Against Caste in British law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010 9781137571199, 9781137571182, 9781349553150, 1137571187

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Against Caste in British Law

DOI: 10.1057/9781137571199.0001

Other Palgrave Pivot titles Susanne Lundin: Organs for Sale: An Ethnographic Examination of the International Organ Trade Margot Finn and Kate Smith: New Paths to Public Histories Gordon Ade-Ojo and Vicky Duckworth: Adult Literacy Policy and Practice: From Intrinsic Values to Instrumentalism Brendan Howe: Democratic Governance in Northeast Asia: A Human-Centred Approach to Evaluating Democracy Evie Kendal: Equal Opportunity and the Case for State Sponsored Ectogenesis Joseph Watras: Philosophies of Environmental Education and Democracy: Harris, Dewey, and Bateson on Human Freedoms in Nature Christos Kourtelis: The Political Economy of Euro-Mediterranean Relations: European Neighbourhood Policy in North Africa Liz Montegary and Melissa Autumn White (editors): Mobile Desires: The Politics and Erotics of Mobility Justice Anna Larsson and Sanja Magdalenić: Sociology in Sweden: A History Philip Whitehead: Reconceptualising the Moral Economy of Criminal Justice: A New Perspective Robert Kerr: How Postmodernism Explains Football and Football Explains Postmodernism: The Billy Clyde Conundrum Ilan Bijaoui: The Open Incubator Model: Entrepreneurship, Open Innovation, and Economic Development in the Periphery Pilar Melero: Mythological Constructs of Mexican Femininity Rafael Kandiyoti: Powering Europe: Russia, Ukraine, and the Energy Squeeze Cristina Sánchez-Conejero: Sex and Ethics in Spanish Cinema Matthew Gritter: The Policy and Politics of Food Stamps and SNAP Bridget Kevane: The Dynamics of Jewish Latino Relationships: Hope and Caution Nataly Z. Chesky and Mark R. Wolfmeyer: Philosophy of STEM Education: A Critical Investigation Seung Ho Park, Gerardo R. Ungson, and Andrew Cosgrove: Scaling the Tail: Managing Profitable Growth in Emerging Markets David Michalski: The Dialectic of Taste: On the Rise and Fall of Tuscanization and other Crises in the Aesthetic Economy

DOI: 10.1057/9781137571199.0001

Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010 Prakash Shah Reader in Culture and Law, Queen Mary, University of London, UK

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© Prakash Shah 2015 Foreword © Gautam Sen 2015 Softcover reprint of the hardcover 1st edition 2015 978-1-137-57118-2 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2015 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978-1-349-55315-0

ISBN 978-1-137-57119-9 (eBook)

DOI 10.1007/978-1-137-57119-9 A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. www.palgrave.com/pivot

For Sia and Sohni, Naia and Anay, wishing that you can do more in all things than we could, and be more than we were

DOI: 10.1057/9781137571199.0001

Contents Foreword Gautam Sen

vii

Acknowledgements

xii

List of Abbreviations

xiii

1 Intellectuals and the Indian Traditions

1

2 Religion, Caste and Race: The Moral Basis of Anti-Caste Legislation

14

3 Equality and Human Rights Commission Reports on Caste

44

4 Caste Discrimination Legislation: Implications for Business, Employers and Organizations 64 5 Caste and Continuing Foreign Interference in India’s Internal Affairs 83

vi

6 Is Caste Already Part of UK Equality Law?

99

7 Conclusion

114

Bibliography

117

Index

124

DOI: 10.1057/9781137571199.0001

Foreword Accusations of caste oppression, pointedly levelled mainly against Hindu Brahmins, remain the auto-da-fé for the accused in political life. But they often lack meaningful historical context or careful scrutiny of quoted facts. The intellectual community delving into issues of caste has also become complicit in what may be deemed a wider political project of evangelists and the Left with regard to Hindu society. The former is engaged in its historic mission of religious conversion and regards intellectual and political subterfuge to achieve it legitimate. The latter considers religious fealty a barrier to its paradisiacal aspiration of atheistic collectivism. And their principal targets at present for transformation are India and Nepal, where Hindu idolatry endures. Dr Prakash Shah’s research is an exceptional attempt to analyse and question some of the conventional intellectual wisdom and political consensus on caste. Irrespective of any disagreements that may arise over specific arguments advanced by him, the very endeavour of reviewing established nostrums is a welcome intellectual venture. In doing so, he also performs a signally useful methodological task of highlighting the deeply political nature of much academic enterprise in the social sciences, coloured by the goals and prejudices accompanying them. Indeed it is well to recollect that whole academic disciplines have arisen as a result of the political goals of imperial powers, such as anthropology, to discover the means of controlling native people, and international relations to justify Cold War aims. DOI: 10.1057/9781137571199.0002

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Christian organizations are at the forefront of the critique of what is portrayed as the singular expression of Hinduism as essentially a manifestation of caste oppression. Evangelical critics routinely equate caste with racism and a unique form of apartheid. To the Left, Hindu religious fealty is perceived as the principal barrier to the transformation of Indian society into an egalitarian socialist order. They are therefore perfectly happy to demonize Hinduism to achieve a supposedly higher goal, even if their attacks on caste issues are unfair and indeed factually incorrect. The Christian evangelical critique of Hinduism, which conceives it as essentially an expression of socio-economic discrimination in the shape of caste, occurred from the early days of the East India Company’s conquest of Bengal. The political significance of this view acquired greater significance in the aftermath of the so-called Indian War of Independence of 1857. The newly installed imperial political authority that replaced company rule subsequently embarked on an unprecedented attempt to map Indian society. The censuses undertaken were intended to deepen their understanding of the dynamics of the society they ruled in order to enhance secure control over it. Caste and hierarchies surely existed in historical Hindu India and does so today in the 21st century. But its history and reality are much more complex than even the most distinguished observers, some of them not instinctively hostile to its very mention, have managed to articulate. Of great importance to the socio-economic dynamics of Indian society and caste is the wider historical and political context in which society functioned. It is also relevant to note the self-evidently erroneous popular, and often intellectual, conviction that the caste system has proven immune to change, almost outside history, given its supposed longevity and durability. In addition, the analysis of caste seems unable to review its intrinsic sustainability in terms of standard social science concepts that would question its presumed unfailing transmission through heritability. Totally absent from the discourse on caste is any attempt to situate it in the context of frequent political upheavals and devastating famines that disrupted life across the Indian subcontinent over several centuries before and during the British rule. There is an implied presumption of the prevalence of a basically undisturbed and stable rural society that would allow caste dynamics to operate relatively unhindered. The first question to be posed is how caste dynamics survived intact the widespread mass enslavement of cities that fell to Muslim DOI: 10.1057/9781137571199.0002

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conquerors, which the Emperor Akbar had sought to curb, but failed? Some periods like the 18th century were characterized by constant wars of succession that laid waste vast tracts of northern and central India that surely denied any tranquility to caste hierarchies. Another source of desolation was famines that periodically decimated populations on a massive scale and cannot but have affected the viability of any prevalent caste social hierarchy. Both are singularly absent in the earnest portrayal of oppressive caste hierarchies. The extant contemporary reality of caste is deeply imbued with the British colonial impact on India. As a result, the ongoing manifestation of caste dynamics cannot be regarded as an adequate basis to infer historical patterns of past social behaviour by retrojection. The 18thcentury British East India Company’s attempt to understand Indian society by assuming that Hindu scriptures were the appropriate guide for comprehending social behaviour in Hindus society was misplaced. The real world of disparate local life and practice of Hindu society could not have conformed meaningfully to imputed scriptural sanction. Indeed all societies are characterized by social stratification that changes over time, none exhibiting the timeless integrity attributed to so-called caste Hindu society. Legal procedures subsequently initiated by the colonialists, on the basis of the conviction that reified scriptures were the best guide to rules for governing the conquered, instituted custom not present earlier, in the form and with the integrity imagined. In fact, 19th century and later censuses also conjured a reality about caste identities that had been historically characterized by social fluidity and far less social rigidity. Census takers baffled by the inability of respondents to affirm their caste often imputed them by invention, on the basis of occupation, etc. In fact, the mendacious Lysenko of caste fantasies and arch colonialist H. H. Risley was to inaugurate the extraordinary career of caste in the aftermath of his pernicious influence. The malign role of the 1901 Risley census, insisting on the racial origins of caste, is underscored by conclusions drawn by the earlier one in 1891 headed by Denzil Ibbetson. The latter had asserted that the religious dimension of caste was not its sole progenitor. He had concluded that caste in Punjab was a social organization as well and more in the nature of a guild, based on descent, rejecting unequivocally its alleged racial origins in a division between Aryans and aboriginals. But Risley was aware of the advantages of deploying caste as a political weapon DOI: 10.1057/9781137571199.0002

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for perpetuating colonial rule. He effectively equated Hinduism itself as an upper-caste phenomenon and rising Indian nationalism as their conspiracy to dominate the mass of Indians, which British colonialism was honour bound to protect from their machinations. Risley’s intervention was the final chapter of the colonial project of turning India into a caste society that had begun with the advent of the East India Company. The imperative of the historic transmission of caste through endogamy also encounters the barrier of continuity since the male blood line cannot survive without exogamy. This must be especially true of a society in which partners are usually found locally and numbers within one’s own caste community are at a premium. Investigation of this limitation that constitutes a fundamental challenge to the integrity of caste identities over time is required. There are also grounds for suspecting that only upper-caste identities can be reliably assumed to have prevailed with any integrity though it cannot have done so undisturbed since time immemorial. But the notion of an oppressive ritual hierarchy that privileged Brahmins is hard to sustain because assumed ritual primacy was subject to the power wielded by royal rulers of lesser castes. The highly politicized contemporary discourse on caste, quoted by Dr Prakash Shah, appears to have bypassed discussion and doubts about Risley’s mendacious intervention in the early 20th century. Their insistent assertions are grounded on his thoroughly discredited intellectual heritage. In fact, the British legislators of the United Kingdom’s Equality Act 2010 and self-interested caste lobbyists favouring it appear to have adopted Risley’s colonial mantle with alacrity. It suggests a duplicitous bad faith that can only be described as obscene in its demeaning racist depiction of British Hindus, whose principal failing appears to be political timidity. Caste in modern India itself is a complex phenomenon and palpably the dominant organizing principle of secular political aspirations. Higher castes with superior education and better endowed materially no longer enjoy exclusivity in politics or administrative jobs. Many supposedly lesser castes have organized themselves and wield significant political power across India. The outcomes that have arisen for the outwardly empowered disadvantaged are less clear at present though the churning is of great significance. It should be noted that conflicts of interest pit lower castes against each other in rural India that are primarily a conflict of secular interests rather than the result of ritual hierarchies. The parameters of socio-political division in India have also acquired DOI: 10.1057/9781137571199.0002

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a sectarianism that has severely undermined the criterion of merit in assessing competence. It also perpetuates creaking state structures that allow caste reservations in access to education and employment despite serious doubts about their efficacy in achieving wider economic goals. In the final analysis, the issue of caste has acquired immense contemporary relevance as a vehicle for delegitimizing the cultural and historic basis of Hindu India. It is the key ideological weapon to justify and advance religious conversion on the grounds that it is the only possible means of overcoming the alleged irreducible bane of caste apartheid. In fact it may be surmised that dominant Western countries are using the alleged evils of caste as the excuse to extend their influence over India and Nepal by creating facts on that ground through religious conversion. It is designed to forestall their historic primacy, which began with Christopher Columbus, slipping from their grasp because of the rise of 21st-century Asia. The UK Equality Act is a policy measure complicit in this mundane political competition that extends far beyond its shores. Dr Gautam Sen1 May 2015

1 Dr Sen taught international political economy at the London School of Economics and Political Science for more than two decades.

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Acknowledgements I wish to thank several people for their help in the achievement of this project. Mukesh Naker would have to rank at the top because were it not for his cajoling and orchestrating, with the best of intentions, over the past two years to ensure my engagement in the resistance to the caste provision in the Equality Act 2010, and in selflessly gathering and commandeering a group of people to that same end, this book would not have materialized. It is basically an outcome of the efforts expended over that period in engaging with members of the Indian communities, officials, fellow academics and others to find out just where the problems lay and what should be done about them. The list of others is long and although I mention them only by name, their contribution cannot be minimized. They are S.N. Balagangadhara, Anil Bhanot, Jakob de Roover, Kapil Dudakia, Martin Farek, Chris Fuller, Dunkin Jalki, Marianne Keppens, Mara Malagodi, Amrish Patel, Jasdev Singh Rai, Gautam Sen, Atul Shah, Rex Shah, Satish K. Sharma, Amit Singh, Bharti Tailor, D. Venkat Rao and John Zavos. This book relies on the insights generated by the research programme on the Comparative Science of Cultures instituted by S.N. Balagangadhara and the superb team of researchers and wider circle of scholars around that programme. I want to thank the Oshwal Association of the United Kingdom for hosting the conference on ‘Caste: Critiquing Colonial and Contemporary Constructions’, held at the Oshwal Centre, Potters Bar, on 5 April 2014, which helped discuss some ideas contained in this book. All hyperlinks were last accessed at the end of May 2015. Errors and omissions are all mine. xii

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List of Abbreviations ACDA CERD

Anti-Caste Discrimination Alliance Committee on the Elimination of Racial Discrimination DfID Department for International Development DSN-UK Dalit Solidarity Network-UK ECHR European Convention on Human Rights EHRC Equality and Human Rights Commission HFB Hindu Forum of Britain ICERD International Convention on the Elimination of Racial Discrimination IDSN International Dalit Solidarity Network NIESR National Institute for Economic and Social Research VODI Voice of Dalit International WCAR World Conference against Racism

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Palgrave Pivot

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Intellectuals and the Indian Traditions Abstract: Chapter 1 is a general introduction to the book and outlines the main issues. It discusses the intellectual context of Orientalist domination of knowledge on India and the caste system, in particular, why it has been difficult to formulate alternatives to Orientalist knowledge and why ‘colonial consciousness’ persists among Indian intellectuals despite formal decolonization. It argues that this is partly why Indian intellectuals have failed to produce critiques of the Orientalist constructions such as the caste system, which now affects Indians in the diaspora through legislation such as the Equality Act. It provides illustrations of how the spectre of a violent sacerdotal core to Indian religion lies at the pre-theoretical root of ideas about the caste system. It suggests that there is a strong ground within Western culture upon which ideas of the caste system can be successfully built to produce campaigns and legislation. The chapter provides a brief outline of the succeeding chapters. Shah, Prakash. Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010. Basingstoke: Palgrave Macmillan, 2015. doi: 10.1057/9781137571199.0005.

DOI: 10.1057/9781137571199.0005

1

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Against Caste in British Law

In the contemporary world, Indian traditions are not infrequently called into question, critiqued, stereotyped, suppressed and negatively affected in many other ways. In fact, one may say that it is a general part of the experience of someone who follows the Indian traditions. The caste discrimination provision in the United Kingdom’s Equality Act 2010, the Wendy Doniger Affair and the portrayal of India and Narendra Modi during and since the recent elections are all instances of this sort of occurrence. When they happen, different types of interventions are made. Representations are sent to politicians and court cases are sometimes brought. We write articles in newspapers that may or may not see the light of day and circumvent restrictions by resorting to blogging and using social media. Much of this activism is done by concerned organizations within the Indian communities or by individuals who take it upon themselves to make their voices heard in defence of Indian traditions. By ‘defence’ here I do not mean that practices found to be wanting or harmful should in some way be allowed to continue. Rather, I want to refer to the challenging of unwarranted attacks on those who practice the Indian traditions. When such challenges are made, the general picture emerging of Indians is nevertheless that they are defending discriminatory practices, that they are against freedom of thought and against academic freedom, and if they defend practices or express indignation as Indians it must be because of their nationalist or fundamentalist leanings, and because they support a fascist regime in India. What is the role of intellectuals when it comes to the Indian communities of the diaspora? Not many voices of the intellectuals or academics are heard in defence of Indian traditions. Many academics today stand up to challenge racism against black people or raise their voices against Islamophobia. However, academics in Britain who choose to research or comment on the Indian traditions tend to adopt the attitude that Indian traditions are fair game for attack or ridicule, or they use research practices which would not stand up to scientific scrutiny in other contexts. This goes as much for those academics who share an Indian background as well as those of other backgrounds. Meanwhile, academics who choose to defend Indian traditions are few and far between. This raises a whole series of issues and questions about which we cannot go into detail here. However, a few points can be made to contextualize the problem and to note what the implications are. It is trite to observe that India has suffered from colonialism. Balagangadhara (2012: 112–117) has argued that besides being much DOI: 10.1057/9781137571199.0005

Intellectuals and the Indian Traditions

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else, colonialism was an educational project. While Islamic colonialism in India left little behind in terms of investment in education, the Western approach was different (Balagangadhara, ‘Some Theses’). The British tried to educate Indians in their own vision of the world and that included their vision of Indian culture. Their vision of Indian culture can be conveniently brought together under the rubric of Orientalism (Said 1978) as it was applied to India. They spread this Orientalist vision of Indian culture, together with its ideas of the falsity of Indian religions, the moral backwardness of India and its corruption. Other Europeans added their own assessments to this archive. This is the ground on which the contemporary academic picture of Indian society and culture is built. All intellectuals are influenced by it, including those with Indian cultural background (Balagangadhara 2012: 95–120). Those who choose to think and write about Indian culture inevitably come up against the vast body of work that inscribes corruption and backwardness into the Indian traditions. They may choose to resist it but in so doing they will be left behind in their academic careers or even pushed out of them (De Roover 2014). Those who go along will be supported and promoted. These kinds of practices ensure that a genuine scientific scholarship about Indian culture will not be allowed to emerge in the West and, more tragically, even in India. Wealthier Indians might sponsor institutions and professorial chairs in Indian studies of various kinds but the outcome does not alter much. Members of Indian communities worldwide sense that there is ‘something wrong’ about the situation but they cannot find a point of entry through which to challenge the status quo. Part of the problem is that little research training has been available to understand how the picture of Indian culture has been developed over the past hundreds of years. We do not understand how Western scholarship, now perpetuated by many Indians themselves, has insinuated itself in every strand of research about Indian culture. This can be done first only by having knowledge of the Western culture and its Christian religious background. In his book Reconceptualizing India Studies (2012), S.N. Balagangadhara continues his efforts to expose these patterned ways of thinking about India. As he argues, we may speak Western languages such as English but it does not mean that we have understood Western culture, for which a much deeper process of research and training needs to occur.

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Sacerdotal violence and the caste system In the current scenario, even when we try to challenge those portrayals of Indian traditions that we do not like, we end up partly accepting the premises on which they are built. So, for example, when challenging the caste discrimination legislation, we might argue that the caste system is a problem, say, in India but not here in Britain. Or we might contend that the caste system existed once upon a time but it is not of relevance now. Or we might even say, as M.K. Gandhi (1869–1948) or the philosopher Radhakrishnan (1888–1975) did, that the original caste system (varna) was a good one but it has since degraded (Inden 1990: 72–73; Bayly 1999: 251–253; Dirks 2001: 234). Such responses basically accept that something of the Western account, which gave rise to the idea of the caste system, represents true knowledge about India.1 We might say, following Balagangadhara (2012: 95–120), that these are instances of ‘colonial consciousness‘, being a result of the intrusion of the colonial account of Indian culture and society, compelled by the accompanying violence of colonialism. Colonial consciousness involves the compelled acceptance of the colonizer’s account on the part of the colonized even though it is not rationally justifiable. In the process, the colonized is prevented from accessing his own experience, even as he lacks access to the experience of the colonizer. It is instructive to learn that the idea of the Indian caste system was created by Europeans as they drew on Protestant critiques of Catholicism and positioned the Brahmins as priests of a false religion, Hinduism or Brahmanism, which they said mandated discriminatory practices based on a hierarchy. This constituted the background around which Orientalist accounts of India and its caste system then crystalized. The Aryan invasion theory was brought in to justify the claim of the caste system by adding the idea that there are different races in India. In its simplest form, this meant the aboriginals and the Aryan immigrants, the caste system being the outcome of their resulting interaction. These ways of constructing ‘knowledge’ about Indian society have their roots in Christian, theologically driven assessments of Indian culture and traditions. However, this background framework has been accepted as fact in the theories of those conducting studies on India and Indian communities abroad. Diatribes against Brahmanism and the caste system can be heard from every corner of the secular academic establishment in India and among academics abroad (Gelders DOI: 10.1057/9781137571199.0005

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and Derde 2003). They do not describe India at all, but merely repeat ideas that Christian theological polemic first installed into Indian minds. It is worth citing the observation by Gelders and Derde (2003: 4617) here: [W]hen Indian intellectuals take the same story for granted, they end up repeating a protestant Christian theme without Christianity being fundamental to the construction of the Indian culture. What they say must, therefore, be vacuous to a double extent. That they keep repeating the west in endless mantras of anti-brahmanism is not only puzzling, it is tragic as well. They do not only stop thinking, they are bereft of their own experience. The world of the west will never be theirs while the world of their own is no longer accessible due to the western mantras which prevent them from seeing and reflecting upon their own experience. Therefore, if a novel and innovating step towards a different approach of Indian culture is desirable and sought after, it is high time that the Indian intellectuals start taking their colonial experience seriously.

A lot of work remains to be done in terms of carving out a new research agenda capable of defending Indian traditions in ways that are scientifically credible. That this is patchily done today speaks volumes about how Indian intellectuals have been suborned by the colonial visions of their society, described by Venkat Rao (2014: 6) as a state of ‘postcolonial destitution’. Venkat Rao (2014: 18–19) continues his assessment of the colonial impact on Indian intellectual life thus: It can be argued that European epistemic violence disrupted the prevailing cognitive sense of the colonized people through a two-pronged onslaught: denial of rationality on the one hand and stigmatization of jati (as caste) on the other. If the former distinguished and celebrated European intellectual heritage, the latter configured Christianity’s sense of heathens. But this double attack contributed to the self-denigration of colonially educated Indians; it made them defensive and apologetic about their inherited lot. These two points can be said to offer a litmus test for postcolonial intellectual even to this day; colonial and postcolonial intelligentsia continues to be defensive on these two counts. If from Bimal Matilal to Amartya Sen these highly reputed intellectuals devoted their energies to shore up a “theory of rationality” for India, from Gandhi to “annihilators of caste” our intelligentsia only validated caste as stigma.

The sense of stigma is well reflected in the vision articulated some years ago by Chetan Bhatt, now the Director of the Centre for the Study of Human Rights at the London School of Economics. In his assessment DOI: 10.1057/9781137571199.0005

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of the Hindu diasporic presence in Britain, Bhatt (1997: 249–250) has argued: Hindu organizations, including most temples, many of which may be opposed to the extremism of the RSS, are universally structured through caste (jati) membership, as well as gotra (exogamous clan), sampradaya (a movement or loose community based around a spiritual leader), religious sect and regional origin. Every Hindu council is composed mainly of caste defined organizations. These Hindu councils receive significant local state, Labour and Conservative Party patronage, as well as some local authority funds. The persistence of caste prejudice in Hindu communities has barely received attention or opposition from black socialism. It also represents a considerable underdevelopment in secular thinking within multiculturalist and antiracist efforts in Britain.

Thus, long before the agitation on caste took hold in Britain, Bhatt had begun to castigate the Hindu community in Britain for ‘caste prejudice’ and had considered that ‘black socialism’ would be an antidote to such prejudice. On secularist grounds, he also opposes the funding of any Hindu caste-based organization. Bhatt’s stance reflects the kind of dilemma that faces an Indian scholar working in the contemporary academic context. He articulates the shame of caste and the necessity of a deracinated future of his own culture, which some kind of secular black socialism should replace. Western scholars are unable to accept this as a problem because, one assumes, they have little at stake in the questions posed, and the Western culture does not really prepare them to ask questions in ways that are relevant for Indian culture. On the contrary, taking the stance that normatively degrades Indian traditions, which Bhatt does, may well be a passport to being serenaded by Western scholars and courted by Western universities. Reading contemporary accounts of the caste system, it may be easy to see why there is no escaping the conclusion that Hindus have a caste system which they are (im)morally compelled by their religion to defend. Nicholas Dirks (2001: 3) opens his book on caste by stating that ‘When thinking about India it is hard not to think of caste’. In his widely circulated book Ethnicity, Law, and Human Rights: The English Experience, Sebastian Poulter (1998: 239) wrote in the opening sections of the chapter on Hindus as follows: One of the most striking elements of Hindu belief and practice – and certainly the most widely criticized – is the classification of individuals and families by caste. Social divisions are determined by birth and a person’s caste affects DOI: 10.1057/9781137571199.0005

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such crucial matters as marriage partners, forms of employment, and those with whom meals may be taken. Caste taboos in the field of work are hard to maintain in an urbanized environment and hence are to a large extent being broken down, both in Indian cities and in Britain. However, even where such boundaries persist in this country, for example in relation to arranged marriages, attendance at social functions, the formation of community associations, and in the establishment of separate places of worship, they are largely invisible to members of the white community.2

This observation, where Poulter mentions caste as being both an ‘invisible’ yet ‘striking’ element of Hindu belief and practice, underscores the fact that there is a fertile soil onto which ideas about India cultivated over the past centuries can be worked over if only because they have become common-sense Western notions about Indian culture. Centuries apart we can see common themes in how pictures of the caste system were painted. James Mill was one of the influential British thinkers who formulated his critique of India’s caste system. He shared his view of the caste system in his influential text The History of British India (1817, 2: 186–187): We have already seen, in reviewing the Hindu form of government, that despotism, in one of the simplest and least artificial shapes, was established in Hindustan, and confirmed by laws of Divine authority. We have seen likewise, that by the division of the people into caste, and the prejudices which the detestable views of the Brahmens raised to separate them, a degrading and pernicious system of subordination was established among the Hindus, and that the vices of such a system were there carried to a more destructive height than among any other people. And we have seen that by a system of priestcraft, built upon the most enormous and tormenting superstition that ever harassed and degraded any portion of mankind, their minds were enchained more intolerably than their bodies; in short that, despotism and priestcraft taken together, the Hindus, in mind and body, were the most enslaved portion of the human race.

