Compiled by the Asian Human Rights Commission

[Ed. Note: In preparations for the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance that will be held from Aug. 31 to Sept. 7 this year in Durban, South Africa, a debate has emerged over whether the issue of caste that affects more than 200 million people in South Asia will be on the agenda for discussion. The Asian Human Rights Commission (AHRC) and other non-governmental organisations (NGOs) around the world contend that caste, indeed, is a discriminatory practice that must be addressed while the Indian government maintains the opposite point of view and has been applying pressure at U.N. preparatory events to exclude it from the conference. This article outlines this debate by presenting an op-ed feature by the attorney general of India, Soli Sorabjee, that was published in an Indian newspaper and an exchange of letters between Sorabjee, Smita Narula of Human Rights Watch and Basil Fernando of AHRC.]

Racism, Name-Changing and Toilets

Soli J. Sorabjee, attorney general of India

Times of India

March 4, 2001

The regional preparatory meeting in Teheran for the forthcoming World Conference against Racism in Durban in September witnessed interesting developments. It was acknowledged that no country is immune from the virus of racism whose roots lie in the hearts and minds of people. What is required is mental cleansing to remove prejudices against certain communities and races; and in this, education has a vital role to play.

In addition to the International Convention on the Elimination of Racial Discrimination (ICERD) which India has ratified, there is an urgent need for an international convention for punishment of the practice of racism and for compensation to its victims. There were misconceived attempts by some NGOs to equate racism with caste-based discrimination that is based on birth and occupation and has nothing to do with the race of a person.

Our Constitution recognises the distinction between race and caste which are separately mentioned as prohibited grounds of discrimination. Speeches disseminating hate through the Internet can spread racism and must be effectively suppressed. However, in our anxiety to do so, we must be careful not to proscribe rational criticism merely because it is hurtful to someone’s feelings. Otherwise, free and frank debate will become impossible, and freedom of expression will be the prime casualty.

In Iran, ladies are required to cover their heads with a scarf in public. Some women delegates inadvertently omitted to observe this injunction during the conference. The result was an angry public demonstration and a demand for the resignation of the minister who organised the conference! Politicking apparently is universal. My first visit to Iran was not without a tinge of nostalgia for the past buried in antiquity, especially when the ruins of Persepolis reminded me of the Zoroastrian emperors Cynus and Darius and the glorious Zoroastrian civilisation. Incidentally, a return air ticket from Teheran to Shiraz, a distance of 900 kilometres, costs just US.

People attach great importance to their names and their correct spelling and pronunciation. The right to a given name is recognised as a human right by Article 18 of the American Convention on Human Rights 1969 (ACHR).

The directive to Indian call centre workers to change over to English names on the grounds that names like Ravindran or Subramaniam cause difficulties for British customers has raised a furore. A spokesman for UNIFI, one of Britain’s largest white-collar unions, termed this name-changing "an insult to the intelligence of the work force and the callers and totally ridiculous."

The Commission for Racial Equality is examining this matter following concerns that the name game has racial implications. However, there can be no objection to a person voluntarily changing a name to avoid embarrassment. This happened when a Parsi gentleman whose surname was Screwalla promptly altered it to Spencer because he could not face the daily barrage of quips and questions from his colleagues: "Had a good screw? Good luck, screw" and the various pungent variations on the theme.

High-sounding tests, like adherence to the rule of law, a free press, an independent judiciary, etc., have been formulated for determining the level of civilisation of a country. A pragmatic test would be the state of toilets in public buildings which generally have an unbearable stench in our country. It is heartening that the Archaeological Survey of India has signed an agreement with a non-governmental organisation, Sulabh International, at Safdarjung’s Tomb in Delhi to provide sanitation facilities at 34 World Heritage sites in India. Shabana Azmi, a Rajya Sabha MP who inaugurated the first of these toilets at the Safdarjung Tomb, was so impressed by the toilet there that she requested that all of those present see it before leaving.

Toilets have a fascination for some people. A Hong Kong Chinese man, Lam Sai-wing, who runs a jewellery store, has a unique toilet in his shop. It has two 24-carat gold commodes and toilet bowls, wash basins, toilet brushes, toilet paper holders, mirror frames, wall-mounted chandeliers, wall tiles and doors that are all made of solid gold. People have to spend at least HK,000 [US8] on jewellery for the privilege of using the toilet.

