1. We, the undersigned organisations and individuals, are pleased to be able to submit our views for the consultation initiated by the EHRC for its activities over the forthcoming three-year period 2016-2019. For the purposes of this briefing we bring ourselves under the umbrella term ‘Dharmic communities’ consisting of people who follow any of the Indian traditions that often brought under the labels Hinduism, Jainism, Sikhism, or Buddhism. The choice of term reflects the importance of the idea of Dharma/Dhamma shared by these traditions, which we believe also underpins the open-ended pluralism of Indic civilization which requires adherence to no specific belief system or dogma. (There is now a Dharmic communities desk within the Department for Communities and Local Government.)
2. As organisations and individuals concerned for the welfare of the Dharmic communities in the UK, we broadly welcome the areas of focus the EHRC intends to devote itself to as outlined in the Consultation Document
(especially at pp. 22-39). These ais appear to us to be legitimate in a civilised society marked by the specific context of the UK and its legal, social, political and demographic framework. Generally speaking, there is little to disagree with in the Consultation Document and we hope to be able to play our full part in helping Government and the EHRC fulfil the laudable aims set out in the Consultation Document for the promotion of general welfare of the people of the UK.
3. However, as organisations and individuals concerned for the welfare of the Dharmic communities in the UK, while keeping in mind the UK’s well-being as a whole, we have become very uneasy with the direction that equality and human rights policy and law has been taking over the past few years and with the role played by the EHRC in that movement.
4. Foremost among our concerns has been the role played by the EHRC in supporting the clause on caste in the Equality Act 2010 as amended in 2013 and the role played by the EHRC in helping to widen the interpretation of the Equality Act by extending its coverage to caste discrimination. We feel that the EHRC has acted unduly and unfairly to support the extension of the equality law whether by letter of statute in the Equality Act itself or by the extension of the interpretation given to race as a ‘protected characteristic’.
5. We recap here some of the actions of the EHRC at which we have had cause to be alarmed:
a) The EHRC declared its support for the Equality Act’s clause on caste despite being aware that the government had earlier (c2007) rejected its inclusion in the Act after consulting with some Dharmic organisations. When the then Government had accepted its inclusion in the Act it had still not been convinced of the wisdom of implementing the provision and waited for research to be commissioned on that front. Without waiting for the outcome of that research the EHRC declared itself as being in support of the clause on caste. We maintain that even after the issuance of the NIESR and the EHRC’s own reports on caste discrimination, there are no solid grounds on which it could or should have supported the legislation. To do so prior to the publication of those reports makes it seem as if the EHRC is wedded to dogma, acts irresponsibly and is an unprofessional body.
b) The EHRC’s role in commissioning its own research after being requested to do so by the government (resulting in two reports) was also alarming. The EHRC’s selected team of researchers were not ‘independent’ even though that predicate had been applied to characterise its investigation into the implementation of the caste clause. Almost all of the researchers on the team had a record of working to promote the adoption of the legislation or had evident sympathies with it.
c) Several Dharmic organisations had concerns about the kind of consultation the EHRC’s team would accomplish and felt that any such consultation would be nothing short of a fait accompli supporting the implementation of the caste clause, which is how it turned out to be in fact. The exercise of consultation was one of rubber stamping the aim of implementing the legislation which, as noted, the EHRC had already expressed itself in favour of. The method of asking questions was extremely poor, the selection among the responses unbalanced and calculated to present a view in favour of implementing the caste clause, and how the legislation would impact on those communities that were largely framed as the suspect communities was never questioned. Throughout the text of the reports the impression is given that the legislation is simply a benign and necessary measure, which we do not accept.
d) Attempts by the Anti Caste Legislation Committee, a body representative of a broad range of Dharmic organisations, to engage the EHRC in discussions about the caste legislation were abruptly dismissed by the EHRC, and the Dharmic community organisations and individuals feel extremely badly and unprofessionally dealt with as a result. Clearly, the EHRC does not feel that there is anything to be gained by engaging with Dharmic organisations on the issue and prefers to keep at arms distance from them. Effectively, Dharmic communities have become a second-class tier of the UK population, although they constitute a segment of the population that performs disproportionately well on all social and demographic indicators.
