ABSTRACT
This chapter provides a historical overview of the legal construction of caste inequality, from the Vedic period in early India (c 1500 to 500 bce), to Dr BR Ambedkar’s efforts in the first half of the twentieth century to reverse centuries of legalised caste inequality by securing legal guarantees of equality and non-discrimination for the “Untouchables” (his term), both from the British and, as independence approached, from the nationalist movement. Over a long period, caste distinctions and inequalities were constructed and maintained by law. First, we examine the rules contained in classical Hindu religio-legal literature (dharma literature) which underlie both discrimination on grounds of caste and also some of the contemporary difficulties in enforcing related legislation (in India) or introducing it (in the UK), and consider whether those rules – many of which were directly concerned with laying down and enforcing caste distinctions and inequalities – represented “real law” in India (at least for Hindus). During British rule, the colonial administrators, in order to give credence to “native” law, seized on Hindu religio-legal texts as the authoritative ‘law of the Hindus’, treating them as black letter legal codes. 1 The most well-known of these, the Manusmrti, or ‘Law Code of Manu’, became synonymous with the legal construction and maintenance of caste divisions, inequality and discrimination. 2 The chapter goes on to briefly examine the relationship between caste inequalities and law in the feudal and Islamic periods, and then the East India Company and colonial period to 1858 (when East India Company rule was transferred to the British Crown). Nepal’s mid-nineteenth-century codification of caste inequality in state law as a mechanism to consolidate state control over an ethnically and culturally diverse population is then briefly discussed. Finally, the chapter turns to an overview of the ‘caste reform period’ of the late nineteenth and early twentieth centuries and Ambedkar’s determination to secure legal guarantees of equality for Dalits as independence approached.
