The repealing of the requirement to incorporate caste ‘as an aspect of race’ in the UK Equality Act must not be seen through traditional binaries
The reporting, both in the UK and in India, of the British Conservative government’s decision in July 2018 to repeal the UK Equality Act’s duty to incorporate caste as ‘an aspect of race’ is misleading. The dominant accounts would have us believe that the established, mainly Hindu, organizations have scored a victory by persuading the government to repeal the duty.
The Dalit organisations are conversely writhing in criticism of the government’s decision, presenting the move as the result of the government’s caving in to a Hindu lobby, sometimes portraying it as Hindu nationalist, thereby depriving victims of caste discrimination of a remedy for discrimination. Both accounts carry their own predictable gloss and leave out salient parts of the puzzle.
The government’s decision came after it consulted whether the legislation’s duty should be enacted or whether only the intervening case law, through which the courts had already read ‘caste’ into the Act’s ‘ethnic group’ provision, should be retained. In so doing, it misleadingly presented the choice as being between the two options. The source of this choice probably lies in the suggestion by prominent Hindu lawyers that the coming online of recent case should allow the legislative duty to slide. Among these are Manoj ladwa, informally Prime Minister Modi’s attaché for British affairs who campaigned for the london Mayor’s electoral contest, and Jayesh Jotangia, who leads the secretariat for the All Party Parliamentary Group for British Hindus.
The signal was given at high levels that well positioned Hindus would be satisfied with the ending of the legislative duty, while the case law could be retained without attracting opposition. The Government latched on to the plan, buying time enough for the case law to be finalised, and tacitly encouraging the Equality and Human Rights Commission to provide an expert brief to the Employment Appeal Tribunal supporting a judicial extension of the equality law to caste.
From a more objective vantage point, the choice has always looked curious, especially for those communities in Britain who would likely be the targets of spurious claims for caste discrimination, as indeed had happened in the precedent case of Tirkey v Chandhok. Ultimately it matters little whether future litigants rely on judicially developed law or an explicit legislative reference to caste since either could be used to ground a legal claim for discrimination.
In both instances the presumption, and thus the basis for the law, is that Hindus at least, if not other South Asians, are caste racists, as I have detailed in my book Against Caste in British law. In some ways, the case law option is worse for those likely to be the targets of litigation. This is because the word ‘caste’ can now be read into any provision of law where race or ethnicity appears.
This means that offences of racial hatred, or racially aggravated offences where an add-on sentence can be imposed by criminal courts, will now extend to caste. All sides have kept conspicuously quiet about this covert judicial extension of the law to new crimes that, as law student know, the common law presumes against.
Nevertheless, the British government devised its consultation on a false choice between two options, and only after protracted correspondence did it belatedly acknowledge that responders could reject both options. It now presents retaining the case law option as more sensible, although its arguments for rejecting the legislative option militate equally against the case law.
For instance, the government pleads the difficulty of defining ‘caste’ as a problem for introducing legislation. Well, that holds equally when judges have to decide claims for caste discrimination, does it notIJ Indian law doesn’t help here, particularly since judges aren’t generally required to define what caste is,but have to decide whether a person belongs to a listed jaati or not.
It wasn’t long before the Conservative party-oriented Hindu organizations, especially the Hindu Forum of Britain and the National Council for Hindu Temples, adopted the government line, with the support of ISKCON and Swaminarayan BAPS. After initially agreeing with other organizations to reject both options, they altered position and advised responders to reject the legislative route and instead opt for retaining the case law. It so happens that a majority of responders followed suit, not surprising given that the consultation’s deceptive formulation seemed to force a choice.
The Hindu organizational leaders, currently self-congratulating for the success of their nationwide campaign, were hardly prone to explain details of a legal domain that they themselves barely understood. These organizations nevertheless present the decision as a victory and seek to push under the carpet the fact that caste discrimination claims may already be founded upon the case law under the widest scope and the least number of exceptions allowable under the Equality Act, as compared, say, to religious discrimination. There also looms the mentioned spectre of the criminal law’s extension to caste, the silence about which is also deafening.
The Dalit organizations, acting under church instruction, have previously used fake claims and figures of caste discrimination affecting Dalits, pretty much as happens in India, where Dalit identity politics is remotely controlled from Western centres. The recent inflating of caste atrocities by Amnesty India is a case in point. Their British brethren now complain that no remedy is available for caste discrimination.
Such claims belie the legal position summarised here. But continuing to drum up the dreadful spectre of the caste system appears to benefit not only the Dalit lobbies but, as so happens, their allies in the National Secular Society, joined of late by the Humanists.
The more interesting lesson though lies not in the predictable bemoaning of the consultation result by the church proxies and others. Rather, it is the counterintuitive celebration of the decision by the Hindu organizations. It is an object lesson about the peculiar manner in which multiculturalism operates and dominates Hindu affairs in the United Kingdom.
The government decides on a course of action and pushes it through compliant organizations. It matters little which ruling party is in power as they have their favoured proxies. Note in the present case the oddly muted lack of presence of the Hindu Council UK, a labour Party front. These bodies don’t represent the generality of the Hindu population, but are yet delegated by the ruling party to speak in their name.
The current state of the caste law or indeed how to reverse the legislation or case law are not seriously thought through. The Hindu organizations comply and provide the result desired.
When it is time to garner votes the political parties can say that they have looked after a segment of their constituency and the personnel of the Hindu organizations will be deployed to reinforce the message. The finishing touch is provided by the honours system or other political favours to organization leaders.
(The writer is Reader in Culture and law, Department of law, Queen Mary, University of london)