In their relentless pursuit, it is striking how little the protagonists promoting legal reform against caste discrimination in the UK care for truth or rigour of argument. This extends to those working in the legal domain including parliamentarians who pass laws, academics justifying the legislation and legal proceedings on grounds of caste discrimination, and those lawyers and judges who have to litigate or decide upon the merits of the cases; in other words, those who one might think have learnt to present arguments in a cognitively defensible manner in order to persuade, if not cajole their audiences. However, they have taken a quite misleading, even duplicitous attitude in presenting their case for reform.
The caste issue has been cooking in the UK for the last ten years or so. The proponents of the law have meanwhile taken a multi-track approach. They have argued before UN Human Rights bodies that the UK needs a law against caste discrimination. They have been pushing caste discrimination onto to agenda of the EU. By making fraudulent claims about the existence of caste discrimination and the number of persons exposed to it, they successfully argued for legislation to be passed in the form of a clause on caste in the Equality Act 2010. In the meantime, there have also been attempts to secure recognition by case law in the British courts that caste discrimination is unlawful. Each part of the strategy reinforces another part as each part is circularly claimed as justifying or obliging action on another front.
Hopes among the proponents that a test case would conclusively expose the practice of caste discrimination were earlier pinned on the Begraj case, in which a practice manager of a law firm in Coventry alleged that he was discriminated against because of his inter-caste marriage. That case ran out of steam when one of the tribunal members recused herself on grounds of potential bias. However, proponents for legal recognition claimed that that case would have demonstrated caste discrimination if only there had been legislation to recognise it. In so doing, they acted as if they already knew that the facts of the case conclusively demonstrated the existence of caste discrimination even though the case was never concluded. Although the legal proceedings were discontinued for other reasons, they several times, inside and outside parliament, represented the collapse of the case as demonstrating the inadequacy of the law (Shah 2015: 70-71). The subterfuge was justified, however, because repeatedly invoking the case served the higher purpose of ensuring that legislation be enacted.
The judgement in the case of Tirkey v Chandok (Case no. 3400174/2013) issued at the Employment Tribunal in Cambridge on 17 September 2015, and delivered by Employment Judge Ord (who decided the matter with two other panel members; the Tribunal judgment is stated as being unanimous), nearly concludes a complicated set of proceedings. The claim mainly turned on the underpayment, below the national minimum wage, for work done by the claimant. The part of the claim alleging caste discrimination was added at a late stage during the proceedings brought by solicitor Victoria Marks, of the Anti Trafficking and Labour Exploitation Unit. Although this writer sought an explanation from her as to how and why caste was introduced into the claim at a later point, she remains silent about it. It was said on behalf of the claimant that, being a Bihari Adivasi Christian, she was discriminated against on grounds of caste and religion by her employers who were an upper caste Hindu couple, one of whom had become a practising Buddhist. In fact, both are Buddhist and there is no mention of their caste at all in the judgments. Nowhere in the account of the case, from its three separate judgements, do we get a proper evaluation of just what role caste played in the matter. It is simply assumed throughout that, because the claimant was an Adivasi and the employers were from an upper caste, caste discrimination must have been present.
Before going into the details of the latest judgement, it is relevant to recall the earlier stages of the litigation. The first of the Employment Tribunal’s judgements in the case was delivered on 24 January 2014 (Tirkey v Chandok, Case no. 3400174/2013). In that initial judgement, in question was the preliminary issue of whether caste discrimination was already covered by the law, notwithstanding that the caste clause of the Equality Act 2010 had not yet been implemented (it has still not been implemented much to the annoyance of its proponents). Employment Judge Sigsworth held that caste was already a part of the Equality Act’s provision on ‘race’ and that a case claiming caste discrimination could therefore be brought under the Act. Judge Sigsworth had to go through a set of legal gymnastics to justify his conclusion. He argued that the Equality Act 2010 was in part meant to implement the EU’s Race Directive. That Directive referred in its preamble to the UN Convention on the Elimination of Racial Discrimination (ICERD). The Committee that oversees the application of that Convention had already determined that it covered caste discrimination under its provision on descent. Given that that was so, the Equality Act could be read as covering caste too because, in fact, descent based discrimination had already been recognised by the UK Supreme Court. Consequently, there was no need to wait for the implementation of the Equality Act’s clause on caste to bring an action of caste discrimination.
