Anil Kalhan

(posted at Dorf on Law)

Ten years ago this month, South Africa’s post-apartheid constitution went into effect, laying the foundation for the establishment of a non-racial democracy with a mandate to overcome the effects of decades of institutionalized inequality. The new South African charter has been widely heralded as among the world’s most progressive, entrenching a broad range of civil, political, economic, social, and cultural rights as foundational guarantees and explicitly mandating courts to consider international human rights norms when interpreting its fundamental rights provisions.

With formal South African apartheid receding into the past, however slowly, as South Africans work arduously to overcome its legacy, what does it mean to invoke the concept of “apartheid” in the world today more generally? Comparisons to South African apartheid have abounded for years, and have invariably been controversial. In recent months, for example, former President Jimmy Carter has argued to some controversy that Israel’s “rigid system of required passes and strict segregation between Palestine’s citizens and Jewish settlers in the West Bank” is tantamount to apartheid. Later this week, when it meets to consider India’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, the U.N. Committee on the Elimination of Racial Discrimination (CERD) could confront the contemporary significance of apartheid in another context: the systematic and well-documented discrimination against India’s 165 million Dalits, or so-called untouchables. The issue is suggested in the title of a comprehensive report issued last week by Human Rights Watch and the NYU Center for Human Rights and Global Justice, “Hidden Apartheid: Caste Discrimination Against India’s ‘Untouchables.’” According to the report, to which students in the NYU International Human Rights Clinic contributed extensive research and analysis:

Dalits endure segregation in housing, schools, and access to public services. They are denied access to land, forced to work in degrading conditions, and routinely abused at the hands of the police and upper-caste community members who enjoy the state’s protection. Entrenched discrimination violates Dalits’ rights to education, health, housing, property, freedom of religion, free choice of employment, and equal treatment before the law. Dalits also suffer routine violations of their right to life and security of person through state-sponsored or -sanctioned acts of violence, including torture.

Caste-motivated killings, rapes, and other abuses are a daily occurrence in India. . . . A 2005 government report states that a crime is committed against a Dalit every 20 minutes. Though staggering, these figures represent only a fraction of actual incidents since many Dalits do not register cases for fear of retaliation by the police and upper-caste individuals.

Both state and private actors commit these crimes with impunity. Even on the relatively rare occasions on which a case reaches court, the most likely outcome is acquittal. Indian government reports reveal that between 1999 and 2001 as many as 89 percent of trials involving offenses against Dalits resulted in acquittals. [link]

Much of the factual information in the report is uncontroversial, coming directly from Indian governmental and nongovernmental sources and previous Human Rights Watch reports. Indeed, perhaps more noteworthy than any of the specific facts documented in the report is that a couple of months before its publication, in December 2006, the Prime Minister of India, Dr. Manmohan Singh, made a statement resting on similar premises — namely, that discrimination against Dalits is “fundamentally different from the problems of minority groups in general” and that South African apartheid may constitute “[t]he only parallel to the practice of untouchability.”

With such widespread acknowledgment of the pervasive and systematic nature of discrimination against Dalits, one plausibly might quarrel with the HRW/NYU report not for its characterization of that discrimination as “apartheid,” but rather for its suggestion that these abuses are in any sense “hidden.” To be sure, there are obvious differences between formal South African apartheid, which was lawfully enforced by the state itself, and substantive caste-based “apartheid” in India, which persists in the face of an extensive array of constitutional and statutory provisions that outlaw untouchability and caste-based discrimination and justify state intervention to eliminate those practices. But despite these laws, abuses against Dalits remain no less widespread or systematic for lack of formal legal sanction by the state. State actors remain complicit in countless abuses against Dalits and, at the same time, frequently fail to stop abuses committed by private actors. While affirmative action programs have played a significant role in improving the status of some Dalits, these limited government interventions have been inadequate given the overwhelming extent of caste-based discrimination in Indian society. Such abuses are hidden only to the extent that they “hide” behind their formal illegality while, in many contexts, remaining as visible as ever.

Analogies to South African apartheid not simply are potent rhetorically, but also have potential legal significance, if taken seriously, given the extent to which apartheid has been formally condemned by the international community. At the height of South African apartheid, the U.N. General Assembly adopted numerous anti-apartheid resolutions and effectively expelled South Africa from its meetings. An international convention against apartheid entered into force over thirty years ago and now has 107 state parties. Eventually, even the U.N. Security Council concluded that South African apartheid constituted a threat to international peace and security and adopted a number of anti-apartheid resolutions, including one mandatory resolution under Chapter VII of the U.N. Charter imposing an arms embargo against South Africa. Today, many years after the formal demise of South African apartheid, the Rome Statute expressly defines apartheid as a crime against humanity over which the International Criminal Court has jurisdiction.

Remarkably, India’s official report to CERD — which, in fairness, was submitted long before Prime Minister Singh’s recent statement — contains no information on discrimination against Dalits or other lower caste groups, which the Indian government had refused to acknowledge as encompassed within the Convention at all. This stance is unfortunately consistent with India’s more general resistance to meaningful engagement and cooperation with international human rights monitoring institutions — for example, by refusing to permit U.N. special rapporteurs to visit the country to examine various human rights concerns. There are poignant ironies in this resistance, which disregards CERD’s clear conclusion that caste-based discrimination falls well within the Convention’s protections against discrimination on the basis of “descent.” For one thing, when the Convention was being drafted, it was India which proposed to include discrimination on the basis of “descent” within its ambit, apparently with caste-based discrimination in mind. For another, it was India which first put the issue of South African apartheid itself on the international community’s radar screen. Around the same time that it was drafting its own post-independence constitution — which, like the new South African constitution today, was widely heralded at the time as a progressive model with a mandate to overcome past injustices and transform Indian society — India became the first nation to raise the issue of South African apartheid in the U.N. General Assembly. For many years thereafter, India continued to play a leading role in the global anti-apartheid struggle, during a period when many Western nations chose instead to make accommodations with South Africa’s apartheid-era regime.