An image of priestly or sacerdotal violence upholding an oppressive caste system drowning those in its sway in superstitious ignorance comes through from James Mill‘s account here. This image of sacerdotal violence underpins and precedes the building of theories of the caste system. Even though at some variance from one another these ‘theories’ have endured. Such European ideas are now cultivated by Americans vigorously given they have inherited the field of ‘Area Studies’ (Said 1978: 2, 19, 106–107, 275–276; Inden 1990: 36–38), which is a latter-day DOI: 10.1057/9781137571199.0005

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Orientalism. In his Spirit of Hindu Law, Donald R. Davis (2010: 106) writes thus of his field of study: This brings us to an ugly side of Hindu law, specifically its view of property. One must acknowledge that the system of castes and life-stages (varnāśramadharma), the notion of dharma that underlies all Hindu law, is an inherently hierarchical and exploitative system of social stratification by birth. Since the system also undergirds and materially manifests in a differential ownership of property, it is worth pausing to point out the, from a modern perspective, plainly unjust and unequal notion of inherent status that theoretically and practically produces particular relationships to property. Modern Hindus rightly often deny that this view of caste difference must continue as part of their religion today, but it would be both disingenuous and incorrect to suggest that the system of castes and life-stages never typified Hindu theologies or was never defended by them. Theological defenses of human inequality are by no means exclusive to Hinduism, but we must forthrightly state the form which this theology takes in the Hindu tradition in order to understand a crucial part of the spirit of Hindu law. Backreading of Hindu texts that tries to deny through selective interpretation the critical role of caste and life-stage in Hindu theologies does a disservice to both scholars and practitioners.

In his reading, therefore, the writers of the dharmashastra texts, which Davis refers to as ‘Hindu theologies’, typically defended an inherently exploitative and unjust social order. Contained as they are in their theologies, Hindus must be compelled to defend the inherently immoral system of caste. If they do not, then they must at least accept that their forbears did so and reject their inheritance. The question might follow that if one rejects the theology of one’s religion, whether one can possibly adhere to that religion. Perhaps the groundwork for conversion is laid out here. Certainly, there is little space here between the Protestant polemic against the false religion of Hinduism implicit in James Mill‘s account and that proffered by Davis. Davis (2010: 173) nails his point, arguing by reference to Hannah Arendt’s study of totalitarianism: Arendt’s studies of the plight of stateless persons in relation to the law points to the most significant shortcoming of classical Hindu law. By emphasizing the ethical goods of the Veda and of varnāśramadharma, classical Hindu jurisprudence measures the worth of individuals against those standards, in the hierarchical manner so familiarly associated with India. In so doing, what we today consider to be fundamental rights of human existence could be, as in totalitarian regimes, suppressed with little ideological dissonance. More specifically, lower castes were denied status within the scheme either of the DOI: 10.1057/9781137571199.0005

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Vedic world or of the dharmas of caste and life-stage. Lower castes had no rights (adhikāra) in those domains. Without legal status, these groups could have no voice and no standing from which to effect changes and improvements to their condition, at least within the system.

These images endure despite the fact that simple scrutiny undermines the claims therein. The quote by Davis is also remarkable in that it reads the dharmashastras as if they are legal code-like ‘authoritative texts’ (Lubin et al. 2010: 3) that provide a ‘scriptural foundation’ (Lubin et al. 2010: 6) for a totalitarian regime. Quite how the Brahmin writers of the dharmashastras would have enforced the oppressive structure that Davis pictures is not made clear.3 Davis (2010: 119) contradictorily acknowledges, after all, ‘the primacy given to non-legislative sources of legal authority in Hindu jurisprudence’, while Lubin observes (2010: 151), ‘[t] here seems to be hardly any example of a king publishing a generally applicable law on his own authority, let alone promulgating an entire code’. An image of sacerdotal violence effuses from the passages by Davis, as does the deprivation of agency of the lower castes, which appeared so unashamedly in Mill’s account nearly two centuries before Davis’, and which we will continue to see, again and again.4 This book’s main remit is to chart out how such problems of Orientalism and colonial consciousness continue to infect and inflect debates, discussion and law-making in the contemporary world. It does so specifically with respect to the context of a battle about the scope of the discrimination of legislation in the United Kingdom, in the form of the Equality Act 2010, which incorporates a provision on caste in section 9, making caste ‘an aspect of race’. To my knowledge, in the history of anti-discrimination law in the United Kingdom, it is the first time that Parliament has proceeded to legislate on the assumption that there is a problem to be dealt with and that an adequate conceptualizing of that problem is not needed until after legislation is put into place. Meanwhile, the involvement of academics in the consultative and research exercises that surround the Equality Act’s provision on caste has meant their co-option in and support of what has seemed like a pre-set juggernaut-like agenda for legislation in that field. On simultaneously striking and invisible grounds, Indians can be accused, as Waughray (2012) does, of practising apartheid without a murmur of protest from any section of academia (also House of Representatives 2005). The examples provided here so far are instances of a much larger ChristianOrientalist episteme which exercises its disciplinary power (Said 1978: DOI: 10.1057/9781137571199.0005

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67), and against which every academic work on caste must measure up. Several Indian organizations with whom I have worked closely over the past two years thereby developed severe doubts as to the genuineness of the political and legal aims of the research and the consultative process around the caste discrimination legislation. The battle against this legal provision has enabled, even forced, the rallying together of various actors within the British Indian communities. It may be that the mobilization around the caste question triggers the kind of consciousness within the Indian community as other formative events have led to the increasingly vocal stance taken in the diasporic Indian community of the United States (Ramaswamy et al. 2007; Juluri 2014; Venkat 2015). The caste question has entangled this author in a first-hand experience of how the British state and the powers that surround it try to wield their unhealthy influence against Indians both in the United Kingdom and in India itself. Although the story is far from concluded (how does a story strongly defended for more than two centuries come to a conclusion?), it seems important that some documentation of this conflict emerge from the shadows lest it be hidden in official drawers and inboxes while claims may be made of Indians having remained passive and compliant in the face of a frontal attack against them by dark forces. This book tries to tell a story by bringing to the surface documentation that has contemporaneously been collected and studied largely by this author as exigencies, and the need to respond to events arose over the past two years.

Scheme of this book Chapter 2 discusses how the idea of a caste system of India came about. It traces it back to Christian theological accounts of India, their development in Orientalist accounts during the colonial period, and their subsequent secularization in the social sciences. It includes discussion of how the idea of caste was linked to Hinduism in Protestant accounts of Indian religion. This idea was also linked to the Aryan invasion theory which gave further shape to the narratives of the caste system, suggesting that Indian society is composed of different races. Together these ideas provided the framework according to which Indian social structure came to be viewed as morally corrupt and racist. Chapter 2 explains the premises behind the Indian legislation on caste and, via an examination of the parliamentary debates and research documents DOI: 10.1057/9781137571199.0005

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prepared to justify the legislation on caste, it also shows how these ideas have filtered into current British discourse. It thereby explains how the Christian-Orientalist account of the caste system retains its salience in contemporary discourse. It also argues that the account of the caste system provides a justification for continued Christian proselytism in India (dealt with at greater length in Chapter 5). In this light, the role of the National Secular Society, which has become an unexpected actor in the caste debate, taking a stand in favour of the caste provision, is explored. The puzzle is solved by seemingly contradictory findings. On the one hand, it is argued that the Society cannot consistently maintain its view of secularism and support the caste provision especially in light of the discussion in the later chapters on the role of the Churches. On the other hand, in taking a stand on the legislation, as well as the development of the case law, which is explored in Chapter 6, the Secular Society adopts the secularized theological ideas that go into the construction of the caste system. Chapter 3 continues the critique of contemporary accounts of caste by examining in some detail the two reports on caste produced by a team of researchers commissioned by the Equality and Human Rights Commission (EHRC) as part of the post–Equality Act official investigation into how the caste provision may be implemented. The EHRC reports provide an excellent insight into the stakeholder and academic positions as adopted during the investigation its research team undertook. They also provide a good way to examine more deeply how the idea of caste may be deployed within the legal context of the Equality Act, a discussion which is dwelt on further in Chapter 4. Chapter 3 approaches both reports critically by examining the presuppositions that went into their drafting, the consistency and coherence of the account they give of caste and the caste system and the applicability within legal structures of these ideas. Chapter 3 builds on Chapter 2 by showing how the ‘independent’ investigation commissioned by the EHRC relied on the same Orientalist ideas of the caste system that went into framing the wider political and legal discourse. It also shows that the research teams were composed of academics who were already involved in the formulating of the legislation and were therefore already committed to the idea of it. The chapter thereby questions how reliable and useful such research can be as a basis upon which to implement the caste provision of the Equality Act. While previous chapters analyse the context of, and the background ideas that have gone into, the framing of the legislation, Chapter 4 DOI: 10.1057/9781137571199.0005

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adopts a more practice-oriented perspective. It explains in some detail what issues those who employ South Asians and businesses run by South Asians, as well as Indian community organizations, will face as a result of the caste provision in the Equality Act 2010, including the steps that will have to be taken to prepare for the legislation and the likely outcomes of litigation against them. For both the employers and business, on the one hand, and community organizations, on the other, the chapter provides illustrations of the kind of challenges the legislation will pose for them and their employees and/or membership. These challenges include the litigation each type of organization might be faced with and what areas of their work may be affected. For example, in the case of community organizations, the holding of community events, such as Navratri or even weddings, could be called into question because it may be alleged that caste preferences play a role in admission or issuing of tickets. The employment of specialized personnel such as those who perform rituals for weddings could also be exposed to charges of caste discrimination. Chapter 4 also explains what pressures will have to be faced within the litigation process itself, such as the burden and standard of proof applicable. It also explains how the exercise of associational freedom of Indian communities will be affected, including a possible impact on charity status and fund raising. Chapter 5 shifts gear by exposing the transnational dimensions of the caste question and gives further context to the role played by the caste provision of the Equality Act in international relations and law. While Chapter 2 in particular explains how theological presuppositions have gone into building ideas about the Indian caste system and how they have helped in the formulation of the legislation, Chapter 5 draws out the relevance of such constructions in the current context. In particular, it examines how transnational activism for proselytism is a key reason why caste has been problematized in the discourse of the Churches, the Dalit organizations linked to the Churches, and parliament, and it argues how the caste provision makes more sense when viewed in this context. The argument is that the legislation on caste in the United Kingdom is part of a wider campaign which goes back at least as far as the World Conference against Racism (WCAR) of 2001 where there was an attempt to bring caste and race together under international law. Chapter 5 thus shows how the European Parliament and various UN human rights organs have been brought into play to highlight caste discrimination and argues that the aim of this is to bring pressure on India to amend DOI: 10.1057/9781137571199.0005

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its own laws on caste so that Christians and Muslims gain more access to caste-based reservations than they do already. The proponents of this agitation hope that by continuing foreign interference in India’s internal affairs the number of converts will be augmented, thereby achieving one of the chief targets of various Churches and Western governments. In Chapter 6 we turn to examining a recent case, Chandhok v Tirkey, in which the Employment Appeal Tribunal (EAT) decided that caste may already be part of UK equality law by bringing it under the concept of ethnicity. Chapter 6 discusses the background to the case from its earlier stage at the Employment Tribunal, the way in which the case was argued and decided on in the EAT, and its possible implications. The discussion includes an examination of the stance of various parties during this litigation and draws out the potential contradictions given that the Equality Act provision on caste has not yet been implemented. The chapter shows how the case creates difficulties given that it is now unclear what the reach of the existing law is and a question remains whether the Equality Act’s provision on caste should be brought into force at all. The account draws on documents recently revealed after a Freedom of Information request which show in particular what role was played by the EHRC during the legal proceedings in the Tirkey case since it acted as an intervener in the legal proceedings.

Notes 1 Inden (1990: 69–74) places such ideas in the context of the Romantic accounts of India. 2 Waughray (2014: 359) writes that ‘Caste was largely invisible in Britain as a social phenomenon and as a ground of discrimination until 2005, when the then Labour Government announced a major overhaul of Britain’s equality framework’. 3 The citation to Lubin et al. (2010) here is convenient and reflects what I believe to be Davis’ influence in that co-authored text. 4 Postmodern scholars play with agency relentlessly of course and can read agency deprivation in any text or presentation. Indeed, many Dalit rights supporters too argue that Dalits enjoyed a lot of agency and autonomy in cultural production of all kinds.

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Religion, Caste and Race: The Moral Basis of Anti-Caste Legislation Abstract: Chapter 2 discusses how the idea of a caste system of India came about, tracing it back to Christian theological accounts of India, their development in Orientalist accounts during the colonial period and subsequent secularization in social science. It discusses how caste was linked to Hinduism in Protestant accounts of Indian religion, and to the Aryan invasion theory. Together these ideas provided the framework to view Indian social structure as caste ridden, morally corrupt and racist. It goes on to explain the premises behind the Indian legislation on caste and how these ideas have filtered into current British discourse, explaining how the Christian– Orientalist account retains contemporary salience, and provides a justification for continued Christian proselytism in India. The seemingly contradictory role of the National Secular Society, which took a stand in favour of the caste provision, is explored. Shah, Prakash. Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010. Basingstoke: Palgrave Macmillan, 2015. doi: 10.1057/9781137571199.0006.

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The addition of a provision on caste into the Equality Act 2010, making it ‘an aspect of race’ was done at the last minute. The Labour government – then not entirely certain of the merits of the late amendment, introduced during its passage through the House of Lords – had then made it a condition of bringing the existing provision into force that caste discrimination must be shown to be a real problem in Britain. The government made sure that the Equality Act’s section 9(5) gave a power to implement the caste provision, in effect giving discretion to the relevant minister. The government also commissioned a report on the extent of caste discrimination from the National Institute of Economic and Social Research (NIESR). Given that ministers had not thought fit to exercise the discretionary power already in the original section 9(5) of the Equality Act, the lobby behind the 2010 amendment became impatient and pushed through another amendment to the Equality Act via the Enterprise and Regulatory Reform Act 2013.1 That amendment went through the House of Lords first and was an attempt to force the government’s hand by making implementation of the caste provision in the Equality Act 2010 mandatory. The 2013 amendment had wide support among parliamentarians. The Lords voted in its favour twice and, in the end, the government did not resist, given the ambivalence within its own coalition, the need for the Labour opposition’s support for changes to other parts of the Equality Act and the Labour Party’s three-line whip on the caste issue. However, the government, still not wholly convinced of the need to implement the caste provision, bought some more time, commissioning a further study by the Equality and Human Rights Commission (EHRC), although that too attracted criticism.2 Recent reports indicate that implementation would not be done until after the general election of 2015, and that is the position at the time of writing.3 Meanwhile, the report commissioned from NIESR (Metcalf and Rolfe 2010) did anything but confirm the existence of the kind of discrimination that made the implementation of the caste provision necessary. Dalit organizations apparently representing so-called low-caste people as well as some British parliamentarians maintained, however, that the study clearly confirmed the presence of discrimination in education, employment and the provision of goods and services, that is, those fields that the Act does cover, as well as in marriage and temple organization matters. That report by NIESR, as we will see, was used to insist on the 2013 amendment and continues to be portrayed as ‘proving’ the case for legislation, while others have maintained that it does not. DOI: 10.1057/9781137571199.0006

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Those opposing the legislation feel cornered and unable to articulate a position that does not make them into justifiers of an outdated and oppressive system, which others ‘know’ beyond doubt to have existed for centuries. An alliance of Hindu, Jain and Sikh organizations and individuals sought to claim that there is no discrimination on the basis of caste even if there once was. Some responses opposing the legislation attempt to explain the caste system by justifying it as a once well-ordered and well-functioning system, which has subsequently degraded. Indian organizations in Britain feel that adding caste to the Equality Act stigmatizes their members and is unwarranted and offensive especially because they were never consulted about the legislation, which has caught them unawares. Both legislative initiatives, of 2010 and 2013, were rushed, leading to the suspicion that the aim was to avoid proper dialogue about the wisdom of having such a provision. Many Hindu, Jain and Sikh organizations have said they were by-passed in consultations prior to the legislation, while those who expressed misgivings about the legislation have complained about their being ignored. Some of those involved in consultations with the government prior to the 2010 legislation have said that they were led by civil servants to believe that caste would never find itself into the legislation. Others, including representatives of those assumed to be the oppressed low-caste people (Dalits), have received great support to articulate their position, which more or less accepts the Western account and paints Indian society as irredeemably caste ridden with all the features of institutionalized discrimination and racism that that implies. They claim that these problems occur in Britain too. They have issued reports (Anti Caste Discrimination Alliance et al. 2009) dating back prior to the 2010 Act citing instances of caste discrimination to show that it is practiced in Britain, or have otherwise claimed that this is so. In fact, there are strong indications that the Dalit organizations are being prodded along by other forces that have their own agenda of what should happen to the caste question in India. Thus Dalit organizations, as well as most academics, buy into the Western description of India. Their representations are parasitic on the way Indian culture and society has been constructed through the framework established by Christian theology and built upon by the Orientalists, the presuppositions of which have seeped into the social sciences. This is no small claim, but has significant consequences. As we saw in Chapter 1, one is that Western thinking as structured by Christianity has DOI: 10.1057/9781137571199.0006

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imagined Indian society to be organized in particular ways that include a hierarchical and discriminatory caste system mandated by the religion of Hinduism (or Brahmanism) as prescribed by Brahmins who are its priests (among lawyers, see Keane 2007: 5–7; Allen 2009: 10). The second consequence is that such imaginary constructs of Indian society are not susceptible of fundamental restructuring even if empirical evidence is brought in to falsify them. This is because the theory of the corruption of Indian society is too embedded within the structures of Western thinking to be destabilized by a few mere facts that may provide the basis for a counter narrative. The ‘facts’ that the theory of Indian corruption presumes are instead much more powerful and enduring. For instance, in 2010, Lord Lester, the leading human rights lawyer and one of the architects of the earlier Race Relations Acts, tabled an amendment to introduce descent into what was the Equality Bill in order to cover caste discrimination. Responding to the government’s plea for research to establish the case for legislation, he noted, ‘I simply do not understand why research is needed. The Minister has agreed that, even if there were one case of the kind that I described, that should be unlawful because it is wrong in principle.’4 This underlines that it is simply taken for granted that caste-based discrimination must exist. Not only that; for Lord Lester and his colleagues, it has also meant that the model provided by the British Equality Act is the required form of legislation to end such discrimination. A third consequence is that Indians have been so dominated by the Western account of their society and culture that they are no longer able to clearly articulate their own experiences. When they do try to do so, they end up making the Western, Orientalist account stronger. A deep ‘colonial consciousness’ (Balagangadhara 2012: 95–120) has set in. In this chapter we can view more closely how the idea of a caste system of India came about, tracing them back to the Christian theological accounts of India, their development in Orientalist accounts during the colonial period and their subsequent secularization in the social sciences. It includes discussion of how the idea of caste was linked to Hinduism in Protestant accounts of the Indian religions and to the Aryan invasion theory which gave further shape to the narratives of the caste system, suggesting that Indian society is composed of different races. Together these ideas provided the framework according to which Indian social structure, governed by the violence of a priestly or sacerdotal nucleus (Gelders and Balagangadhara 2011), came to be viewed as morally corrupt and racist. These ideas constitute the background against DOI: 10.1057/9781137571199.0006

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which both the post-colonial Indian legislation on caste and the British Equality Act took shape. We can see through an examination of the parliamentary debates on the British legislation, as well as the research documents prepared to justify that legislation, how these old ideas have filtered into current British discourse. This chapter thereby explains how the Christian–Orientalist account of the caste system retains its salience in contemporary academic, political and legal discourse. It also begins to argue that the account of the caste system provides a justification for continued Christian proselytism in India, an issue that is dealt with at greater length in Chapter 5. In this light, the role of the National Secular Society, which has become an unexpected actor in the caste debate, taking a stand in favour of the caste provision, is explored. On the one hand, the Society cannot consistently maintain its view of secularism and support the caste provision especially in light of the discussion in the later chapters on the role of the Churches. On the other hand, in taking a stand on the legislation, as well as the development of the case law, which is explored in Chapter 6, we can see how the Secular Society adopts the secularized theological ideas that go into the construction of the caste system.

The foundations of current ideas of the caste system But what has Christianity to do with the caste system, which surely belongs to and has been nurtured within another religion, Hinduism, which is an Indian religion? When Europeans encountered India and related stories about it, they were influenced by their background assumptions, which informed them that Indians have a religion and that that religion is a false one. Gelders and Balagangadhara (2011) have shown that prior to the British colonial takeover of India, there was already a ‘generic’ Christian theological discourse that concerned itself with defining non-Christian traditions as the proto-Christian or the post-Christian evidences for the existence of religion. It centred on the idea of a ‘sacerdotal nucleus’ behind the plethora of Indian traditions. This analytical format overarched Protestant and Catholic models of the history of religion and, within this context, the contemporary forms of Hinduism were recognized as ‘post-Christian’ expressions of religion in the East. Europe always had to accept that religion existed in India and that it was centred upon a priestly nucleus, which facilitated the move DOI: 10.1057/9781137571199.0006

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from truth to falsehood. It was thus already in the early modern period that ‘Brahmanism’ was identified as the core around which multiple Indian traditions coalesced, and which were self-evidently false given the hold of the priesthood. The idea of a sacerdotal nucleus seems to be at the core of subsequent attempts to provide theories about India’s caste system. Its pervasive presence in the background may account for the endurance of the story of the caste system and how various seemingly contradictory accounts of that system are allowed to co-exist without the idea being abandoned.5 This framework became more elaborated whereby the Europeans experienced Indian culture in terms of a caste system that was integral to their religion, Hinduism or Brahmanism. One dimension of this was how caste was held as a single greatest obstacle to conversion, and it also meant that their efforts at proselytism tended to bear fruit among the so-called lower castes (Oddie 1979: 61–64; Dirks 2001: 26–27). Oddie (1979: 48–49) refers to discussions among missionaries in India during the 19th century regarding the retention of caste status among converts to Christianity, giving rise to the question whether caste among Christians was a civil or a religious institution: By 1850 the great majority of British and American missionaries believed they had found the answer – that caste among converts was primarily a religious institution based on the concepts derived from Hinduism ... Thus, in retaining caste, converts retained an important part of their former religion, caste being ‘one of the evils of heathenism which has unwarily and most unfortunately been allowed to accompany the native convert in his passage to Christianity’. (Italics added)

The theologically driven linkages that Protestants made between the caste system and Hinduism (or Brahmanism) subsequently entered secularized discourse on the Indian caste system and also explains why it has acquired a very peculiar moral connotation. Bayly (1999: 110) refers to the influential four-volume polemical work (published 1817–1820) by the Rev. William Ward, an Evangelical Protestant missionary, which characterized the Hindu faith as a ‘fabric of superstitions’ concocted by Brahmins, ‘the most complete system of absolute oppression that perhaps ever existed’. Bayly (1999: 110) goes on to note that Christian polemics like Ward’s were clearly a major if unacknowledged source for later academic theorists, including those modern anthropologists who came to regard the Brahman as arbiter and moral centre of Hindu social

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order. ... This vision of immoral Brahman despotism clearly drew on popular English Protestant mythology of a priest-ridden, tyrannised papist Europe awaiting liberation by the triumph of the Reformation spirit.