To those familiar with EU law, the stretched way in which caste is brought into UK law may sound somewhat odd, if not alarming or abusive. It is by no means evident that the EU Directive’s framers had caste in mind. No evidence to that effect was examined by Judge Sigsworth and the publicly available documents that led to its adoption disclose consideration of neither caste nor descent. Although the UN Committee takes the view that caste is covered by the Convention, this is against the objections of India, which has always said that the descent provision does not extend to caste. Given his contentious interpretation of the Directive’s effect, Judge Sigsworth would have been better advised to refer the matter to the Court of Justice of the EU. But he did not consider that point and, from the account we have, neither party to the case seems to have put such a suggestion to him, one of the many indications that the case was badly handled on the part of those representing the respondents, while those representing the claimant encouraged its inherently disingenuous claims.
Still, Judge Sigsworth’s judgement was appealed by the respondents to the Employment Appeal Tribunal, where it was decided by the EAT’s President, Justice Langstaff (Chandhok & Anor v Tirkey (Race Discrimination)  UKEAT 0190_14_1912, 19 December 2014). The EHRC became an intervener to the case at this stage, submitting its brief and supporting the claimant’s contended for interpretation (for details including discussion of declassified EHRC documents, see Shah 2015: 109-112). Justice Langstaff agreed that a claim based on caste could be made if it was subsumed under the notion of ethnicity, which had been already interpreted as covering descent by prior case law. He argued that his interpretation was in conformity with both EU law and the UK’s international obligations including the ICERD. It is somewhat odd that the judge would be concerned to address the question of conformity to EU or international law as that was hardly the issue in the case. Surely conformity would only be at issue if there was a prospect of breach of either legal order. In the case under discussion the issue was whether one could defend an interpretation based upon these legal orders, not whether it would breach them.
Justice Langstaff also made a number of critical observations of which the following two are important not least because they are also mentioned by Judge Ord’s September 2015 judgement. Justice Langstaff said that caste did not have to exist as “a separate strand in the definition of race”. However, he then stated that since “’ethnic origins’ is a wide and flexible phrase (Mandla) and covers questions of descent (JFS), at least some of those situations which would fall within an acceptable definition of caste would fall within it.” In so saying, Justice Langstaff appeared to disagree with the argument that caste had to be a clearly separable element of a claim, and asserted that as long as it fell within the wide and flexible notion of ‘ethnic origins’ and that it could be linked to descent then, according to “some acceptable definition of caste”, a claim could be brought. He then went on to say that “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’.” In other words, according to the President of the EAT, the lack of a single definition of caste does not hold back a claim on grounds of caste as long as some definition could be linked to ‘ethnic origins’.
It is far from clear what “an acceptable definition” of caste would be and who would decide its acceptability. Indeed, in a passage from Justice Langstaff’s judgement, which Judge Ord does not quote, Annapurna Waughray, an academic who is among the proponents of the law on caste discrimination, is quoted as saying: “There is no agreed sociological or legal definition of caste”. In that context, who would decide what an acceptable definition is and on what grounds would one do that? Presumably it has to be done by some background theory or framework and the currently dominant one tells us that, indeed, India has an inherently discriminatory and immoral caste system that obliges high caste Indians to discriminate against low caste ones. The problem is that that idea derives from, and indeed is a secularised version of, assessments made of Indian culture by Protestant missionaries on the basis that Hinduism is a false religion (Shah 2015: 4-10, 14-27). While this tells us nothing about India at all, it does have significance for how an implicit tone of immorality pervades the discussion of caste at every stage of the legal proceedings being discussed. And this is critical for providing the cement with which to speciously reach conclusions about the presence of caste discrimination.
The Employment Tribunal’s latest decision dated 17 September 2015 has been reported widely as affirming the existence of caste discrimination in that case and therefore more broadly within the culture of the Indian diaspora. In turn, proponents argue that this justifies the arguments made in favour of the as yet unimplemented caste clause of the Equality Act 2010. For instance, the views of Chris Milsom, the claimant’s barrister, have been reported widely in coverage of the case including by the BBC, The Guardian, the National Secular Society and Christian Today. He stated that:
Those who have closely followed the legislative history of the Equality Act will recall that the Government’s original rationale for refusing explicit prohibition of caste-based discrimination was that there was no evidence of it taking place in the UK. The damning findings of the Employment Tribunal render that stance untenable. Where such discrimination exists its victims must be protected.
