Untouchability, pollution and stigma

Two features distinguish caste discrimination from other forms of discrimination based on inherited status; firstly its religious underpinnings and secondly the concept of Untouchability.38 Dalits have traditionally been considered by dominant castes to

34 _{For mythological exceptions to this rule see J. Leslie, Authority and Meaning in Indian Religions:}

Hinduism and the Case of Valmiki (Aldershot: Ashgate, 2003) 40-45. On Brahmin status as earned, not inherited, see A. Sharma, Human Rights and Hinduism: A Conceptual Approach (New Delhi: Oxford University Press (OUP), 2004) 66-69.

35

CERD, n 9 above, Article 1(a). 36

Paul Divakar, Convenor of the National Campaign on Dalit Human Rights, cited in A. Waughray, ‘Caste Discrimination: A Twenty-First Century Challenge for UK Discrimination Law?’, 72(2)

Modern Law Review (2009) 182-219, 187; see V. V. Giri v D. Suri Dora (1960) 1SCR 42, cited in

Shrivastava v The State of Maharasthra, Bombay High Court, Criminal Application No. 2347 (2009) para. 8: ‘It is well-known that a person who belongs by birth to a depressed caste or tribe would find it very difficult, if not impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. The history of social reform for the last century and more has shown how difficult it is to break or even to relax the rigour of the inflexible and exclusive character of the caste system’.

37 _{Galanter, n 5 above, 282-362; L. Dudley Jenkins, Identity and Identification in India; Defining the}

Disadvantaged (New York: RoutledgeCurzon, 2003) 31-39, 76-79. Traditionally it was assumed that a woman took her husband’s social identity on marriage, but Indian courts have held that a Scheduled Caste woman’s status does not change by virtue of her marriage to a higher caste man, nor does a ‘Forward Caste’ woman assume her husband’s status on marriage to a Scheduled Caste man; see

Urmila Ginda v Union of India A.I.R. 1975 Del. 115, cited in Galanter, n 5 above, 340; Shrivastava v The State of Maharasthra, ibid., paras. 11-12.

38 _{The nexus between Untouchability and humiliation is explored in many contemporary analyses of} Untouchability; see G. Guru, ‘Power of Touch’, 23(25) Frontline (2006); V. Geetha, ‘The Humiliations of Untouchability’ in G. Guru (ed.), Humiliation: Claims and Context (New Delhi: OUP, 2011) 95-107; G. Alex, ‘A Sense of Belonging and Exclusion: “Touchability” and “Untouchability” in Tamil Nadu’, 73(4) Ethos (2008) 523-543; S. Sarukkai, ‘Phenomenology of Untouchability’, 44(37) EPW , 12 September 2009, 39-48; G. Guru, ‘Archaeology of Untouchability’,

EPW, 12 September 2009, 49-56. On dignity, self-worth and humiliation see D. Shultziner and I. Rabnovici, ‘Human Dignity, Self-Worth and Humiliation: A Comparative Legal-Psychological Approach’, 18 Psychology, Public Policy and Law (2012) 105-137.

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be irredeemably and permanently polluted, hence ‘Untouchable’, people with whom all physical and social contact is to be avoided for fear of defilement.39 Ambedkar described the concept as a notional ‘cordon sanitaire’ separating the Untouchables from the rest of Indian society.40 The concepts of pollution and Untouchability are ritual and religious in origin rather than hygiene-based, Untouchability deriving ostensibly from one’s own or one’s ancestors’ engagement in ritually ‘unclean’ occupations41 as a result of impure birth related to conduct in previous life. Despite the ritual and religious origin of this imagined ‘pollution’, the discrimination it engenders is circular; many Dalits are constrained to work in ritually polluting jobs which are also objectively dangerous, dirty and low paid, thereby reinforcing their Untouchable status. Despite its purely notional nature, caste is conceived as a physical attribute, hence permanent and immutable. The conceptualisation of Untouchability in corporeal terms as a ‘property of the body’42

and its supposedly inherited and immutable nature means that it cannot be shed by engagement in ‘clean’ work or by professional or economic advancement. Caste, argues Jaspal, is a

39 _{See Mendelsohn and Vicziany, n 6 above; Leslie, n 34 above, 2-40; M. Marriot, ‘Varna and Jati’ in} Mittal and Thursby (eds.), n 14 above, 379-382. Flood explains that ‘the scale of purity and pollution differentiates individuals from each other on the basis of caste and gender’ and that ‘certain classes of people are never able to be rid of the pollution which accrues to their bodies due to their social group’; Flood (1998), n 13 above, 219. Hinduism also recognises temporary states of pollution related to bodily functions such as menstruation, childbirth and death. Temporary pollution, including pollution caused by contact with Untouchables, can be overcome by the performance of appropriate rituals; Flood, ibid., 203-207, 219.