One consequence of the transfer of Christian moral themes into secular academic discourse, as we saw in Chapter 1, is that contemporary writers have few qualms talking of caste as based on Hindu ‘normative values’ and ‘theological doctrines’ (Lubin et al. 2010: 3n).6 As the 19th century progressed, two strands of work began to offer explanations for the caste system, and both of these have remained influential in informing contemporary understandings of the Indian caste system. As Bayly (1999: 126–143) shows, one strand was focused on caste as an occupational division of labour, while the other developed theories about caste and the racial classification of Indian society, referring back to earlier Orientalist ideas about the links between various ‘Aryan’ languages (Inden 1990: 59–60; Bayly 1999: 113–115). The occupational theorists appear to have developed merely secularized versions of the Protestant account of Indian religion, which referred back to post-Reformation debates in Europe. De Roover and Claerhout (2015) have demonstrated how this connection between social structure and religion came to be established. They show that while Catholic writers saw caste as part of the secular world of the Indians, Protestant accounts linked caste firmly to the false religion of Hinduism. Protestants saw in the Indian culture a variation of the kind of stratified social system, with priests, noblemen and labourers, which theologians in the West had already used to describe their own societies. Protestant thinkers despised the priestly hierarchy and emphasized equality of all before God. As Marx (2008 [1844]: 51) had said, Luther had ‘turned priests into laymen because he turned laymen into priests’. They also got riled about the idea that vocation could be prescribed in such a way that an ecclesiastical calling was restricted to the priests of the Catholic Church and, by extension, the Brahmins in India. They held that vocations performed by persons of any station are important in the sight of God, and a hierarchy such as caste prevented people the freedom of taking up any occupation to fulfill their calling.7 The Brahmins thus constituted one of the three castes of the Indian system, the second of which were the kshatriyas, who were the warriors, and the third were the vaishyas, the agricultural, pastoral or trading groups, together making up Indian caste society. Anybody else who could not be fitted into this framework of the varna system belonged DOI: 10.1057/9781137571199.0006

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to a fourth group, the shudras. Westerners later identified other groups, the ‘untouchables’, as being outside this fourfold structure altogether. The scheme was explained and underpinned by the Aryan intervention onto the Indian scene sometime in the past, which subjugated the shudras and other non-caste groups. Speakers of Dravidian languages, like Tamil, were also thought to have been a separate race subjugated by the Aryans. So the story went, variations of which we find having a strong currency and repeated time and again, not least, as we will see further, in the legislative chamber of the House of Lords. What gave endurance to this story was a mystery about which we have some more clues now thanks to research by Marianne Keppens (2014, 2015). The notion of an Aryan race has been discredited in mainstream Western thought particularly because it led to the tragedy of genocide during the Second World War. Prior to that it was advocated widely in European intellectual circles. However, it continues to rear its head when India’s population and caste system are brought into discussion. Many scholars of India working in different disciplines assert that there was indeed an Aryan intrusion. Whether it was an invasion or a series of migrations is a secondary matter of some debate. The basic idea is that the Aryans were followers of a particular religion, Brahmanism, they had civil and religious institutions and spoke a sacred language called Sanskrit. They subjugated the indigenous Indian peoples who did not enjoy access to the laws and institutions of the ‘Hindus’. Versions of this story have persisted since Orientalist writings pre-dating the absent-minded British colonial adventure in India. In these accounts, the Brahmins and those who followed them because of the religion they espoused, the language they spoke and the institutions and laws they established made them one people, race or nation, the Aryans. Others thereby came to be people of different races upon whom the Brahmanical religion and laws was imposed but who, being a different people, were at the same time excluded from the laws and institutions of the Hindu Aryans. According to some European accounts from the 19th century, the Brahmins had brought a version of the true religion to India, which had since become corrupted. Even earlier reports of European missionaries told of how the Brahmins prevented their followers from converting to Christianity (Balagangadhara 1994: 86–89). As such they were the priests of a false religion who kept their people languishing in idolatrous ignorance.8 It fell upon the European Aryans with their superior religion, Christianity, to bring new civilizing DOI: 10.1057/9781137571199.0006

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light to the parlous state of the idolatrous Indian people. Behind such thinking lay the idea that the Europeans were evidently an Aryan race given that linguistic connections had earlier been found between Sanskrit and European languages. Despite its Semitic origins, for some, Christianity even became an Aryan religion. Even today, the diatribes directed towards Indian culture are based on the ‘fact’ that it rests upon Brahmanism and that it is Brahmin upper caste and their followers who perpetuate the backwardness of India. Such stories are retold by many Indian intellectuals today, a manifestation of what S.N. Balagangadhara (2012: 95–120) calls ‘colonial consciousness’. In these narratives, espousing a common religion and speaking a common language and having common laws and institutions provided the basis for making a nation, a people or a race. The Orientalist anthropological categorization of Indian people had direct effects in influencing subsequent thinking about them, again demonstrating the distortive effects of European thought. In the late 19th century, anthropometric measurements were enlisted to section out which parts of the Indian population belonged to which race. That Indians were constituted of various peoples of different races also informed the formulation of ethnographic reports of the Indian population which then went into the framing of the colonial Indian census from 1891 to 1931 (Inden 1990: 56–66; Bayly 1999: 119–126; Dirks 2001: 48–52, 173–227). Describing the documents produced by the anthropologist and Census Commissioner Herbert H. Risley and their outgrowths as the location of the ‘hegemonic discourse on caste of the Anglo-French imperial formation’, Inden (1990: 59) notes Risley’s argument that ‘caste was the result of interactions between two racial types, a white and a black’. An examination by recent scholarship of the Orientalist and colonial impact has led to some claims that do not withstand scrutiny. One of the key American thinkers on caste, Nicholas Dirks (2001), may be justified in attributing to colonialism and its methods of fashioning knowledge of the idea of caste as typifying a way of talking about Indian society. His research (at 63–80) shows that pre-European societal classifications were immeasurably complex with a variety of different indexes being relevant depending on the context (for a similar claim, see Bayly 1999), which the colonial regime reconstructed in discursive terms. However, one cannot agree he is correct in assuming, as he does, that the way the British classified Indian society has taken on a reality of its own (also Bayly 1999: 7). For instance, he refers to the ‘power of the colonial leviathan to produce DOI: 10.1057/9781137571199.0006

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caste as the measure of all social things’ (8), to the ‘powerful history’ through which caste ‘has been constituted as the very condition of the Indian social’ (8), and to how the transformation wrought upon caste by colonialism ‘had immense implications for everyday social life’ (12). To argue that is to accept that ‘colonial governmentality’ (6) somehow brought into existence that which the Europeans falsely described; that Indians were passive recipients of such ‘colonial power/knowledge’ (8); and that those descriptions actually made sense to them. He fails to show how that could be. There is another problem with Dirks’ treatment of the impact of Orientalism and colonialism. He refers (Dirks 2001: 10) to the manner in which some of those subject to colonial rule took on a narrative of caste thus: the colonized, sometimes in direct reaction to the colonial lie of universality, would appropriate tradition as resistance and as refuge, but under conditions of colonial modernity tradition was simultaneously devalued and transformed. As a result, tradition too suffered from loss, even as it was tainted by its evident historicity. In the case of caste, many Indian social reformers and critics mistook this history as linear decline, the degradation of a noble system into a corrupt structure of power and dominant interests ... attempts at historical recuperation typically took the form of finding an Orientalist golden age, a time when caste was an ideal system of mutual responsibility, reasoned interdependence and genuine spiritual authority. Only a few nonBrahman and Dalit voices rejected this kind of Orientalist nostalgia, all the while feeling increasingly trapped by the demands of anticolonial nationalism to downplay, and defer, all critiques of Indian culture and civilization.

One may well agree with Dirks (see also Inden 1990: 72–73) that the application that he describes of colonial historiography to tradition would inevitably result in an unrecognizable distortion, because of the onset of the ‘colonial consciousness’ that Balagangadhara (2012) identifies. However, when Dirks refers to ‘non-Brahmin and Dalit voices’, the colonial power/knowledge framework somehow recedes into the background and, instead, anticolonial nationalism is made responsible for strangulating their voices. Dirks, like many other writers, both Indian and Western, is therefore prone to see authenticity in the kind of critique of Hinduism and its caste system that figures like E.V. Ramaswamy Naicker (Periyar 1879–1973) and B.R. Ambedkar (1891–1956) produced, whereas a figure like M.K. Gandhi would most likely be classed as someone who revels in ‘Orientalist DOI: 10.1057/9781137571199.0006

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nostalgia’. Yet, as Gelders and Derde (2003) show, the critique of Hinduism and caste that Ambedkar mounted was as much, if not more firmly, framed within the Protestant–Orientalist critiques of Indian culture and its caste system.9 Although Dirks (2001: 255–274) does not read the evidence in that way, his account of the thoughts and actions of both his representative anti-caste figures, Periyar and Ambedkar, bears out the point that indeed they had thoroughly imbibed the Protestant accounts of the caste system, so much so that they both routinely attacked Hinduism, Brahmanism and Brahmins; both also burned copies of the dharmashastra text, Manusmriti.10 In Periyar’s case, it also amounted to physical attacks as his followers ‘beat priests and idols with shoes’ (261), while ‘on more than one occasion he implied that Brahmans should be murdered’ (262). Such attacks have carried on in post-independence India by adherents of Periyar’s ideology (Seshadri 2015). Ambedkar was meanwhile adamant that destroying caste required destroying the religion, Hinduism (Dirks 2001: 267). Ambedkar subscribed to the European Enlightenment values of liberty, equality and fraternity (Roy 2014a: 48, 51), while neither he nor Periyar wanted the British to leave India (Shourie 1997; Ambedkar 2014 [1944]: 237n). Reflecting his own position, Dirks notes that the lives of the two figures had ‘made manifest’ that ‘oppression has been enclosed within the Brahmanic fold of Hindu civilization’ (274). While he seemingly adopts a critical stance on the Orientalist archive, in taking that stance, Dirks presupposes and brings back to reapply from that archive the narrative of the ‘sacerdotal nucleus’, the ‘most complete system of absolute oppression’ that Ward saw (Bayly 1999: 110), or the cocktail of ‘despotism and priestcraft’ that Mill spoke of (Dirks 2001: 33). We saw Davis (2010) do the same earlier (Chapter 1). So invidious is the tendency to locate the oppressive structures of Indian culture that such contortions have been read even into archeological evidence. Stanley Wolpert’s 2000 edition of A New History of India, where the historian speaks of brick dwellings found in an archeological dig at Harappa as ‘similar to those occupied by most Dalit labourers’, is cited by Keane (2007: 13) to buttress his case for a caste system in India. Wolpert continues: ‘Although hidden from view for thousands of years, the ruins of Harappa reveal the extensive history of oppression in India.’ (Keane 2013: 13) As the result of decades-long prior activity of producing accounts of the caste system, in India people often frame political and legal claims in caste terms irrespective of how intelligible such a classification is to them. To many such Indians, the European account of Indian society DOI: 10.1057/9781137571199.0006

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rings true and is mindlessly repeated in the hope that it will continue to retain its attraction. Although some research is demolishing this house of cards erected by Orientalist knowledge, other contemporary research goes on to build on the foundations the missionaries and Orientalists laid. To many contemporary Indians it is a ‘fact’ that the Aryans came to India with their Brahmanical religion and oppressed their ancestors. This is taken for granted as uncontested fact not just by the vocal spokespersons of so-called low castes, the Dalits, but also by academics within and outside India. That the Brahmins had the means and power to accomplish all their indoctrination on races alien to them is explained by reference to old Indian texts, such as the Mānavadharmaśāstra (or Manusmriti) or the Puruṣa-sūkta hymn from the Rigveda, without any context, stretching their significance to enable just the reading desired to establish that subjugation was the aim (House of Representatives 2005: 12; Roy 2014a: 29, 37; for a citation in a recent legal text, Keane 2007: 5–7). This goes on despite the fact that more circumspect students of ancient India regularly point to the difficulty of attributing particular meanings to various ancient terms, such as varna, purely because the contexts surrounding the old written texts is impossible to know today. Those who proclaim certainty of what was meant by the writers of old can do so only by referring to the Christian–Orientalist theoretical framework. It is not without precedent that the British Equality Act brings caste and race so close together. As we have seen, there was already a strong racial dimension to the way Orientalists constructed their accounts of the caste system. Closer to our time, we have the attempt made by some Dalit organizations during the World Conference against Racism (WCAR) of 2001 to have discrimination based on descent and work to be included as part of the WCAR Programme of Action Declaration. Several scholars including those who are generally supportive of the Dalits’ cause argued against equating race and caste (Roy 2014a: 22–23). The attempt to include the issue of caste as part of the international agenda failed. Nevertheless, the introduction of caste as a protected characteristic in the British Equality Act can be considered as part of the campaign to internationalize the cause of Dalit activism by ensuring that at least one country other than India acknowledges the plight of Indians oppressed by caste. However, if India is their chief target, as is indeed arguable (see especially Chapter 5), it is salutary to take into account that India has already enacted programmes of reverse discrimination against a variety of groups DOI: 10.1057/9781137571199.0006

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based on their ‘backwardness’. To some extent, the Indian legal system already treats the caste question as if it is equivalent to the kind of race problem that the United States experienced, while going well beyond any known US system of ‘affirmative action’. The legal regime applied to Scheduled Castes, Scheduled Tribes and Other Backward Castes in India, initially engineered by Ambedkar and subsequently extended (Bayly 1999: 270; Dirks 2001: 278), is increasingly under question today. More than two decades ago, Indian sociologist A.M. Shah (1991) made trenchant criticisms about the downsides of the caste reservations system, citing how in many job areas in India employees are not competent or lack essential skills and about the inability of academics in India to calmly consider the problems this gives rise to. He concluded (Shah 1991: 1734): If India is to survive as a nation in this world, it has to strive for highest standards of efficiency in every field and remove all barriers to efficiency. Reservations for backward classes in jobs in government establishments and public sector undertakings are one of the major barriers. During the last 40 years or so, numerous distortions and aberrations have developed in the policy of reservations.

As Pratap Bhanu Mehta (2010) argues, the ethical underpinning of the caste reservations system in India has broken down, while there is no real discussion on how alternatives to address any oppression can be formulated. The reservations system has its own dysfunctional effects in India where there continues to be a race to become recognized as part of the bottom layer of society in legal terms so that the maximum proportion of reserved government jobs and state education places can be set aside for one’s own group (Shourie 2012). Some groups who protested against being classed as low caste during the British colonial census enumerations have since claimed that they too merit being given low-caste status, and the category Other Backward Castes has expanded to bring reservations in some Indian states to over 50 per cent of the population. This must be considered in light of the fact that those who are allocated ‘backward’ status of one sort or another do not correlate to socio-economic status (Radhakrishnan 1996), which shows that policymaking on caste in India has a(n) (il)logic of its own that does not bear a relationship to social reality or disadvantage, and further confirms that the caste politics emanating from internalized Orientalism is unintelligible to Indians and cannot but have dysfunctional effects. That the current campaign on the caste legislation in the United Kingdom is ultimately aimed at the inclusion of Christians in that dysfunctional Indian reservations system DOI: 10.1057/9781137571199.0006

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compounds the tragedy. Rather than aiming to expand the reservations system serious research needs to be conducted about how it can be minimized and eventually phased out altogether.

Legislating on caste in the United Kingdom: The Equality Act 2010 If we go by current debates in the British Parliament and behind the scenes, there is a major absence in the story we are being told. It is not just that the account of the Aryan intrusions and the imposition of ‘Brahmanism’ upon the subjugated races has its basis in the structuring of experience established by Christianity. The spreading of the Christian message through proselytism is a key component of the contemporary agitation surrounding the caste issue. Many advocates of the cause of the so-called low castes in India are the Christian Churches which continue to highlight cases of discrimination and oppression through whatever ‘atrocity stories’ they can find so that a picture of the corrupt nature of Indian society and its Brahmanical religion can be perpetually reinforced. This helps to justify the conversion of people considered oppressed. Proselytism is a key tenet of Christianity and branches of Christian Churches are active in many parts of India as elsewhere in Asia. The fact that the Holy See voted in favour of inclusion of discrimination on grounds of work and descent in the World Conference against Racism (WCAR) declaration of 2001 also indicates its support for the Dalit cause and possibly its own proselytism agenda in India. Attempts to convert have been identified as a cause of many a conflict in today’s India and have become the subject of laws in some states where alarm has been raised over conversion activity (Sen 2010: 114–117). The caste issue has been simmering in the United Kingdom since at least the second half of the 2000s. As Waughray (2009: 182–183, 2014: 359–360) recounts, when the proposals for a Single Equality Act were being mooted, the government carried out a consultation and decided by 2007 not to include caste in the new legislation. In a document prepared as a response to the consultation on caste in Britain, the Hindu Forum of Britain (2008: 25) noted: HFB has found that there are strong links between MPs who have interns paid by CARE [Christian Action, Research and Education] and the Dalit lobby in the House of Commons. Several of the MPs who have CARE interns DOI: 10.1057/9781137571199.0006

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are also the most passionate advocates of Dalit Rights in Parliament and elsewhere. Some of them are also active members of Christian organisations like the Christian Solidarity Worldwide which advocate a strong case for Dalit Rights.

Meanwhile, the Lords Spiritual who sit in the House of Lords, some of whom have spoken out in support of the caste provision in the Equality Act, have been conspicuously silent about their interests in keeping the caste issue high on the agenda. Given the baggage that accompanies thinking about caste and, more seriously, when legislating on it, a series of confusions occurs about what we are talking of. The emotions stirred by the issue of caste, and a measure of self-righteousness, have a role to play in shaping the level of the discussion but, more critically, there is confusion between Western understandings of caste and what Indians make of it. This does not make for a clear approach, which is particularly important where law making is concerned. When looking across from the Indian and Western cultural frames, there is a basic problem of intelligibility. Western culture is based on religion, which constitutes it, while Indian culture is a traditional culture (see in detail Balagangadhara 1994; Balagangadhara and Jhingran 2014). When considering the question of caste and discrimination, the dominant frame is the Western because it determines the shape of the contemporary discussion. Even arguments against caste discrimination legislation have to take place within the Western normative framework. When discussing caste, many Indians too speak as if they operate from within the Western framework. Balagangadhara (2012: 95–120) describes this problem as one of ‘colonial consciousness’ because, as a result of colonialism and its inculcation of the Western account as a true account, educated Indians cannot access either the Indian or Western framework. As we will see further on, one could extend that diagnosis to Indians living in the diaspora. An important dimension of the Western discourse on caste is its location within a framework of normative ethics. Western culture postulates that everybody is equal and so there ought not to be any discrimination on grounds of caste. Attracted by Western ideas, Ambedkar had said that Brahmanism was the very ‘negation of the spirit of Liberty, Equality and Fraternity’ (cited by Roy 2014a: 51). Such a normative framework is, however, further circumscribed in as much as the Equality Act 2010 deals with discrimination in certain delimited spheres. There is a distinction between strictly legally actionable prohibitions and other ethical norms, DOI: 10.1057/9781137571199.0006

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which cover a wider number of spheres. In a legal context such as the Equality Act, we are speaking of certain areas of life including employment, professions, service provision, education and housing. But these are often fused in the wider ethical framework with other concerns about caste-specific preference in marriages (Waughray 2014: 378) or disputes around temples. One may say, meanwhile, that Indian culture lacks a framework of normative ethics (Balagangadhara 2012: 82–85; Venkat Rao 2014: 308–315, 327–328) and thus an idea like equality as an ethical norm makes no sense. Distortions inevitably occur and, given the antitraditional nature of the Western ethical order, Indians can legitimately feel under threat, although they may not be able to pin down what that threat consists of and why they feel threatened. Indeed, Westerners also do not see why Indians, or Hindus, should be insulted at the prospect of a law against caste discrimination. As one of the proponents of the legislation, Lord Deben, stated in the House of Lords, ‘The idea that passing this law would in some way be insulting to Hindus seems to me to be absolutely outwith sense, and we have to make that absolutely clear.’11 Other British politicians have reportedly been taken rather by surprise at the reaction within the Indian community in the United Kingdom against the legislation. Perhaps it is interesting to examine briefly the contrast in the way the British legislation on religious discrimination was introduced. Legislation regarding discrimination on religious grounds was introduced as a result of a persistent campaign by Muslims (Meer 2010).12 There was the European legislation, Council Directive 2000/78/EC, which obliged Member States to adopt laws against religious discrimination in the field of employment. That Directive was implemented, but Britain went further making legal action possible for religious discrimination also in service provision, professions, housing and education via the Equality Act 2006. This regime continues in the current Equality Act 2010. The push to include caste in the 2010 Act came from lobby groups linked to Churches that have a campaigning agenda, which appears to relate more to the Indian situation than to Britain. Briefly put, the agenda appears to be that efforts made towards gaining recognition for Christians in jobs and education reservations in India could bear greater fruit if it could be shown that Dalits, a political term employed for ‘low-caste’ people,13 enjoyed the support of the British legislature. The efforts of Churches to proselytize in India is therefore directed more intensely among Dalits with a reportedly large proportion of Christians said to be Dalits and tribals (Tharamangalam 1996: 296; Hindu DOI: 10.1057/9781137571199.0006

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Forum of Britain 2008: 20–21; Robinson and Kujur 2010: 5). The move in Britain would also boost an internationally orchestrated campaign within UN organs and the EU to have caste discrimination recognized in some form. Efforts for lobbying in the EU are orchestrated by the International Dalit Solidarity Network (IDSN), which is based in Copenhagen, and the funding for which comes mostly from different Churches in European countries or from governments of different European countries including Denmark and the Netherlands. A member of the IDSN, the Dalit Solidarity Network-UK (DSN-UK), is at the core of efforts to coordinate the legislative campaign in the United Kingdom, but with an array of other organizations also playing a role (see also Chapter 5). So the campaign for legislation in Britain comes not from any significant section of the Indian communities, but from select lobby organizations, which have put up a spurious case that caste discrimination exists in Britain. Among the indications of the spuriousness of the case, which were not lost on the various Hindu organizations challenging the legislation, is the invocation of the size of the problem by citing the numbers of Dalits affected by caste discrimination in Britain, with estimates ranging from anywhere between 50,000 and 200,000 (Lord Avebury) to 500,000 (Lord Harries).14 In the 2013 debates, Lord Deben brought his skills to bear on the issue of size of the Dalit population: ‘There are, after all, fewer Jews in this country than there are Dalits. They are wholly protected under the laws. There are fewer Sikhs in this country than there are Dalits, but they are wholly protected under the laws.’ In the 2011 Census, over 263,000 respondents were counted in England and Wales as answering ‘Jewish’ to the voluntary question on religion, while over 423,000 people identified as ‘Sikh’.15 Lord Deben must therefore have been suggesting that the number of Dalits was something over 423,000. In a House of Commons debate that took place in July 2014 to question why the caste provision had not yet been implemented, Jeremy Corbyn MP, who is trustee of the Dalit Solidarity Network and member of the All-Party Parliamentary Group for Dalits, was not to be outdone by members of the Upper House. He declared: ‘There are roughly 1 million Dalit people in Britain.’16 Whether a result of natural increase or immigration, or merely imaginary, the inflation in Dalit numbers was surely extraordinary.17 Proponents of the legislation also appear to portray the Indian legal situation incorrectly or simply do not understand it. For instance, Lord Harries, a former Anglican Bishop of Oxford and one of the chief DOI: 10.1057/9781137571199.0006

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proponents of the 2010 and 2013 amendments on caste, argued for the United Kingdom to have ‘very firm legislation in place, as there is in India, prohibiting discrimination in the areas of employment, public education and public goods and services’. In 2013, Lord Deben argued: ‘All we are saying is that we would do in this country what other countries have already done. It has not been seen as an insult to religion there, so that is not a reasonable argument.’18 Later, in the July 2014 debate, Jeremy Corbyn MP weighed in, referring to B.R. Ambedkar who is widely thought of as the architect of India’s constitution, arguing that The Ambedkar constitution is an excellent document. Dr. Ambedkar was himself a Dalit. It absolutely outlaws discrimination and has some provision for protected employment for people of the scheduled castes. It is a very effective document, but raising these matters with the Indian Government or the Indian high commission is extremely difficult; they are quite resistant to having good discussions about it.19 (Italics added)

None of these parliamentarians appears to have grasped the scope of Indian legislation, which varies from state to state, applies reservations for jobs and in universities (which in some states does include Christians and Muslims) and otherwise criminalizes prohibitions on access to facilities such as water wells. There is, however, no general anti-discrimination law with civil law remedies in India applying to the fields to which the British Equality Act does. It is central government legislation in India which is the chief but unstated target of the proponents of the UK law, since central legislation does not recognize Christian, Muslim or Parsi groups as qualifying for to Scheduled Caste and Scheduled Tribe status, thus preventing their accessing reservations to jobs and education places on less merit. We pick up later (especially in Chapter 5) why the situation in India is of so much concern to British parliamentarians. Well before the caste discrimination legislation came onto the scene there was a pre-existing, tried and tested model of anti-discrimination law to which different grounds have been added successively over the years. Different kinds of exceptions have also been made, for sex, disability, religion or sexuality, to limit the scope of actionable discrimination. So, in the past, legislators carefully considered the extent to which the public interest required the scope of legal provisions against discrimination on a particular ground to be reduced or enlarged. Important here is not whether we agree with the exceptions or special applications to antidiscrimination law, but rather to notice the fact that they exist, tailored

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to the type of discrimination one is talking of. Religion, for example, enjoys very large exceptions that allow certain services to continue to be provided according to criteria, which distinguish depending on religion.20 This is understandable in a culture such as the United Kingdom or the West, which is constituted by a religion (Balagangadhara 1994; Balagangadhara and Jhingran 2014). Not to provide broad exceptions for religious conscience would be to create havoc in society because, suddenly, all types of highly disruptive claims may be coming forth. Moreover, although having religion allows conscientious objection to be intelligible to Jews, Christians and Muslims, it is not accessible to members of other cultures. In effect, therefore, the law caters to preferences of some groups not all (Shah 2013). In 2013, a BBC Asian Network radio correspondent contacted me about the refusal to provide funeral services by some mosques because the deceased were members of a different sect of Islam, a Shia or an Ahmadiyya, although the BBC never raised the issue publicly after that. The law cannot oblige anybody offering funeral services to provide them to members of different religions or sects and, instead, the Equality Act 2010 provides broad exceptions for such religious matters. Not only has no debate taken place about the propriety of introducing caste as a ground for discrimination, still less has it been considered what the proper scope of any such legislation should be. The issue of legislative coverage, in so far as it is aimed at curbing any mischief, is ambiguous. The official report by the National Institute for Economic and Social Research (NIESR) (Metcalf and Rolfe 2010) showed no clear case for applying caste discrimination legislation and in fact drew on case studies concerning temples and marriage as being among the concerns. Sometimes, the impression is given that the aim is to eradicate caste in general. The then Shadow spokesperson for Equalities, Labour MP Kate Green, declared in Parliament that ‘Everyone agrees that caste has absolutely no place in our society’.21 This type of sweeping assessment is not surprising, given the default intuition among Europeans that caste is an inherently discriminatory and immoral institution. Kate Green’s statement reads like a secularized, and much broadened, version of the plea by 19th-century Protestant missionaries in India that caste has no place in the Christian Church (Oddie 1979: 45–56). In Kate Green’s account, the nation has replaced the Church. Although legislation exists in the form of the Forced Marriage (Civil Protection) Act 2007 to allow court orders to be made in case of forced marriages (see Grillo 2015: 59–91), no case DOI: 10.1057/9781137571199.0006

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has yet been made to compel a person to marry out of caste. However, while it might be assumed that no serious case can be made for extending anti-discrimination law to areas such as decisions to marry, a recent statement by Waughray (2014: 378) should be a very worrying indication to Indian communities in particular of the kind of slippery slope that arguments about the annihilation of caste might entail: Ambedkar identified endogamy as the vehicle by which caste is maintained and replicated, and intermarriage as the solvent of caste. Legislation prohibiting discrimination on grounds of caste should contribute to identifying and reducing caste prejudice, including in social and intimate relations, and thereby possibly to the eventual dissolution of caste in this country, in line with the present government’s aim.22

Waughray and her co-authors of the reports written for the EHRC (Dhanda et al. 2014a, b) also emphasize endogamy as a factor of caste (see Chapter 3). The aims of those promoting the caste provision in the legislation are thus far wider and represent a surreptitious attack on the very social structures of the Indian communities in the United Kingdom. Legislators supporting the law on caste have shown great confidence in their ability to see the mischief and act upon it. Some said that a single case of caste discrimination is enough to act. Kate Green MP stated, ‘if there is even one case of such discrimination, proper action must be taken and there must be proper access to redress’.23 Those favouring the caste provision in the legislation have never explained why they think the existing model of equality law is important for caste, nor has the question been raised during the parliamentary debates. As we have seen, legislators had no real idea of the nature of the Indian legislation and how it compares to the British legal context, although they used the existence of references to caste in Indian law as an argument in favour of legislating in the United Kingdom. The NIESR study adopted a skewed method of selecting stories from interviewees suggested to the researchers by those already supporting the legislation (Metcalf and Rolfe 2010: 9–10), but its authors yet refused to give wholehearted support to the claim that caste discrimination exists in the United Kingdom. Lord Avebury and Lord Harries spoke as if it endorsed their stand in favour of the caste provision, while the EHRC also recommended the Equality Act be given the widest possible scope on caste on the strength of the NIESR report.24 It is possible that the seeds of ambiguity are contained in the NIESR report

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itself. While the NIESR study did state that there is evidence of caste discrimination, it also stated that it could not establish its extent and whether it was dying out, and recommended a full research programme to answer these questions (Metcalfe and Rolfe 2010: 63). Lord Dholakia, the only Asian peer in the House of Lords to have maintained an explicit stance against the legislation, noted: However, in essence, there is a lack of evidence on caste matters. The report produced by the national institute [NIESR] clearly acknowledges that there is no evidence to suggest the existence of large-scale discrimination in this country based on caste ... having acknowledged that the available evidence did not indicate that caste discrimination was a significant problem in Britain in the areas covered by discrimination legislation, Parliament proceeded to accept an amendment to the Equality Bill to include caste as an aspect of race by a ministerial decision.25

Thus Lord Dholakia was able to cite the same report in argument against the need for legislation and to decry that such legislation has been pushed through. As noted, Lord Lester had declared in 2010 that he could not understand why research was required.26 A Member of Parliament for a Leicester constituency since revealed, ‘I have never seen any evidence of caste discrimination in Leicester’.27 The observation becomes more significant if one considers that the density of the South Asian population (Indian, Pakistani and Bangladeshi) in Leicester is some six times that in England and Wales as a whole. The background Western framework to caste means that evidence is not required for legislating against it because its immorality is clear. We saw earlier how missionaries unanimously identified caste as a major obstacle to conversion. We also saw how a society based on religiously sanctioned caste stratification was inimical to core Protestant ideas about equality of spiritual status, and how the Aryan invasion theory was brought in to explain caste as a religiously ordained racial order. The implicit idea of a violent sacerdotal order lies behind this secular theorizing of the caste system and of the corruption of Indian culture and society. Prior to the Second World War, the notion of an Aryan race was advocated widely in European intellectual circles. It suddenly disappeared from mainstream Western thought after the genocide during the Second World War. However, it is still routinely invoked when India’s population and caste system are discussed (see, e.g., for a widely read account, Smart 1996, 1998). Asian peers in the House of Lords appear to have played a significant role, and it is worth noticing how the framework DOI: 10.1057/9781137571199.0006

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of Indian moral corruption has been internalized by some of those who spoke. This is Lord Singh of Wimbledon: Caste has a very precise meaning attached to practices associated with the Hindu faith. It has its origin in the desire of the Aryan conquerors of the subcontinent in pre-Vedic times to establish a hierarchy of importance, with priests at the top followed by warriors, those engaged in commerce and then those engaged in more menial tasks. The conquered indigenous people were considered lower than the lowest caste. Accident of birth alone determined a person’s caste. Sadly, thousands of years latter [sic], and despite legislation by the Indian Government, which has been referred to, this hierarchy of importance still lingers on.28

Interrupting Lord Singh’s erudition, Baroness Flather offers her insights: The caste system was established very early in Hinduism. The Sanskrit for caste is ‘varna’, which is also the word for colour. The noble Lord mentioned the Aryan conquerors, who were supposed to be lighter skinned. They wanted a division not only on the basis of who would do what but on the basis of colour.29

The link between an Aryan conquerors, the caste system and different Indian races seems quite solidly in place even among those who are assumed to, in some special way, ‘represent’ and ‘speak for’ the British Indians. When these Asian peers speak in this colonized manner, they solidify the Western account since they are often seen as spokespersons who may say things that white Europeans would not get away with. A combination of Orientalism and ‘colonial consciousness’ stands in the way of our discovering how Indians actually make sense of caste, if at all they do, and yet they also remain at the basis of the confidence with which it is legislated against.

