Response to two Reports on Caste by the Equality and Human Rights Commission

The following text is a response by a number of signatory Indian organisations in Britain to two academic reports commissioned by the Equality and Human Rights Commission (EHRC). The Reports, Caste in Britain: Socio-legal Review (Research Report 91) and Caste in Britain: Experts’ Seminar and Stakeholder’s Workshop (Research Report 92), are part of the consultative exercise initiated by the government as a result of caste becoming “an aspect of race” in the Equality Act 2010. The bringing into effect of this provision would mean that legal actions for discrimination in the areas covered by the Equality Act 2010 can be brought before Employment Tribunals and courts. The provision has not yet been brought into force and the consultative exercise by the EHRC, which had been asked by the government to carry it out, is expected to go on after the issuing of the two Reports. Despite inquiries, the government has not made clear its own position on the Reports. Even though it tasked the EHRC to conduct the research leading to the two Reports, the government is understood to have taken the view that the conduct of the research and the content of the Reports are solely a matter for the EHRC. The Coalition for Dialogue prepared the text below, agreed to by the signatory organisations, for submission in the first place to the All Party Parliamentary Group on Hindus in July 2014.

Response to two Reports on Caste by the Equality and Human Rights Commission:

Caste in Britain: Socio-legal Review (Research Report 91) and Caste in Britain: Experts’ Seminar and Stakeholder’s Workshop (Research Report 92)

By the signatory British Hindu organisations

June 2014

This note is a response to the two Reports cited above which are part of the consultative exercise initiated by the government as a result of caste becoming “an aspect of race” in the Equality Act 2010. The provision making caste an aspect of the protected characteristic of race has not yet been brought into force and the consultative exercise by the EHRC, which had been asked by the government to carry it out, is expected to go on after the issuing of the two Reports. Despite inquiries, the government has not made clear its own position on the Reports. Even though it tasked the EHRC to conduct the research leading to the two Reports, the government is understood to have taken the view that the conduct of the research and the content of the Reports are solely a matter for the EHRC.

This document makes the following observations, presented here in summary form:

  • The Reports issued by the EHRC contain the same biases that led to the passing of the legislation.
  • The Report writers do not follow accepted scientific criteria.
  • The Reports fail to make clear what their own presuppositions are.
  • The Reports fail to present the breadth of scientific research which exists on caste.
  • The Reports particularly fail to mention and account for research that contradicts the researchers’ pre-determined views.
  • The Reports fail to present a coherent idea of what caste is, which in turn indicates that the legislation was based on incoherent premises and should not have been passed.
  • The Reports display an anti-Hindu agenda despite the Reports’ ostensible disavowal of it.
  • The Reports constitute a failed exercise and a waste of public funds.
  • The signatory organisations can have no confidence in the research conducted on caste by the EHRC.
  • The ill-conceived legislation on caste discrimination should not be effected into law and instead the provision of the Equality Act 2010, adding caste as an aspect of race, should be repealed.

The signatory organisations make the following submissions.