However, a closer reading of the judgement shows that the presence of caste discrimination is not demonstrated; nor are the findings with respect to caste as “damning” as Milsom would have us believe. Lord Anthony Lester QC, who has championed the caste legislation in parliament, more accurately says that the case would be “of no value as a precedent”, but that statement is also given in the context of the argument made by the National Secular Society that the legislation on caste must be implemented, and it has not stopped Chris Milsom and other lawyers from misrepresenting the significance of the case.
Judge Ord (in effect the Tribunal) makes a large number of assumptions as to the presence of caste discrimination. We are told that, as far as the claimant was concerned, “the expectation for her and others would be to become servants and domestic workers in wealthier parts of India. The Claimant’s family has always carried out domestic work of one kind or another.” Whose expectation that was – was it her family’s or from the rest of society? Was such an expectation based on caste? We are not told about any of this, although the judgement suggests that that is one of the factors that must have been why she was sought by the employers and underpaid. Then we have this observation on the judgement which is also cited by the National Secular Society:
The Claimant’s family are “Adivasi” people who are dark skinned and poor. They can be either Christian or Hindu and are recognised by the sari they wear at festivals or on special occasions (a white sari with a red border). In the “caste pyramid” the Adivasi are the lowest class.
Judge Ord thus states that the Adivasi people can be recognised by the colour of the sari they wear. He adds that they constitute the bottom rung in the caste pyramid. And of course that they are dark skinned.
Is there a caste pyramid in India? Are Adivasis really to be found at its bottom rung? What no one conducting the case realised is that in India Adivasis are considered to be tribal people and outside of the so called Hindu caste structure. Indian law places them in a separate category of ‘Scheduled tribes’ besides another category reserved for ‘Scheduled castes’. Some attention to the distinction made by Indian law would have been enough for doubt to fall on the claim being founded on caste discrimination at all. Many other questions arise from the kind of claim Judge Ord accepts. Do other, non-tribal women in India not wear white saris with a red border? Would one recognise an Adivasi if she wore such a sari? Would it be by the darkness of her skin? Are there no dark skinned upper caste people in India? No corroboration is cited for any of the claims made in the quoted paragraph. No questions are asked about these kinds of assertions which are found elsewhere in the judgement. For example, the judgment also says that “A low caste, servile, Indian person who could not speak English and who the Respondents would consider expected no more than that which was in fact was on offer was required to meet their needs.” This statement too suggests that caste was at least one factor in the claimant’s recruitment and her subsequent low wage. But nowhere is it established or discussed that the respondents had sought out the claimant because of her caste. It is simply implied, as with the associated immorality, as being part of the factual background by Judge Ord and the tribunal panel.
The judgement by Justice Langstaff in the EAT had effectively instructed the Employment Tribunal hearing the full case to carry out the following exercise to establish the presence of caste discrimination:
an allegation that a Claimant was treated disadvantageously because of her having a status which was heavily related to an inherited position in society cannot be ruled out as being established on the evidence. The Tribunal hearing such a claim will need to establish what it accepts of the treatment alleged and, in relation to the acts which it accepts, why the Respondent did them in respect of the Claimant. If the reason or reasons established factually that the Respondent treated the Claimant as they did for reasons which more than minimally included their view of her status or origins, and if that status, or that view is bound up with her ethnic origins as understood in domestic case law, the Claimant will succeed in a claim for discrimination. (italics added)
This instruction issued by the EAT effectively laid down a requirement to evaluate whether the facts showed that the respondents acted the way they did on grounds of caste and how it was bound up with the claimant’s ethnic origins. Two observations in Judge Ord’s judgement are critical in helping to understand why he did not follow this instruction – in other words, he does not explain anywhere in his judgement how caste is bound up with any of the facts as alleged by the claimant. These two observations provide us with additional and, in this writer’s view, conclusive indications that the case establishes nothing about caste or caste discrimination.
First, at para. 10 of the judgement we learn that the evidence on which all the claims about the caste system, the claimant’s caste status, her dress, skin colour, and their link to the claimant’s recruitment and treatment was not challenged at all: “This evidence from the Claimant was entirely unchallenged and we accept it.” This statement indicates that the lawyers acting for the respondents did not bother to contest any of the allegations that the respondents acted as they did on grounds of caste. Instead, those lawyers merely acquiesced in them. On the basis of the lack of challenge to those allegations we find Chris Milsom, the National Secular Society, and the BBC, The Guardian, and other media outlets, making large claims about the “damning” presence of caste discrimination in the case. The respondents’ solicitors appear to have some responsibility here. At the latest hearing the solicitor, from Peninsula Business Services Limited, did not bother to contest the allegations made on behalf of the respondent; and at the previous stage, in handling the appeal to the EAT, they failed to take up an offer for expert evidence on the caste part of the claim made by this writer back in 2014 that would have rebutted the basis of those allegations.