Hindus and their vested interests: caste and the National Secular Society While we can see some evidence of how the debate on caste in Parliament took a particular shape considering the background assumptions that exist about India in the Western culture, in this section we can explore further how the forces championing the legislation use extra-parliamentary means such as the media and NGOs to influence and propel similar discourses about caste. The use of such agents also DOI: 10.1057/9781137571199.0006

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allows language that is beyond what would be considered parliamentary to circulate. On 21 December 2014, the Sunday Times newspaper printed an article titled ‘Cameron “Blocks Ban on Caste Bias” ’.30 The article cites unnamed senior Whitehall sources as having said that the Prime Minister, David Cameron, blocked a proposal to extend the discrimination laws to cover caste, thus depriving some 200,000 people of Nepalese or Indian origin of legal protection.31 The writer of the article was Marie Woolf, Whitehall editor. The article was rather short on any real detail, but she presumably has the Equality Act 2010 in mind, which as we have seen indeed does have a provision on caste that, after the 2013 amendment, ministers are obliged to implement. The article goes on to refer to Cameron being ‘accused by [unnamed] critics of bowing to a powerful “vested interest” and wealthy Hindu businessmen who oppose the move’. The final paragraph of the same article cites Keith Porteous Wood, Executive Director of the National Secular Society, as saying that ‘The government has been directed to introduce anti-discrimination legislation by parliament and the UN. For it to defy both can only be explained by conflict with a strong vested interest.’ Something seems rotten in the state of Denmark. Is there some ‘vested interest’ which is blocking the government’s obligation to implement a law that it should have? If so, is there a link between that interest and the mentioned ‘wealthy Hindu businessmen’ to whom Cameron is ‘bowing’? We are none the wiser after reading the article, which hangs on a cloak and dagger-ish tone, but provides no detail. Instead, it is accusation by innuendo and smacks of some vested interest behind the article itself. It may not go unnoticed that ‘Asians’ is the usual wording when reporting stories of child abuse prosecutions,32 but here the misdemeanour is unequivocally committed by Hindus. The National Secular Society has taken an oddly keen interest in the Equality Act’s provision on caste and it argues vehemently for its implementation, as the Sunday Times article testifies, and as further digging into its adopted positions on the same provision confirms. It is unclear whether we should classify the Society as having a ‘vested interest’ on the caste question because the identity of its dog in the fight about the United Kingdom’s equality legislation is far from clear. One could ask, for instance, why an article on the caste legislation does not instead cite the views of one of the Dalit organizations, like the Dalit Solidarity Network-UK (DSN-UK), the International Dalit Solidarity Network DOI: 10.1057/9781137571199.0006

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(IDSN), the Anti Caste Discrimination Alliance (ACDA) or the Voice of Dalit International (VODI) which have agitated for the legislation and orchestrated propaganda being touted as ‘research’ on caste-based discrimination, both before and since the legislation (see Chapter 5). Or it could have cited one of the Churches that have a role in backing and funding these Dalit organizations because of their ‘vested interest’ in opening the door further to proselytism in India by using UK law as a way of pressuring the Indian government to open up caste-based reservations to Dalit Christians. It could even have cited any of the parliamentarians who supported the introduction of the caste clause, or perhaps even an Asian peer to add authenticity and spice in the same quip. Instead, readers of the article have to make do with the insipid righteousness of the National Secular Society. Digging further into the website of the Secular Society, we find that some of those very same people, who have spoken in Parliament in support of the caste provision, appear among its list of Honorary Associates, including Lord Avebury, Lord Cashman and Baroness Flather.33 Could it be that the ‘vested interests’ pushing for the inclusion and implementation of the caste provision see fit to use the vehicle of the National Secular Society as a way of covering their tracks, which lead back to the Churches’ agenda of proselytism in India and beyond (see Chapter 5)? As we saw, the very idea of a caste system can be tracked back to the theological writings about India’s ‘false religion’. Its subsequent incorporation into the secular social sciences has led to it assuming the status of the explanation for Indian social structure, so much so that any ‘fact’ about Indian society must refer back to that explanation.34 This is what gives life to the kind of ‘atrocity stories’ to which Dalit and Church organizations, joined now by the National Secular Society, make constant reference. Digging even further reveals that the wording of ‘vested interests’ may also derive from the Society’s own briefing of May 2013 on ‘Caste Discrimination’.35 Referring to the period just prior to the 2013 amendment being adopted, that briefing states: The National Secular Society also expressed its concern that the Government’s reluctance to provide important legal protection to vulnerable British citizens from the South Asian communities may have been unduly influenced by Hindu organisations with vested interests.

So it appears we have the curious phenomenon of the Society having, representing or acting as a cover for, ‘vested interests’ pointing to yet

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other ‘vested interests’, composed of some unnamed Hindu organizations. The Society does not clarify just which organizations it has in mind by this reference although the implication must be that their influence is illegitimate. Pending any such clarification, from their tone and context, the implication in the article in the Sunday Times and in the Society’s May 2013 briefing is that no Hindu organization should or would have a legitimate interest in making a case against the legislation. We may refer to what Baroness Flather, one of the Society’s Honorary Associates, had to say back in 2010 about Hindu organizations: We keep coming back to the Hindu Forum and the Hindu Council, which are formed by caste Hindus-the three upper castes. Some of us here are Hindus and we know about this. I know perfectly well what kind of people they are. They feel that to consult them about caste discrimination is to cast aspersions on them, as if one is saying, ‘You are the lot who are discriminating on the basis of caste’. They are not going to admit that they discriminate; no one does.

The message of this statement, whose resemblance to the wording adopted in the Sunday Times article and in the Society’s briefing is striking, but perhaps needs to be clarified further. The ‘Vested interests’ discourse of the Secular Society and Baroness Flather indicates that the only reasonable answer to the question whether Hindus discriminate is ‘yes’. Any other response would reflect that they are in denial because of some vested interest. The fact is that several Indian (not only ‘Hindu’) organizations have opposed the caste provision in the Equality Act on the ground that no research establishes the existence of the caste discrimination; that if there is such a problem then non-legal ways should be found to solve it; that the provision presupposes the Western construct of caste which makes no sense to Indians and cannot in any case be implemented; that the operation of the provision will have damaging consequences for Indian businesses, employers and community organizations, and thus to the economic and associational life of the Indian communities in the United Kingdom (see especially Chapters 3 and 4); that the real agenda is to further entrench the proselytism agenda of the Churches in India (Chapter 5) and so on. Ignoring the serious concerns about the legislation, its context and consequences for the Indian communities in the United Kingdom, the National Secular Society takes a particular position on it, perhaps not untypical of other such campaigning organizations and parliamentarians who work hand in glove: present information in such a skewed way DOI: 10.1057/9781137571199.0006

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that only one’s own ‘vested interest’ is promoted, and ignore that any other voice may have reasonable position, especially if it is Hindu. And this is what the Society’s position paper of May 2013 goes on to do. Its writer seems convinced that a caste system exists in India described in the manner of Dalit propaganda, using many contrived ‘atrocity stories’, buying into the Orientalist construction of the caste system; that caste discrimination is rife in Britain, presenting existing ‘studies’ on the matter as if they are beyond doubt; that legislation is a necessary means to solve any problems and so on. Since that is the agenda it is moored to, it must dismiss Hindu ‘vested interests’ as necessarily amounting to the banging of their own drum and which therefore should not be taken seriously. Turkeys of course would not vote for Christmas, would they? If Hindu organizations bang their own drum to cover up discrimination, then what value should one put on the National Secular Society’s stand, which bangs the drum for the Churches for whose interests it acts as a cover? In so adopting its stance, the National Secular Society compromises its own principle of operation. The Society’s website sees ‘secularism’ as involving two basic propositions: ‘The first is the strict separation of the state from religious institutions. The second is that people of different religions and beliefs are equal before the law.’36 It may be reasonable to suppose then that the society supports a secular state. In this sense, it is not that different from those secularists in India who also defend the secular state in that country. As Balagangadhara and De Roover (2007) have argued with respect to the case of India, the secular state cannot but be partial either to the vision of the Semitic religions characterized by necessary rivalry regarding doctrinal truth and the necessity of bringing over others to that truth by proselytism and conversion, or to the view of the Indian traditions whose practitioners see no such rivalry and refuse to endorse conversion on the ground that the claims of the Semitic religions are destructive of their own continued existence. Despite the claims made by its advocates, therefore, a secular state cannot be neutral as between either of the positions, since it must take a position for one and against the other. Similarly, the stance taken by the National Secular Society demonstrates that secularist practice ends up being partial to the Churches’ account of religious rivalry, the inevitable end of which must be the destruction of pagan traditions, among which one may include the Indian traditions. The Society and like-minded secularists must therefore fail in their second aim of securing equality before the DOI: 10.1057/9781137571199.0006

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law among people of different religions and beliefs. Not only that; the National Secular Society also compromises on the first of the propositions characterizing secularism because it does not in fact support the separation of state policy from the agenda of the Churches but, in fact, it endorses that agenda. The trope of the caste system and its suppression is a mere accessory to this aim. We revisit the question of proselytism and its role in generating the caste agitation in Chapter 5. The following chapter turns to a more detailed examination of the incoherence resulting from the background assumptions to the idea of the caste system by specifically addressing the content of the EHRC reports produced since the 2013 amendment to the Equality Act.

Notes 1 Amendment to Equality Act 2010, Section 9(5), introduced by the Enterprise and Regulatory Reform Act 2013, section 97. 2 ‘Caste Discrimination Law Faces Appalling Delays, Say Campaigners’, BBC News, 30 July 2013, http://www.bbc.co.uk/news/uk-politics-23501389. In a leaked letter to the Alliance of Hindu Organizations, then Equalities Minister Helen Grant since expressed disappointment that the government had conceded an obligation to make an order implementing the provision making caste an aspect of race: The Independent, 13 June 2013. 3 See, for example, ‘Cameron “Blocks Ban on Caste Bias”’, Sunday Times, 21 December 2014, http://www.thesundaytimes.co.uk/sto/news/uk_news/ society/article1498729.ece?cmp=oth-gnws-standard-2014_12_20; and Waughray (2014: 377). 4 House of Lords Debates, 11 January 2010, col. 344. 5 For an analogue for this claim we can point to the argument by Balagangadhara (1994) that the presence of religion in Asia is founded on a pre-theoretical theological idea which informs all subsequent theorizing on religion in Asia/India. 6 On the lack of normative ethics in Asian cultures, see Balagangadhara (2012: 82–85), Venkat Rao (2014: 308–315, 327–328). The claim that there is some Brahmanical or Hindu theology (see also Lubin et al. 2010: 6, and, more persistently, Davis 2010) is merely a projection of India as yet another culture having religion. On this problem, see in detail Balagangadhara (1994) and Balagangadhara and Jhingran (2014). 7 The contrasting perspectives between the Protestant missionaries and the Catholics can also be seen in the account by Jesuit missionary Abbe Dubois whose famous text circulated widely in the early 19th century in which he

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9

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had also claimed that caste was a kind of civil institution that protected Hindus from falling into barbarism although he was repulsed by the religion of Hinduism (Dirks 2001: 21–26). Bayly (1999: 111) cites the missionary Rev. William Ward describing the varna system as an attempt to ‘cramp the human intellect, and forcibly restrain men within bounds which nature scorns to keep’. His fellow evangelicals appear to have followed him in this assessment. It is interesting to note in this light that the monumental work by Pollock (2006: 39–44) on Sanskrit also departs from the problem (and assumption) that although Sanskrit knowledge was denied to lower orders of society, it spread widely in Asia. Its analogue lies in the Protestant critique of the Catholic Church hierarchy that they held back knowledge of revelation written in the Latin language from the generality of believers. Another problem Dirks faces, but which cannot be dealt with in more detail here, is that a critique is normally directed against the background of a dominant account or theory. If Dirks is right about the power of the colonial state, then how could ‘Indian culture and civilization’ be the object of critique by non-Brahmins and Dalits, except by their being parasitic on already existing Western accounts of India? The point is more general importance because of the widespread tendency among Indian and Western intellectuals to want to critique ‘Brahmanism’. One can only assume that such critiques of ‘Brahmanism’ are extensions of Christian theological accounts of Indian culture or secularized versions thereof. One clue lies in the way Dirks (2010: 257) describes Periyar and Ambedkar as ‘revealing in their particular ways the extraordinary tyranny of nationalist ideology’ (italics added). The focus of both Ambedkar and Periyar on a written text, Manusmriti, as a foundational legal document indicates the degree to which colonial consciousness had set in. Venkat Rao (2014: 10) instructively argues that ‘Despite various efforts to show the intrusion of writing into “Sanskrit knowledge systems” neither the scribal mode gained significance, nor, more importantly, did it in any palpable way affect the mnemocultural reflective ethos’. House of Lords Debates, 22 April 2013, col. 1309. In Northern Ireland, where different concerns prevail, legislation against religious discrimination was introduced earlier. The term ‘untouchables’, also a political term, is used in place of Dalits by proponents of the legislation. See, for example, Lord Harries, House of Lords Debates, 11 January 2010, col. 334 and 22 December 2010, col. 1099. See Lord Avebury, House of Lords Debates, 11 January 2010, col. 332, also citing the lack of detailed research, and Lord Harries, House of Lords Debates, 11 January 2010, col. 335.

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15 See ‘Religion in England and Wales’, Office for National Statistics, http:// www.ons.gov.uk/ons/dcp171776_290510.pdf. 16 House of Commons Debates, 9 July 2014, col. 138WH. 17 How the number of Dalits and other information was presented in Parliament is encapsulated in the video ‘The Lying Lords of London’ issued by the National Council for Hindu Temples (NCHTUK), https://www. youtube.com/watch?v=z5-XQdinqHo#t=75 18 Lord Harries, House of Lords Debates, 22 December 2010, col. 1099 (italics added) and Lord Deben, House of Lords Debates, 22 April 2013, col. 1309. On the contrasts between India and Britain, see the essay by Menski (1992). 19 House of Commons Debates, 9 July 2014, col. 138WH. 20 See, for example, Equality Act 2010, section 29(8), section 33(6), Sch. 23, para. 2 and Sch. 9, para. 273. 21 House of Commons Debates, 23 April 2013, col. 791. 22 Indeed, Ambedkar (2014 [1944]: 285–286) had indeed identified intermarriage across caste lines as one of the tools for the annihilation of caste. 23 House of Commons Debates, 23 April 2013, col. 791. For similar effect, see Lord Deben, House of Lords Debates, 22 April 2013, col. 1310. 24 See remarks of Lord Avebury, House of Lords Debates, 22 December 2010, col. 1098, where his interpretation comes through in the following question: ‘My Lords, does the Minister agree that the research shows that discrimination based on caste does occur within the areas covered by the Act, and that it would be reduced if Section 9(5) of the Act was activated?’ Also, Lord Harries, House of Lords Debates, 22 December 2010, col. 1099. 25 House of Lords Debates, 22 April 2013, col. 1312. Similarly, on the NIESR report concerning the extent of caste discrimination and any change regarding it, see Jo Swinson, equalities minister, House of Commons Debates, 16 April 2013, col. 220; also Alok Sharma MP, House of Commons Debates, 16 April 2013, col. 233-234. 26 House of Lords Debates, 11 January 2010, col. 344. 27 E-mail communication from Jon Ashworth, 5 June 2013. Similarly, see Alok Sharma MP, House of Commons Debates, 16 April 2013, col. 234. 28 House of Lords Debates, 4 March 2013, col. 1304. 29 House of Lords Debates, 4 March 2013, col. 1305. 30 The article was reprinted without further comment in the following week, Asian Voice, 30 December 2014. 31 The variation in figures continues. On his radio programme just prior to the election interviewing Ed Miliband, the then leader of the Labour Party, DJ Nihal cited a figure of 400,000 Dalits without a source: BBC Asian Network, 5 May 2015. 32 Yasmin Alibhai Brown, ‘The Rotherham Child Abuse Scandal Is a Tale of Apologists, Misogyny and Double Standards’, The Independent, 26 August

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2014, http://www.independent.co.uk/voices/comment/rotherham-childabuse-scandal-apologists-misogyny-and-double-standards-9692497.html; Martin Evans, ‘Rotherham Sex Abuse Scandal: 1,400 Children Exploited by Asian Gangs while Authorities Turned a Blind Eye’, Daily Telegraph, 26 August 2014, http://www.telegraph.co.uk/news/uknews/crime/11057647/ Rotherham-sex-abuse-scandal-1400-children-exploited-by-Asian-gangswhile-authorities-turned-a-blind-eye.html. The widely publicized stories of Asian gangs grooming and abusing girls are primarily about Muslim men, and Hindu/Sikh groups have regularly complained of the usage ‘Asian’ by media sources. See http://www.secularism.org.uk/honoraryassociates.html. The BBC Radio 4 series by Sunil Khilnani, ‘Incarnations: India in 50 Lives’ is testament to that. http://www.secularism.org.uk/uploads/caste-discrimination-briefing.pdf. See ‘What is Secularism?’ http://www.secularism.org.uk/what-is-secularism. html.

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Equality and Human Rights Commission Reports on Caste Abstract: Chapter 3 examines in detail two reports on caste produced by the Equality and Human Rights Commission (EHRC) through its research team as part of the post-Equality Act official investigation. The reports provide insights into stakeholder and academic positions, and how caste may be deployed within the legal context of the Equality Act. This chapter critically assesses both reports, examining the presuppositions behind their drafting, the consistency and coherence of their account of caste and the applicability within legal structures of these ideas. It shows how the ‘independent’ investigation commissioned by the EHRC relied on the same Orientalist ideas of the caste system that went into framing the wider discourse, and questions how reliable and useful such research can be for implementing law. Shah, Prakash. Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010. Basingstoke: Palgrave Macmillan, 2015. doi: 10.1057/9781137571199.0007.

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Once the April 2013 amendment to the Equality Act 2010 had been secured, the government was required to introduce a statutory prohibition of caste discrimination into British equality law by making caste ‘an aspect of ’ the protected characteristic of race. The Equality and Human Rights Commission (EHRC) was commissioned to conduct a consultative exercise with the aim of bringing the caste provision into effect, and to that end it contracted a team of academics drawn from different British research institutions to conduct an independent study in two parts: (1) a review of existing socio-legal research on British equality law and caste and (2) two supporting events (for experts and stakeholders, respectively). Two reports resulted from these exercises: Caste in Britain: Socio-legal Review (Research Report 91, Dhanda et al. 2014a) and Caste in Britain: Experts’ Seminar and Stakeholder’s Workshop (Research Report 92, Dhanda et al. 2014b). The consultative exercise has continued since in the form of a survey commissioned by the Government Equalities Office (GEO) of how best to ask questions about caste without causing offence. The EHRC was not chosen as the body to conduct further research on the caste question given the EHRC’s own concerns that it would be ‘intrusive and ruin good relations in communities’.1 This is an indication how the EHRC managed to alienate Hindu and Sikh groups during the conduct of the investigation it had been charged with. Despite inquiries, the government has meanwhile not made clear its own position on the EHRC reports. Even though it tasked the EHRC to conduct the research leading to the two reports, the government is understood to have taken the view that the conduct of the research and the content of the reports are solely a matter for the EHRC. This could be read as the result of the government’s wish to remain at a distance from what it must have realized was a flawed research exercise and one that was opposed by Hindu organizations in particular. The bringing into effect of the caste provision (currently assumed as being planned through an affirmative order in Parliament) would mean that legal actions for discrimination in the areas covered by the Equality Act 2010 could be brought before Employment Tribunals and courts. While the following chapter (4) discusses the potential implications of the caste provision upon employers and businesses and Indian community organizations as the law is effected, this chapter makes a closer, critical examination of the EHRC’s reports and the kind of research exercise they represent.2 DOI: 10.1057/9781137571199.0007

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The EHRC had already declared itself to be in support of the caste provision in the Equality Act, even before it had itself been commissioned by the government to arrive at some sort of understanding of what caste actually means for that Act. Not only that; on the same statement of support the EHRC relies on the NIESR study (Metcalf and Rolfe 2010) to advocate a particular position as follows: The Commission notes the findings of the government-commissioned National Institute of Economic and Social Research paper on caste discrimination. In light of this, the Commission would suggest legal protection under the Equality Act 2010 for those experiencing discrimination in Britain should be as comprehensive as possible.3

Three points especially stand out from this statement. First, despite the questionable research methods and the very provisional results of the NIESR study (see Chapter 2), the statement indicates that the EHRC sees fit, without further explanation, to take the position that that study proves the existence of caste discrimination in the United Kingdom so as to make a case for legislating on it. Second, the EHRC seems committed to seeking a remedial system of the kind contained in the Equality Act. No mechanism other than the Equality Act structure seems to be within its sights. Third, within that framework, the EHRC advocates the largest possible coverage of the caste provision, that is, that any exceptions to caste discrimination in the Equality Act should be as limited in scope as possible. As we see further in this chapter, the EHRC-commissioned research team also advocates the same. How it is possible for the EHRC to have come to such a stance is not explained, except that it must have been so convinced of the unambiguity of the methods and results of the NIESR study that it felt comfortable enough to do so. The research team commissioned by the EHRC was overwhelmingly composed of academic members committed to the idea of the legislation or were otherwise supporters of the pro-legislation lobby. This is evident, for instance, in the writings of two of the co-authors of both reports who have a legal background, David Keane (2007) and Annapurna Waughray (e.g., 2009, 2012, 2014). Both authors have also co-written a note on ‘Amending the Equality Act 2010 to include Caste Discrimination’ together with Lord Lester who was a promoter of the legislation in the House of Lords and that note also displays a pro-legislation stance.4 Stephen Whittle and Roger Green wrote the report, Hidden Apartheid – Voice of the Community: Caste and Caste Discrimination in the UK, DOI: 10.1057/9781137571199.0007

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A Scoping Study, together with the Anti Caste Discrimination Alliance (2009). Whittle was co-author to one of the EHRC reports (Dhanda et al. 2014a), while Roger Green was co-author to both (Dhanda et al. 2014a, b). Hidden Apartheid recommended that what was then the Equality Bill 2009 should be amended to provide legal protection against victims or potential victims of caste discrimination. The pro-legislation stance is strongly reflected in the body of the EHRC reports, which do not question the assumptions behind the legislation but are, in fact, supportive of it. Not only is the dominant strain of scholarship on the Indian caste system framed by Orientalism (see Chapter 2), here we have a group of academics who are also committed to the aims of the legislation based on such assumptions. The perception that the academics could not achieve a result other than what their stance on the legislation already committed them to led to some organizations within the Indian community taking the principled stance not to take part in the Stakeholders Workshop held at the University of Westminster on 9 November 2013. While the relevant report (Dhanda et al. 2014b: 4) mentions the withdrawal of four of the organizations that had accepted an invitation, the report does not say why they had done so, and there is no documentation of their objections. Other Indian organizations that sent representatives to the Stakeholders’ workshop shared similar concerns during the course of the meeting. Although writers of the reports notice that the issue of caste legislation is ‘controversial’ and therefore must be ‘carefully handled’ (Dhanda et al. 2014b: 3), they fail to question the assumptions that led to the legislation. The reports can instead be seen as a further attempt to reinforce the failure of legislators to reckon with the feelings of the Indian community. The reports fail to get across the level of dissatisfaction about and opposition to the legislation and the well-founded nature of the grounds upon which such opposition is expressed. The reports provide no criteria against which the literature surveyed or the views garnered during the consultative process should be weighed up and can thus be presumed to be influenced by the dominant anti-Indian trend of the research and the predetermined views of the authors who share a pro-legislation slant. The reports also fail to make use of and respond to existing research that would question the writers’ predetermined standpoint, a fact that puts their scientific value further into question. The reports build into them the deep-seated prejudice against Indian culture established within Western culture, upon which the legislation DOI: 10.1057/9781137571199.0007

