ACLC Update, July 2015, on the implementation of the caste provision in section 9 of the Equality Act 2010
The ACLC (Anti Caste Legislation Committee) was brought together as a group of organisations and individuals to fight against the provision on caste in the Equality Act 2010. We have been monitoring developments and taking steps necessary to ensure that happens. We have made known the fact that the legislation would have extremely damaging consequences for Britain’s Dharmic communities, for businesses, employers and community organisations. The legislation was brought in despite the lack of research, a fact covered up through some shoddy research done after the legislation had already been passed. The legislation, while clothed in the language of equality and human rights, is an attempt to use Britain’s Dharmic communities as a proxy for a Christian conversion campaign in India. The caste provision has not yet been implemented. The lobby group in parliament in favour of the legislation demanded a question and answer session before the parliamentary recess on 15th July 2015 to bring pressure on the government to implement it. The following is the position paper that we submitted prior to that debate, as to why the government should overturn the caste provision.
Representation regarding the clause on caste in section 9(5) of the Equality Act 2010.
The Hindu & Jain position as presented by the ACLC is as follows:
1. We reject the clause in section 9(5) of the Equality Act 2010 on caste discrimination. We consider it to have been introduced on false and dubious premises in such a way as to mislead parliament and the British government. We consider it a direct attack on the Hindu, Jain and Sikh communities of Britain.
2. We believe that the real reason the caste clause was introduced has nothing to do with the situation in Britain. Rather it is meant to facilitate interference in India’s internal affairs. It is unfortunate that the Hindu, Jain and Sikh communities of Britain have been caught up in this maelstrom, been made scapegoats, and had their integrity questioned by those within and outside parliament supporting the offending legislation.
3. We believe the real reason for the introduction of the caste clause is linked to the agenda of proselytism in India. It indirectly raises the question of exclusion of Christian Dalits in the reservations system in the Indian central legislation, the exclusion of whom is considered by evangelical Christian churches to be a bar to proselytism. We have evidence for the links between Dalit Christian organizations and Lambeth Palace who have been working together to get this legislation passed. The aim then is to pressure the Indian government to extend its reservations on caste to Christians, if necessary via the EU and UN organs as is already occurring.
4. The actions of the established Church in this country to try to influence legislation on spurious grounds that would expose the Hindu, Jain and Sikh communities of Britain to frivolous litigation is an abuse of an organ of the state and raises questions under the European Convention on Human Rights.
5. The caste clause was introduced into the legislation before any research was commissioned. This is the first time to our knowledge that a piece of anti-discrimination law has been introduced without proper investigation as to its necessity. Those supporting the legislation are on record as saying that no research is required and that even one case of caste discrimination would be enough to legislate. The former Labour government has dismissed the necessity of the idea of legislating on caste by 2007 after soundings but somehow the caste clause was brought into the legislation in 2010, despite assurances to the contrary to the Hindu, Jain and Sikh communities of Britain.
6. On the basis of literature sponsored and written by organisations and individuals within parliament that support the legislation, but yet unsubstantiated, the number of Dalits in the UK is said to be somewhere between 50,000 to 200,000, but other supporters of the legislation (including the BBC) have put the figure higher than 400,000, while Jeremy Corbyn MP put the figure at 1 million during the debate on caste in July 2014. Questions are raised as to the veracity of all of these claims and how they have been inflated at every opportunity to give the impression that the size of the caste discrimination problem in the UK is of enormous size. The implication is that all of these people suffer discrimination of the worst kind, although no serious research has managed to demonstrate that.
7. The presence of legislation in India and, broadly, in South Asian countries was consistently misrepresented or parliamentarians advocating the law on caste in Britain showed their ignorance of the legal situation in South Asia. The impression was given that India already has legislation similar to that contended for in the UK. This is untrue as the Indian system is based on caste-based reservations (or quotas) of the kind that no Western country would countenance. India has no civil anti-discrimination law allowing tort like claims as the UK equality law does. India supplements its law on reservations with a system of criminal penalties for caste atrocities. Nepali legislation is also based on criminal penalties. Other South Asian countries have implemented no specific legislation on caste.
8. The research on caste commissioned by the government and conducted by NIESR in 2010 was done after the legislation was already on the statute book. It was also flawed. The research team was directed to find discrimination by individuals committed to a pro-legislation agenda. Despite this skewed way of researching the problem, the report by NIESR specifically stated that it could not establish the existence of widespread discrimination and instead recommended a research programme if such a claim were to be substantiated. No such research has been commissioned and, as the Hindu, Jain and Sikh communities of Britain have been arguing throughout, such research would simply fail to show caste discrimination.