e) The EHRC has been blind to the fact that the interest groups promoting the legislation do not represent any significant section of the Indian or South Asian communities in the UK. Even the figures provided of the Dalit population – the community ostensibly and presumptively protected by this law – have been plucked out of air by various report writers and parliamentarians. We consequently have figures of anywhere between 50,000 to 1 million Dalits being estimated. In any event, we believe that the legislation has been instigated and supported by various church organisations both within the UK and from abroad. One only has to examine the membership and backing provided to the various ‘Dalit’ organisations to understand that. The fact the Lord Harries, a former Anglican Bishop, sponsored the law in the House of Lords, with the tacit support of Lambeth Palace, is further testament to that. In the case of caste, we therefore have legislation pushed for by one section of the community aimed at targeting other sections, effectively on the basis that the latter are a set of false religions. The EHRC has condoned this manoeuvre and is culpable in our eyes in doing so.
f) We also firmly believe that the aim of the law is not to address the UK scene at all although impacts will predictably be deleterious for the UK Dharmic communities. Had the UK been the main target of the law, the propriety of adopting and implementing the law and its consequences in practice would and should have been much more thoroughly appraised. The shoddy research, unprecedented for backing any piece of equality law, including that commissioned by the EHRC – which fails to even come up with a definition of caste – is demonstrative of the fact that the law’s intended audience is not primarily in the UK. Rather it is to legitimise pressures being put by multinational church organisations to extend caste based reservations to Christians in India and to thereby promote their mission of proselytism. The UK’s Indian communities have therefore been used as a proxy for a battle whose real forum is elsewhere. We feel greatly perturbed by the fact that the EHRC has lent its assistance to such a project at taxpayers’ expense. The enactment of the caste law has not gone unnoticed at the highest levels in India with consequent potential damage to Indo-British relations.
g) Our fears that the legislation will nevertheless be used in frivolous ways to target the Dharmic communities are not without justification. The Tirkey v Chandhok case, while widely advertised in the media by its canny promoters as having proved the existence of caste discrimination in the UK, is hardly an indicator of that. Rather, to us, the case indicates the disingenuous ways in which the legal community has also been engaged to engineer cases (with the plaintiff being a Christian) to target the Dharmic communities. The case proves to us that, far from the existence of widespread discrimination being established, the Dharmic communities can become victims of a law that all along was meant to undermine their traditions. We are concerned that, although having a weak factual foundation for a claim of caste discrimination, the finding of discrimination has been upheld in the Employment Tribunal. This shows how the equality law ends up discriminating if one appeals to well-established prejudices that overrule calm and scientifically grounded assessment of the factual basis of claim.
h) The EHRC’s role in the Tirkey v Chandhok case as intervener in support of the plaintiff’s argument to extend the interpretation of the Equality Act (while the caste clause has not itself been implemented) is regarded by us as proof of the contempt with the EHRC management regards the Dharmic communities. We have documents disclosed to us as a result of an FOI request which evidence the fact that the EHRC went on to authorise funds for its intervention in that case despite being cautioned against the impact that would have in its relationships with the Dharmic communities (Hindus and Sikhs in particular). The Senior Management Team nevertheless went ahead and, in order to justify its case for intervention, misrepresented the strength of the existing research on the extent of discrimination. The impact of the EAT’s holding is being widely felt among the Dharmic communities and it will begin to legally stand in place of the unimplemented caste clause that we had sought to be avoided. It will now initiate the dissolution of the perfectly legitimate and philanthropic associational activities of the Dharmic organisations. Employers are now also being cautioned by lawyers about the discrimination impacts of employing Indians, which will entail (even if hidden) discrimination by employers at the hiring and promotion stages and in disciplinary proceedings, which could well be determined by stereotypes rather than fact (as indeed the Tirkey case powerfully shows).
i) The Tirkey v Chandhok case is evidence of the absolute contempt with which the functionaries at the EHRC hold the Dharmic communities, and its impact has been felt in the subsequent refusal of Dharmic organisations to cooperate with the EHRC in its investigation on religion in the workplace. Further impacts of the disingenuous way in which the caste clause was brought in have resulted in the refusal of Dharmic organisations to cooperate with the Woolf Commission’s investigation on religion in Britain, which was co-steered by Lord Harries, one of the chief proponents of the caste clause in the House of Lords.
