The unholy Hindu trinity — caste, cow, and curry — has reincarnated once again in its latest avatar of caste policies, ordinances, and laws being implemented in various American universities, corporations, and local/state governments. The mere mention of the word ‘caste’ conjures up vivid images of wicked Hindu Brahmins in dusty Indian villages tormenting poor Dalits. This is because every American has been taught these concepts starting from elementary schools to post-doctoral programmes.
For example, one Hindu American parent, while looking at her child’s state mandated textbook, found out that “because we are Hindus, we are necessarily part of a birth-based hierarchical caste system.” Some scholars like Stanford anthropologist Thomas Blom Hansen, are of the view that the caste system is “justified in the Hindu scriptures,” and should continue to be taught in California’s schools. Brandeis University, the first entity in the US to add caste as a protected category in December 2019, has a programme called “Caste / A Global Journal on Social Exclusion.” Although it is touted as a global study, a quick look at the current and previous issues confirm that all the studies are focused solely on India and more specifically on Hindus. There is not a single study on the caste system in Muslims of Bangladesh, Christians of Pakistan, the origins of untouchability in Japan or how in Somalia, to be a Midgan-Madibhan, or an outcaste person, is to suffer life-long indignities, to be deemed impure, unlucky, sinful, polluting, and thus meriting the disdain, avoidance, and abuse of others. A recent caste survey dated 23 May 2023 further substantiates that to the average American, caste is clearly associated with India and Hindusim.
The academia and media also use the same narratives to reinforce these stereotypes. When the discussion of caste comes up, no one thinks of the ‘untouchable’ Burakumin caste in Japan, or the upper noble called Gob in Somalia. Instead, all the blazing guns are trained on the Hindus from India who have now brought this invidious practice inside the American heartland. A Hindu American student from California characterised this as “a religion of monkey and elephant gods, rigid caste discrimination and oppression of women”. The student further said that the California’s History textbooks degraded his religion, and he felt a mixture of anger, embarrassment, and humiliation.
Now, to make matters worse, the California Senate has passed the Bill 403 (SB 403) to add caste as a protected category. On the surface, it looks like a noble act intended to end all discrimination. But upon taking a closer look, it does not appear so uplifting and benign as it claims to be. The first question that comes to mind is that all types of discrimination should already be covered under the existing protected categories, so why this emphasis on adding the very specific term ‘caste’ as a new protected category? If the (supposedly) noble intent is to prohibit all forms of discrimination based on class or social status, which also includes caste discrimination, why not use the term “inherited class or social status”? It is facially neutral, includes not only caste but also any other advantages or disadvantages based on parentage or ancestry, and is equally applicable to all Americans irrespective of their ancestry, skin colour, ethnicity, race, caste, creed, tribe, and national origin. Could it be that the usage of caste is deliberate to target a particular group of Americans while giving a clean chit to other Americans?
Even if SB 403 was well intended (it is malicious) or authored by naïve politicians (an oxymoron), the bill will harm South Asian communities in California and its negative consequences will be enormous. Barbara A Mcgraw, JD, PhD, professor of law, and founding director of Center for Engaged Religious Pluralism at Saint Mary’s College of California in Moraga, writes: “As California grows increasingly diverse, the solution to addressing subtler forms of intra-community discrimination is not to expand specific categories that target particular ethnic groups, resulting in discrimination against them. It is by deploying existing laws with their broad, neutral categories that provide everyone with protection and the obligation to treat everyone fairly.” She also raises valid concerns that SB 403 “would limit equal protection and due process rights of South Asians (and others), resulting in racial profiling because it legislates false claims based on national origin, ethnicity and ancestry”.
Also read: California anti-caste bill a milestone in equality. It’s a role model for others to follow
Singling South Asians out
Not only is SB 403 discriminatory, it has several Constitutional flaws pointed out by Vikram David Amar, Dean at the University of Illinois, College of Law, and a leading constitutional authority. For example, SB 403, in its current form, potentially violates the Fourteenth Amendment’s Equal Protection Clause. “SB 403’s selective emphasis on South Asian (and Asian, African, and South American)—but not European or North American—cultures would be textually troubling to a reviewing court” and would fail a facial neutrality test. In addition, the SB 403 proposal is “concededly merely declarative of law that already exists. [Thus] The thinness of the clarification motive for the law’s enactment opens the door to the possibility that the bill is intended to target and condemn communities with whom the word ‘caste’ is deeply (and stereotypically) associated,” Amar writes. Add to this mix the fact that some biased for-profit entities and foreign actors with a conflict of interest are lobbying hard for SB 403 to push their own political agendas and vested interests. Given the legislative history to date (an earlier version of SB 403 singled out South Asians more specifically in an even starker way), and the conflict of interest angle, this bill will also fail from an “illicit-motive challenge” in court.