The irony is that Lam’s inspiration for the toilet sprang from his interpretation of Lenin’s purported statement that he wanted to make gold toilets for the public after the triumph of socialist ideology. None of this capitalist obscene toilet opulence for socialist India though. We will rest content with clean-functioning toilets. Is this a utopian fancy?

Caste Away

Smita Narula, New Delhi

Times of India, Letters to the Editor

March 9, 2001

In "Racism, Name-Changing and Toilets" (March 4), Attorney General Soli Sorabjee joined the ranks of Indian government officials to argue that caste is not race, that the inclusion of caste-based discrimination in the U.N.-sponsored World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR) would "dilute" the conference theme and that caste-based abuses are an internal, not international, concern. The conference is to take place in South Africa in September.

Mr. Sorabjee’s arguments effectively undermine India’s commitment to the universality of human rights as expressed through its ratification of numerous international conventions. They are more reminiscent of the "not-in-my-backyard" defensiveness of governments around the world. The arguments also ignore the pronouncements of numerous U.N. treaty bodies that caste-based discrimination is discrimination on the basis of descent under Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination. Caste-based abuse is rampant in numerous Asian countries, including Nepal, Sri Lanka, Bangladesh, Pakistan and Japan. Its inclusion in the WCAR is therefore not a dilution, but an affirmation, of the voices of hundreds of millions of victims who continue to suffer from segregation, modern-day slavery and extreme forms of exploitation and violence.

At preparatory meetings for the WCAR, the issue of caste has been undermined, sidelined and ignored by Indian delegates and state-sponsored NGOs purporting to represent the world’s largest democracy. The government has consulted neither Parliament nor the National Human Rights Commission nor the National Commission for Scheduled Castes and Scheduled Tribes while promulgating and promoting its position. Mr. Sorabjee is an expert member of the U.N. Subcommission on Human Rights, which recently passed a resolution on work and descent-based discrimination. As India’s attorney general, he should encourage the government to support efforts to implement a resolution he helped create. While countries may ignore the pronouncements of U.N. treaty bodies, they cannot ignore their own constitutions or the voices of their citizens. The spirit of this conference and of India’s own constitutional commitment to freedom of expression, equality and the abolishment of untouchability demands no less.

The Dirtiest Engagement of Indian Diplomacy: Operation Toilet

Basil Fernando, AHRC

A letter in reply to Soli J. Sorabjee, attorney general of India

The regional preparatory meeting in Teheran, Iran, for the forthcoming World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa, in September witnessed a repetition of the Indian government’s position against the inclusion of caste on the agenda of this conference. India’s attorney general, Soli Sorabjee, in a Times of India article entitled "Racism, Name-Changing and Toilets" has revealed the reason for this stance, which may have turned Mahatma Gandhi in his grave. In his article, the attorney general says, "None of this capitalist obscene toilet opulence for socialist India though. We will rest content with clean-functioning toilets. Is this a utopian fancy?"

A video production entitled Less than Human has depicted the way Brahminism has condemned vast sections of Untouchables to just collecting shit. One of the scenes shows an Untouchable being forcibly submerged in a shit pit. The attorney general is basically saying, "That is how it’s going to be in the future also." To prevent the Untouchables from walking out of their toilets is what the Brahmins and their spokespersons are struggling for at this conference and in other forums. A world where caste will be annihilated is seen by them as a Utopia for these discriminated masses and as a smelly place for themselves.

The Indian caste system has been the means by which vast sections of the Indian population have been submerged into a condition of servitude to satisfy the interests of a small minority who have claimed their privileges on the basis of a special birthright through the mouth of their god. However, the real issue has not been from where they were born but who could possess land in India. So long as the Untouchable was confined to the toilets, they were also confined to the Indian ghetto. Thus, land, and everything that goes with it, were in the easy possession of a minority.

A few days after the publication of the attorney general’s letter on toilets the Washington Post revealed that a four-day meeting intended to bring some coherence to the agenda of an international conference on racism in August ended on March 9 in Geneva without success. One of the few vociferous countries at the meeting was India whose sole interest was to prevent caste from being discussed at the world conference. Battalions of Indian diplomats are now being put to this task. The reason for such a massive operation is not difficult to understand. Many of India’s claims are under threat of being exposed: that it is the world’s largest democracy, that it has a great civilisation, that it even has a right to a permanent seat on the United Nations Security Council. Thus, the fact that it has practised one of the crudest forms of discrimination for millennia can make all of these claims sound hollow.