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was also premised (see Chapter 2). The legislation was after all passed before any consultations were made or evidence considered, which is exceptional for anti-discrimination law in the United Kingdom. The reports, as with the Parliamentarians who spoke in favour of the legislation, presume that Indians discriminate on grounds of caste, and that those discriminating are ‘upper caste’ people. The reports do not help to expose any problem, but proceed on the assumption not only that caste, the caste system and caste discrimination exist, but also that they are problems to be dealt with by legislation. They therefore accept the premises of the legislation, although attempts are made to tone down the impression that Indian culture is being attacked. In scientific terms, the authors commit the basic fallacy in research of petitio principii; in other words, they presuppose what they have to prove. Both reports contain some indications of the way in which caste should be conceived of in the British context. They attempt to convey that caste is a phenomenon that is differently manifested in Britain as compared to the Indian context. It is not entirely clear how or why that should be so, and the lack of clarity in the researchers’ minds is hidden by the use of glossy language that serves to obfuscate matters further. The writers of the Socio-legal Review take the position (Dhanda et al. 2014a: vii) that ‘caste is to be made an aspect of race which can be done by interpreting ethnic origins to include caste, or by naming caste as a fifth sub-category of race. The latter approach appears to provide more clarity and fits with the wider understanding of the meaning of caste as distinct from ethnic origins.’5 The idea that clarity will result from making minute adjustments to the legislative wording of the provision on caste ‘as an aspect of race’ is a chimerical scenario dreamed of by those who already have an agenda supporting the legislation. It overlooks that a lack of clarity and coherence is at the heart of all historical and contemporary attempts to tag Indian culture and society with the caste label. The lack of reality of their descriptions of Indian culture and society is why researchers cannot come up with any coherent idea of caste. This is a specific case of the larger problem of Orientalism that provided descriptions of Indian society and culture so that they could lend stability, coherence and unity to the cultural experience of the West; entities like ‘Hinduism’ and the ‘caste system’ have never existed (Balagangadhara 2010: 138; Balagangadhara 2012: 54–55). The core of the idea of caste is based on a Christian theological view of Indian religion. Although that theological framework has endowed us with the pre-theoretical idea of DOI: 10.1057/9781137571199.0007

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a violent sacerdotal or priestly nucleus in Indian religion, it has moved into the background such that attempts to theorize caste are bound to look incoherent and will ultimately fail. The report writers point to various indices, and different terms within Indian languages, and distinguish caste from other categories like religion and ethnicity but, ultimately, they cannot provide any solid theoretical understanding of what caste is. In fact, it appears that the writers of either report are not interested in a theory of caste or Indian social structure at all. Rather they seem to be going after a definition, which would have no scientific value without being grounded in a theoretical understanding of Indian social structures and social organization, but is instead likely to lead to interminable disputes (Balagangadhara 1994: 255–258). Even within the limits of their concerns, the writers appear to treat lack of precision as a virtue. At the Experts Seminar held at the School of Oriental and African Studies (SOAS), University of London on 19 October 2013, one task group even stated that ‘there would be dangers in attempting too precise a legal definition’ (Dhanda et al. 2014b: 9). The writers of the Experts’ Seminar and Stakeholder’s Workshop report mention (Dhanda et al. 2014b: 28) ‘there appeared to be a consensus that an elastic definition that addresses caste, without offending any religious group, was the best’. This approach may have appeared to be ‘the best’ but must also be a non-starter. Hindus already take offence; more recently some Sikhs have noticed that the legislation associates them with ‘ritual purity’, arguing that that is anathematic to their teachings; Christians regard caste as a mark of heathen practices. To the extent that there is a ‘consensus’, this statement is just one indicator that scholars are unable to provide a coherent account of caste but would forsake scientific rigour and clarity for a sort of inoffensive political correctness. During the course of the Parliamentary proceedings, Lord Parekh had anticipated this sort of problem of nebulousness with respect to a definition: as the Minister rightly said, we will be introducing the category of caste in our domestic legislation and once you do that, problems begin to arise. How do you define caste? Sociologists have tried for 200 years, ever since the Portuguese invented the word caste. It is not an English but a Portuguese word; when they came to India, they found that we were classified in a certain way and called it caste. In India, caste is very much in flux thanks to globalisation, urbanisation and so on, and in Britain it is even more so. Castes are therefore difficult not only to define but to distinguish. Once one introduces this kind of indeterminate, inherently nebulous category in law, one invites

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difficulties. One could easily pave the way so that in 10, 15 or 20 years’ time there might even be a pressure of the exact kind we have now, where people might be saying, ‘Let’s have a question on caste in the census’.6

If social scientists cannot make sense of caste, except by some sort of academic fiat, then it will remain a difficult task for judges and anybody else who will have to make decisions about the existence of caste discrimination to do so. It comes as no surprise that the researchers could not coherently explain what caste is. The enterprise was bound to fail, as all previous attempts by social scientists and lawyers have ended up being similarly incoherent. The underlying problem why the researchers have not been able to come up with any coherent idea of caste is because they cannot do so, but cannot admit that this is the case because of their prior commitment to a particular vision of Indian society and culture. The difficulty can be seen in the statement that, among the experts, ‘none provided any outstanding source for a legal definition, and some agreed that defining caste is a difficult task’ (Dhanda et al. 2014b: 8). The researchers should have made explicit previous failed attempts but do not mention, let alone discuss, the problems which faced the colonial state in India as well as those which the contemporary Indian legal system encounters in conceptualizing caste coherently or sensibly. To cite one instance of the confusion prevailing among social scientists today the Socio-legal Review (Dhanda et al. 2014a: 3) cites Susan Bayly’s work as follows: ‘Caste was and is, to a considerable extent, what people think of it, and how they act on these perceptions’ (the citation is to Bayly 1999: 7). Presumably the authors of that report cite Bayly approvingly; they certainly do not criticize her use of that kind of impervious argument. One problem with this kind of obfuscating statement is that it amounts logically to saying something like ‘If a person thinks something is a chair, to a considerable extent, it may be one and it would also be one if somebody sat on what she thought was a chair’. This would have the kind of absurd consequence that if a person thought a wall was a chair and further if she sat on the wall thinking that it was a chair one would ‘to a considerable extent’ be justified in saying that the wall was a chair. In fairness to Bayly, she may have been merely pointing out the incoherence of and the lack of certainty about the idea of caste. After all, in the Experts’ Seminar and Stakeholder’s Workshop report (Dhanda et al. 2014b: 19–20) Bayly is cited as having said that ‘even a small number of cases would present DOI: 10.1057/9781137571199.0007

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an “intractable problem” due to the very different views held by academics about the nature of caste’. Despite the problem of coherence the researchers appear to insist on going for a minimalistic definition of caste, which is neither ‘too broad’ nor ‘too precise’ which refers to (1) endogamy (2) inherited status and (3) social stratification (Dhanda et al. 2014a: viii). All the three criteria are presumably (we are not told explicitly) both necessary and sufficient. The researchers consider that ‘there is a value’ in having such a legal definition (Dhanda et al. 2014a: viii), although it is not clear what that ‘value’ is. Any such value must be significantly diminished once one considers that individually and collectively such criteria can be applied to a myriad of other social phenomena. As an example one might say that the group of say ‘white people’ in Britain are very likely to marry or have relationships with one another, and figures from National Statistics show that white people are the least likely to be married to someone outside their ethnic group; that they are likely to transmit the desirability of doing so across generations; and that this leads to kinds of social stratification in that such social structures can act as interest groups, economically distinct groups, display exclusionary patterns and so on. It is completely unclear from the reports why such criteria, individually or collectively, if they really do represent existing social structures, should specifically be designated as caste or as morally objectionable. The idea of a caste system is also framed in normative ethical terms such that Indian society is said to be characterized by an unjust and immoral caste system which is a degeneration of an originally occupationally and hierarchically ordered system which was designed for discrimination. As De Roover and Claerhout (2015) have shown, the occupational dimension acquired a moral underpinning once Protestant theologians linked caste and its supposed hierarchy to Hinduism, as a heathen, false religion. The perception of an occupational dimension still persists among social scientists. The Socio-legal Review links the caste system to occupation in three places while the Experts’ Seminar and Stakeholder’s Workshop report mentions the link in five places. Interestingly, in the former, one of the references (Dhanda et al. 2014a: 32) is to an Indian Supreme Court decision and one (28–29) is to a General Comment made by the UN Committee on the Elimination of Racial Discrimination (CERD). This shows that the link is continuously upheld in legal contexts. As we saw in Chapter 2, the Western Christian–Orientalist construction about the caste system has now become commonplace in the ‘knowledge’ that DOI: 10.1057/9781137571199.0007

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human sciences propound about India. The moral degeneracy associated with caste is suggested right at the start of the Socio-legal Review, which announces (Dhanda et al. 2014a: iii) that ‘Caste is a form of identity that is used as a basis for social differentiation and usually involves inequality’. A system that ‘usually involves inequality’ is presumptively discriminatory and therefore productive of unjust results. At the same time, the writers want to maintain a distance from ‘class’; they thus want to avoid ‘too broad a definition that would over-extend the scope of the legislation and risk merging caste with broad social inequalities such as class’ (Dhanda et al. 2014b: 9). The authors of both reports ignore the fact that there is widespread dissatisfaction with the caste-related legislation in India, which is premised, unlike the legislation in the United Kingdom, on extending reservations (quotas), which are not based on merit, to members of those groups who are named in lists within legislation. There are lists both in central government legislation and at individual state level, the latter according recognition within the recognizing states to a wider set of beneficiaries. There is intense and bitter contestation in India over who should benefit from these reservations (and here political clout may well be instrumental as opposed to indices of disadvantage or scientific criteria; see Bayly 1999: 266–305; Shourie 2012). However, the reason behind promoting the legislation in the United Kingdom is because Christians in India do not benefit from the central government scheme for reservations, although they do benefit from schemes in some states. The same applies to Muslims in India although, as far as the issue concerns the push for caste legislation in the United Kingdom, it is the Christian Churches that are the agitators even if they often act behind other actors and organizations. The exclusion of Christians and Muslims in India from the reservations scheme is mentioned in the Socio-legal Review (Dhanda et al. 2014a: 33): Despite widespread recognition that the ideology and practice of caste exists in other religions, the Indian constitutional framework treats it as a Hindu phenomenon. Under the Constitution (Scheduled Castes) Order 1950, only Hindus, Sikhs or Buddhists can be classified as Scheduled Castes. Muslim and Christian Dalits are excluded on grounds of religion from the Scheduled Caste category and hence from accessing Scheduled Caste reservations. Lack of Scheduled Caste status also means that Muslim and Christian Dalits who are victims of caste hate crimes cannot file a criminal complaint as the victim must be a member of a Scheduled Caste for caste hate legislation to be

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triggered, a situation that has been criticised by the UN as well as by academics and activists within India and elsewhere.

While this is a reference to legal disabilities that emanate from a group not being listed on the 1950 Order, the writers do not mention that this exclusion serves as an obstacle to conversion efforts by proselytizing Church organizations. Conversion efforts in India and Nepal by Christian Churches have proceeded with rapid pace during the past decade during which a compliant Congress-led government stood in charge in the central government in India. This is the real target behind the use of the United Kingdom as a jurisdiction to recognize discrimination on caste grounds to all religious groups. It is no coincidence that Lord Harries, a former Anglican Bishop of Oxford, introduced the caste discrimination provision into Parliament in 2010 (see further in Chapter 5). The EHRC reports do not mention the fact that the caste provision was introduced in Parliament by a cleric of one community to cover groups who practice different traditions, regarded by Christians as being false religions. There is mention, however, that at the Stakeholders Workshop ‘[o]ne [Hindu] organization recorded the view that “caste discrimination” is “one of the most successful creations of the Christian supremacist evangelists”, and the legislation is “malicious” ’ (Dhanda et al. 2014b: 36). That Hindu organization was confirmed to me as being the National Council of Hindu Temples and the spokesperson its General Secretary, Satish K. Sharma.7 The scare quotes appear to be put in to imply that this was merely an opinion rather than an assessment based on any fact, and thus perhaps an attempt to suggest that this was some imagined conspiracy. The association with Hinduism was and remains core to the idea of the caste system. All subsequent accounts of caste, including the reports in question, depend on a vision of Indian society constructed along these lines so much so that it has become a presupposition for the study of Indian society, and increasingly now the Indian diaspora, and remains at the core of the reports. As we saw parliamentarians doing, the writers of the reports have also tried to limit the association of caste with Hinduism, partly because they are compelled by the hidden agenda of extending caste reservations in India to all groups given the imperative of proselytism. Yet the association of Hinduism with the caste system remains. On the one hand, the researchers note that ‘the question of the relationship between caste and Hinduism was hotly discussed’ at the Stakeholders Workshop (Dhanda et al. 2014b: 27). But, on the other DOI: 10.1057/9781137571199.0007

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hand, they go on to say, ‘While linked to classifications of ancient India (varna), the distinctiveness of caste does not reside in a connection to Hinduism or to any other religion’ (Dhanda et al. 2014b: iv). No criteria are provided for why the authors made such a switch in the executive summary. In the absence of such criteria, it is not clear why participants of the Stakeholders meeting could not resolve the matter (it was ‘hotly discussed’), while the report writers are able to assert that it is nothing to do specifically with Hinduism. The Socio-legal Review says that ‘Unlike varna, the concept of jati is not connected to any one religious grouping, but is found in all the major South Asian religious communities’ (Dhanda et al. 2014a: 4). If that is so, then is varna not a feature of Hinduism? And, if that is the case, why do the report writers not say that explicitly? After all, what other religious community would they link varna to? Further evidence of the coyness about the link with Hinduism comes when varna is defined in the same report (4) in the following way: ‘The four-fold division of Indic populations, is widely used in Sanskrit texts: Brahmin (priest), Kshatriya (warrior and ruler), Vaishya (trader or producer) and Shudra (servant, labourer).’ There is no specific mention here of Hinduism either, but then which religion do the writers think the Brahmins are the priests of? The Socio-legal Review (Dhanda et al. 2014a: 8) makes the following somewhat cryptic observation: In the case of Hindus in Britain (in the majority Gujarati, with a significant numbers from East Africa), caste groupings remain important in networking, marriage and caste-based organisations ... However, the development of an ecumenical composite ‘British Hindu’ community involves the submerging of caste identity and a public rejection of negative (colonial) representations of Hinduism.

Here the writers resurrect the connection of Hinduism with caste, but also suggest that, somehow, the British Hindu community continues to surreptitiously practice the caste system, while publicly rejecting it. Not only does this reinforce the link between caste and Hinduism, which the authors elsewhere seek to modulate, but it insinuates that British Hindus act disingenuously, publicly denying the caste system, by attributing it to the colonial state in India, while privately practicing it (‘submerging’). Further, this appears to be the only significant mention of the colonial experience in the Socio-legal Review, which thereby consigns the colonial experiences of both the colonizers and the colonized to a marginal

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footnote to the caste system. Even at this point, the writers are not able or willing to explain just what the role of the colonial experience was and how instrumental it was in establishing and dispersing widely the idea of the caste system that in turn informs the report writers’ own research. ‘Colonial consciousness’ has sunk so deeply into the researchers’ minds that they dare not even mention it without parenthesizing it. The insinuation is that those ‘British Hindus’ who publicly reject caste as a colonial idea must be disingenuous because, elsewhere, the writers of both reports presuppose as a fact that the caste system predates colonialism and lasts beyond decolonization. Other examples from the Socio-legal Review reinforce the impression of incoherence. Caste is said to be ‘fluid’ (Dhanda et al. 2014a: iii, 3), although we are not told of what the fluidity consists of and why it has that characteristic. We are told that it is both positive and negative although, again, we are not told of the criteria for making either judgment. One association that is said to be negative could well turn out to be positive. For instance, ‘social separation’ is said to be one form in which caste is negative (Dhanda et al. 2014a: iii–iv), although we do not know why that should be necessarily so and who considers it to be so. The aspect of caste as a ‘form of association’, which could well be the converse of ‘social separation’, is said to be positive (Dhanda et al. 2014a: iii, 7). It is never explained, for instance, that while religious sects might socially separate themselves from the surrounding groups, why social separation along caste lines is viewed as negative. We cannot unambiguously say that separation along lines of Sunni, Shia or Ahmadiyya is negative, or as between various Protestants and Catholics since, at some level at least, forms of separation do inform these identities, but they are not said to be ipso facto morally charged in the way that caste is said to be. Why not? To take the problem one step further, the state also supports social separation to an extent because, for example, it funds faith schools and to that extent we might say that it is regarded as a positive. Other examples in the Socio-legal Review appear even more bizarre. We are told that ‘In predominant usage in Britain, caste is used interchangeably for varna, jati, and biradari’, and that the most typical usage is jati (Dhanda et al. 2014a: iv). We do not know whether this results from some sort of survey; whether it tells us something about the manner in which Indian, Pakistani, etc. groups use the term(s); whether they are theoretical terms academics use to talk about South Asian societies; whether a translation exercise is done when members of these groups are confronted with DOI: 10.1057/9781137571199.0007

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the word caste and, if so, how such a socio-linguistic practice is measured and what its relevance is; and whether the term caste (a European term) has been imposed on various designations or social structures from the outside; and what normative baggage, if any, the terms carry in South Asia. Immediately afterwards we are told that varna is the hierarchically ordered fourfold occupational division widely used in Sanskrit texts outside of which stand the Dalits, formerly known as ‘Untouchables’. Immediately after that we are told that actually not all those who adopt the term ‘Dalit’ are of ‘Untouchable’ origin. Let us leave aside the slippage about who exactly a Dalit would be (or would have been had the term been in use prior to the 20th century) and the ambiguity in the statement ‘It embraces a variety of distinct castes’ referring to Dalits (raising further questions, e.g., which South Asian term[s] would be appropriate here for the variety of Dalit ‘castes’ then?). We are also then told that the ‘second meaning’, jati, refers to units which are ‘not fixed’ and may be divided into sub-castes (does this mean sub-jatis?). Apparently these not-fixed entities are ‘socially significant identities and status groups’. Caste also ‘encompasses biradari’ we are told. These terms apparently mean different things (perhaps to different groups of people or in different settings?), but we do not quite know how the word caste could be used for three terms – varna, jati and biraderi – which refer to completely different things (although it is never clear precisely in what way it is different). Let us further take the idea of ‘ranking’, which the authors of the Socio-legal Review regard as one of the negative forms which caste takes (Dhanda et al. 2014a: iv). That report also speaks variously of ‘hierarchy’ with reference to both varna and jati. The report does not, however, express how these rankings come about, who decides them and how they are enforced and kept in place. Would designation of low rank by one group against another necessarily be accepted by the group being ranked? Do Brahmins decide on rankings? If so, is it one central Brahmin authority or some other Hindu body that would decide this? Do biradaris have a hierarchy? The report does not mention this anywhere although it asserts generally that castes (which allegedly encompass biradaris) have rankings in one of their ‘negative’ forms (Dhanda et al. 2014a: iv). Will the assumed rankings then go into deciding presumptively that a person has discriminated on grounds of caste? In other words, will the idea of rankings entail that those considered of ‘higher’ rank will be presumed to have discriminated against those considered to be of ‘lower’ rank? And whose consideration of ranking would prevail in legal contexts? DOI: 10.1057/9781137571199.0007

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The Socio-legal Review ‘explains’ biradaris further (Dhanda et al. 2014a: 5, 9) but yet does not say if they are hierarchical in nature although a competitive element is cited. Biradaris are seen as expressing caste: ‘Amongst Muslims of South Asian origin in Britain, caste identity [is] expressed as biradari or zaat’ (Dhanda et al. 2014a: 9). The Experts’ Seminar and Stakeholder’s Workshop report mentions biradaris only once on the basis that ‘Some experts said that the research team should also look at the Pakistani Muslim community and at the notion of biradari’ (Dhanda et al. 2014b: 9). It seems like consideration of biradaris has crept into both reports only as an afterthought; they certainly do not disclose any effort made to look into the concept or the social structure it might refer to. The suggestion to look at Pakistani Muslims is nowhere taken up in the reports, although there is a short discussion of the Naveed v Aslam case, which the Employment Tribunal did not accept as disclosing caste but thought it involved class discrimination instead (Dhanda et al. 2014a: 14). The thrust of the reports leads to suspicion that it is social groupings or social structures among Indians as opposed to among Pakistanis or Bangladeshis that are of interest to their authors, even though they tend to talk repeatedly of the ‘South Asian’ phenomenon of caste. In fact, the authors do not appear interested in an analysis of caste among Muslim or Christian groups at all, even though it is mentioned that caste cuts and ‘persists’ across religious groups (Dhanda et al. 2014b: 34). The writers of the reports have an inconsistent way of discussing the relationship, if any, between ‘race’ and ‘caste’. In the first place, we are led into confusion about what the writers want to say about race. At points, the idea of nasal, translated as lineage, is said to be ‘race’ (Dhanda et al. 2014a: vi, 5), which is related, we are told, to biradari and zaat. We do not know why it should be said to constitute ‘race’, let alone what idea of race is being used here. However, we are also told that ‘caste’ is distinct from ‘race’, as well as from class and various forms of ethnicity (Dhanda et al. 2014a: vi). Again, it is not made clear what idea of race is being used here. The decision of Parliament to legislate for caste to be ‘an aspect of race’ makes life more difficult for the report writers as they additionally have to contend with the legislative idea of race, which derives from the Race Relations Act 1976, and subsequently the Equality Act 2010. The matter is made even more complicated given that the UN Committee on the Elimination of Racial Discrimination (CERD) asserts that caste is part of descent in the treaty it monitors, the Convention DOI: 10.1057/9781137571199.0007

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on the Elimination of All Forms Racial Discrimination. The movement in CERD towards using descent as including caste is mentioned in the Socio-legal Review (Dhanda et al. 2014a: 27–29). The Indian government has resisted attempts to include caste as part of the interpretation of descent at UN level, with Japan also arguing against CERD’s stance. UN involvement is regularly invoked as a way of persuading the United Kingdom to implement the caste provision, although it is rarely mentioned that the same pro-legislation lobbies have initiated the moves within the UN to ensure that this occurs. The authors also state, ‘the question of diaspora communities has been specifically raised as part of the UN movement against descent-based discrimination’ (Dhanda et al. 2014a: 34). How this issue was raised and with what mandate from the Indian communities in the United Kingdom is not mentioned. Although an issue is raised in the UN it does not thereby become legitimate for the UK government to begin to legislate on it without the involvement of the communities most likely to be affected by the legislation. It could well be a backdoor method of gaining some false legitimacy for an issue that the pro-legislation lobby, which includes the writers of the reports, failed to gain on cognitive grounds. The report writers display a measure of disingenuousness in raising the issue in this way as if it legitimates the UK Parliament’s legislation. Despite the lack of coherence about caste in the reports, the authors want us to believe that caste discrimination is also a prevalent enough phenomenon in the United Kingdom. How this is so we are not told. Previous reports are referred to as indicating the existence of discrimination in the various fields both within and outside what the legislation could potentially cover. The NIESR report which was proclaimed by the pro-legislation lobby, and it seems by the EHRC, as providing uncontested proof that caste discrimination is prevalent is qualified in that it is admitted that it fails to show what discrimination exists which could reasonably be dealt with by law. In fact, this is indirectly admitted in the Experts’ Seminar and Stakeholder’s Workshop report (Dhanda et al. 2014b: 15) where it says: ‘it was recognised that the majority of the incidents reported in that study would not lead to court cases under the Equality Act 2010’. The view of those in the Experts Seminar about the NIESR report therefore counters the assumption of the EHRC itself that the Equality Act should be extended to cover caste as comprehensively as possible and the position of some pro-legislation parliamentarians who seemed to assume that the NIESR backs their stand for the Equality DOI: 10.1057/9781137571199.0007

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Act to include caste (see Chapter 2). However, it is not merely that the majority of cases do not disclose any ground of action. The writers of that report would also be challenged to substantiate any instance in the NIESR report that provides proof of a claim actionable under the Equality Act 2010. Rather oddly, the same report mentions other ‘studies’ as having already proved the existence of discrimination within the range of legislation (Dhanda et al. 2014a: 15–16). The writers are not transparent as to what those studies are. There are reports (e.g., Anti Caste Discrimination Alliance et al. 2009) that do proclaim the existence of such discrimination but advocates for the legislation, composed of Dalit bodies that have a predetermined agenda, and that are backed by Christian Churches in various European countries, write them using questionable methodology and produce results that would not hold up when scrutinized in light of scientific criteria. If the authors of the EHRC reports are genuine about the level of discrimination going on then they should be open enough to indicate where their evidence is coming from. Internal EHRC documents sent to this writer after a Freedom of Information request have since revealed with reference to the NIESR and other reports that ‘there is no robust evidence on the incidence of caste discrimination – that wasn’t NIESR’s purpose. There is research by stakeholder organizations, but this is not reliable.’8 This is different from what the EHRC has claimed publicly, especially regarding the NIESR report, which it has said justifies the legislation being implemented. One of the EHRC reports (Dhanda et al. 2014b: vii, 21) alleges that there is a taboo on talking about caste. Although this is nowhere substantiated, the implication is that that taboo is somehow responsible for the lack of knowledge about it. This seems another disingenuous way of suggesting that the evidence must be ‘out there’ but that it is difficult or impossible to collect given the taboo regarding the phenomenon. Is it reasonable to suggest that there is a taboo on talking about caste, given that the campaign of pro-legislation groups has borne fruit in their active support by the EHRC, in the shape of the caste provision in the Equality Act and in various statements issued by international bodies? As noted, the well-organized pro-legislation groups (supported by Churches) have set up campaigns for agitation and legislation over a number of years in the United Kingdom and internationally. It seems unrealistic that they do not have access to relevant evidence if it does exist. Certainly, the quality of the data produced does not justify the insistence of the lobbies and their supporters in Parliament and among academics on the need DOI: 10.1057/9781137571199.0007