Rather than regarding international human rights monitoring institutions as obstacles to be resisted, India could instead choose to regard greater engagement and cooperation with these institutions as a constructive means to help address what is widely acknowledged as a serious human rights challenge, as Meenakshi Ganguly has noted. Such an approach to the “hidden apartheid” of discrimination against Dalits would set an important example to other countries, and certainly would be more faithful to India’s own pioneering role in challenging the international community to help bring South African apartheid to an end.

Links: “Hidden Apartheid: Caste Discrimination Against India’s ‘Untouchables‘”; audio commentary by Professor Smita Narula, NYU Center for Human Rights & Global Justice and co-author of the report (English, Hindi)

(posted at Dorf on Law)

Earlier this week, Somini Sengupta reported in the New York Times on the controversy in the Indian state of Madhya Pradesh over an initiative by the BJP-led state government to conduct a mass yoga program in the schools. The program has caused opposition by some Muslim and Christian groups, who apparently object less to the yogic exercises themselves than to the recitation of Hindu religious verses as part of the program. (One Australian reporter wrote that the plan “enraged India’s 160 million Muslims,” but that’s self-evidently ridiculous.) When it comes to trying to keep yoga out of the schools, Indians are hardly alone. In the United States, Christian groups have been attacking school yoga programs for years, echoing the words of the current pope, who admonished back in 1989 that yoga can “‘degenerate into a cult of the body’ that debases Christian prayer.”

There must have been something in the air in January, however, for the Global War on Yoga seems to have intensified surged everywhere these past few weeks. In the United States, Christian groups have renewed their concerns that “yoga’s Hindu roots conflict[] with Christian teachings and that using it in school might violate the separation of church and state.” And in Canada — that’s right, even in Canada — concerns over the potentially satanic influence of yoga have also been increasing in recent days:

“Supposedly, we do not allow religion in schools — and yoga is a religion,” said cattle rancher Audrey Cummings, 68, who filed a complaint with the Quesnel school board and the Education Ministry over the Action Schools program. Quesnel is in the B.C. interior, about 90 kilometres south of Prince George.

* * *

Yoga turns kids’ minds toward Hindu gods, Cummings said.

“If you’re not seeking the God of the Bible, His power, then by default you’re in the other camp,” Cummings said. “The other source of supernatural power is Satan.” [link]

The social and legal contexts in which these disputes have arisen are different in ways that seem significant. In Madhya Pradesh, the initiative is part of a broader program by the Hindu nationalist BJP to promote yoga across the state. For the first session, the Chief Minister himself served as yoga-instructor-in-chief, broadcasting instructions by radio to state-sponsored programs not only in public schools and colleges, but also in private schools, government offices, and even prisons across the state. (They apparently didn’t get the memo from Norway, which scrapped prison yoga when officials discovered that it made inmates irritable and aggressive.) Especially given past efforts by the BJP and its affiliate organizations to “saffronize” education — for example, by rewriting textbooks to include chauvinistic perspectives on Hinduism and denigrations of other religious groups — it’s understandable that some would suspect the true motivations behind the program and raise concerns about its potential effects. Secularism is an entrenched part of the Indian Constitution’s “basic structure,” but religion and the state are not meant to be completely separate. Rather, Indian secularism protects freedom of religion within a broader constitutional framework that demands equal respect for all religions, on the one hand, and at the same time contemplates state intervention to constrain and reform some religious practices that violate fundamental rights, on the other. Of course, yoga is not an example of the latter, although some popular American variants seem pretty close to cruel and unusual punishment to me. (“Hot yoga“? Competitive yoga??) But institutionalizing it on such a broad and comprehensive scale — and more importantly, if this is in fact true, with a self-consciously saffron tinge — may raise understandable concerns about the state’s commitment to affording all religions equal respect. The Madhya Pradesh High Court has ordered the state to make the program voluntary, and according to at least one news report, the government has dispensed with the recitation of Hindu hymns as part of the program. But depending on the remaining details, that might or might not be enough to ensure a non-coercive educational setting in which all religions are afforded equal respect.

In North America, by contrast, the school yoga programs seem not to involve much religious content at all, much less any intent to promote Hinduism or coerce acceptance of Hindu values. At least I’d be awfully surprised if they did — in 2007, yoga in America seems mostly about health, fitness, and keeping up with the Joneses. (Indeed, both conservative Hindu organizations and yoga purists have objected to some of the ways in which yoga has morphed in America.) It’s also not clear if these programs are a mandatory part of the physical education curriculum or entirely elective. But even assuming these school programs necessarily and unavoidably incorporate some religious content, albeit implicitly, is that necessarily a constitutional problem in context? If the programs were being implemented to promote particular religious values — for example, if they were “PraiseMoves” programs — that would of course be one thing. But coercion or promotion of religion seems pretty unlikely in this context. Especially since Hinduism is almost certainly a minority religion in just about every school district in North America, Hindus are probably not in much of a position to be coercing anyone, and since the proponents of these programs are almost certainly not even Hindu themselves, it’s not all that likely that their goal is to promote Hinduism. If, in context, both the purpose and primary effects of these programs are basically secular, then maybe the folks getting exercised about all of this should just close their eyes, relax, sit quietly, and take a few deep breaths using their diaphragms.

Now, on to more serious religion-state issues — can we talk about how today, all over the country, we are coercing schoolchildren to participate in the rituals of that major religious holiday, Groundhog’s Day?