  1. Among the organisations supportive of the present response are some which did not attend the Stakeholders’ workshop carried out by the research team appointed by the EHRC because they did not have confidence in the method of conduct of the research team as well as the research team itself.[1] Others attended the Stakeholders’ workshop but shared these concerns during the course of the meeting. The worries about the method and team are borne out by the content of the Reports. The organisations that did not cooperate with the research had already identified that the research team was overwhelmingly composed of academic members who were committed to the idea of the legislation or were otherwise supporters of the pro-legislation lobbies. This is reflected in the Reports, which do not adequately question the assumptions behind the legislation but are, in fact, supportive of it.[2]
  2. From the inception of the legislation our members have been critical of the lack of consultation about caste discrimination, the lack of research upon caste discrimination, and the unilateral and one-sided manner in which parliamentarians assumed that caste discrimination is a problem in Britain. We believe there are deep roots concerning the prejudice with which Indian culture is held within mainstream British culture, prejudice which has been absorbed over time by many Indians including those who now live in the diaspora. It is such prejudice that has led to legislation without appropriate steps taken to verify what problems, if any, were being solved in the first place. In the history of anti-discrimination law, it appears that it is the first time that parliament has proceeded to legislate on the assumption that there is a problem to be dealt with and that an adequate conceptualising of that problem is not needed until after legislation is put into place. This background leaves the signatory organisations in doubt as to the genuineness of the consultative process of which the two Reports are a part.
  3. The Reports, on the whole, fail to question the assumptions that led to the legislation and in fact can be seen as a further attempt in reinforcing the failure of legislators to reckon with the feelings of the Indian community. The Reports fail to get across the level of dissatisfaction about and opposition to the legislation and the well founded nature of the grounds upon which such opposition is expressed. The Reports provide no criteria against which the literature surveyed or the views garnered during the consultative process should be weighed up, and can thus be presumed to be influenced by the dominant anti-Indian trend of the research and the predetermined views of the authors, who have a pro-legislation slant. The Reports also fail to make use of and respond to existing research which would question the writers’ predetermined standpoint, a fact which puts its scientific value further into question.
  4. The Reports build into them the deep-seated prejudice against Indian culture established within Western culture, upon which the legislation was also premised. The legislation was after all passed before any consultations or evidence was considered. The Reports, as with the Parliamentarians who spoke in favour of the legislation, have assumed that Indians discriminate on grounds of caste. The Reports do not help to expose any problem, but proceed on the assumption not only that caste, the caste system and caste discrimination exist, but that they are problems to be dealt with by legislation. They therefore accept the premises of the legislation, although attempts are made to tone down the impression that Indian culture is being attacked. In scientific terms, the authors commit the basic fallacy in research of petitio principii; in other words they presume what they have to prove.
  5. Both Reports contain some indications of the way in which caste should be conceived of in the British context. They attempt to convey that caste is a phenomenon that is differently manifested in Britain as compared to the Indian context. It is not entirely clear how or why that should be so, and the lack of clarity in the researchers’ minds is hidden by the use of glossy language which serves to obfuscate matters further. The writers of the Socio-legal Review have taken the position (at p. vii) that “caste is to be made an aspect of race which can be done by interpreting ethnic origins to include caste, or by naming caste as a fifth sub-category of race. The latter approach appears to provide more clarity and fits with the wider understanding of the meaning of caste as distinct from ethnic origins”. As argued here, the idea that clarity will result from making minute adjustments to the legislative wording of the provision on caste when effecting it “as an aspect of race” is a chimerical scenario dreamed of by those who already have an agenda supporting the legislation. A lack of clarity is at the heart of all historical and contemporary attempts to tag Indian culture and society with the caste label.
  6. The lack of reality of the descriptions of Indian society is why researchers cannot come up with any coherent idea of caste. They point to various indices, and different terms within Indian languages, and distinguish caste from other categories like religion and ethnicity but, ultimately, they cannot provide any solid understanding of what caste is. In fact, they appear to treat lack of precision as a virtue. The writers of the Experts’ Seminar and Stakeholder’s Workshop Report mention (at p. 28) that “there appeared to be a consensus that an elastic definition that addresses caste, without offending any religious group, was the best”. This statement is just one indicator, to the extent that there is a “consensus”, that scholars are unable to provide a coherent account of caste and would forsake scientific rigour and clarity for a sort of inoffensive political correctness. If social scientists cannot make sense of caste, except by some sort of academic fiat, then it will remain a difficult task for judges to do so.
