep whereby the terminology of “caste atrocities” is used to net in a wide variety of serious and non-serious crimes, but then portrayed as though the groups in question are disproportionately subjected to serious crimes, as the term “atrocities” suggests. Sashittal goes on to show that when serious crimes are isolated, the official Indian data demonstrates that SCs and STs suffer from a proportionately lower rate of such crimes. In other words, it turns out that those assumed to be victims of the caste system’s violence are actually not, suggesting again that the caste system is theorized on faulty grounds.
Applying these results to California makes the claims of Bill 403’s supporters even more bizarre. They do not have figures for caste-based violence in California or the United States. The only data they might have would be the data from India. The Indian data do not justify the claims often made of the prevalence of violence against “low caste” people. Recall that the Indian data show the SCs and STs being subject to proportionately lower violence. If the Bill’s proponents are correct, we would have to believe that the post-emigration scenario is such that “upper caste” people have become far more violent against “low caste” people after coming to the United States, such that they have reversed the picture found in India!
Taking the Indian data is one thing, yet if we examine the wording of the Bill, it identifies the potential geographical reach of caste widely:
Caste discrimination is present across South Asia and the South Asian diaspora, as well as around the world. While caste systems are strongly associated with South Asia, similar systems exist in regions including, but not limited to, South America, Asia, and Africa. Caste discrimination is also found across communities of religious practice.
Since the Bill’s wording claims that caste systems are a worldwide phenomenon, and thus go beyond South Asia and its diaspora, we have to believe that the caste-based violence now claimed to exist in California, has been brought there from all over the world. This raises further questions about the basis of the Bill’s caste violence claims. As noted, such data are available only from India, and do not justify claims of caste-based violence, but are yet used to make large claims about the nature of caste violence.
The picture of violence summarized above falsifies some claims about the caste system, insofar as the data relate to India and Indian immigrants to the United States. However, it is not only the Bill which expresses a belief that the social structure — the caste system — exists.
Definitions and Understandings of Caste in the California Bill
That the caste system exists is a common belief that thoroughly informs the study of India. Nearly all those who research, teach, and inform policy on India and Indians abroad are confident that such a social structure exists. Where they disagree is about the strength or significance of its various attributes. This is often construed as a definitional problem. In the leading British case on caste discrimination, the Employment Appeal Tribunal cited British academic Annapurna Waughray as saying: “There is no agreed sociological or legal definition of caste, but a number of salient features can be identified.” The precursor to the California initiative was in the city of Seattle, which has made caste discrimination unlawful in certain contexts. Seattle’s Ordinance defines caste as “a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion,” which is just slightly different to Bill 403’s definition.
What salient features have California legislators identified? On behalf of the legislature and the people of California, the Bill provides the following definition:
Caste refers to an individual’s perceived position in a system of social stratification on the basis of inherited status. A system of social stratification on the basis of inherited status may be characterized by factors that may include, but are not limited to, inability or restricted ability to alter inherited status; socially enforced restrictions on marriage, private and public segregation, and discrimination; and social exclusion on the basis of perceived status.
Like all attempts to conceptualize the caste system, it is subject to problems and potential ridicule. The Oxford Languages dictionary defines stratification as “the arrangement or classification of something into different groups.” Bill 403’s current definition on the basis of stratification could therefore apply to any group arranged or classified based on its inherited status within society. Such a group can be characterized by any combination of all the other stated characteristics but is not limited to them.
Therefore, given that all these other criteria are optional, merely being arranged or classified by inherited status should by itself enable one to fall into a caste system. One may or may not have the ability to alter the inherited status. There may or may not be socially enforced restrictions on marriages, private and public segregation, and discrimination. There may or may not be social exclusion based on perceived status. We can also notice the inherent ambiguity of notions such as “inherited status,” “socially enforced,” and “social exclusion.” “Social stratification” is also ambiguous; Bill 403 eschews the more common wording of ‘hierarchy.’ According to Bill 403, the only necessary and sufficient criterion is inherited status together with some arrangement or classification to satisfy the stratification criterion, although it is not clear who has to make this arrangement or classification.
Given its breadth, it is no wonder, as we saw above, that the Bill claims caste systems as existing in many parts of the world and across communities of religious practice. In fact, it is hard to think of a society where stratification by inherited status does not occur, and thus, the entire world must have caste discrimination! If the entire world shares the attribute, isn’t the mention of South Asia redundant? Why mention a specific geographical region when all the world, or much of it, discriminates on grounds of caste? Is the strong association with South Asia a happenstance, mistake, or prejudice on the part of those who have made that association?
The Caste System as an Entity in the Western Experience of India
As a recent survey by the Coalition of Hindus of North America (CoHNA) demonstrates, in popular American consciousness, caste is actually associated with India and Hinduism, and this view is informed at least partly by what American school textbooks say about India and Hinduism. Despite SB 403’s wide putative reach, it is difficult to think of a caste system, and laws related to it, which is not linked to Brahmins, Hinduism, or to India. A further clue lies in what presents itself as a definitional problem, but which is really a theoretical problem. The study of India today presupposes an idea of the caste system but fails to flesh it out consistently. Why does this problem occur repeatedly? Whence the certainty that there is a caste system but wide disagreement beyond a minimal criterion about what it is? After all, two centuries of research would surely have been able to produce a generally accepted theory of the caste system. Why has it failed?
