This comment summarizes and offers some reflections on the case of Chandhok & Anor v Tirkey (Race Discrimination)  UKEAT 0190_14_1912, decided on 19 December 2014. It is an early Christmas present for the Indian communities in Britain since it accepts the principle that caste is part of the existing discrimination law in the UK.
The case arose in unusual circumstances, having begun in the Employment Tribunal (ET), where the claimant had made claims for unfair dismissal, religion and belief discrimination, unpaid wages and holiday pay. At a late stage in the proceedings the claim was changed to argue that she was also discriminated against her status in the caste system and that caste discrimination should be read as part of race discrimination under the Equality Act 2010.
She alleged that as an Adivasi German Catholic Christian she was subject to various disabilities in her employment relationship including not being invited into the house when she started her employment relationship in India, living in the respondent’s house but in separate quarters, not being allowed to sit on the same furniture as her employer, and having to use separate cups and plates. She claimed that Adivasis are a servant caste, and that the employer had asked her about her caste when she began employment. The employer, she claimed, would have known it anyway given her dark skin and the colour of the sari (white with red border) she would wear on festival days, her Bihari dialect, and her Hindi being different from the respondents. The factual background has not yet assumed importance although it may do now that the case will revert back to the ET from its appeal in the Employment Appeal Tribunal (EAT).
The ET judge had allowed a hearing to take place on whether caste discrimination could be added to the existing claims. After that he held that it should be, on the ground that the Equality Act 2010 had to be read as if caste was included since it was in part an incorporation of the EU’s Race Directive (2000/43 EC), which was meant to incorporate the UN Convention on the Elimination of Racial Discrimination (CERD/ICERD), which in turn had already been read as if it included caste as part of its provision on ‘descent’. UK law has to be read subject to EU law and so this reading was justified in the judge’s mind.
One bar to this argument was the existence of the as yet unimplemented provision on caste in section 9(5) of the Equality Act. The timetable for its implementation is not clear although the Enterprise and Regulatory Reform Act 2013 amended the 2010 Act in order to make it mandatory for the minister to implement it (previously it was a mere power leaving it open to the minister to do so). The existence of the caste provision in section 9(5) became the main bone of contention in the case at appeal before the EAT. How could an Act of Parliament, which referred to caste and was yet to be implemented, be consistent with the argument that the existing legislation should be read as if it already covers caste? This was in effect the argument of the Chandhoks (who became the appellants in this appeal).
Mr Justice Langstaff, who is President of the EAT, did not see any inconsistency however. He held that the fact that the Equality Act already provided for caste, albeit unimplemented, was not a bar to recognizing that the “ethnic origins” part of race in the same Act had some bearing on caste already. The court referred to Annapurna Waughray’s article where she presents the following idea of caste:
There is no agreed sociological or legal definition of caste, but a number of salient features can be identified. Castes are enclosed groups, historically related to social function, membership of which is involuntary, hereditary (that is determined by birth) and permanent… Unlike class, it is not generally possible for individuals or their descendants to move into a different caste. Caste is governed by rules relating to commensality (food and drink must only be shared by others of the same caste) and is maintained by endogamy (marriage must be within the same caste). It entails the idea of innate characteristics and hierarchically graded distinctions based on notions of purity and pollution, with some groups considered to be ritually pure and others ritually impure. A crucial feature of caste in South Asia is the concept of “Untouchability”, whereby certain people are considered to be permanently and irredeemably polluted and polluting, hence “untouchable”, with whom physical and social contact is to be avoided. Despite the notional nature of caste, Untouchability is conceptualised as an innate physical property separating the Untouchables from the rest of society
Whatever one may think of this effort, while Waughray honestly notes that there is actually “no agreed sociological or legal definition of caste”, her account appears to distil the various “salient” dimensions of caste that express the European experience of India, which we can call Orientalism. Caste makes no sense to Indians whatsoever, although many wax lyrical about it. But it makes sense to Europeans, and regardless of whether it means many different things and whether they cannot theorise about it consistently, they feel sure it exists. Mr Justice Langstaff did not linger further over what caste is, but was content to say that at least some things that caste stands for must be covered by “ethnic origins”. In so far as that is the case, caste could be part of a claim of race discrimination.