j) A wide consensus within the Dharmic communities is of the view that caste has not and cannot be understood according to theories in the social sciences. There is a sore lack of sound theorisation of caste which is even admitted by the EHRC’s own research team, but which absurdly then went on to justify the implementation of the caste clause. Fresh research indicates that there is an intimate link between Christian theological polemic about Indian religion and the invention of the idea of the caste system. This idea has now seeped into the social sciences and is accepted as a ‘fact’ about Indian culture and society. However, we dissent strongly from the stereotyping evoked by the image of a regime of systematic immoral discrimination pursued by the Indian communities in the UK. Effectively, practitioners of the Dharmic traditions are now presumed to discriminate on grounds of caste. Not only does this act to slander the Indian communities (and Hindus in particular) which some organisations such as the National Secular Society have wasted no time in promoting further, effectively a form of religious hatred, it is also being used to justify an unjust law that, as noted, will likely have devastating consequences for Indian associational and economic life.
k) We urge and expect the EHRC to begin the process of withdrawing its support for the badly thought through project of (i) extending the Equality Act to include caste and (ii) extending the interpretation of the existing ‘race’ provision of the Equality Act to caste. We also urge and expect a deeper and more meaningful engagement with EHRC officials in the forthcoming three-year period on the matter to explain our position in more detail.
6. Our concern about the development of equality law extends to the manner in which the judiciary has been extending the protected characteristic of ‘race’ to cover discrimination on grounds of descent.
(a) Equality law was extended to descent most famously by the Supreme Court in the JFS case which has understandably led to the accusation by Jewish commentators that the law on discrimination is being extended on Christian premises. We tend to agree with this assessment, and it is notable that their Lordships in the Supreme Court were not all at one on the matter of extending the equality law to descent, suggesting that those communities (Jews in that case) who pursue a form of life that gives importance to descent and indeed constitute their communal identities on grounds of descent and ancestrally-derived practices by definition and presumptively pursue unlawful racial discrimination.
(b) This development within equality law, although of extreme concern, has not been at all debated and discussed through the appropriate forms of research and consultation as they should be. The UK is now constituted by communities of a wide variety many of whom, especially those with links in Asia and Africa, give a great deal of importance to ancestrally passed on practices. The community of legal professionals and developments in UK law itself (particularly after the JFS case) now suggest that these communities routinely practice unlawful discrimination. There has been no debate about which of their practices are unsuitable for continuation in the UK and, moreover, which are so objectionable that they should be subject to the equality law. Nor has there been any debate about whether the judicial extension of equality law in this manner is really the most appropriate form of legal intervention, assuming that any legal intervention is required. The Dharmic communities have noted that the extension of the Equality Act to caste discrimination by case law, which we also deem highly irresponsible, is also the consequence and by-product of the extension of the equality law to cover descent. We note that international law provisions (notably in the CERD) would appear to indicate that this is the direction in which the law should develop, but we do not accept that treaty law should be used as a reason to effectively undermine long held ancestral customs and practices on that basis alone and without research, debate or consultation.
(c) The EHRC it would seem has a duty to initiate discussions on this important matter which somehow appears to have escaped its purview. The absence of discussion on the issue indicates once again that the EHRC (though not exclusively) seems often to be concerned by trendy and fashionable topics and an overweening reliance on international human rights law, but loses its focus on developments that could threaten the communal and associational lives of large segments of the UK population. Quite apart from the immigrant communities and their descendants, the extension of the equality law on descent is bound to affect large segments of the majority of the UK population who also customarily hold on to descent as an important factor in their social, cultural and economic lives.
7. While we welcome this opportunity to have our say and be heard on matters that we consider important, we regret that we have not been able to furnish the EHRC with a more substantial, detailed and well-referenced submission. We hope that, despite of this shortcoming, this submission can act as a spur to have a better conversation in future about the position and concerns of the Dharmic communities.