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for legislation. One way of excusing the failure to provide convincing evidence is the insinuation of a silence around caste. It was alleged at the Experts Seminar that the ‘anti-discrimination legislation would reduce the taboo surrounding caste’ (Dhanda et al. 2014b: vii). We will recall how ideas of hiddenness and invisibility are regularly invoked when discussing caste in Britain (Poulter 1998: 239; Waughray 2014: 359). It is not explained how a taboo, if it exists, can be broken by the mere presence of legislation or lawyers. Of course, there will be an army of advocates ready to translate any problem into an instance of ‘caste discrimination’ once the legislation has effect. In light of the issue of ranking which presumptively sets up ‘high-caste’ people as discriminators, the report writers appear to be at pains to get across the idea that the legislation is symmetrical in that it would affect discriminators from all castes. Yet the dominant assumption behind the legislation and one which is being invoked in the cases that have been recently set up is that it is the so assumed ‘low-caste’ people who are making claims. The presumptive discriminators are those who are classed in the rhetoric of the pro-legislation lobbies as ‘upper caste’. This is yet another example of the disingenuous nature of the reports in that the pretence of legislative neutrality is being conveyed through them. As already noted, the British debate has assumed that a framework like the Equality Act 2010 is the best or most appropriate response to caste discrimination. The report writers also show a degree of confidence in the efficacy of anti-discrimination law to achieve change. The Experts and Stakeholders Seminar (Dhanda et al. 2014b: vii) yielded the following broad assertion regarding the efficacy of legislation: ‘Many experts and stakeholder groups saw the legislation against caste discrimination as having an overwhelmingly positive protective, preventative and educative effect, as well as empowering those who today feel discriminated and silenced.’ Such an endorsement reveals how the discussion has revolved around faith that the legislation will have the impacts mentioned, but in reality refuses to consider any actual effects the legislation will have in the United Kingdom and among the target communities. Apart from their avowed belief that legislation will ‘generate attitudinal change’ (Dhanda et al. 2014a: 36), it is not clear how the impact of the legislation has been identified. The ‘educative role of legislation’ (Dhanda et al. 2014b: 19; see also Waughray 2014: 377) is emphasized repeatedly, although given the inherent confusions already mentioned it is not clear how the legislation DOI: 10.1057/9781137571199.0007

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‘educates’ anybody. This theme about the educative role of legislation was rehearsed previously in Parliament. In 2013, when the House of Lords was debating the addition of caste as an aspect of race, the government had opposed the measure and contended that an education programme be launched instead. Several of the pro-legislation members of the House of Lords had then argued that an educational initiative, referred to as ‘Talk for a Change’, would not have the desired effect. Yet, they also supported the idea that the legislation would have an educative impact.9 Thus they had to simultaneously deny the effect of an educational programme and uphold the capacity of the law to be deployed as an educational instrument (see also Waughray 2014: 376–377 to similar effect). Kalpana Wilson of the London School of Economics is cited (Dhanda et al. 2014b: 16–17) as suggesting that schools think about how to teach about B.R. Ambedkar in the National Curriculum. The same report does not mention how Ambedkar had replicated the Protestant missionary ‘critique’ of the caste system in his hatred for Hinduism (Gelders and Derde 2003). Keane, one of the co-authors of the same report, preferred Ambedkar’s account of caste to Gandhi’s, although without providing any reasons for the choice (Keane 2007). It is tempting to draw the lesson that a repeat of the kind of project that colonialism was, which Balagangadhara (2012: 112–114) describes as an educational project, is being planned, with caste as a case study and the law as an added instrument through which to deploy violence. This ambiguity about the educational and other effects of the law underlines the symbolic legal politics of having caste recognized in legislation and case law, and reinforces the view that the legislation is intimately tied to the politics of caste as it affects Christians (and Muslims) in India and is chiefly about pressuring the Indian government. The writers openly declare (Dhanda et al. 2014a: 27) that the change in interpretation in 1996 by the Committee on the Elimination of Racial Discrimination (CERD) of the descent provision of the International Convention on the Elimination of Racial Discrimination (ICERD) to include caste did not occur in a vacuum, but was the result of a long period of lobbying by various Dalit organisations to have international recognition that the Indian Constitution had not eliminated de facto caste discrimination, and that caste was an international as well as a national problem.

Presumably it is this preoccupation with the Indian situation (with the associated hidden agenda of proselytism) that has led the writers to

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ignore the current operation of anti-discrimination law in the United Kingdom, including its lack of success in terms of effecting change in discriminatory patterns (McCrudden et al. 1991: 19, Hepple et al. 1997: 6) and the ability of judges to identify and act upon cases of racial discrimination with a sense of socio-legal awareness (Shah 2010). Litigants alleging racial discrimination, in particular, face an uphill task using the existing legal framework, although cases brought on the basis of caste will predictably be dealt with using a different approach because of the implicit presumption of discrimination likely to be applied to alleged discriminators (see Chapter 4). Both reports repeatedly affirm the ‘complexity’ of caste. Given the difficulty of experts explaining specific aspects of Indian culture to tribunal members and judges and disagreements on core issues among experts themselves (Ballard 2006, 2007; Holden 2011), one cannot be confident that cases brought under the legislation will be dealt with fairly. Being in agreement with the caste provision of the Equality Act, the writers of the Socio-legal Review question only one part of that provision, the ‘sunset clause’ (section 97(6) of the Enterprise and Regulatory Reform Act 2013), which provides for review and repeal after five years (Dhanda et al. 2014a: 34, 36; see also Waughray 2014: 377). Instead, they want it as a permanent feature of the legislation. Only this part of the legislation comes under the scrutiny of the report writers, when a whole host of other problems remain unquestioned or overlooked. The manner of the conduct of the investigations leading to the reports, the approach taken in terms of the lack of rigour and inattention to scientific criteria, the presuppositions made by the writers and the evident slant of the reports in favour of the caste provision leave one with little confidence in the exercise mounted by the EHRC and the research teams it has commissioned, on public funds. The following chapter discusses the problems that can be envisaged in the implementation of the legislation, an appraisal the EHRC reports did not wish to conduct.

Notes 1 House of Commons Debates, 9 July 2014, col. 139WH–140WH. 2 An earlier submission prepared by the present writer and on which this chapter builds was approved and signed by the following organizations and individuals: Alliance of Hindu Organizations, Anti-Caste Legislation

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Committee, British Hindu Voice, City Hindus Network, Coalition for Dialogue, Hindu Lawyers Association, Hindu Swayamsevak Sangh (UK), National Council of Hindu Temples (UK), National Hindu Students Forum (UK), Vishwa Hindu Parishad (UK) and Nitin Mehta. That submission can be found at https://aryalegal.wordpress.com/2014/06/25/response-to-tworeports-on-caste-by-the-equality-and-human-rights-commission/ Commission Policy Statement on Caste Discrimination, at http://www. equalityhumanrights.com/legal-and-policy/key-legislatures/equality-act-2010/ commission-policy-statement-on-caste-discrimination (italics added). At http://www.odysseustrust.org/caste/Amending_the_Equality_Act_2010. pdf. As it happens, recent case law, discussed in Chapter 6, short-circuits the authors’ intuitions to make caste an aspect of ethnicity. House of Lords Debates, 22 April 2013, col. 1305–1306. E-mail communication with the author, 5 January 2015. E-mail to Rebecca Hilsenrath, Chief Legal Officer, EHRC, 7 August 2014. Author name redacted. See the speeches of Lord Harries, Lord Deben, Lord Avebury, Baroness Flather, Lord Bishop of Hereford and Lord Lester, House of Lords Debates, 4 March 2013, cols. 1295–1316.

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Caste Discrimination Legislation: Implications for Business, Employers and Organizations Abstract: Chapter 4 adopts a practice-oriented perspective, explaining what challenges those employing South Asians, South Asian businesses and Indian community organizations face as a result of the caste provision. These challenges include the litigation each type of organization might be faced with and what areas of their work may be affected. For example, in the case of community organizations, the holding of community events, such as Navratri or even weddings, could be questioned on grounds of caste preferences. The employment of personnel to perform rituals for weddings could also be exposed to charges of discrimination. This chapter explains the pressures to be faced within litigation, including the burden and standard of proof. It points to the impact on the associational freedom of Indian communities, including possible impact on charity status and fund-raising. Shah, Prakash. Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010. Basingstoke: Palgrave Macmillan, 2015. doi: 10.1057/9781137571199.0008. 64

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The Equality Act 2010 creates a potential new basis of legal action for discrimination on grounds of ‘caste’. Among other things, this will allow legal claims for damages to be brought for caste discrimination. The process for bringing the legislation into effect has begun. This chapter provides an introduction to the caste provision and outlines its anticipated effects, mainly for Indian businesses and employers, the implications for which could potentially be extended more generally to South Asian businesses and employers. This chapter also covers the organizations that operate as part of the associational life of the Indian community. Indian associational life in the United Kingdom takes formal shape in the form of a plethora of entities, some more formalized than others, incorporated and unincorporated associations, some having charitable status and others not. They are composed of groups of members who come together because they constitute natural communities through kinship ties or common engagement in sampradayic, panthic or temple communities. Although we saw earlier how Chetan Bhatt (1997: 249–250, and Chapter 1) portrayed their mere existence as an assault on the kind of secularism he favours, in fact, they engage in a variety of beneficial activities which may be brought under the microscope once the legislation is brought into effect. The original wording of section 9(5) of the Equality Act made it discretionary for a minister to issue an order making caste an aspect of race. The Act was amended in April 2013 to make it mandatory for the Minister to issue an order adding ‘caste’ to colour, nationality and ethnic or national origins. The Minister is therefore obliged to bring the provision into effect. The government is therefore currently examining how to implement the obligation with more detailed secondary legislation. After amendment by section 97 of the Enterprise and Regulatory Reform Act 2013, the relevant part of section 9(5) reads: A Minister of the Crown:

(a) must by order amend this section so as to provide for caste to be an aspect of race; (b) may by order amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste or to apply, or not to apply, to caste in specified circumstances. Section 97(6) of the Enterprise and Regulatory Reform Act 2013 provides for a review of the provision not less than five years after caste is made an aspect of race.

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Since the wording makes caste ‘an aspect of race’, it indicates that the coverage of the Act with respect to caste will be as wide as that applied to ‘race’, and without the wide exceptions applied to other ‘protected characteristics’, such as religion. Certainly the Socio-legal Review (Dhanda et al. 2014a: 20–24), one of the two reports produced by the EHRCcommissioned investigation team (see Chapter 3), appears to assume that, since caste is made ‘an aspect of race’, whichever exemptions apply to ‘race’ would apply also to caste. The EHRC’s own position is perhaps more explicit in that, in advance of the reports it commissioned, it had already said that ‘legal protection under the Equality Act 2010 for those experiencing discrimination in Britain should be as comprehensive as possible’.1 Those within and outside of the British Parliament who advocated for the legislation have claimed that there is ample evidence of caste discrimination in the United Kingdom, which makes it necessary for such legislation to be in place (see Chapters 2 and 3). They claim that reports produced by NGOs that support Dalit causes and officially sponsored studies in the United Kingdom by the National Institute for Economic and Social Research (NIESR, Metcalf and Rolfe 2010) and by the EHRC (Dhanda et al. 2014a, b) show such evidence. The EHRC had already declared itself in favour of the necessity of the caste discrimination provision in law. Recent programmes on BBC radio stations suggest that the campaign to have the legislation brought into effect is picking up. These include the Nihal radio programme, on the BBC’s Asian Network, broadcast on 27 September 2014, which suggested that organizers of Navratri events are in potential breach of the law.2 A debate was held in the House of Commons on 9 July 2014 to press the government on implementation and another debate held in the House of Lords on 26 November 2014 on the issue of caste and poverty in India also raised the implementation of the legislation.3 Regular questions are also put to ministers about the schedule for the implementation of the legislation.4 The model chosen for caste discrimination claims in the Equality Act makes the United Kingdom a unique example of using its civil law anti-discrimination legislation for targeting caste discrimination. An individual instance will presumably be sufficient to found a claim under the Equality Act; no pattern of practice need be shown. The Indian case presents a quite different model because it is focused on preferential reservations (quotas) for groups that are specifically listed in legislation. While such a list currently figures in the Constitution DOI: 10.1057/9781137571199.0008

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(Scheduled Castes) Order of 1950 (and varying legislation at the level of different Indian states), the idea goes back to a schedule created by the British colonial rulers in 1936 (Waughray 2014: 366). Indian law therefore makes no demands on judges to define caste. The Indian legislation is not an invitation for an open-ended set of litigation claims as the UK legislation is, although it has its highly dysfunctional effects, as recently outlined in the study by Shourie (2012). There is no tested model of the kind the United Kingdom is due to implement, and the Indian case law will not help establish guidance for when an act constitutes ‘caste discrimination’. UK lawyers and judges will effectively be going alone into an area which they scarcely understand, and where the social science literature and expertize is not only confused but also founded on Christian theological ideas of Indian religion as false. As discussed in Chapter 3, confusion on the subject of caste can be seen clearly in the reports of the academic investigation commissioned by the EHRC. Pakistan and Bangladesh, the second and third largest South Asian countries respectively, have no specific legislation on caste. India also has criminal laws on caste atrocities, while Nepal passed a law in 2011, the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2068, which is extremely widely drafted to capture all kinds of practices associated with tradition and is premised on the application of criminal penalties for transgression. Supported by the UN, this was presumably orchestrated by the Christian Churches who are feverishly proselytizing in Nepal. Mauritius has a constitutional provision (section 16) providing that no law may discriminate inter alia on grounds of caste, but with wide exceptions for personal laws. If applied in India, a provision on caste such as that included in the Mauritius constitution would make unlawful the Indian system of caste-based reservations. The Equality Act allows for tort-like civil legal actions to be brought by claiming an act of discrimination, whether it is ‘direct’ or ‘indirect’ discrimination, victimization or harassment. Civil actions can arise alleging the occurrence of any act of discrimination in the United Kingdom, no matter what the nationality of origin or the location of the head office of a business. An action for caste discrimination could therefore also be directed to an Indian company doing business, hiring employees or having a branch office in the United Kingdom. Such civil legal actions can include claims for compensation, including for injury to feelings, aggravated damages for malicious behaviour and interest on DOI: 10.1057/9781137571199.0008

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any compensation. In an employment case, an Employment Tribunal can also recommend that the employer take action to correct the situation or limit the damage done to the claimant. The EHRC also has legal powers to conduct investigations of any organization and these could be extended to cover caste discrimination. Investigations are just one method by which the EHRC enforces the legislation. Other methods include inquiries, assessments, issuing unlawful act notices and compliance notices. Indian businesses could face specific investigations or other intrusive actions on grounds that caste discrimination is suspected to occur within those businesses. It is unlikely that similar investigations would be made of businesses run by members of cultural communities other than Indians.5 The civil legal actions allowed under the Equality Act 2010 do not require permission of any official body. Anyone can potentially make a claim of caste discrimination without having to go through, say, the Crown Prosecution Service, which approves criminal cases after assessing whether there is a public interest for bringing a prosecution. In the case of caste discrimination claims, there will be no such test of public interest and no external body to assess in advance the wisdom of bringing a case or the chances of its success. The Equality Act 2010 covers areas such as employment, partnerships, entry to a profession, provision of goods and services, housing, education, bodies conferring qualifications, trade unions, professional or trade organizations, exercise of public functions and local authorities. Employment cases are litigated in Employment Tribunals; others may be tried in a county court (sheriff court in Scotland) or a forum specific to a field such as the military, immigration or special needs education. No legal aid is available for bringing or defending a claim. A claimant may, however, be assisted financially or otherwise by a law centre, the EHRC, or any other body that has an interest in the matter. Law firms may represent claimants on a no-win-no-fee basis, although this is unlikely to be available to those defending against a claim. Many solicitor firms in the United Kingdom specialize in damages claims with no up-front fees (i.e., no-win-no-fee basis), and they advertise widely in the Asian media. Any number of spurious claims could be made in the United Kingdom as a result of the caste discrimination provision, especially when it is known that damages claims can be made. During the debate on the 2013 amendment, Lord Parekh called attention to the risk of frivolous claims: DOI: 10.1057/9781137571199.0008

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First, there will be frivolous complaints based on caste. I do not know how many of your Lordships are students of sociology or have Indian friends. However, let us say that I belong to a caste – whatever that may mean, since I have married outside my caste and my children have married outside their caste, race and religion. Nevertheless, technically I was born in the caste of goldsmiths because my father used to make gold and silver ornaments, so I am a goldsmith. Supposing that someone were to apply for a job in the university where I am a professor who happens to be a blacksmith, a shoe smith, a Brahmin or God knows what, and I do not appoint him because he is not terribly good. Supposing that he were [to] go to the court and say, because I would be doing this not as a Lord but as a Professor, ‘Professor Parekh refused to appoint me on the grounds that I belong to a different caste’. We would belong to different castes, although he is not an untouchable. Since every Indian who is Hindu carries the caste mark with him, every action that he does with respect to another can be subsumed under one or another form of caste discrimination, so the first difficulty is that you will have an enormous range of frivolous complaints with no way of arguing for or against.6

Lord Parekh thereby connects the possibility of frivolous claims to the ease with which they can be linked to respective caste identities. While Lord Parekh thus cautioned against the legislation on grounds of the kinds of risks it entails, he inexplicably ended up casting a vote in favour of the same amendment. Organizations, employers, businesses and professionals will have to check whether their insurance policies cover claims for caste discrimination. They may have to ensure that they are updated so that legal costs of defending claims, including any damages, can be paid. Even if the defence of a case and payment of damages is covered by an insurer, it may be subject to a ‘reasonable prospects of success’ test.7 This could mean that an insurer is not willing to pay for defence costs or damages. Ministry of Justice advice recommends before-the-event and after-the-event insurance protection. While the latter protects the claimants against defendants’ costs, in practice, the defendant may end up paying for the costs of that insurance too.8 There may also be issues about insurers paying for the choice of solicitors, while solicitors will not have the necessary expertize to defend a claim of caste discrimination. Especially given that the caste provision is so new and not yet in force, it is anticipated that few, if any, lawyers will have the necessary expertize to defend a legal claim. Solicitors may have an incentive to settle a claim rather than defend it fully, still leaving a defendant organization, employer, business, professional or other service provider liable for damages and a reduced chance for vindication. DOI: 10.1057/9781137571199.0008

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The burden of proof initially lies with whoever is alleging the discrimination, but facts adduced by a claimant can lead to the reversal of such a burden to the defendant organization, employer, business, professional or other service provider.9 This means that the defendant must adequately defend the claim by showing that it is not proper to draw an inference of discrimination, or else judgment can be entered against them. Given the civil law context, a low standard of proof will apply. A claim can succeed if, on a balance of probabilities, it can be shown that caste discrimination was present (Hepple 2011: 166). This is unlike criminal law where a beyond-reasonable-doubt standard applies for guilt or innocence. The possible reversal of burden of proof and the low standard of proof might mean that a claim of caste discrimination against a defendant organization, employer, business, professional or other service provider is much more likely to succeed. This in turn may mean insurers not willing to back the costs of defending a claim and could result in legal advice to settle a case, again depriving the employer, etc. a chance to be vindicated. Research in North America (McFarlane 2008) shows the legal profession moving away from the model of rights-based advocacy towards a settlement culture. While legislation such as the Equality Act has a strong rights-based flavour, the process of litigating and defending claims may well reveal a less affirmative and more mundane procedure which obliges defendants to settle claims even if unmeritorious. This reinforces the argument that vindication of legal rights as portrayed by the Hollywood image of lawyering is hardly the focus of legal practice anymore, if it ever was.10 Although it may be a natural response to avoid publicity in a claim of discrimination, and therefore to settle a case, vindication of a defendant business or other organization through court proceedings can be critical in establishing just what went on in the background. Unresolved cases can easily be interpreted as if implying that the organization in question was acting unlawfully or unethically. Publicity about a case may hurt the activities of an organization and, if it is a charity, put its eligibility for that status in question. The use made by those agitating for the caste legislation of the well-publicized Begraj case shows just this. It involved allegations of caste discrimination against a law firm because of the inter-caste marriage of an employee. Although the case was interrupted because a judge had to recuse herself on account of the impression of potential bias, the interpretation given is that the case is illustrative of the defective nature of the current law and as instantiating DOI: 10.1057/9781137571199.0008

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the necessity of bringing the clause on caste discrimination into effect. The impression has thus persisted that the law firm had engaged in caste discrimination and that that would have been exposed only if the law then had applied explicitly to caste. This is also the kind of incorrect emphasis placed upon the Begraj case by one of the authors of the EHRC reports and self-declared supporter of the caste provision (Waughray 2012; but see Waughray 2014: 374), and by Lord Avebury, Lord Lester and Adam Holloway MP, all promoters of the caste provision within Parliament, as well as by the National Secular Society.11 Their suggestion that having a caste provision within legislation would have made a difference to the way the hearing took place is specious and misleading. The caste provision thereby exposes Indian organizations, employers, businesses, professionals or other service providers to charges of and litigation concerning caste discrimination. In doing so, the legislation sets up one particular group as potential discriminators, not the generality of the population. It could be argued that the Act’s application to caste is therefore discriminatory and that it violates the Human Rights Act 1998 (and in turn the European Convention on Human Rights, ECHR) and the Convention on the Elimination of Racial Discrimination (ICERD) for singling out one group for exposure to legal action. In the case of an organization that employs Indians, there could be disincentives to employ on grounds that the organization would as a result be exposed to claims of caste discrimination by fellow employees or by customers or service receivers. In case of caste discrimination allegations, there could also be incentives (even compulsion) upon employers to mount disciplinary actions against their Indian employees even though caste discrimination is a hardly understood phenomenon. This in turn adds to existing discriminatory patterns against Asians in employment or hiring situations. Thus, while it has rightly been argued that members of an organization close ranks against ethnic minority claimants of discrimination (Ballard and Parveen 2008), it can be envisaged that mere allegations of caste discrimination will expose the accused Indian employees to further penalties within the workforce. No definition of caste was provided during or since the passing of the legislation, although various allusions were made in and outside Parliament to what caste was considered to be. We have seen already the confusing discussion about caste in the EHRC reports (Chapter 3). It DOI: 10.1057/9781137571199.0008

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should be noted, however, that the Explanatory Notes to section 9 of the Equality Act are suggestive of a definition as follows: The term ‘caste’ denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity. It is generally (but not exclusively) associated with South Asia, particularly India, and its diaspora. It can encompass the four classes (varnas) of Hindu tradition (the Brahmin, Kshatriya, Vaishya and Shudra communities); the thousands of regional Hindu, Sikh, Christian, Muslim or other religious groups known as jatis; and groups amongst South Asian Muslims called biradaris. Some jatis regarded as below the varna hierarchy (once termed ‘untouchable’) are known as Dalit.