  7. It comes as no surprise that the researchers could not coherently explain what caste is. The enterprise was bound to fail, as all previous attempts by social scientists and lawyers have ended up being similarly incoherent. The underlying problem why the researchers have not been able to come up with any coherent idea of caste is because they cannot do so, but cannot admit that this is the case because of their prior commitment to a particular vision of Indian society and culture. The difficulty can be seen in the statement that among the experts: “none provided any outstanding source for a legal definition, and some agreed that defining caste is a difficult task” (Experts’ Seminar and Stakeholder’s Workshop, p. 8). The researchers should have made explicit previous failed attempts but do not mention or discuss the problems which faced the colonial state in India as well as those which the contemporary Indian legal system encounters in conceptualising caste coherently or sensibly.
  8. To cite one instance of the confusion prevailing among social scientists today the Socio-Legal Review cites (p. 3) Susan Bayly’s work as follows: “Caste was and is, to a considerable extent, what people think of it, and how they act on these perceptions.”[3] Presumably the authors of that Report cite it approvingly; they certainly do not criticise it. One problem with this kind of obfuscating statement is that it amounts logically to saying something like “If a person thinks something is a chair, to a considerable extent, it may be one and it would also be one if somebody sat on what she thought was a chair”. This would have the kind of absurd consequence that if a person thought a wall was a chair and further if she sat on the wall thinking that it was a chair one would to a considerable extent be justified in saying that the wall was a chair. In fairness to Bayly, she may merely be pointing out the incoherence of and the lack of certainty about the idea of caste. After all, in the Experts’ Seminar and Stakeholder’s Workshop Report (pp. 19-20) she is cited as saying that “even a small number of cases would present an ‘intractable problem’ due to the very different views held by academics about the nature of caste”.
  9. The authors of both Reports have ignored the fact that there is widespread dissatisfaction with the caste-related legislation in India, which is premised, unlike the legislation in the UK, on extending reservations (quotas) to members of those groups who are named in lists within legislation. There not only remains intense and bitter contestation in India over who should benefit from these reservations (and here political clout may well be instrumental as opposed to any indices of disadvantage or scientific criteria), but we believe that the reason behind promoting the legislation in the UK is because Christians and Muslims in India do not benefit from those reservations. While the fact of exclusion of Christians and Muslims in India from the reservations scheme is mentioned (Socio-Legal Review, p. 32), it is not mentioned that this exclusion serves as an obstacle to conversion efforts by various Church organisations. We consider it no coincidence that Lord Harries, then a serving Anglican Bishop, introduced the caste discrimination provision into Parliament in 2010. The Reports do not mention the intense dissatisfaction with this manner of legislation introduced by a cleric of one community over groups who practice different traditions, regarded by Christians as being false religions.
  10. Despite the problem of coherence the researchers appear to insist on going for a minimalistic definition of caste, which is nether “too broad” or “too precise” which refers to (1) endogamy (2) inherited status and (3) social stratification (Socio-Legal Review, p. viii).[4] All the three criteria are presumably (we are not told explicitly) both necessary and sufficient. The researchers consider that “there is value” in having such a legal definition, in which, although it is not clear what that “value” is. Any such value must be significantly diminished once one considers that individually and collectively such criteria can be applied to a myriad of other social phenomena. As an example one might say that a group of say ‘White people’ in Britain are very likely to marry or have relationships with one another,[5] that they are likely to transmit the desirability of doing so across generations, and this leads to kinds of social stratification in that such social structures can act as interest groups, economically distinct groups, display exclusionary patterns and so on. It is completely unclear from the Reports why such criteria, individually or collectively, if they really do represent existing social structures, should specifically be designated as caste or as morally objectionable. To take a different example Jews could just as easily come within the three criteria, but would that make Jews a caste?
  11. The idea that Indian society is composed of a caste system is based on Christian representations of Indian society and culture, which were taken up by Orientalists and contemporary social scientists who assumed their truth. The idea of a caste system was created because of the frustration of Christian missionaries who decided that Brahmins, who they typified as the ‘priests’ of the Hindu religion, were responsible for the failure of their efforts to convert Indians to Christianity. The idea of the caste system is therefore directly linked to Christian conversion efforts in India. The Brahmins were said to be responsible for holding the Indian people in ignorance of the true religion that Christianity is claimed to be. Conversely, Indian traditions were and continue to be held to be false religions.[6] Indian traditions have never singled out other traditions as rivals on religious grounds.
  12. The idea of a caste system is also framed in normative ethical terms such that Indian society is said to be characterised by an unjust and immoral caste system which is a degeneration of an originally occupationally and hierarchically ordered system which was designed for discrimination.[7] This Western Christian-Orientalist construction has now become commonplace in the ‘knowledge’ that human sciences propound about India. The moral degeneracy associated with caste is suggested right at the start of the Socio-Legal Review which announces (at p. iii) that “Caste is a form of identity that is used as a basis for social differentiation and usually involves inequality.” A system that “usually involves inequality” is presumptively discriminatory and therefore productive of unjust results.
