This presentation by Prakash Shah was given at the INTERNATIONAL WORKSHOP on RELIGIOUS PLURALISM, LEGAL MONISM and PERSONAL LAW REGIMES: COMPARING EXPERIENCES and TRENDS held at the Faculty of Law, University of Trento, Italy, Friday 29 and Saturday 30 April 2016.
This presentation’s full title is “Constitutional Protection of and from Religion-based Personal Laws in the United Kingdom: The Case of Hindus and the Caste law.” It tries to answer the questions in the workshop aims in an unexpected way. It sidesteps the reference to Muslims implicit in the words “stronger cultural and religious minorities” written in the conference aims and instead focuses on the case of the Hindus and the recent law on caste discrimination. It takes as self-evident that some form of legal pluralism is present in the way Hindus co-exist with state law in the UK.
It treats the introduction of the UK caste law as an illustration of the the way in which a contemporary Western legal system draws upon its inheritance of the Protestant topoi around freedom of religion as well as freedom from religion in a single move. In a crucial sense, as Jakob de Roover argues in his recent book, Protestant theology provides the conditions of intelligibility for understanding how freedom of religion became a core value because it simultaneously articulated the requirement of freedom from (false) religion. Catholics, Jews and Muslims have at various points been assigned the role of false religions because they impose a set of man made religious laws that prevent true (Christian) freedom of religion from being realised.
A similar logic was followed when Protestants identified Brahmanism or Hinduism in India as a false religion that propped up a hierarchical and oppressive caste system, and which made it morally obligatory on all followers to systematically discriminate. On the basis that that system was transplanted to the Indian diaspora in the UK, the British parliament enacted a law on caste discrimination. The tropes of the (Christian) freedom of religion, although now appearing in secularised form, thus provide the basis for making intelligible the idea of a caste system against which freedom is to be secured by legislation.