The Asian American Hotel Owners Association (AAHOA) issued a press statement saying that it “strongly opposes any form of discrimination, including caste. AAHOA, however, opposes California Senate Bill 403 “due to a concern that it could lead to improper and unlawful racial profiling, targeting, and attacks on individuals of Asian American descent and/or who practice the tenets of Hinduism. Adding “caste” to the anti-discrimination categories outlined in Section 51 of the California Civil Code and other Education Code and Government Code sections is unnecessary, and will cause more harm than good.” AAHOA president and CEO Laura Lee Blake, also an experienced California Attorney, said: “There are existing US laws that already address discrimination, and they are near and dear to the hearts of Asian Americans who have faced discrimination on so many different levels simply because of the colour of their skin or their religious beliefs. Adding caste to the mix through SB 403 only magnifies these differences and will cause great division and unnecessary conflict for all South Asian communities.” AAHOA said it stands in solidarity with other organisations, including the Hindu American Foundation, that strongly oppose SB-403, and urges the Senate to shelve the bill completely.
If passed into law, SB 403 will be implemented and enforced by the California Civil Rights Department (CRD), which is infamous for its witch hunts by making allegedly false claims, fabricating data like stating that the alleged victim at Cisco was the sole Dalit in the team, whereas in reality the team consisted of non-Indians and another Dalit who was earlier promoted to a leadership position. In addition, CRD did not even bother to interview the other Dalit in the team as evidenced in page 10, line 24 of the Motion for Sanctions. It also forcefully assigned a ‘Hindu Brahmin’ caste to people who have declared themselves to be publicly irreligious. In the past, CRD has also gone after corporations like Activision and Tesla as reported in a Reuters article dated 8 December 2022. Christopher Skinnell, a lawyer for Activision, said in a lawsuit announced by the company on 5 December 2022 that the CRD “unleashed a hurricane of hostile media coverage against the company based on malicious and knowingly false assertions” in an attempt to force Activision to settle the bias claims. As per the Reuters article, CRD is already facing another lawsuit by Tesla Inc stemming from the agency’s case accusing the electric carmaker of discrimination against Black factory workers. Tesla says the CRD did not follow the procedures required by state law before filing the 2021 lawsuit, which the company claims lacks merit.
It, therefore, comes as no surprise that the CRD was sued in Federal Court by the Hindu American Foundation on 22 September 2022. Recently, a diverse group of 30+ current and former Cisco employees wrote to the CRD stating that “Due to misrepresentations made by the California Civil Rights Department (CRD) in court documents against our organization’s culture and ethics, we experienced a detrimental impact on our lives.” The letter ends with, “We find it necessary that the CRD apologize publicly and exonerate us of any implied guilt and in so doing help restore our reputations. In the absence of the above, this slander will accompany us to our permanent detriment.”
If California does not want to face more lawsuits, especially multi-million-dollar class action lawsuits by groups of people who have suffered injury due to the discriminatory actions of the government of California, it is imperative that SB 403 be shelved immediately. On 29 March 2022, CRD lead attorney and chief counsel Janette Wipper, who was leading the Activision and Cisco lawsuits, was fired by the Governor, Gavin Newsom. The second most senior lawyer on the Activision case, assistant chief counsel Melanie Proctor, quit subsequently out of protest over her boss’s firing. One year later, on 12 April 2023, the California Policy Center released a report stating that Bounty Hunter incentives has made the CRD fund its budget through attorney fees and has created a monster. Now the same CRD will be enforcing SB 403 once it becomes the law. It is therefore imperative that the office of Legislative Affairs under California attorney general Rob Bonta immediately step in to prevent further misuse. Amy Alley, director of the Office of Legislative Affairs, should investigate SB-403 as it is still pending legislation and repeal it at once.
Abhijit Bagal is the Resident Legal Analyst at Caste Files, an online media and educational platform about caste, Hinduism, and diversity. Views are personal.
This article is in response to ThePrint article ‘California anti-caste bill a milestone in equality. It’s a role model for others to follow‘, authored by Deelip Mhaske, the president of Foundation for Human Horizon, an UN-affiliated NGO leading the anti-caste legislation movement in the US, and an AI research scholar at John Hopkins University.
Here’s Mhaske’s response to Bagal’s rebuttal:
During the release of the 2022 Report on International Religious Freedom on May 17, 2023, a US State Department official expressed deep concern about the status of Dalits in India and affirmed the commitment to address this issue, urging the Indian government to condemn violence, ensure accountability, and protect all groups, with further discussions expected during Prime Minister Narendra Modi’s visit to the White House. The author fails to recognise that the California bill does not target the Hindu religion, but rather aims to protect the civil rights of all individuals without discrimination. Although the author acknowledges the historical existence of caste discrimination within Hinduism, they overlook the ongoing relevance of enacting legislation to prevent practices resembling slavery. Furthermore, recent government data highlights the alarming number of registered cases of crimes against Dalits, emphasising the need for proactive measures.
ThePrint closes the discussion now.