  13. The association with Hinduism was and remains the core of the idea behind the caste system. All subsequent accounts of caste, including the Reports in question depend on a vision of Indian society constructed along these lines. That account has become a presupposition for the study of Indian society, and increasingly now the Indian diaspora, and remains at the core of the Reports. The writers of the Reports have tried to distance themselves from associating caste with Hinduism but yet the assumption remains at the core of their conceptualisation of the caste system. On the one hand, the researchers note that, “the question of the relationship between caste and Hinduism was hotly discussed” at the Stakeholders Workshop (Experts’ Seminar and Stakeholder’s Workshop, p. 27). But, on the other hand, they then go on to say, “While linked to classifications of ancient India (varna), the distinctiveness of caste does not reside in a connection to Hinduism or to any other religion” (p. iv). No criteria are provided for why the authors made such a switch in the executive summary and, in the absence of such criteria, it is not clear otherwise why participants of the Stakeholders meeting would not resolve the matter (it was “hotly discussed”) while the Report writers assert that it is nothing to do specifically with Hinduism. The Socio-Legal Review (p. 4) says that “Unlike varna, the concept of jati is not connected to any one religious grouping, but is found in all the major South Asian religious communities.” If that is so, then is varna not a feature of Hinduism? And, if that is the case, why do the Report writers not say that explicitly? After all, what other religious community would they link varna to? Further evidence of the coyness about the link with Hinduism comes when varna is defined in the same Report (p. 4) in the following way: “the four-fold division of Indic populations, is widely used in Sanskrit texts: Brahmin (priest), Kshatriya (warrior and ruler), Vaishya (trader or producer) and Shudra (servant, labourer).” There is no specific mention here of Hinduism either, but then which religion do social scientists think the Brahmins are the priests of?
  14. The Socio-Legal Review (p. 8) makes the following somewhat cryptic observation: “In the case of Hindus in Britain (in the majority Gujarati, with a significant numbers from East Africa), caste groupings remain important in networking, marriage and caste-based organisations … However, the development of an ecumenical composite ‘British Hindu’ community involves the submerging of caste identity and a public rejection of negative (colonial) representations of Hinduism.” Thus the writers resurrect the connection of Hinduism with caste, but also suggest that, somehow, the British Hindu community continues to surreptitiously practice the caste system. Not only does this reinforce the link between caste and Hinduism, which the authors elsewhere seek to modulate, but it insinuates that British Hindus act disingenuously, publicly denying the caste system, by attributing it to the colonial state in India, while privately practising it. Further, this appears to be the only significant mention of the colonial experience in the Socio-Legal Review, which thereby consigns the colonial experiences of both the colonisers and the colonised to a marginal footnote to the caste system. Even at this point, the writers are not able or willing to explain just what the role of the colonial experience was and how instrumental it was in establishing and dispersing widely the idea of the caste system that in turn informs the Report writers’ research.
  15. Let us take an example from the Socio-Legal Review of just how incoherent a picture we get. Caste is said to be “fluid” (p. iii and p. 3), although we are not told of what the fluidity consists of and why it has that characteristic. We are told that it is both positive and negative although again we are not told of the criteria for making either judgment. One association that is said to be negative could well turn out to be positive. For instance, “social separation” is said to be one form in which caste is negative, although we do not know why that should be necessarily so and who considers it to be so. The aspect of caste as a “form of association”, which could well be the converse of “social separation”, is said to be positive. It is never explained, for instance, when religious sects might socially separate themselves from surrounding groups, why social separation along caste lines is viewed as negative. We cannot unambiguously say that separation along lines of Sunni, Shia or Ahmadiyya is negative, or as between Protestants and Catholics since, at some level at least, forms of separation do inform these identities, but they are not said to be ipso facto morally charged in the way that caste is said to be. Why not? To take the problem one step further, the state also supports social separation to an extent because, for example, it funds faith schools and to that extent we might say that it is regarded as a positive.
  16. Other examples in the Socio-Legal Review appear even more bizarre. We are told (p. iv) that “In Britain”, caste is used interchangeably for varna, jati and biraderi and that the most typical usage is jati. We do not know whether this results from some sort of survey; whether it tells us something about the manner in which Indian, Pakistani etc. groups use the term(s); whether they are theoretical terms academics use to talk about South Asian society; whether a translational exercise is done when members of these groups are confronted with the word caste and, if so, how such a socio-linguistic practice is measured and what its relevance is; whether the term caste (a European term) has been imposed on various designations or social structures from the outside. Immediately afterwards we are told that varna is the hierarchically ordered fourfold occupational division widely used in Sanskrit texts outside of which stand the Dalits, formerly known