9. The EHRC was already committed to the principle of the legislation since its introduction and has maintained that stance ever since without being able to justify it. The research backing its stance was lacking and is still lacking. Internal documents from the EHRC revealed to us prove that the EHRC management team was warned that the NIESR report does not establish the existence of caste discrimination and yet it has continued to publicly project the view that there is such discrimination and that the legislation was needed. The EHRC has also allowed itself to come under the influence of pro-legislation lobby groups such as the National Secular Society, it has chosen to support them, and to deliberately ignore the objections of Hindu, Jain and Sikh communities of Britain despite internal warnings within the EHRC that community relations would be adversely affected. Again, documents released to us prove that.
10. The EHRC also supported case law decided by the Employment Appeal Tribunal in November 2014 to establish that caste is already covered under the Equality Act, despite the above problems being within its knowledge. That is, knowing that there was no evidence of widespread discrimination, and knowing that the Hindu, Jain and Sikh communities of Britain were already objecting to the role the EHRC was playing in supporting the effecting of the caste clause, it took the position, as intervener, that judges must endorse the view that even without the caste clause being effected, the Equality Act already covers caste discrimination.
11. The EHRC commissioned research on how to implement the law is also flawed. The EHRC commissioned a team of academics from various British universities who were already committed to the caste legislation and several of whom have been working with parliamentarians and behind the scenes preparing the legislation and how to implement it. They also presuppose what is not proven – that there is caste discrimination in Britain.
12. The EHRC commissioned team, reporting in 2014, fails to provide any workable definition of caste. Instead, it lauds its own imprecision as an advantage. How the legal system in general and courts and judges in particular are to approach the task of applying the law is not explained. Rather the problem is dismissed by claiming that other aspects of equality law have also left the task of definition to the courts. However, the problem is far deeper because explaining what caste is will also have consequences for public understanding of what it is so that the public can thereby regulate their behaviours. How are members of the public supposed to act pursuant to the law if the ‘experts’ cannot even define caste?
13. The problem of definition was bound to arise given the stereotypes behind the idea of caste and the caste system generated over several centuries. Our studied contention is that the idea of the caste system is grounded in the Christian polemic of Indian religion as a form of heathenism with its corrupt priesthood. This trope was adopted by Orientalists and has since been popularized within the social sciences and in popular culture. That such a stereotype exists in popular culture and in educated circles can easily be tested. Although the Christian theological background to the idea of the caste system is now hazy, it explains why, despite the myriad theories of caste that exist in the social sciences today, the idea of the caste system is not given up. Under normal scientific circumstances the existence of multiple theories would be a major problem for any contended phenomenon. For the caste system it is not regarded as a problem. The fact remains that the caste system idea was created by Christian theologians and is today only really relevant in their minds but should be abandoned by all right thinking and scientifically minded people.
14. We object to the direction recently taken in the case law. Judges in the ET and the EAT (in the Tirkey case) have decided that caste is already part of the Equality Act since it can be read into descent based discrimination which in turn can be derived from discrimination on grounds of ethnicity. We object to this whole development in the case law. Unfortunately, the Supreme Court in the JFS case had already decided that descent-based discrimination was already unlawful. No public debate has taken place about the propriety of such a direction being taken in law, while descent affects many an area of life that one would not want to come under legal prohibition. Worse, judges have since taken the view that caste itself fits the descent-discrimination frame, again without supporting evidence and by using the views of persons already committed to making caste discrimination unlawful. Unfortunately, this situation already exposes large sections of society, and not just the Hindu, Jain and Sikh communities of Britain, to accusations of descent-based discrimination and requires urgent legislative intervention to prevent such exposure.
15. If the legislation is implemented, or if case law such as Tirkey is relied on in future, it exposes the Hindu, Jain and Sikh communities of Britain to a massive legal onslaught whereby their associational and economic freedoms will come under threat. The charity status of many of their organisations will also come under question and so will their ability to raise funds for the various socially beneficial activities they pursue. All this will occur under legislation and case law that is badly thought through and introduced on grounds that we consider spurious.
16. We now hope that the government and parliament can use its good sense to remove the exposure of the Hindu, Jain and Sikh communities of Britain to the badly thought out developments in legislation and in case law.