The reason is that the conception of the caste system as a theoretical idea has gone into the background and is no longer amenable to reflection. It was produced by Protestant missionaries who, like their Muslim and Catholic predecessors, presumed that India also had religion and found the Indian religion to be a false religion, steeped in idolatry, its priests to be devious actors who deceived the Indian people. Anglo-Protestant missionaries added that these priests propagated laws as though they were divinely revealed and brought with them in a project to subjugate a racially different indigenous population, out of which the caste system grew. The oppression that proponents of the caste system argue exists today was not meant to be physical or economic; it was a form of subordination that denied religious freedom to its subjects. Like other components of the caste system story, it is Christian and theological through and through. Claims about the caste system require assent to Christian theological claims, even if the visibly theological elements were dropped as the caste system story became secularized.
The theorizing of the caste system provides an instance of what Jakob de Roover has explained as the tropes of a theological tradition of reasoning becoming secularized as the topoi or commonplace ideas about India in the Western culture. Today, social scientists do not talk of Brahmins as the priests of a false religion, but many do claim that they are priests who sit at the top of a caste hierarchy. Although some of today’s missionaries do come close to doing so, we do not root the oppression of the caste system in the denial of Christian or religious freedom. However, claims about caste oppression remain quite common. In these ways, some elements of the religious account of the caste system story remain in the secular versions we have today, as does the very ‘fact’ of the caste system. It is only by going back to the earliest accounts of that story that we can see the dependence of contemporary accounts on those produced by the missionaries. We can also explain the looseness of the criteria of the caste system by attributing them to the occlusion of the original Anglo-Protestant story about India through its secularization. Hence, we can see why people seem certain that there is a caste system but disagree about which criteria make up that system. As SB 403 makes obvious, this disagreement extends to the question of which cultures possess a caste system.
The claim pursued here is a strong one. In agreement with S.N. Balagangadhara, it is that the caste system does not exist except in the western experience of India. Of course, there are those who dispute the claim that the caste system is a “colonial construction.” The colonial construction claim is admittedly ambiguous because it is not clear what that ‘colonial construction’ entails and whether it has led to the coming into being of the caste system. Balagangadhara’s formulation that the caste system is an entity in the western experience of India is better. However, it does appear to be the case that the colonial domination of India by the British played a role in spreading the European idea of the caste system. Various mechanisms rooted in the specific way British colonialism functioned in India became instrumental in this spread. These include conveying the caste system story in the education system, the censuses, the legal system, and in the reform movements and mass politics which emerged during the colonial period. It is thus perfectly consistent that Indians today hold to the caste system story even though the story refers to a fictitious entity based on the western experience of India, not on their own experience. Some, like SB 403’s proponents, insist that the caste system is now like a pandemic with the potential to infect the United States, as they attempt to popularize all sorts of horror stories to make the charge stick.
The Relevance of Perceived Status in Caste Discrimination Claims
Therefore, on the one hand, HB 403 incorporates a fictional social structure as though it exists. On the other hand, rather like the mythical image of the snake that devours itself, it is those who are promoting the caste system story, such as that which the Bill exemplifies, who are likely to be damaged by it. This point sounds — and is — very different to everything that those opposing the Bill have been arguing and needs a bit of unpacking.
One of the opponents’ claims is that the law would single out South Asians for lawsuits and is therefore likely to be unlawful. While that might be the case, the singling out becomes more interesting if it is considered that any case of caste discrimination could proceed only on the basis of perceived status, not on the basis of any grounding in social reality. This means it is those who buy into the caste system story who would be guilty of discrimination because they impute a status connected with the caste system based on their perception of it.
Consider the policies against caste discrimination which universities across the United States, including those which come under the umbrella of the California State University, have been adopting. They will lay their staff open to the charges of caste discrimination especially if they happen to be of a Hindu background and, in so doing, disadvantage those who are subject to the policies on the grounds of their perceived status. Research conducted by the Hindu American Foundation found that “The teaching of caste in classrooms may … be a potentially powerful cause of faith-based bullying for Hindu children.” Thus, bullying of Hindu children plausibly results from perceptions spread about them by the curriculum’s coverage of caste.
The claims made by the California’s Civil Rights Department (CRD) in the now well-publicized case against Cisco were based on the attribution of discrimination to two of Cisco’s former managers on the basis of their perceived caste status, thereby holding them in a legal limbo for a three-year period before the CRD dropped the claim against them. The perception of discrimination consequent to the caste status of the managers, which was also broadcast by the media, incidentally, went against all the evidence in CRD’s possession. A brief submitted to the court by a group of academics and NGOs supporting the CRD’s claims had pronounced the managers liable also based solely on their perceived status in the caste system.
Unlike what SB 403’s backers may think, their account of the caste system extends to their own perceptions of others’ caste status and how they treat them as a result. In other words, their Bill asks them to first heal themselves by rethinking their own perceptions or else face lawsuits. The evidence is there for the type of discrimination they engage in but not against those they accuse.
The whole drama of enacting legislation on caste in different jurisdictions including Mauritius, the United Kingdom, and Seattle (and currently being mooted for Australia) is based on a fictitious conception of the caste system. No matter how entrenched it might be in common sense assumptions about India, it is founded on a falsifiable perception unrelated to the reality of Hindus or Indians. That perception creates its own dynamic of disadvantage and discrimination which attracts liability. That SB 403 bases its understanding of discrimination on perception makes those propagating the caste system story the most vulnerable to it. Perhaps it is only by confronting them with the consequences of their actions, as one version of the theory of karmic fallout would have it, that they may wake from their dream state.♦
Prakash Shah is a Reader in Culture and Law at the School of Law, Queen Mary, University of London. He recently edited a special issue of the Onati Socio-Legal Series on Rethinking the Caste System.
Shah, Prakash. “California Dreamin’ on Caste.” Canopy Forum, June 15, 2023. https://canopyforum.org/2023/06/15/california-dreamin-on-caste/.