as ‘Untouchables’. Immediately after that we are told that actually not all those who adopt the term ‘Dalit’ are of ‘Untouchable’ origin. Let us leave aside the slippage about who exactly a Dalit would be (or would have been had the term been in use prior to the twentieth century) and the ambiguity in the statement “It embraces a variety of distinct castes” referring to Dalits (raising further questions e.g. which South Asian term(s) would be appropriate here for the variety of Dalit ‘castes’ then?). We are also then told that the “second meaning”, jati, refers to units which are “not fixed” and may be divided into sub-castes (does this mean sub-jatis?). But apparently they are “socially significant identities and status groups”. Caste also “encompasses biradari” we are told. These terms apparently mean different things (perhaps to different groups of people or in different settings?), but we do not quite know how the word caste could be used for three terms – varna, jati and biraderi – which refer to completely different things (although it is never clear precisely in what way different).
  17. Let us further take the idea of “ranking”, which the authors of the Socio-Legal Review (p. iv) regard as one of the negative forms which caste takes. That Report also speaks variously of ‘hierarchy’ with reference to both varna and jati. The Report does not, however, express how these rankings come about, who decides them, and how they are enforced and kept in place. Would designation of low rank by one group against another necessarily be accepted by the group being ranked? Do Brahmins decide on rankings? If so, is it one central Brahmin authority or some other Hindu body that would decide this? Do biradaris have a hierarchy? The Report does not mention this anywhere although it asserts generally that castes (which allegedly encompass biradaris) have rankings (p. iv) in one of their “negative” forms. Will the assumed rankings then go into deciding presumptively that a person has discriminated on grounds of caste? In other words, will the idea of rankings mean that those considered of ‘higher’ rank will be presumed to have discriminated against those considered to be of ‘lower’ rank? And whose consideration of ranking would prevail in legal contexts?
  18. The Socio-Legal Review ‘explains’ biradaris further (at p. 5 and p. 9) but yet does not say if they are hierarchical in nature although a competitive element is cited. Biradaris are seen as expressing caste: “Amongst Muslims of South Asian origin in Britain, caste identity expressed as biradari or zaat” (p. 9). The Experts’ Seminar and Stakeholder’s Workshop Report mentions biradaris only once on the basis that “Some experts said that the research team should also look at the Pakistani Muslim community and at the notion of biradari.” (p. 9) It seems like consideration of biradaris has crept into both Reports only as an afterthought; they certainly do not disclose any effort made to look into the concept or the social structure it might represent. The suggestion to look at Pakistani Muslims is nowhere taken up in the Reports, although we note the discussion of the Naveed v Aslam (Socio-Legal Review, p. 14), where the Employment Tribunal did not accept the case as one of caste but class discrimination. The thrust of the Reports leads to suspicion that it is Indian as opposed to Pakistani or Bangladeshi social groupings or social structures are of interest to the authors of the Reports, even though they tend to talk repeatedly of the ‘South Asian’ phenomenon of caste. In fact, the authors do not appear interested in an analysis of caste among Muslim or Christian groups at all, even though it is mentioned that caste cuts and “persists” across religious groups.
  19. The writers of the Reports have an inconsistent way of discussing the relationship, if any, between ‘race’ and ‘caste’. In the first place, we are led into confusion about what the writers want to say about race. At one point the idea of nasal, translated as lineage, is said to be ‘race’ (Socio-legal Review, p. vi and p. 5), which is related, we are told, to biradari and zaat. We do not know why it should be said to constitute ‘race’, let alone what idea of race is being used here. However, we are also told that ‘caste’ is distinct from ‘race’ (as well as from class and various forms of ethnicity, Socio-legal Review, p. vi). Again, it is not made clear what idea of race is being used here. The decision of parliament to legislate for caste to be “an aspect of race” makes life more difficult for the Report writers as they additionally have to contend with the legislative idea of race, which derives from the Race Relations Act 1976, and which has subsequently entered the Equality Act 2010.
  20. The matter is made even more complicated given that the Committee on the Elimination of Racial Discrimination asserts that caste is part of descent in the treaty it monitors, the Convention on the Elimination of All Forms Racial Discrimination. However, neither Report mentions that the Indian government has resisted attempts to include caste as part of descent at United Nations level. The authors of the Socio-Legal Review state (at p. 34): “the question of diaspora communities has been specifically raised as part of the UN movement against descent-based discrimination.” How this issue was raised and with what mandate from the Indian communities in the UK is not mentioned. We cannot accept that merely because an issue is raised in the UN that it becomes legitimate for the UK government to begin to legislate on it without the involvement of the communities most likely to be affected by the legislation. It could well be a back-door method of gaining some false legitimacy for an issue which the pro-legislation lobbies, which includes the writers of the Reports, failed to gain on cognitive grounds. The Report writers display a measure of disingenuousness in raising the issue in this way as if it legitimates the UK parliament’s legislation. It does not.