40 _{B. R. Ambedkar, ‘The Real Issue’ in V. Moon (ed.), Dr. Babasaheb Ambedkar Writings and}

Speeches (BAWS) Vol. 9 (Bombay: The Education Dept., Govt. of Maharasthra, 1991) 181-198, 187. Indian sociologist M. N. Srinivas coined the term ‘pollution line’ to describe this boundary.

41

G. Shah, H. Mander, S. Thorat et al., Untouchability in Rural India (New Delhi: Sage, 2006) 106, 106-16. Ritually unclean occupations include those associated with animal carcasses or human death as well as objectively dirty and dangerous jobs such as cleaning sewage tanks and manual scavenging (the removal of human excrement by hand from dry latrines, unlawful in India yet still widespread); see G. Ramaswamy, India Stinking: Manual Scavengers in Andhra Pradesh and Their Work

(Pondicherry: Navayana Publishing, 2005); A. Zaidi, “India’s Shame,” Frontline, 22 September 2006; “India: Manual scavenging, a shame on the nation,” Human Rights Council 9th _{Session, 25 August} 2008, Asian Legal Resource Centre, at http://www.alrc.net/doc/mainfile.php/hrc9/515/%20 (visited 16 December 2012).

42 _{Flood (1998), n 13 above, 219: ‘Apart from everyday pollution caused by the body and contact with} polluting substances, there is a deeper level of purity and pollution which is regarded as a property of the body, a bodily substance. Brahmins have a pure bodily substance while the substance of their bodies means that Untouchables are in a permanent state of pollution’.

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fundamentally psychological construct and the concept of stigma ‘vital [to] understanding how caste identity affects the lives of South Asians’;43 the pervasive social stigmatisation of Dalits in the subcontinent and in the diaspora means that Dalits remain stigmatised, regardless of any increase in social mobility: ‘[C]aste essentialism ensures that Dalits’ dis-identification with the demeaning occupations traditionally associated with their group has had little or no impact on their position within the social hierarchy’.44

1.1.4.2 ‘Touch’ as a category

Indian philosophy distinguishes between ‘contact’ - a quality which is present in both the toucher and the touched - and ‘touch’, which is not about contact (which is a relation), but is a quality that inheres in the object.45 This means that an Untouchable person is untouchable – a ‘carrier of pollution’ – whether or not they come into contact with another person; the Untouchable can do nothing to ‘get rid’ of his/her Untouchability.46 Thus, ‘the real site of [U]ntouchability is the person who refuses to touch the untouchable’.47 According to Indian sociologist Gopal Guru, Untouchability is a unique form of discrimination which privileges the corporeal body of the dominant caste individual (the Touchable) as ‘sacred’ primarily in contrast to its logical counterpart, the ritually defiling or profane body (the ‘Un- touchable’).48

Paradoxically, writes Guru, this assigns a negative power to the

43 _{R. Jaspal, ‘Caste, Social Stigma and Identity Processes’, 23(1) Psychology and Developing}

Societies (2011) 27-62, 28, 33. Davies talks of race in similar terms as being ‘firmly entrenched in our psyches, our institutions, our knowledge, and our social patterns’; M. Davies, Asking the Law Question (Sydney: Thomson Lawbook Co., 2008) 293.

44 _{Jaspal, ibid., 37; B. Natrajan and P. Greenough (eds.), Against Stigma: Studies in Caste, Race and}

Justice since Durban (Hyderabad: Orient Blackswan, 2009). 45

Sarukkai, n 38 above, 41.

46 _{Ambedkar, ‘The Real Issue’, n 40 above, 197.} 47 _{Sarukkai, n 38 above, 43 (emphasis in original).}

48 _{Guru (2006), n 38 above; G. Guru, ‘What it means to be an Indian Dalit: Dalit Responses to the} Durban Conference’ in Natrajan and Greenough (eds.), n 44 above, 168-182.

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Untouchable, whose Untouchability can become a ‘poison weapon’ for the Touchable; the Untouchable thus presents a ‘sociological danger’ which must be detected and controlled. Consequently, Untouchability in India is linked directly to the effective social, residential, educational and economic ‘quarantine’ of large sections of the population.49 Kautalya – author of the ancient Hindu religio-legal text the Arthasastra – was ‘the first lawgiver to specify touch as a penal offence’.50 Today, Guru identifies touch as the ‘primary category for caste relations’.51