Like the attorney general, everyone has only one argument: caste and race are different. These good gentlemen are only opposed to name-changing. What they seem to forget is that, whatever the name, the game is the same: a type of discrimination that is similar to, or worse, than apartheid. The attorney general even tries to cite the Indian Constitution in his favour. In this endeavour, he gets into serious difficulties though with anyone who knows this Constitution and its history, for the drafters of the Indian Constitution exhibited some degree of idealism. The Constitution recognised caste as a curse of India and deliberately tried to address the issue. Running through the Constitution is the theme of equality and ways to address the problem. The fact that these founders who represented divergent opinions agreed to have B. R. Ambedkar, an Untouchable and the undisputed leader of this marginalised sector of society, be the chief draftsman of the Constitution showed a remarkable degree of appreciation of the caste issue in the Indian nation.

Such leaders as Swami Vivekananda and Mahatma Gandhi, two great influences in the Indian independence movement, reflected this idealism. Swami Vivekananda wrote, "Unless they [Untouchables] are raised, this motherland of ours will never awake." His remarks on caste discrimination remain a bitter critique of the Indian hypocrisy on this issue. Mahatma Gandhi, who liked to be seen as the champion of the Untouchables, condemned caste discrimination as a form of leprosy. Though their visions for the eradication of caste may have been limited, their acknowledgement of caste as the great Indian contradiction cannot be denied.

This Indian idealism is now dead. The fundamentalist Hindutwa movement represents the contemporary equivalent of the ideology of Godse, Mahatma Gandhi’s assassin. This ideology is no different to the ideologies of white supremacy movements. It is an ideology of complete racism. What this ideology represents is not India’s pride but its shame. Damn the nation and save caste is, in short, the ambition of those who represent this ideology. It is the ideology of India’s current ruling party — the Bharatiya Janata Party or BJP (Indian People’s Party).

The attorney general and Indian diplomats derive their mandates from this vicious ideology. They are wholeheartedly committed to preventing a global debate on the most wretchedly exploited sections of Indian society, who constitute at least 160 million people. The efforts and expenditure that are put into this operation are enormous.

However, in their great enthusiasm to make Untouchables invisible, they have already lost the battle. The world now knows about the deep divisions that exist in India on this issue and how sensitively the present BJP government perceives the issue. If someone thought that caste is something of the past or an exaggeration of oppression, they will now know that their perceptions are wrong. The realisation that this most primitive type of exploitation still exists, affecting a large section of people, will visit many people as they read their newspapers or see TV screens reporting on the World Conference against Racism. Indian diplomacy has been counterproductive for the BJP government. However, it has unwittingly contributed to the expansion of the campaign against the caste system.

The attorney general’s article ends with a pathetic question: "Is this a utopian fancy?" Keeping caste in place and enjoying the privilege of other people cleaning his toilet has the quality of a utopian dream to him and those like him. Will this be lost? It simply is inevitable. It is time for him to find another way to keep his toilet clean.

Caste vs. Race

Soli J. Sorabjee, attorney general of India, New Delhi

Times of India, Letters to the Editor

Ms. Smita Narula’s letter "Caste Away" (March 9) overlooks the fact that discrimination can be on several grounds, such as religion, gender, race or caste. The forthcoming conference in Durban is focused on racism. It is not a conference on discrimination in general.

It is undeniable that, despite constitutional and legal provisions, caste-based discrimination in our country persists and is pervasive and that strong effective measures are needed to stamp out this evil. However, caste-based discrimination cannot be equated with racial discrimination. Our Constitution makes a clear distinction between race and caste as causes of discrimination (Articles 15.1 and 2 of the Constitution). The observations of the Supreme Court in the celebrated Mandal case also make this distinction.

At the meeting of the U.N. Subcommission on the Promotion and Protection of Human Rights held last August [2000] in Geneva, I expressed my firm view during the deliberations that caste-based discrimination is different from discrimination on the basis of race. Unfortunately, during the final stage when the resolution was passed, I was absent owing to compelling professional engagements in the Supreme Court.

I am afraid I cannot accept Ms. Narula’s gratuitous advice that, as the attorney general of India, I should encourage the government to implement the resolution which I did not help create. Moreover, I genuinely believe, along with others, including the eminent social scientist Andre Beteille, that racial and caste-based discrimination are not synonymous.

Human Rights Watch, a U.S. NGO for whom Ms. Narula, living in New York, works, may entertain a different view depending on their perceptions and agenda.