  21. Despite the lack of coherence about caste in the Reports, the authors also want us to believe that caste discrimination is also a prevalent enough phenomenon in the UK. How this is so we are not told. Previous reports are referred to as indicating the existence of discrimination in the various fields both within and outside what the legislation could potentially cover. The NIESR report which was proclaimed by the pro-legislation lobby as providing uncontested proof that caste discrimination is prevalent is qualified in that it is admitted that it fails to show what discrimination exists which could reasonably be dealt with by law. In fact this is partly admitted in the Experts’ Seminar and Stakeholder’s Workshop Report (p. 15) where it says: “it was recognised that the majority of the incidents reported in that study would not lead to court cases under the Equality Act 2010.” However, it is not merely the majority of cases that do not disclose any ground of action. We challenge the writers of that Report to substantiate any instance in the NIESR report, which provides proof of a claim actionable under the Equality Act 2010. Rather oddly, the same Report mentions other “studies” as having already proved the existence of discrimination within the range of legislation (Experts’ Seminar and Stakeholder’s Workshop Report, pp. 15-16). The writers are not transparent about what those studies are. We are aware of reports that do proclaim such discrimination as existing but advocates for the legislation who have a pre-determined agenda compose them, they use questionable methodology, and produce results that do not hold when scrutinised in light of scientific criteria. If the authors of the Reports currently in question are genuine about the level of discrimination going on they should be open enough to be able to show us where their evidence is coming from. Mere allegations will not do.
  22. The Reports are also full of allegations about the taboo on talking about caste and how that may be responsible for the lack of knowledge about it, although this is nowhere substantiated. This seems another disingenuous way of suggesting that the evidence must be out there but that it is difficult or impossible to collect given the taboo of talking about the phenomenon. There are well-organised pro-Dalit and pro-legislation groups (supported by Western Church organisations) which have been setting up campaigns for agitation and legislation for a number of years in the UK and internationally. It seems unrealistic that they do not have access to relevant evidence if it does exist. Certainly, the quality of the data produced does not justify the insistence of the lobbies and their supporters in parliament and among academics on the need for legislation for a problem that seems chimerical.
  23. The Report writers appear to be at pains to get across the idea that the legislation is symmetrical in that it would affect discriminators from all castes. Yet the dominant assumption behind the legislation and one which is being invoked in the cases have been recently set up, or are currently being set up via different agencies, is that it is so assumed ‘low-caste’ people which are making claims. The presumptive discriminators are those who are classed in the rhetoric of the pro-legislation lobbies as ‘upper caste’. This is another example of the disingenuous nature of the Reports in that the pretence of legislative neutrality is being conveyed through them.
  24. The Report writers betray implicit confidence in the efficacy of anti-discrimination law although, apart from their vowed belief that legislation will “generate attitudinal change” (Socio-Legal Review, p. 36), it is not clear how they have identified what effects the legislation will have. This demonstrates naiveté among the writers, also revealed in how their discussion revolves around the symbolic legal politics of having caste recognized in legislation and case law, but refuses to consider any after effects the legislation will have in the UK and among the target communities. This further reinforces our view that the legislation is intimately tied to the politics of caste as it affects Christians and Muslims in India. This has led the writers to ignore many facts about the current operation of anti-discrimination law, including that its lack of success in terms of effecting change in discriminatory patterns in the labour market and the ability of judges to identify and act upon cases of racial discrimination with a sense of socio-legal awareness. We know also the litigants for racial discrimination, in particular, face an uphill task using the existing legal framework although we remain convinced that cases brought on the basis of caste will be dealt with using a different approach because of the implicit presumption of discrimination likely to be applied to alleged discriminators. Both Reports repeatedly affirm the “complexity” of caste. Combined with the difficulty of experts explaining to tribunal members and judges specific aspects of South Asian cultures (not to mention the core disagreement among experts themselves), we cannot be confident that cases brought under the legislation will be dealt with fairly.[8]
  25. The manner of the conduct of the investigations leading to the Reports, the approach taken in terms of the lack of rigour and inattention to scientific criteria leaving the reader in little doubt about the presuppositions made by the writers, and the evident slant of the Reports in favour of the pro-legislation lobbies, leaves us with little choice but to express no confidence in the exercise mounted by the EHRC and the research teams it has commissioned, on public funds.
  26. Being in agreement with the caste provision of the Equality Act, the writers of the Socio-Legal Review question (p. 34 and p. 36) only one part of that provision, the ‘sunset clause’, which provides for review and repeal after five years. Instead, they want it as a permanent feature of the legislation. It is not clear why only this part of the legislation comes under the scrutiny of the Report writers, when this submission identifies a whole host of other problems which remain unquestioned or overlooked. We would prefer that this ill-conceived legislation, which a range of contemporary social scientists cannot make coherent sense of, should not be effected into law and instead the provision of the Equality Act 2010, adding caste as an aspect of race, should be repealed.