The legislation therefore has within its sights any of the referents of the terms varna, jati and biraderi. As we saw in Chapter 2, legislators have not found it problematic to map different kinds of Indian cultural ideas onto the European idea of caste, although the history of such mapping indicates a multitude of problems. The legislation specifically refers to South Asia and, within that region, India is the only country mentioned. Muslims and Christians are also mentioned. While not all of the legislative preferences on caste are extended to members of these two groups in India, it is notable that they are mentioned as potential beneficiaries of protection in UK law, thus laying the groundwork to argue for their wider recognition in India too (see further in Chapter 5). The EHRC-commissioned investigation produced two reports in 2014 (Dhanda et al. 2014a, b). As Chapter 3 details, neither report spells out coherently what caste is. In fact, the report writers make a virtue out of imprecision, which cannot be acceptable for legislation imposing liabilities, extra costs, penalties and uncertainties on community organizations, businesses, employers and employees. Any minister who wants to give effect to the provision may find that there is no coherent basis upon which to do so, but may yet leave the matter to judges, given that the legislation imposes a duty upon the Minister to bring the caste provision into effect. This would not be a solution because judges too will be exposed to the same problem. As noted, the fact that there is no case law on caste discrimination anywhere in the world is only one of the hurdles that British judges face. Despite what the Explanatory Note to section 9 of the Equality Act states, the EHRC reports demonstrate lack of clarity about what ideas expressed in Indian languages the English word ‘caste’ picks out. In fact, there can be no coherence to the idea of caste or caste system. The term DOI: 10.1057/9781137571199.0008

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‘caste’ comes from European culture, and Indian cultural phenomena have been mapped onto ideas about European social structures in such a way that it could only distort such phenomena. This is confirmed by the results of a conference the present writer organized in April 2014.12 A study commissioned by the Government Equalities Office (as yet unpublished) is also seeking to find out from respondents what terms the word ‘caste’ equates to and how respondents may be asked questions about their caste without causing offence. This is a further indication that legislators and the government had no clarity as to what they were legislating about. However, this could still mean that the legislation will come into effect, and Indian employers and businesses, and those organizations with Indian employees or which provide services or benefits to a section of the Indian community, will therefore be at particular risk of exposure to litigation. The connection of ‘caste’ to ‘race’ is one that continues to be lobbied for hard within UN organs, including the UN Committee on the Elimination of Racial Discrimination (CERD). At the World Conference against Racism (WCAR) of 2001 in South Africa, the Indian government successfully defeated a proposal to make caste an aspect of race (see Chapters 2 and 3). The UK legislation, however, goes on to achieve the same. As noted, the writers of the EHRC reports, as well as the EHRC itself, suggest that minimal exceptions should be put in place for caste discrimination unlike those that exist, say, for religious organizations and religion-based employers, which are extensively allowed to make distinctions and preferences on grounds of religion (see, e.g., Hepple 2011: 113–114, 119–121). They justify the narrow application of any exemptions for caste by stating that race discrimination has limited exceptions and that, since caste is made ‘an aspect of race’, any exceptions for caste should also be very limited. This would have the effect of exposing Indians to the widest possible scope the legislation could have and a commensurately increased likelihood of litigation. Judges will in all likelihood be all too ready to assume on the basis of alleged facts that caste discrimination is made out. In addition to the problems surrounding the burden and standard of proof (as discussed above), there is a presumption in European culture at large that Indians, and Hindus specifically, discriminate on grounds of caste. It is one of the strongest stereotypes of Indian culture held by Europeans. Europeans invariably bring up the caste system when they are conversing with Indians. Judges, who are also educated within the same cultural milieu, will not be immune to such stereotyping. This effectively lowers the applicable DOI: 10.1057/9781137571199.0008

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balance-of-probabilities standard of proof, and the burden of proof will be upon the Indian community organization, employer, business, professional or other service provider to defend themselves against what will effectively be a presumption that caste discrimination has occurred. This is pretty much the manner in which the pro-legislation lobby has been portraying the Begraj case, even though no final decision has been made in that case. This exposes Indians, and their businesses and organizations, to further discrimination in the operation of the law and, as noted, disadvantages them in being able to insure against caste-based claims. The existing case law shows just such a tendency on the part of judges of the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT). In one recent case at ET level, Tirkey v Mr and Mrs Chandhok, a judge allowed an extension of the Equality Act to caste even though the caste provision has not been brought into effect. As discussed more fully in Chapter 6, this argument was effectively accepted also by the EAT.13 This underlines the willingness of judges not only to ‘see’ caste upon mere allegation, but also to accept claims to extend current legislation without the required parliamentary imprimatur, and without having the slightest understanding of the culture at issue or how legal claims can be set up. Claims of race and religious discrimination are currently conspicuous by their lack of success. Hepple (2011: 158) cites official figures showing that they are the least likely to succeed in comparison to other Equality Act grounds. The exact opposite can be expected of caste claims because of hidden presumptions and stereotypes, which will work against Indian organizations, employers, businesses, professionals or other service providers, as well as fellow employees. An open question is whether monitoring on the basis of caste will have to be done and by whom. Monitoring of protected characteristics listed in the Equality Act is currently recommended as good practice for the private sector and mandatory for public sector organizations.14 Additional questions are raised for caste. Would only Indian organizations and businesses be asking the caste question of their employees or would it apply to any workplace where a significant number of employees or customers are Indians? How should respondents decide what their caste is among the many terms related to kinship and belonging which exist in Indian culture, and are employers obliged to agree about the choice an employee makes no matter how unreasonable? What costs are involved in this? As far as we know, no costs assessment has been made of this or any other aspect of implementing the caste provision. Ministers admit to being DOI: 10.1057/9781137571199.0008

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reluctant to going down the route of ‘caste monitoring’, and the view in the Experts Seminar held by the EHRC-commissioned team seems to veer in the same direction (Dhanda et al. 2014b: 14–15; see also Waughray 2014: 43). The matter has not yet been decided one way or another. Moreover, caste monitoring could be separated from ‘caste profiling’ which may yet ensue given the need for community organizations, employers, businesses, professionals or other service providers to be alert to the possibility of a claim of caste discrimination. The disproportionate threat of litigation against Indians has already been noted. A Hindu employer, or anyone else potentially exposed to legal action for caste discrimination, might well insist on knowing the caste identity of every person they deal with, record all interaction, monitor on-going relationships and create additional structures for complaints and adjudication. In other words some sort of ‘caste profiling’ would ensue. There will be no scope for the kind of innocent interaction that took place so far when caste issues were not in play. There is significant potential to disrupt or make vile or poisonous employer–employee relations or relations between service providers and customers. As Lord Parekh already indicated, the legislation will encourage litigation for all acts of perceived unfairness or injustice, which surely occur for many reasons (like personality clashes); they could be automatically imputed to caste even if the alleged accused did not even know the caste of the plaintiff. An example might help to drive home the point about how difficult it would be in practice to decide on what the relevant ‘caste’ identity should be whether for monitoring or in the context of litigation. Could a Gujarati who is a Halari Visa Oshwal legitimately answer to a question on ‘caste’ whether (1) he is an Oshwal; (2) whether he is a Visa Oshwal; (3) whether he is a Vania/Bania; or (4) whether he is a Vaishya? Would an alleged act of discrimination between a Visa Oshwal and a Dasa Oshwal constitute a matter coming within the legislation? If so, which of the two groups would be considered lower or higher? Such questions would never end and the answers to such questions (in so far as they do not become absurd) have nowhere been considered. When Lord Parekh, who is both an academic and parliamentarian, spoke against the amendment in 2013, he mentioned among the grounds for his opposition the indeterminacy of caste: If my grandchild were to ask me today or 10 years from now, ‘Grandpa, what caste do I belong to?’, I would not know what to say. A category as indeterminate as that does not deserve to be enshrined in domestic legislation.15 DOI: 10.1057/9781137571199.0008

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These are only some of the problems the legislation exposes without parliamentarians or academics providing any hint of a solution. It remains an open question whether only the claimant’s caste identity is germane to potentially experience discrimination. It is also unclear whether the identity of the defendant party would matter, that is, whether they necessarily have to belong to a supposed ‘higher’ caste to engage in discrimination. Evidence from parts of India suggests that rich members of ‘Other Backward Castes’ category behave atrociously towards both Brahmins and Dalits. There are also frequent reports of violence against Brahmins by followers of anti-caste groups (Seshadri 2015). The Indian criminal legislation – The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (esp. sections 3 and 4) – assumes, however, that the perpetrators of caste ‘atrocities’ can only be those who do not belong to Scheduled Castes and Scheduled Tribes, while the victims have to belong to those groups. On the one hand, it may well be, as already happens in race discrimination cases, that the identity of the alleged discriminator or complainant will not always be the deciding factor. In other words, currently, a white person can equally bring a claim of race discrimination against a member of an ethnic minority as the other way around; or a white person could bring a claim of race discrimination against another white person for, say, ‘instructing’ the former to discriminate.16 The same applies in sex discrimination cases whereby men could potentially bring legal actions. On the other hand, it is unclear whether one should presume that a ‘higher’ caste person cannot initiate a case against a ‘lower’ caste person for discrimination even if it is the established reason because, according to the mainstream thinking, caste discrimination is solely motivated by supposed caste rank in an alleged hierarchy. If the parliamentary record is any guide to the legal position, we have Baroness Flather’s reply to Lord Parekh where she gives the impression that only those considered ‘lower’ in rank would be able to establish a cause of action: ‘This is not about only the untouchables but about the person who is not of as high a caste as you.’17 If a ‘low’ caste (e.g., Dalit) convert to Christianity or Islam feels discriminated against, will they only need to argue it is their antecedent identity that motivated any accused party’s alleged act of discrimination? The Tirkey case (discussed in Chapter 6) provides a good illustration of just such a scenario where a Christian woman sues her Hindu employers on caste grounds. This seems to be the implicit purpose of the legislation, that is, to enable Hindu converts to other faiths to bring legal action for DOI: 10.1057/9781137571199.0008

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compensation by alleging caste discrimination. If the legislation is aimed only at ‘educating’ Hindus by exposing them to litigation, though the aggrieved party presumably need not be a lower caste ‘Hindu’ at all, it would compound what amounts to an asymmetrical and discriminatory impact of the legislation on some categories of defendants over others. The lack of an adequate scientific basis for studying caste means that it has become an extremely slippery concept, and its deployment has the potential to do a lot of legalized damage to Indian community organizations, which often provide a range of voluntary and other services to members of their community. These organizations are an indispensable part of the associational life of Indians in the United Kingdom. Many make their facilities, such as function halls, available to other communities, thereby providing valuable resources for use more widely. The very uncertain nature of what caste is makes it unpredictable as to what organizations have to do to protect themselves against claims of discrimination, which will have knock-on effects for many of their activities. The caste discrimination provision introduces a great deal of uncertainty about whether an organization is acting lawfully when it caters to the needs of a particular group such as a samaaj, gnati and so on. Further uncertainty results if the organization is staffed, or if offices can be held, only or primarily by members of that group. In the case of an organization that employs individuals or elects office holders from the same group, in future, there could be a disincentive to employ or elect on grounds that the organization would be exposed to claims of caste discrimination by fellow employees, officers or service receivers. Such problems may result in the seizing-up of important work done by an organization. Schedule 16, para. 1 of the Equality Act 2010, does allow an exception for so-called single characteristic associations but the exception applies only to the association’s rules of admission for membership, its treatment of guests and its provision of a benefit, facility or service. It is silent on other matters such as the election of officials and appointment of employees. Assuming the same type of exception would be extended to caste discrimination once the legislation is effected, Indian organizations may yet be exposed to claims of unlawful caste discrimination. The Equality Act is currently full of other traps for Indian organizations, which means that even if one part of the legislation might afford an exception to a general rule of non-discrimination, another part might make an organization liable for virtually the same activity. Let us assume that the holding a Navratri (festival lasting nine nights devoted to the DOI: 10.1057/9781137571199.0008

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female cosmic energy) restricted mainly to members of one group may well fall within the exemption for ‘single characteristic associations’ in Schedule 16, para. 1 because it applies to a benefit, facility or service conferred upon only members of that group. However, an organization may still be found to act unlawfully for discriminatory disposal of premises under Part 4 of the Equality Act. Even if some non-members are admitted as guests, there may be a potential violation of the Equality Act because a claimant could still assert that the default position is nonadmission to the premises of non-members. Therefore, a refusal to admit to a Navratri event could still amount to unlawful discrimination. Wide exceptions including for the disposal of premises (and other activities) are, however, available to ‘organizations relating to religion or belief ’ under the Equality Act, Schedule 23, para. 2. A broad exemption is also provided to religious charities under section 193(5) which says: It is not a contravention of this Act for a charity to require members, or persons wishing to become members, to make a statement which asserts or implies membership or acceptance of a religion or belief; and for this purpose restricting the access by members to a benefit, facility or service to those who make such a statement is to be treated as imposing such a requirement.

An organization may thus lawfully restrict admission to Jews for an important Jewish ritual taking place on certain premises (because it is ‘religious’), but another organization may not restrict admission to, for example, Patidars for a Navratri garba event because that may amount to a caste-based restriction, even if claimed to be ‘religious’. A court would be free to decide that a ‘religious’ event led to caste discrimination. The reports by the EHRC investigation team (see Chapter 3) do not take into account these contradictions and assume that the current framework of exceptions will suit those most exposed to the caste discrimination provision. Instead, that framework leaves open many traps for organizations currently providing valuable services and holding important events for the cultural life of the Indian community. The breadth of the Equality Act provisions could have an effect on the charity status of any Indian organization. Those organizations wishing to set up newly as charitable will have to both prove that they benefit the public and prove their Equality Act credentials. Research has shown that charity organizations, especially the smaller ones, are already ill equipped to address the complicated legal questions that arise under the Act (Morris et al. 2013: 15, 41). Under section 193 of the Equality Act, a

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charity can restrict its support to those who share a ‘protected characteristic’ (i.e., race, sex, religion, etc.) and thus exclude other protected groups as long as the provision of benefits is (1) a proportionate means of achieving a legitimate aim, or (2) for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic. If a charity Indian organization wished to provide a benefit for members of one samaaj or gnati (e.g., hiring of halls at a concessionary rate for members, organizing daytrips to the Emirates Air Line urban cable car at Greenwich for elderly members of that same organization, organizing sporting matches for members, etc.) it would have to establish that its restriction is justified because it is proportionate and for a legitimate aim (or under (2) that it is compensating for disadvantage linked to that protected characteristic). The scope for external bodies including lawyers and courts second-guessing as to proportionality and legitimacy means the introduction of a great deal of uncertainty whether any activity an organization pursues is lawful. The risk is that if the organization cannot establish a ‘defence’ of the type mentioned in section 193 it may fall foul of the caste discrimination provision and there is a risk to its charity status. The withdrawal or rejection of charitable status will have severe consequences for any organization to raise funds and continue its activities. Ritual specialists who are Brahmins often have the necessary skills required for performing the daily rituals in a temple, rituals of marriage and other samskaras, certain pujas and so on. Thus, it will also be common to see the pujari employed in a temple being a Brahmin. Under the Equality Act, such employment may be open to challenge because it can be argued that unlawful caste discrimination led to the decision to employ such a specialist. The Equality Act can therefore be used to undermine the ritual core of traditional Indian practices. A justification might be available if the charge is one of ‘indirect discrimination’ (i.e., that the criterion is ‘a proportionate means of achieving a legitimate aim’ under section 19), but no justification is possible if the charge is one of ‘direct discrimination’ under section 13. In the latter case a claimant might simply say that he was not selected for the job of a temple pujari because he is not a Brahmin and that could conceivably be held by a court to be ‘direct discrimination’. An organization might also assert that the purpose of the job falls within the religion ‘occupational requirement’ exception (Schedule 9, Part 1, para. 3), but it might be said in response that the purpose may be secondary if the effect is one of caste DOI: 10.1057/9781137571199.0008

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discrimination. The problem that the legislation might cause for an organization or temple employing a Brahmin pandit or pujari was raised in the Experts Seminar held by the EHRC investigation team, but not dealt with any degree of seriousness in the ensuing report (Dhanda et al. 2014b: 13–14). The legislation will involve direct implications for Indian businesses, service providers, professionals and employers, including potential exposure to litigation. They represent one of the most successful business sectors in the United Kingdom (Metcalf et al. 1996; Gidoomal 1997; Gidoomal et al. 2001). Under the caste legislation they are presumed the likely discriminators. Parliament and government have nowhere assessed or justified the extra costs incurred to such businesses, service providers, professionals and employers in having to defend legal actions based on caste grounds. Neither have studies been conducted of the likely extra costs involved in defending actions under the legislation or the extra costs of insuring Indian businesses against such claims, which could also mean a further and discriminatory costs burden. The broad impact assessment carried out on the Equality Act 2010 makes no specific reference to the cost effects of the caste provision on businesses.18 In other words, the legislation has been introduced without any of the usual safeguards including estimating with some degree of thoroughness the potential level of discrimination, assessing whether legislation would have useful effect of curbing such discrimination, and making an impact assessment for employers, businesses, professionals or other service providers. As regards Indian organizations which provide a range of services to their members and to the wider society, we can also presume that the legislation creates a climate of intimidation and exposure to litigation on what are likely to be spurious grounds within a loaded procedure. Organizations may be curbed in providing the many useful services and benefits that make their role within the Indian communities a vital and important one. The funding base of such organizations will also be threatened given the potential implications that suspicion of discriminatory behaviour will have on their charity status. It is far from likely that the smaller organizations are even equipped to take steps to shield them from charges of discrimination and tackle the potential litigation against them. The legislation succeeds in creating the framework for a sustained attack on the associational life of the Indian communities. As discussed throughout this book, and especially in the following DOI: 10.1057/9781137571199.0008

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chapter, the interests that lie behind the legislation come from outside the Indian communities although they have used sections within those communities to turn against their brethren on religious grounds. Given this background of religious rivalry, proselytism and conversion, the legislation and its sponsors take a particular position in the conflict and that position is palpably on terms that work against the well-being and continued existence of the Indian communities.

Notes 1 Commission Policy Statement on Caste Discrimination, at http://www. equalityhumanrights.com/legal-and-policy/key-legislatures/equality-act2010/commission-policy-statement-on-caste-discrimination, italics added. 2 In his radio programme just prior to the 2015 general election DJ Nihal again took a pro-legislation stance: BBC Asian Network, 5 May 2015. 3 House of Commons Debates, 9 July 2014, 134WH-142WH; India, Question for Short Debate, House of Lords Debates, 26 November 2014, col. GC301. 4 The most recent such session appears at the House of Lords Debates, 2 February 2015, col. 455 et seq and 25 July 2015, cols. 572–575. 5 Investigations are just one method by which the EHRC enforces the legislation. Other methods include inquiries, assessments, issuing unlawful act notices and compliance notices. See http://www.equalityhumanrights. com/legal-and-policy/commission/enforcement-powers. 6 House of Lords Debates, 22 April 2013, col. 1305. 7 On the reasonable prospects of success test, see http://www.financialombudsman.org.uk/publications/ombudsman-news/47/47_legal_exp_ insurance.htm. 8 See http://www.justice.gov.uk/civil-justice-reforms/main-changes. 9 See Equality Act, section 136 obliging a court that where it could decide in the absence of any other explanation that there was a contravention of the Act, it must hold that such contravention has occurred. Where a claim is, say, not adequately defended, therefore, it could well be that there is a failure to supply an adequate explanation for facts alleged but in such a case a court has to find discrimination. See, further, Hepple (2011: 166–167). This provision could potentially have harsh consequences for those defending caste discrimination claims. 10 For a summary of trends concerning the settlement of employment discrimination claims through mediation and conciliation, see Hepple (2011: 168).

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11 Lord Avebury, House of Lords Debates, 4 April 2013, col. 1300; Lord Lester, House of Lords Debates, 4 April 2013, col. 1307; Adam Holloway MP, House of Commons Debates, 9 July 2014, 134WH-137WH; National Secular Society, briefing on ‘Caste Discrimination’, May 2013, http://www.secularism.org.uk/ uploads/caste-discrimination-briefing.pdf. 12 See, further, the proceedings of the conference on Caste: Critiquing Colonial and Contemporary Constructions, Oshwal Centre, Potters Bar, 5 April 2014, available to view online: http://www.law.qmul.ac.uk/events/items/134543. html. 13 Case No. 3400174/2013, preliminary judgement 24 January 2014, upheld Chandhok & Anor v Tirkey (Race Discrimination), 2014 UKEAT 0190_14_1912. 14 See the guidance on Workforce Monitoring issued by the EHRC: http://www. equalityhumanrights.com/private-and-public-sector-guidance/employingpeople/equality-policies-training-and-monitoring/workforce-monitoring. 15 House of Lords Debates, 22 April 2013, col. 1306. 16 See Showboat Entertainment Centre v Owens [1984] 1 All ER 836 for a case of a white manager successfully suing under the Race Relations Act 1976 for instructions to exclude young black people. 17 House of Lords Debates, 22 April 2013, col. 1314. 18 See Impact assessment 2010 No. 379, http://www.legislation.gov.uk/ ukia/2010/379/pdfs/ukia_20100379_en.pdf.

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Caste and Continuing Foreign Interference in India’s Internal Affairs Abstract: Chapter 5 exposes the transnational dimensions of the caste question, including the role played by the caste provision in international relations and law. It examines how transnational activism for proselytism is a key reason why caste has emerged in the discourse of the Churches, Dalit organizations, and Parliament. The UK legislation is part of a wider campaign going back at least to the 2001 World Conference against Racism where an attempt was made to bring caste and race together in international law. This chapter shows how the European Parliament and UN human rights organs have been brought into play to highlight caste discrimination, to pressure India to amend its laws to enable Christians to gain more access to castebased reservations. Shah, Prakash. Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010. Basingstoke: Palgrave Macmillan, 2015. doi: 10.1057/9781137571199.0009.

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A Question for Short Debate (QSD) on poverty and caste discrimination in India was held on Wednesday 26 November 2014 in the British House of Lords.1 Lord Harries, a former Anglican Bishop of Oxford, had called for the debate. He holds a number of dignified positions, among them as Fellow and Honorary Professor of Theology at King’s College, London. In 2014, Lord Harries also sat as one of three Steering Committee members on the Woolf Commission on Religion and Belief in British Public Life. He has shown particular interest on the caste issue in India as well as the United Kingdom. As noted in Chapter 2, he was one of the protagonists in moving the House of Lords to pass an amendment to the Equality Bill in 2010 to include caste ‘as an aspect of race’, and when that did not result in a specific commitment by the government to bring the caste provision into effect, he led the charge in 2013 by proposing an amendment to have caste specifically added in the Act as an aspect of race.2 A few months prior to the debate on caste and poverty, on 17 July 2014, two months after the election of the Narendra Modi–led government in India, Lord Harries raised a question in the House of Lords about poverty in India.3 Congratulating the Modi government on their election victory, the Government Minister, Baroness Northover, noted the new Indian government’s agenda of raising economic growth and improving opportunities for the poor. Lord Harries replied: I thank the Minister for her reply. As she knows, poverty in India is on an enormous scale. It has one-third of the world’s poor and more poverty than the whole of Africa put together. Is she aware that of the 320 million people living below the poverty level, 200 million are Dalits, 50 of Dalit villages have no clean water and 75 of Dalit women are illiterate? In her discussions with the Indian Government on this issue, will she press home the fact that tackling poverty on such an epic scale is integrally linked to tackling also a system that leaves the Dalits and other scheduled castes trapped at the bottom of an oppressive pile?

To make sense of why an Anglican Prelate should take such a keen interest in only a section of the Indian population, the Dalits, the statement needs some unpacking and contextualizing. At first sight, it may sound like the expression of a legitimate sentiment: a person of the cloth showing concern, as his calling requires him to do, for the world’s poor. But he inseparably links caste and poverty, and singles out India. The statement contrasts with multiple announcements by Prime Minister Modi, which adopt a unifying discourse rather than one that splits and widens cleavages within Indian society (Gibbs et al. 2015). DOI: 10.1057/9781137571199.0009

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It might seem churlish to quibble with the figures Lord Harries cites, especially when the Minister answered that her government was well aware of them. However, one might have grounds to be suspicious considering that when introducing the amendment to the Equality Bill in 2010, he had also announced that there were some 500,000 Dalits living in the United Kingdom,4 a figure he has failed to provide the source for and which is contradicted by a huge margin by figures cited by those who otherwise supported his amendment in the House of Lords. In the same debate, Lord Avebury cited a figure of 50,000–200,000, the latter estimate relying on a Christian organization, Voice of Dalit International (VODI).5 Dalit, meaning ‘crushed’ in Marathi, is a term of political rhetoric and, although in wide use in debates in India, it is far from clear who is and is not included in it. The official legislative categories for entitlement to reservations refer instead to Scheduled Castes, Scheduled Tribes and Other Backward Castes. Behind what the Prelate said lies centuries of thinking about India’s ‘caste system’. As we saw in Chapter 2, it fell to Lord Harries’ Protestant predecessors to connect ideas of the Indian religion as a false religion to the caste system (Oddie 1979: 45–74; De Roover and Claerhout 2015), characterized by a series of castes ‘piled’ onto one another, with the false priests of Hinduism sitting at the top of it. It is by virtue of this theological account that those on the bottom of this ‘oppressive pile’ can be regarded as being crushed (i.e., Dalits). As we have seen in this study, the story of the caste system has subsequently become part of the canon of ‘knowledge’ about India. This means that social scientists assume its truth and politicians legislate about it. No real knowledge about it is thought necessary because it has become part of the common sense of Western culture (and indeed the wider world) about India. It can be understood therefore why Lord Lester was able to unashamedly express in Parliament, ‘I simply do not understand why research is needed’.6 The current social science view of caste in Indian society is founded upon, drawn from, and implicitly accepts as factual the Christian theological reflections on India of centuries ago, as a culture sunk in worship of the devil. Many unhappy results have flowed from this encrustation of the mind, which passes for ‘knowledge’ about Indian culture in the contemporary world. Some Indian leaders, not least B.R. Ambedkar, had so absorbed this Christian–Orientalist picture of India that they too wanted to destroy ‘Brahmanism’ or ‘Hinduism’ and its corrupt caste system DOI: 10.1057/9781137571199.0009

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(Gelders and Derde 2003; also see Chapter 2, this volume). Colonialism had gifted a sense of self-loathing among the colonized. Contemporary Dalit activists in India, full of hatred especially for Brahmins as well as Banias, are their moral descendants. In fact, one could extend this colonial consciousness to the generality of the Indian intelligentsia when they adopt such structuring for describing contemporary India. Another result of this way of describing Indian culture is the system of reservations for university places and government jobs that has spread throughout India, abandoning the principle of merit for the sake of votes (Bayly 1999: 266–305; Shourie 2012). This has resulted in the marked inefficiency of the government sector in India, and is what partly holds back Indian development and its poor. Policies meant to redress poverty have the ironic effect of exacerbating it. Using the placard of the false religion of Hinduism and its corrupt caste system, programmes for conversion to Christianity have focused on Dalits. Scheduled Tribes and Scheduled Castes are already overrepresented among Christian converts. Referring to the contributions by the various authors in their book, Robinson and Kujur (2010: 5) point out ‘around 65–70 per cent of Indian Christians have Dalit roots and around 15 to 20 per cent are tribals’. The Hindu Forum of Britain, which had been alert to the link between conversion and the raising of the caste issue in the United Kingdom, highlighted that ‘Dalits have traditionally formed the largest target group for evangelical groups operating in India and a majority of those converted from traditional Indian faiths into Christianity come from the Dalit communities’ (Hindu Forum of Britain 2008: 20; also see Tharamangalam 1996: 296). One must assume that a cleric like Lord Harries recites the problem of Dalits at every opportunity because of his interest in ensuring an increase in the size of his flock in India, out of the damnable trap of the false religion of Hinduism. However, his true intentions and those of his fellow clergymen with respect to the question of proselytism were never admitted nor raised during the debates in Parliament on the caste provision in 2010 and 2013. However, Christianity cannot be a religion if it does not mark out other cultures as heretical or false and if it does not perpetually seek converts. Lord Harries is not alone; Churches in the European Union are busy raising the issue of caste system in the European Parliament and the United Nations.7 Part of their target seems to be the fact that Christians are not entitled to reservations under central government legislation, although various Christian groups do have access to DOI: 10.1057/9781137571199.0009

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reservations under the patchwork of individual states’ laws in India. This exclusion of Christians from the Constitution (Scheduled Castes) Order of 1950 has been contested several times before the Indian courts, and the Indian Supreme Court has so far resisted claims by converts against exclusion from the 1950 Order (Sen 2010: 117–119), although challenges continue (Robinson 2014). As a ‘minority’, however, Christians have much greater autonomy and privileges over their institutions than the so-assumed ‘majority’ under Indian law. Anecdotal evidence also indicates that converts often do not reveal their Christian identity but instead go by their non-Christian one.8 In this way, they can keep their access to reservations. From the Churches’ viewpoint this situation is not ideal as it understates the number of Christians and holds back further proselytism and conversion. Another outcome of, and contributor to, the pervasive image of the caste system is that Indian intellectuals both in India and abroad have repeated the same trope, also assuming its truth, but without having researched the phenomenon for themselves. Author Suzanna Arundhati Roy who is celebrated in the West, for example, as Man Booker Prize winner and as a World Thinker by Prospect magazine, regularly conveys images of Indian culture through multiple ‘atrocity stories’. In a Prospect Magazine issue with its cover emblazoned with the words India’s Dark Heart, coinciding with the House of Lords debate in November 2014, Roy (2014b) portrays the caste system as the explanatory factor for all the ‘atrocity stories’ she recounts, demonstrating how deeply Christian– Orientalist stereotypes of India are engrained on the minds of Indian intellectuals (see also Roy 2014a). One cannot therefore only blame the Prelate and his like for sticking to an image of a pagan culture which must underwrite its falsity; at least he would be able to demonstrate some interest in perpetuating an unscientific perspective of a society to be targeted for conversion. The Christian Church is hardly unknown for holding back science. However, what explains the Indian intellectuals’ criminal neglect to question the fundamental assumptions about their culture, and act as willing participants in defaming their ancestral culture, is not clear except the fear of being associated with an unfashionable stance on a controversial topic and getting penalized by losing out on jobs and promotions (De Roover 2014). Never mind that the ‘truth’ about the caste system rests on Christian theological foundations of intolerance and hatred for Indian culture.