Letter to India’s Attorney General

Basil Fernando, AHRC

India’s attorney general, Soli J. Sorabjee, who earlier wrote about his interest in keeping his toilet clean, has unveiled more surprises. In a subsequent piece, he says that a U.N. Subcommission’s resolution is not valid or binding since he could not attend the meeting when it was passed: "Unfortunately, during the final stage when the resolution was passed, I was absent owing to compelling professional engagements in the Supreme Court. I am afraid I cannot accept Ms. Narula’s gratuitous advice that, as the attorney general of India, I should encourage the government to implement the resolution which I did not help create."

This is a strange approach to resolutions, agreements and lawmaking in general: "I did not help create it, and thus, I am not bound by it" is the position being taken. If everyone takes this approach, there will be no binding resolutions. Take, for example, Iraq. This country can say that it did not vote for most of the resolutions against it and, in fact, opposed them. According to the attorney general’s own admission, he opposed the resolution. The attorney general says, "At the meeting of the U.N. Subcommission on the Promotion and Protection of Human Rights held last August in Geneva, I expressed my firm view during the deliberations that caste-based discrimination is different from discrimination on the basis of race." Having heard his opinion, the subcommission decided otherwise. In short, the subcommission was quite aware of the attorney general’s point of view, considered it to be wrong and decided to the contrary.

Thus, the attorney general has reason to advise himself that world opinion is different than his position and that he must now play the game according to the rules decided by others. There must be many Indian cases, for instance, where the courts have overruled the attorney general. Would it not be contempt of court to disobey the ruling once the matter is settled? (It is beside the point to say that, if the attorney general could not be present, he could have delegated someone else to be present, or was it difficult for him to identify anyone else who agrees with him?)

As for the argument on caste and race, caste is a much older form of discrimination than race and, as it exists in India, much more comprehensive and cruel. Caste discrimination is the mother; racism is only the child. The source of discrimination in both forms does not arise from colour or blood but from the conceptions on which it is based, which are social and political constructs. Caste discrimination in India is a social construct in which people belonging to various castes are segregated even more so than in some instances of severe racial discrimination. Whatever the biological foundations, caste discrimination in India contains all of the aspects of racial discrimination in a much more complete form. To discuss racism and related intolerance and exclude caste is like discussing physical pain and excluding murder. There are multiple forms of racial discrimination, and caste is one. The two can be separated only artificially. If the attorney general is honest in saying of caste discrimination that "it is undeniable that, despite constitutional and legal provisions, caste-based discrimination in our country persists and is pervasive and that strong effective measures are needed to stamp out this evil," what is his objection to a discussion of it? Are his preoccupations about the toilet more important than the inhumane treatment of at least 160 million of his compatriots? Or does he really consider them to be his compatriots at all?

Caste and Race: The Legal Concepts

Basil Fernando

The issue of racism is related to a legal concept — the concept of equality. For legal purposes, the concept of equality and the concept of eliminating discrimination are the same. If the existence of discrimination is accepted, then this is the acceptance of inequality.

Once unequal treatment is accepted, the source of that treatment is a secondary matter. If one were to say, "Yes, we treat people unequally but for a different reason," it would be an explanation that is hardly worth considering. Yet such is the logic relied on by those who argue against the inclusion of caste in any discussion at the World Conference against Racism that will be held in South Africa in August and September.

What then are the yardsticks for measuring racism? Is not birth into a classified group the heart of the matter? If the alleged peculiarity of birth is used as the reason for differentiation, is that not an important measurement for the source of discrimination? A Brahmin is differentiated from a scavenger on the basis of their birth. A Brahmin, if he or she works as a scavenger, does not become a scavenger by caste. No, the differentiation is made on the basis of his or her birth. It is not possible to distinguish differentiation purely on birth from racism.

The subject of race can be debated through the lens of various sociological theories, and caste can be discussed theologically in regards to its relationship to Hinduism. Whether caste is a form of status, as Andre Beteille maintains, or has its roots in Hindu doctrine, as Ambedkar has asserted, are irrelevant, however, when the issue is whether caste should be included on the agenda of the World Conference against Racism where the criteria for inclusion are based on legal concepts of international law. Thus, the legal issue here is whether there is any other basis for caste except birth into a specific social classification? Can one change one’s caste? Can an Untouchable become a Brahmin? As caste is based on birth, this is not possible. If one accepts that caste is assigned and attributed to a person on the basis of their birth, it is not possible to argue that such differentiation falls outside the legal concept of race.

To seek a rational basis for racism is impossible, for racism is irrational. So long as human groups are separated on the basis of their birth, it is an irrational separation.