This submission is approved and signed by the following organisations and persons:

Alliance of Hindu Organisations
Anti-Caste Legislation Committee
British Hindu Voice
City Hindus Network
Coalition for Dialogue
Hindu Lawyers Association
Hindu Swayamsevak Sangh (UK)
National Council of Hindu Temples (UK)
National Hindu Students Forum (UK)
Vishwa Hindu Parishad (UK)
Nitin Mehta

[1] For example, key organisations were left out of the exercise for which satisfactory explanations have not been provided.

[2] This is evident, for instance, in the writings of two of the authors of the Socio-Legal Review. Waughray, Anapurna (2009): ‘Caste discrimination: A twenty first century challenge for UK discrimination law?’ In: Vol. 72, No. 2, Modern Law Review, pp. 182-219; David Keane (2007): Caste-based discrimination in international human rights law. Aldershot: Ashgate. Both authors have also written a note on Amending the Equality Act 2010 to include Caste Discrimination, at http://www.odysseustrust.org/caste/Amending_the_Equality_Act_2010.pdf, last accessed, April 2014, with Lord Lester who is a promoter of the legislation in the House of Lords, and that note also displays a pro-legislation stance.

[3] The citation is to the book, Bayly, S. (1999): Caste, Society and Politics in India from the 18th Century to the Modern Age. Cambridge: Cambridge University Press, p. 7.