Putting it negatively as Justice Langstaff did (at para. 45): “The fact that there is no single definition of caste, as the parties before me were agreed, does not mean that a situation to which that label can, in one of its manifestations, be attached cannot and does not fall within the scope of ‘ethnic origins’.” Justice Langstaff fails to specify which of the “manifestations” of caste he is thinking about. Positively, if the claimant “proves facts which – whether colloquially or accurately – could be described as ‘caste considerations’ which come within the heading ‘ethnic or national origins’ … she will succeed in her claim if the Tribunal concludes that she was less favourably treated because of those facts: if she fails, then no matter how much it might be asserted that she is of a particular caste, and that that was a reason for her treatment, she will fail unless at least part of her treatment falls within” [the colour, nationality, or ethnic or national origins grounds of the Equality Act] (para. 53). The fact that “could be described” is a very tentative legal test for imposing liability upon another party should be fairly worrying for Indians especially, who will be targets of litigation hereinafter. Caste is therefore legally relevant now in so far as a nexus can be established between caste and ethnic origins, say through the idea of descent. The Supreme Court has already ruled in the JFS case  UKSC 15 that a school admission policy stipulating descent from a mother who is Jewish by conversion was unlawful because it discriminated on grounds of descent, which also amounts to ethnic origins discrimination. Some sort of caste ≤ descent ≤ ethnic origins ≤ race chain of thinking seems to be envisaged here.
The EAT’s judgment has been delivered while a fight is on about the propriety of the Equality Act’s provision on caste that, as noted, has yet to be implemented. One question is what will happen to its implementation now that there is an in-principle acknowledgment that British case law accepts caste as an element of ethnic origins discrimination. It is open to question whether the judicial overtaking or bypassing of the Equality Act provisions, as indeed had been argued by the appellants should not be done, compromises the current government’s efforts to research and think through how best to implement the provision. Non-implementation is not an option since the obligation to implement was introduced in 2013.
The attitude of the Equality and Human Rights Commission (EHRC) has been odd. It has previously declared itself to be in support of the caste provision in the Act itself, even before it had itself been commissioned by the government to arrive at some sort of understanding of what caste actually means for that Act. The ensuing reports, written in part by the above-cited Annapurna Waughray, failed to yield a coherent account of caste, as indeed there could not have been. Yet in the appeal before the EAT, the EHRC appears to maintain a stance that caste could indeed be read into the scope of the existing ethnic origins provision. At least this is the implication from its resistance to the idea that the existence of the unimplemented caste provision in the legislation should act as a bar to the judicial stretching of the other grounds to include caste. We have asked for a Freedom of Information request to obtain the pleadings used by the EHRC to ascertain further just what its position during the litigation was.
Without saying as much, the judgment under discussion indirectly takes a position on the fraught question of the international law on racial discrimination and the extent of the descent provision in the International Convention on the Elimination of Race Discrimination (CERD/ICERD). In the JFS case, Lord Mance, said (at para. 81) as follows:
having been introduced on a proposal by India, the word ‘descent’ is limited to caste, but India itself disputes this, and it has been forcefully suggested that the background to its introduction indicates that it was not concerned with caste at all: Caste-based Discrimination in International Human Rights Law, David Keane (Brunel University, Ashgate Publishing Ltd., 2007, chap. 5). Nevertheless, the Committee established to monitor implementation of CERD under article 8 has itself treated descent as including caste in its General Recommendation XXIX A/57/18 (2002) 111, where it recommended, in para 1, that states take “steps to identify those descent-based communities under their jurisdiction who suffer from discrimination, especially on the basis of caste and analogous systems of inherited status”. Whether or not ‘descent’ embraces caste, the concepts of inherited status and a descent-based community both appear wide enough to cover the present situation. That in turn tends to argue for a wide understanding of the concept of discrimination on grounds of ‘ethnic origins’, although the point is a marginal one.
While the Supreme Court did not have to decide the point whether descent included caste, it did note India’s refusal to accept that it did, and the matter had earlier been argued at the UN conference on Racism in 2001 in a manner which avoided including caste in the conference declaration, to the satisfaction of the Indian government. Undoubtedly, the whole effort by Western Churches and their Dalit clientele to enlist the help of UN and EU organs to repeatedly make statements about caste discrimination is directed to India in the global effort to proselytize among the pagan Indian population (as indeed elsewhere in Asia). In that light, we can see the UK courts and legal system becoming entangled in a larger game, which is not of their making, but in which they have become willing or unwilling participants.
Justice Langstaff may be a willing participant in so far as he declared (at para. 52) that his interpretation “is consistent with the UK’s international obligations, including that derived from ICERD”. He declared that his interpretation is also compatible with EU law (para. 52). The case could well have gone differently and a reference could have been made to the Court of Justice of the EU for an authoritative interpretation of the Race Directive’s scope. That did not happen, but the spectre of EU law in the background (which Justice Langstaff’s reference underlines) potentially means that caste can be said to be included in ethnic origins discrimination throughout the territories of EU member states. Caste has simply been read into the EU’s Race Directive by judicial fiat. While not binding on the courts of other EU countries, the day may not be far away when Indians across the 28 countries of the EU are dragged to court in order to establish that caste discrimination, which they are presumed to practice, is unlawful.
Dr. Prakash Shah is the Academic Co-Chair for the Coalition for Dialogue
He is the Director of GLOCUL: Centre for Culture and Law, Queen Mary, University of London