Judge Ord makes a second observation that reinforces the view that the caste claim was not dealt with by any proper assessment of the evidence. He says at para. 200 of the judgement: “Under Section 136 of the Equality 2010 if there are facts from which a Court could decide in the absence of any other explanation that a person has contravened the provisions of the Act, the Court must hold that the contravention has occurred unless the alleged discriminator shows that they did not contravene the provision.” (italics added) This paragraph begs the question whether the only explanation was that caste based discrimination was present. In other words, was there really an “absence of any other explanation” for the facts alleged on caste? I have already called attention to the asymmetrical effect of section 136 on defendants in caste related cases because decisions would be made by operation of prevailing stereotypes being peddled about the Indian caste system (Shah 2015: 81n). The way this case was handled bears about my earlier observation.
In this case one might have said, for instance, that many women in India wear a white sari with a red border; it does not necessarily indicate anything about caste, and may not have done so to the respondents, who were in any case not from Bihar. One could even have said that the reason for recruiting the claimant may have been because she was servile but that this has nothing to do with her being an Adivasi, which is not exactly a ‘caste’ status under Indian law. After all, it is possible to come across many non-servile tribals in different, even high status occupational positions in India. One might have even asked by comparison why Europeans desire Filipinos as house servants or why the National Health Service recruits many nurses from Zimbabwe. Members of both groups may be exposed to abuse in their respective employment contexts. Would these facts lend legitimacy to claims of racial discrimination? Rather than going through such alternative hypotheses, the Employment Tribunal evidently assumes that there is no other explanation possible for the facts as alleged, and decides on the basis of stereotypes of the caste system in India as suggested by lawyers representing the claimant, stereotypes which the Tribunal panel may well have shared.
Besides the evident subterfuge and deceit involved in establishing that caste discrimination is against British law, we can make a number of conclusions from the way in which the case law has developed. The way the cases have been handled shows that British tribunals and courts share the general assumption embedded in Western culture that India has a corrupt, oppressive and immoral caste system. It is not worth bothering about that the idea of the caste system was a part of Protestant theological claims that wanted to see Hinduism as a false religion ruled by a devious priesthood, claims which have become secularised in the social sciences today (see Shah 2015: 4-10, 14-27 for details). In much the same way as the Equality Act’s provision on caste was incorporated and justified, no evidence need be proffered to substantiate the claim of the existence of the caste system nor its transplantation to the Indian diaspora (Shah 2015: 27-35). It can simply be assumed. Many outrageous claims can be made about caste as if they are plausible, and plausibility need only be measured according to the prevalent stereotypes to make out that a set of facts constitutes caste discrimination. As has happened in the Tirkey case the mere presence of two parties of different castes is enough to substantiate a claim that caste discrimination must have been present. And presumptions can be called upon to do the rest; to overlook the fact that no link was demonstrable between caste and the treatment of the claimant.
Although we do not know what caste is and nobody can tell us how to define it in a theoretically defensible sense, we all ‘know’ that there is a caste system. To claim that there isn’t or that laws should not be made on the basis of such assumptions, is merely an indication that one is a “denier of caste”, as Meena Dhanda calls me, or that one is speaking for the interests of persons who will “almost inevitably include high caste Hindus” as Keith Porteous Wood of the National Secular Society superciliously proclaims. Whether or not the Tirkey case will act as a precedent or as a sign of things to come, we have seen how it is already being used to argue for the need to have the Equality Act’s clause on caste to be implemented. Keith Porteous Wood also refers to “the carelessness with facts with which they pursue their opposition”, referring to those arguing against the legislation. Is that the sound of glass walls shattering?
Dhanda, Meena (2015): “Anti-Castism and Misplaced Nativism: Mapping Caste as an Aspect of Race”. 192 Radical Philosophy, pp. 33-43.
Shah, Prakash (2015): Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010. Basingstoke: Palgrave.
Author: Prakash Shah, Reader in Culture and Law at Queen Mary University of London