[4] The problem of having too broad or narrow a definition appears to have arisen from a statement by one (unnamed) expert as cited in the Experts’ Seminar and Stakeholder’s Workshop Report (pp. 8-9).

[5] Figures from National Statistics show that White people are the least likely to be married to someone outside their ethnic group.

[6] Gelders, R and Balagangadhara, S.N. (2011): ‘Rethinking Orientalism: Colonialism and the Study of Indian Traditions’, History of Religions, 51, no. 2 (2011): 101-128; Balagangadhara, S.N. (2009): “The Heathen in his Blindness…” Asia, the West, and the Dynamic of Religion, Leiden: Brill, pp. 86-89.

[7] The Socio-legal Review links the caste system to occupation in three places while the Experts’ Seminar and Stakeholder’s Workshop Report mentions the link in five places. Interestingly, in the former, one of the references (at p. 32) is to an Indian Supreme Court decision and one (at pp. 28-29) is to a General Comment made by the Committee on the Elimination of Racial Discrimination (CERD). This shows that the link is continuously upheld in legal contexts.

[8] On the role of experts and the difficulties of getting across to lawyers and judges culturally specific dimensions of the background to cases, see Ballard, Roger (2006): ‘Ethnic diversity and the delivery of justice: The challenge of plurality’. In: P. Shah and W. F. Menski (eds.): Migration, diasporas and legal systems in Europe. London: Routledge-Cavendish, pp. 29-56; Ballard, Roger (2007): ‘Common law and common sense: Juries, justice and the challenge of ethnic plurality’. In: Prakash Shah (ed.): Law and Ethnic Plurality: Socio-Legal Perspectives. Leiden: Martinus Nijhoff, pp. 69-105; Livia Holden (ed.) (2011): Cultural expertise and litigation: Patterns, conflicts, narratives. London: Routledge. On the lack of socio-legal context being understood or applied in discrimination cases, see Shah, P. (2010): ‘Ethnic and religious diversity in Britain: Where are we going?’ In: Geraldine Healy, Gill Kirton and Mike Noon (eds.): Equality, inequalities and diversity: From global to local. Basingstoke: Palgrave, pp. 77-92.

 

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5 Responses to Response to two Reports on Caste by the Equality and Human Rights Commission

  1. A detailed report showing how EHRC, NIESR and Labour Party MPs ALL got it so wrong on this issue. They should have come to you Dr Shah…..they would have been enlightened and might have avoid the disgraceful error they committed.

  2. This is a very thorough and trenchant critique of the new legislation which is being proposed. It demonstrates a profound misunderstanding of the meaning and nature of caste. In reality, there is little empirical evidence of caste discrimination in practice. The flaws of the EHRC research are profound and very substantive. These need to be addressed by government in a civil, inclusive society. I hope and pray that this legislation is removed from the statute book as soon as possible.

  3. Rajesh says:

    Good response!

  4. Chinta Kallie says:

    For far too long white academics and would-be academics have ‘patronised’ Indians and ‘hi-jacked’ our history and culture to boost up their images so that they can extract more funding fo their spurious findings

  5. Pingback: Call out the Christian churches on the caste system | Law, Culture, Religion

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