The caste system is one of the most prevalent and powerful markers of Indian culture and society. It is most closely associated with Hinduism and seen as hierarchical and oppressive, particularly for those who are at the bottom of the system. This is a stereotype, founded on Christian theological polemic that saw Indian religion as false, a view that has strongly influenced subsequent debates and scholarship on caste. I contend in my new book Against Caste in British Law that we should not be enacting legislation on such a basis.
On the assumption that a caste system exists in the UK’s Indian diaspora, parliament justified the insertion of a provision against caste discrimination in the Equality Act 2010. While that merely gave a power to the Minister to implement the provision, an amendment to the Act made in 2013 made implementation obligatory.
I began researching the caste provision in 2013, as part of the Coalition for Dialogue and the Anti Caste Legislation Committee, which brought together a large number of Indian community organisations. It quickly became clear that community spokespersons had no real way of arguing against the provision. They were handicapped by the fact that if they resisted it they would be branded as complicit in caste discrimination – as has been alleged by parliamentarians backing the law – or practitioners of a form of apartheid.
Their concerns should be heard without fear. I believe that the case against legislation rests on at least five grounds.
First, it is underpinned by dubious and insubstantial research. The few studies that existed prior to 2010 presupposed the existence of caste discrimination and were conducted by academics aligned with NGOs representing the cause of ‘low caste’ people known as Dalits (the ‘crushed’). The absence of a credible research base meant that for the first time in the history of anti-discrimination law in the UK, parliament proceeded to legislate on the assumption that a problem exists. Equally troubling was the acceptance among proponents that an adequate conceptualisation of a supposed problem, including defining caste, could be dealt with retrospectively, once legislation was in place. As I show in Against Caste, the 2010 report by the National Institute of Economic and Social Research (NIESR) was inconclusive while the 2014 Equality and Human Rights Commission (EHRC) research is simply incoherent and poor.
Second, the very idea of the caste system rests on shaky foundations but is presupposed by proponents of the legislation. The stereotype of the caste system goes back to Christian theological accounts of India, was developed further in Orientalist accounts during the colonial period, and is incorporated in the social sciences today. Caste was linked to the idea of a violent priesthood within Hinduism in the Protestant polemic against Indian religion, as well as to the so called Aryan invasion theory. These ideas led to the notions that the Indian social structure is morally corrupt and racist – notions that continue to strongly condition contemporary thinking on caste.
Third, no case has been made that a mechanism like the Equality Act is appropriate for caste discrimination. In recent debates, legislators seemed largely ignorant of, or simply misrepresented, laws prevailing in South Asian countries. India, for instance, implements a system of caste-based reservations (quotas), but such legislation would never pass muster in European jurisdictions or in the United States where a distinct affirmative action system applies. Despite this dissimilarity, the existence of the Indian legislation was used as justification for including caste in the Equality Act.
Fourth, the caste provision would seriously impact on the associational and economic freedoms of the Indian communities. Their ability to hold weddings or organise events could easily be challenged, and the charity status of many organisations would be compromised. Litigation would be asymmetrically stacked against defendants because of prevalent stereotypes. The researchers and legislators have not considered any of these problems, which raises suspicions about the true motives of the legislation.
This leads to the fifth crucial point. Attempts at conversion in India are a key reason why caste has acquired currency. After all, a former Anglican Bishop, Lord Harries, introduced the caste provision into parliament in 2010 and advocated its tightening in 2013. The legislation is part of a wider campaign conducted through the European Parliament and UN human rights organs. The aim is to pressure India to amend its laws so that Christians gain greater access to caste based reservations. Proponents hope that by continuing such interference in India’s internal affairs the number of converts will be augmented, and achieve a chief target of churches and Western governments.
Mobilisation around the caste question has triggered a new political self-awareness within the Indian community. The caste provision became an issue during the 2015 general election and resistance to it rallied British Indian communities, with new alliances formed among Hindu, Jain and Sikh organisations. An unexpected by-product of the legislation is its galvanising of a new leadership generation in Britain that will engage in politics in unprecedented ways in future.
Dr Prakash Shah
The author is a Reader at the School of Law, Queen Mary University of London. He specialises in legal pluralism, religion and law, ethnic minorities and diasporas in law, immigration, refugee and nationality law, and comparative law with special reference to South Asia. He has published widely and lectured internationally in these fields. He is the Director of The Centre for Culture and Law (GLOCUL) at Queen Mary. His book, Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010 was published by Palgrave in October 2015.