The proposed British law against caste discrimination is a classic case of first constructing a demon and then proceeding to, rather showily, demolish it
Watchers of the torrid background and progress of the British law against caste discrimination may have noticed that the British media has one-sidedly positioned itself in favour of the legislation. Although the perfunctory, both-sides-of-the-debate stance, is often disingenuously cited in their own defence by journalists, the whole range of British media outlets pushes the position advocated by the legislation's promoters. This includes the BBC, The Guardian, and The Sunday Times, joined now by the Mail Online which carried a hatchet job by David Dawkins on October 31 -- "Modi's India on Britain's doorstepIJ MP and 'Hindutva' charity accused of 'pushing into the long grass' the proposed law on caste discrimination". One does not have to be a Noam Chomsky to see how consent is being manufactured.
As the Mail Online piece indicates, the British media's coverage of things Indian, is skewed by an old-school, bankrupt reliance on the tired tropes of Hindu nationalism and caste oppression. It does not help that universities in Western countries, including the old colonial centre, Britain, continue to produce a large body of substandard, hardly-worth-reading work on India. Notions that depend on the evangelist view of India as despotic and corrupt prevail among the intelligentsia. It does not help that Indian universities and academics slavishly take their cue from intellectual trends in the West. As a result, they are unable to produce work that would shift the paradigm that takes India out of the basket case, dependency framework. It is a shocking contrast to the robust, successful defence of, say, reprehensible shariah practices by adherents or the reputation of the brutal Chinese Communist Party by apparatchiks.
It is to be remembered that the kind of American-influenced identity politics that imputes oppression in every tradition has its earlier avatar in how the British constructed the idea of the Indian caste system. In their book, 'Western Foundations of the Caste System', writers Martin Fárek, Dunkin Jalki Sufiya Pathan, and Prakash Shah, say that India has no caste system, and it never had one. The importance of this claim needs to be appreciated. It means that the legislation that politicians, clergymen and various organizations have made it their mission to ensure the British Government passes, is based on a ghost idea for which Jeremy Bentham's phrase, 'nonsense on stilts', is an apt description. Since our claim is likely to be misunderstood both in India and the West, some clarification is in order.
Jakob de Roover and Martin Fárek demonstrate in Western Foundations of the Caste System how the claim of the Indian caste system is based upon Protestant theological polemic about India's false religion, Hinduism. lacking access to this theological foundation against which it makes any kind of sense, Indians nevertheless appear to have settled for some vague idea of the caste system.
Although fractious and hyperbolic claims about caste oppression continue to be made, there seems wide conventional acceptance that caste hasn't anything much to do with oppression or its redress, but is there to claim and allocate some goods, such as employment and education places. Questions of ability or competence don't enter into it. Although no scientific account of the caste system has been provided, caste-based reservations and criminal laws punishing atrocities are justified through the nebulous image of the caste system. In Western Foundations of the Caste System, Dunkin Jalki and Sufiya Pathan show how the presupposition that Scheduled Castes and Scheduled Tribes are the disproportionate victims of crimes lacks substance. Still, every political party and ideological faction in India today has to take an anti-caste oppression stand, Hindutvawadis included. Even as the wide and unwarranted extensions to the caste atrocities legislation took effect in 2016, Indian parliamentarians chose not to debate them.
Britain continues to be a participant, if not leader, in reproducing old Christian evangelist ideas about India or its diaspora, repackaged in 21st century secularized form. Weighed down by this heritage, its intellectuals, whether or not they have anything to do with the study of India, are unable to regard India as a culture on symmetrical terms of mutual respect and equality. The consensus in the British Press about the spread of India's caste problem to the diaspora is testimony to that. Diaspora intellectuals of Indian origin take their cue from their Western masters and act pretty much as Homi Bhabha's mimic men, who feign resistance, but all the while connive in perpetuating claims of the morally deficient nature of Indian society and culture.
With the Equality Act's provision on caste, Britain, not India, promises to be the pioneer in producing anti-discrimination law, allowing civil claims for damages. Such claims are already possible under the case law produced by the British courts and tribunals, even if the alleged facts that led to precedent being established were fabricated. The case law also allows prosecutions on caste grounds under the criminal laws on racial hatred and racially aggravated offences, introducing a British version of the Indian caste atrocities law. The British Government made its position transparent during its recent consultation on the caste law, the pre-determined result of which is still awaited. The Government favours the case law rather than the travail of drafting a contentious and technically near-impossible piece of legislation. Indian leaders have been drafted in to commend the poisoned chalice to the community, while the Government hopes to keep at bay the pro-legislation groups and the UN Committee on the Elimination of Racial Discrimination, which has been lobbied from Britain.
So why should some parties continue to demand legislationIJ legislating to entrench caste into the Equality Act would ensure existing judgements are proofed against challenges that they are tainted with error of fact and law, as those who promoted the case law, including Britain's Equality and Human Rights Commission, probably realise. Anyone can take legal action for discrimination against anyone else on the basis of their antecedent historical caste identity and effectively bankrupt them since the costs will be astronomical. In any event, the British legal system is merely a model and testing ground for India. There is no reason to assume that the UN body's demand for an anti-discrimination law on caste, currently addressed to Britain, should not extend to India. What is good for the goose…
It is an unlikely coincidence that Congress leader Shashi Tharoor introduced his Anti-Discrimination and Equality Bill in the lok Sabha in March this year. The Bill covers caste among other 'protected characteristics' - the terminology is borrowed directly from the British Equality Act - that include "food preference: Persons who are not vegetarians". India, it seems, remains incapable framing legal models suitable to its own culture and traditions. And as if to underline India's continued subjection to Britain, Tarunabh Khaitan, Associate Professor and Fellow, Wadham College, Oxford University, helped draft the Bill. It provides multiple complaint mechanisms, including Centre and State Equality Commissions as well as recourse to courts. Its terminology is wide enough to cover many existing practices as discriminatory. Unlike the British Equality Act, this law opts for criminalizing discrimination, the kind of coercive legal preference that is reminiscent of the British Raj. The Bill also extends to Christians and Muslims, taking care of the most significant and historic aims of European lobby organizations and churches which object to the currently restricted reservations laws.
Even though India has no experience with general anti-discrimination law of the British or American kind, Press comments on Tharoor-Khaitan Bill are laudatory, with no acknowledgment that, if passed, India would witness a war of all against all. The proposed legislation carries many risks for India's population, making the British controversy on the caste law look like a kindergarten affair. The private sector, which so far shielded from having to adopt reservations, would be faced with endless challenges of caste discrimination, and it would not be irrational for investors to flee India as a consequence. It is far from certain the legislature, the commissions or the courts, are geared up to addressing the problems such alien legislation might create. If the precedent provided by the recent extension of the caste atrocities law is anything to go by, the Indian Parliament is unlikely to be willing to exercise the kind of oversight required. As often happens, the ensuing pain will have to be borne by the ordinary Indian.
(The writer is a Reader in Culture and law and Director of GlOCUl: Centre for Culture and law at the Department of law, Queen Mary, University of london)