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The debate on caste and poverty in India While the House of Lords debate of 26 November 2014 on poverty and caste discrimination ostensibly brought together the themes of poverty and caste, as well as the caste provision of the Equality Act, its implications range well beyond them to encompass the issues of foreign interference in India, caste reservations and, above all, proselytism, one of the top current political and social issues in India. The following members of the Lords spoke in favour of the question during the debate: 









The cross-bench Peer, Lord Harries, the former Anglican Bishop of Oxford, led the debate. As noted, he has shown a particular interest on the caste issue in India as well as the UK. He was the protagonist in moving the House of Lords to include an amendment to the Equality Act 2010 to include caste as an aspect of race, and in moving the Lords in 2013 to accept an amendment making it mandatory for the government to implement that clause. He is also chair of the All-Party Parliamentary Group of Dalits. Labour Lord Michael Cashman, former Member of the European Parliament, who recently co-authored an unsuccessful European Parliament attempt to mainstream anti-caste based discrimination in EU and European External Action Service (EEAS) policy and the inclusion of a caste-based discrimination clause in trade agreements.9 Lord Alton, a cross-bench Peer, an avowedly Christian Peer who holds an anti-abortion position, has written previously on faith and religion, and has been appointed to two Roman Catholic orders of chivalry. Lord Griffiths, Methodist minister and life Peer in the Lords, where he sits with the Labour Party. He has previously served as President of the Methodist Conference. Lord Collins of Highbury, who is also a Labour Peer, has a trade union background and since 2013 speaks as Labour’s Spokesperson for International Development in the Lords.

Three of these Lords have an overt Christian affiliation and agenda. Three of them are aligned with the Labour Party, while the other two are cross benchers. The Baroness Northover, a Liberal Democrat, who was then Parliamentary Under-Secretary of State at the Department for International Development, represented the government. Lord Dholakia and Lord Loomba, both also Liberal Peers, supported her in the debate. DOI: 10.1057/9781137571199.0009

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The debate took place in the ‘international development’ context and the timing must have been chosen because in 2015 decisions would have to be made about British development funds for India. The House of Commons International Development Committee’s 2011 Report on The Future of DFID’s Programme in India notes that funds sent for development in India are to be revised after 2015.10 The Churches and their allies probably saw this as an opportunity to make sure they have some say in how those funds will be distributed after 2015. How the Department for International Development (DfID) would spend its money on India was mentioned several times during the November 2014 debate. The Churches have key areas of vested interest in India that they do not want to lose. The Indian government has not been especially assiduous in keeping track of how development aid is being spent, especially if it is done through the NGO network. A recent report prepared by the India’s Intelligence Bureau showed that parts of the NGO sector are known to act against development projects at the behest of foreign European funders, while the Central Bureau of Investigation has said that NGOs tend not to fulfil their financial reporting requirements.11 The 2011 Report of the International Development Committee already indicated that funds would increasingly be channelled to get around Indian government control, that is, through the private and NGO sector.12 The relative lack of state monitoring in India evidently means that Indian society could be influenced in any way that the Church organizations wish, in potential alliance with Western state forces. Caste is evidently among the key issues within this context. Lord Harries’ role as the protagonist in the introduction of the provision adding caste into the United Kingdom’s Equality Act 2010 has been discussed. It is remarkable that as a churchman he introduced a measure that would most likely be used against people not members of his own faith, but which could, as discussed in Chapter 4, potentially wreak havoc in diaspora Indian associational and economic life in the United Kingdom. In 2013, the lobby that he and others orchestrated also succeeded in amending the 2010 Act’s permissive power into an obligation upon the government to implement the law. That the legislation has not yet been implemented, given the outrage since expressed by Indian Hindu, Sikh and Jain organizations and their critiques of the case for legislation, has caused some anxiety to the pro-legislation lobby. It is therefore not surprising that Lord Griffiths and Lord Collins

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used the debate to raise the matter of the British legislation not being implemented. Lord Griffiths said: There is a diasporic presence of Dalits in the West - not as much as in the East but at least a significant presence - and the vulnerability of Dalits, as people without caste, to things such as trafficking, slavery, bonded labour and so on is a concern for all of us. Therefore, we should not limit our attention to the Indian Government.13

Acknowledging that the matter went ‘slightly beyond the remit of this debate’ and that it was ‘not necessarily the responsibility of the noble Baroness’, Lord Collins pointedly ended his statement by asking when the consultation period for the legislation would conclude, presumably so that it would be implemented.14 Although Lord Griffiths had tried to turn attention to matters somewhat closer to home, the end game concerns what the Churches want to do in India. India is indeed the central reason for internationalizing the issue through UK legislation, within European Union and United Nations fora.15 As we have seen, European missionaries identified Brahmins as constituting the priestly or sacerdotal core that threaded together the diverse Indian traditions, and also told of how the Brahmins prevented their followers from converting to Christianity (Balagangadhara 1994: 86–89, 111–116; Gelders and Balagangadhara 2011). In these earlier accounts of the ‘caste system’ no relationship was drawn between caste and the economic circumstances of people. As Balagangadhara (1994: 111–112) observes: Indian society was controlled and governed, it appeared to the foreign eyes, by a system of caste hierarchy with the Brahmins at the top. The problem faced by the Christian missions with this social setup had little to do with the socio-economic inequalities, which they found in Indian society. Not only because, in the immortal words of the Gospel, ‘there will be poor always’, but also because socio-economic poverty must have been a very familiar experience to the foreign eyes. Besides, the cultural and social gulf between the nobility and the common folk was a matter of daily experience to the Europeans – especially the British. Rather, the penetration and the acceptance of Christianity were stifled by the ‘caste system’.

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backwardness. Some 800 years of exploitation by the colonizing powers, first Muslims and then Europeans, seem to have slipped into the background. It is this colonized understanding that has led to the passing of legislation in independent India setting reservations in government jobs and education places for Scheduled Castes and Tribes as well as for Other Backward Castes. Although meant to be temporary, they have been kept on as electoral considerations have outweighed considerations of disadvantage, and merit sacrificed for votes (Bayly 1999: 266–305), leading to the currently dysfunctional state educational and employment sector in India (Shourie 2012). This may be one reason why state administration in India has been so badly run, and it may be impacting the private sector too as employers become discerning about the actual skill and educational levels of graduate applicants. As noted, Christians and Muslims do not qualify for reservations in central government legislation. After all, as the Protestant missionaries and Orientalists had led people to believe, the caste system was the result of and justified by the religion of Hinduism. As Lord Cashman says, without explicitly mentioning Hinduism: we also have to deal with the tricky notion of religion as an excuse or a reason. No religion can be an excuse or a reason imposed on another - or on 250 million - to diminish them and rob them of their civil liberties and human rights.16

While Lord Cashman dares not mention Hinduism as the cause and justification for the caste system, it does not take a person of a great knowledge of India to guess what he had in mind. Indeed, all we need draw upon are the prevalent stereotypes of Indian religion. We can see here the tying together of the themes of religion, caste, oppression and poverty (see House of Representatives 2005, for a similar discourse in the United States). The violence of the sacerdotal nucleus returns.

Caste, quotas and conversion We have had occasion to note that conversion to Christianity takes place disproportionately among those listed as Scheduled Tribes and Scheduled Castes under Indian law. There are many stories of how people today hide the fact of conversion, even by retaining their original

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names, so that they can continue to benefit from government reservations. But Christian Churches are also aware that this understates the number in their flock and still acts as a block to proselytism. While the official term is Scheduled Tribes and Scheduled Castes, the political usage refers to Dalits, although nobody can say precisely who a Dalit (or an Untouchable) is. Lords Cashman and Alton, for instance, quoted liberally from the reports of various Dalit organizations in India and abroad, such as the International Dalit Solidarity Network, Indian National Campaign on Dalit Human Rights, the Dalit Freedom Network and others cited by Human Rights Watch. Lord Cashman may have been aware that the International Dalit Solidarity Network, with whom he expressed a ‘privilege and pleasure’ to work with in the European Parliament, is funded by a range of Christian bodies (including Comité Catholique contre la Faim et Pour le Dévelopment [CCFD], DanChurchAid, Cordaid, ICCO, Christian Aid, FinChurchAid, HEKS [Swiss Church Aid]), the governments of Denmark, Norway and the Netherlands, as well as the European Union.17 The Dalit Freedom Network, cited by Lord Alton, is described in its Wikipedia page as ‘an evangelical Christian organization’.18 While it is clear that the former Anglican Bishop Lord Harries has taken the lead on the caste provision in the legislation, the stance of the Church of England on caste has been somewhat obscured. The registered charity Voice of Dalit International (VODI) records the following item in its Annual Report for 2013–2014: Lambeth Palace meeting: Meetings with Lord Bishop Richard Harries and participation in the Church Urban Forum [CUF] conference on ‘Poverty in London’, wherein the ArchBishop of Canterbury was giving the keynote address, gave an opportunity for VODI to raise a criticism from the Dalit Diaspora Communities, who felt that despite living in a Christian country, the UK Church seemed inactive on the caste legislation issue. This led to a meeting for VODI and DSNUK representatives at Lambeth Palace, with Canon Toby Howorth, Inter-Religious Affairs. He said that unfortunately they did not have a Dalit Desk, that the Church of England [C of E] supports the caste legislation, which could be seen clearly through Bishop Lord Harries, one of the main persons driving the course of the legislation. Other C of E Bishops were also there in the House of Lords. VODI suggested that the Hindu section of the Dalit Diaspora communities be invited for the inter-faith meetings of the Hindu and Christian organisations. Canon Howorth said that if caste was put on the agenda, the mainstream Hindu representatives who refused to discuss it would not attend. However he said he would raise the concerns of

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the Diaspora communities to the ArchBishop, that it seemed that the Church was not active enough on the caste issue and see what more could be done.19

This passage makes the support of the Anglican Church for the legislation somewhat clearer. It also alludes to the fact that ‘mainstream Hindu representatives’ were by then apprised of the agenda behind the legislation. The same VODI Annual Report also records a grant of more than £90,000 in each of the years 2013 and 2014 from the DfID, the bulk of which was destined for a project in India. Perhaps the Churches and European governments rely on the innocence of the British, European and Indian population about their real interests in India. After all, stereotypes about Hinduism and its caste system have already spread deep into European common sense ideas of India. Perhaps that is why the unaccountable reports of Dalit organizations, liberally cited by the Lords during the debate in November 2014, and earlier during the 2010 and 2013 Parliamentary debates on the Equality Act, continue to portray the indices on poverty, exploitation and crime against Dalits as being a direct correlation of caste status and explain them using the trope of the ‘caste system’.20 If indeed those Dalit activist organizations which act in India and which have pressed for the UK legislation are in essence Christian organizations, with proselytism in India being their chief goal, perhaps the British and Indian public has a right to know about it. Meanwhile, it is somewhat clearer how the debate in the United Kingdom on the caste provision in the law is a proxy for a larger debate occurring in India. From this standpoint any implications for Indians present in the United Kingdom can be dismissed as mere ‘collateral damage’, which may explain why there has been no concern to study how the legislation will impact them or, for that matter, to correct any discrimination beyond a naïve faith in the capacity of law to educate and effect change. The Churches and their Dalit stooge organizations, through whom the former ventriloquize, have to tread a narrow and contradictory path. They have to simultaneously maintain that the caste system, the alleged cause of all their ills, is rooted in the false religion of Hinduism and yet also convince others that, as Christians, they should be entitled to caste-based reservations which reward them regardless of their ability or merit. As Sen (2010: 123) notes, ‘Various Christian groups, including the Church, have also been agitating for Scheduled Caste status for Dalit converts. They have collected mounting evidence to show that

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Dalit converts suffer the same caste discrimination as non-converts.’ The Explanatory Notes to section 9 of the United Kingdom’s Equality Act, while linking the idea of caste to Hinduism, also state that caste goes beyond that to cover ‘the thousands of regional Hindu, Sikh, Christian, Muslim or other religious groups known as jatis’. In this way, the UK legislation can be seen as legitimizing the extension of the idea of caste beyond Hinduism. While Keane (2007: 69) has previously maintained that ‘Caste is a system unique to Hinduism’, his co-author, Waughray (2014: 363), insists that caste has a wider significance beyond Hinduism today: Caste is often thought of as ‘religious’ but, notwithstanding the support for caste differentiation in Sanskrit texts, caste is neither solely a religious phenomenon nor religion-specific. Caste distinctions are found among South Asian adherents of Hinduism, Sikhism (despite its doctrinal rejection of caste), Islam, and Christianity. Historically, Dalits have sought to escape caste oppression by converting from Hinduism to other religions; but overwhelmingly their caste status follows them into their new religion.

The implications for India should be evident. It can be argued that since the United Kingdom has extended its legislation to Christians, India should do so too, without too much concern for the differences between the two countries in the structure of legislation. So, during the November 2014 debate in the House of Lords, we have Lord Alton saying: Article 18 of the Universal Declaration of Human Rights insists that it is the right of anyone to hold the religion of their choice. Over the past several hundred years, many Dalits have changed their faith in order to come out of oppression and discrimination based on caste. Ironically, only untouchable Hindus, Sikhs and Buddhists are considered “scheduled castes” and therefore registered castes with entitlements to state support, such as protective mechanisms under various pieces of legislation and quotas for places at university and for employment in government services. Freedom of religion is a value for society as a whole. It is universally agreed that the internal dimension of a person’s religion or belief should enjoy absolute protection. Have the Government spoken with the new Indian Government about whether they uphold Article 18?21

Notwithstanding its encoding in the Universal Declaration, it is of course far from ‘universally agreed’ that there is an internal (and conversely an external) dimension of a person’s religion or belief. This idea comes straight from Christian anthropology in its Protestant form. Still, the

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message to India is clear. If it does not extend the system of reservations to Christians and thereby restricts conversions, India will be in violation of the UN Declaration on Human Rights. In effect, it should respect the right of people to convert to Christianity. This may also anticipate plans for the extension at the central government level of the currently sporadic, state-based legislation against the use of force, allurement or fraudulent means to convert, a formula that the Indian Supreme Court supports (Sen 2010: 114–117). While the debate in the House of Lords indicates how the idea of freedom of religion is used to argue for unrestricted proselytism outside the Western world, it is evident that not only the Indian legal system and courts but also the European Court of Human Rights accept some limits on proselytism.22 This more subtle indication by Lord Griffiths sweetens the pill: The question of religion has been raised; indeed, three of us here have known religious affiliations. I think the last thing that any of us would want is for us to be heard, as members of the Christian faith, pointing the finger at people of another faith. I do not think that it is a question of faith at all. Certainly, I do not think that the Christian community is free of involvement in the problem that we are discussing, and we should recognise that.23

As Oddie (1979: 45–56) has documented, missionaries of the 19th century routinely bemoaned that caste persisted after conversion to Christianity. However, a century and more later, Lord Griffiths implies that Christians are not only subject to caste discrimination, and presumably suffer such discrimination from fellow Christians, but says so to justify their claim to caste quotas in India (see, similarly, Robinson 2014). Instead of supporting the scaling back and dismantling of a system of quotas that has not worked for India’s development, Christian (and Muslim) lobbyists are working to extend it by seeking rewards based not on merit and ability but on mere membership of a group. Such a system would not be supported anywhere in European legal systems but is thought fit to be further entrenched in India by British parliamentarians and their Indian clientele. Indian and British people should be very concerned about these developments. The debate carries an extremely patronizing and condescending tone towards India’s people and government, despite the occasionally sweet sounding words about how India is so ‘incredible’ and ‘amazing’. Members of the House of Lords cite Indian leaders of the past and present, including Gandhi, Ambedkar, Manmohan Singh and Modi

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to justify the case they want to convey. This is a classic ventriloquist’s technique of making the colonized speak the language of the colonizer even when the former have not intended it to be so. The debate is based on the idea that India is a ‘basket case’, a legitimate object for development aid, and that she needs to be taught lessons in implementing laws. Age-old tropes about India’s ‘caste system’ which were stimulated by European theologians continue to be invoked as if they are a true description of Indian culture, and all alleged ‘facts’ are to be explained by the persistence of pet ideas about caste. India’s religion naturally remains at fault for transmitting the virus of caste. It is amazing that in the 21st century a former colonizing power can still address a country like India in the manner the debate exemplifies. Above all, the debate represents the conviction among many in the West that India’s age-old traditions should continue to be targeted for vilification, that Indians should be converted to Christianity en masse, and that foreign interference in India should thus continue by remote control from London, Brussels, Copenhagen and Washington. While ‘colonial consciousness’ evidently persists in Britain, India should be raising these matters at the highest diplomatic levels and take more firm action within its territory against this far from benign foreign interference.

Notes 1 India, Question for Short Debate, House of Lords Debates, 26 November 2014, col. GC301, http://www.publications.parliament.uk/pa/ld201415/ ldhansrd/text/141126-gc0001.htm#14112663000153. 2 Lord Harries, House of Lords Debates, 11 January 2010, col. 333–334 and House of Lords Debates, 4 March 2013, col. 1295. 3 Lord Harries, House of Lords Debates, 17 July 2014, col 691. 4 Lord Harries, House of Lords Debates, 11 January 2010, col. 335. 5 Lord Avebury, House of Lords Debates, 11 January 2010, col. 332. 6 House of Lords Debates, 11 January 2010, col. 344. 7 European Parliament urges EU to fight caste discrimination, http://www. eureporter.co/economy/2013/10/11/european-parliament-urges-eu-tofight-caste-discrimination/ on a European Parliament Resolution against caste discrimination of 10 October 2013; India: UN Members Should Act to End Caste Discrimination, http://www.hrw.org/news/2012/05/14/indiaun-members-should-act-end-caste-discrimination. Both show statements from the International Dalit Solidarity Network, composed of organizations

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funded by Churches and governments across Europe. For a useful summary of UN statements on the issue of caste discrimination, see Waughray (2014: 367–368). This connects to the observation by Robinson (2014: 89, 3n) that ‘In some states, dalit Christians may be recorded as SCs and thus remain invisible’. Tories vote against anti-discrimination legislation in Europe http:// leftfootforward.org/2013/10/tories-vote-against-anti-discriminationlegislation/. See especially, paras. 111 et seq of the International Development Committee – Eighth Report, The Future of DFID’s Programme in India, 7 June 2011, http://www.publications.parliament.uk/pa/cm201012/cmselect/ cmintdev/616/61602.htm. ‘Intelligence Report Claims Foreign-Funded NGOs Hurt India’s Economy’ at http://www.allgov.com/india/news/top-stories/intelligence-report-claimsngos-hurt-indias-economy-140615?news=853415; ‘No Foreign Funds for NGOs without Approval’, http://www.hindustantimes.com/india-news/ no-foreign-funds-for-ngos-without-approval/article1-1292620.aspx. See paras. 71–90 of the International Development Committee – Eighth Report, The Future of DFID’s Programme in India, http://www.publications. parliament.uk/pa/cm201012/cmselect/cmintdev/616/61602.htm. Lord Griffiths, House of Lords Debates, 26 November 2014, col GC310. Lord Collins, House of Lords Debates, 26 November 2014, col GC313. European Parliament resolution of 10 October 2013 on caste-based discrimination (2013/2676(RSP)), http://www.europarl.europa. eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-20130420+0+DOC+XML+V0//EN; Statement by UN High Commissioner for Human Rights Navi Pillay at the Meeting on caste-based discrimination in the United Kingdom organized by the Anti Caste Discrimination Alliance, House of Lords, London, 6 November 2013, http://www.ohchr.org/EN/ NewsEvents/Pages/DisplayNews.aspx?NewsID=13973&LangID=E#sthash. jFPClsH9.dpuf Lord Griffiths, House of Lords Debates, 26 November 2014, col GC305. For Lord Cashman’s statement, see House of Lords Debates, 26 November 2014, col. GC304. Waughray, one of the co-authors of the EHRC reports, regularly relies on the reports of the Dalit Solidarity Network as factual, including for the number of Dalits in the United Kingdom (e.g., Waughray 2014). Parliamentarians supporting the legislation have done the same. This is another indicator of the close relationship between the evangelical agenda, what passes for ‘research’ in this field, and its political purchase. The Hindu Forum of Britain (2008: 20) had already some years previously identified the funding links between the Dalit Solidarity Network and the Christian background of some 50 per cent of its funders.

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18 http://en.wikipedia.org/wiki/Dalit_Freedom_Network. 19 Voice of Dalit International (VODI), Annual Report, 2013–2014, p. 7 (italics added). 20 For a further set of such stories see the contribution by the trustee of the Dalit Solidarity Network and member of the All-Party Parliamentary Group for Dalits, Jeremy Corbyn MP, House of Commons Debates, 9 July 2014, col. 138WH. For the evidence of Dalit and other organizations such as Amnesty international in the United States, see House of Representatives (2005). 21 House of Lords Debates, 26 November 2014, col. GC309. 22 In the case of Kokkinakis v. Greece (14307/88) [1993] ECHR 20 (25 May 1993), the European Court of Human Rights refused to strike down a law that restricts and makes punishable improper conversion, although it found a violation in the particular case because the reasons for conviction were not sufficiently clear. 23 House of Lords Debates, 26 November 2014, col. GC310.

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Is Caste Already Part of UK Equality Law? Abstract: Chapter 6 turns to a recent case, Chandhok v Tirkey (2014), in which the Employment Appeal Tribunal (EAT) decided that caste may already be part of UK equality law. It discusses the background to the case, the way in which the case was argued and decided by the EAT, and draws out possible implications. The discussion includes an examination of the stance of parties during this litigation and the potential contradictions given that the Equality Act provision on caste has not yet been implemented. The case creates difficulties given that it is now unclear what the reach of the existing law is and a question remains whether the Equality Act’s provision on caste should be brought into force. The account draws on documents revealed by the intervening party, the EHRC. Shah, Prakash. Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010. Basingstoke: Palgrave Macmillan, 2015. doi: 10.1057/9781137571199.0010.

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We saw earlier how, in colonial accounts of Indian culture and society, an intimate connection began to develop between race and religion, and how caste comes out as a proxy for race (Chapter 2). As the Equality Act 2010 now provides, caste is ‘an aspect of race’. Once the caste provision is effected, caste will join colour, nationality and ethnic or national group as aspects of race. We have seen how the caste discrimination clause in the Equality Act is bound to have serious consequences for the situation of Indian communities in the United Kingdom (see Chapters 3 and 4). The British colonial government’s generalization of caste as the defining characteristic of Indian society meant a reductive distortion of Indian social realities. As Dirks (2001) has argued, in pre-colonial India the referents of social identity were not only heterogeneous but also conditioned by context, the diversity of which the colonial order pretended to substitute under a totalizing conception of caste. One could go further and say that even those Indians who claim to understand caste do not actually find it intelligible and end up distorting it (see Chapter 2). It would be a challenge for any scholar acting as an expert witness for a British court hearing a case of caste discrimination to advise whether the issue at hand comes within the term caste. As we have seen, however, many scholars have been prepared to soldier on although their conceptions look pretty threadbare. Would a British court, when faced with an issue of caste, be able to call upon the experience of the Indian courts? Indian legislators, perhaps wisely, stayed away from definitional problems by making a list of castes entitled to reservations in the Constitution (Scheduled Castes) Order 1950, and pro-legislation academics advise that the Indian model is inappropriate in the context of the British equality framework (Waughray 2014: 366), although beyond a vague claim of educative impact (377), they do not justify why the Equality Act model is a suitable one. As we have seen (Chapter 2), during the parliamentary debates, there was little concern and some confusion about precisely how the British legislation differs from the Indian legislation or indeed from legal provisions elsewhere. Would an English court be judging about the institution of varna, jati, biraderi, kul, kutumb, gotra or something else? The difficulty of answering such questions is a further indicator that the flag-waving surrounding the insertion of caste into the Equality Act is exactly that – not seriously meant to be judged through the rigour of legal decision making, but probably designed to impress the advocates’ Indian, European and international audiences that, indeed, the caste DOI: 10.1057/9781137571199.0010

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issue had been successfully internationalized. After all, it can be claimed that a ‘civilized’ jurisdiction like Britain not only regards caste discrimination with dismay but also has acted to legislate upon it. But let us assume that the hurdle of establishing caste discrimination is crossed and accepted by a British court. This could happen, for instance, in a case against an organization based on social structure like a jati when membership to it is denied on grounds that the applicant cannot show that he qualifies to be admitted to it through a criterion of descent or marriage. As Bhatt (1997: 249–250) derisively argued, there is any number of such organizations in Britain catering to the myriad associational needs of Indians. Leaving aside Bhatt’s own deracinated vision for British Hindus, a legal case against one body of the kind he describes would mean an attack on the very basis for their existence. Indians could no longer associationally self-organize in the manner in which they have been doing for long because doing so means violating the anti-discrimination law. Worse, even though some pro-legislation spokespersons recognize that the Equality Act cannot tread on areas that are personal, others wish to see an end to, say, caste-specific preference in marriages (Waughray 2014: 378). As argued in Chapter 4, besides community organizations, Indian businesses and employers are also exposed to further risks of litigation on potentially spurious grounds. It does not seem likely that official bodies such as the Charity Commission will be sympathetic to the plight of those Indian organizations threatened with the withdrawal of charity status on grounds that they violate the equality legislation. As is now clear, Catholic adoption agencies have closed or have cut explicit ties with the Church as the legal provisions that penalize discrimination against homosexuals have acquired force and threatened their charity status.1 Charity Commission investigations against Hindu bodies are known to have taken place on mere hearsay of malpractice, supported by allegations of hate speech offered by secularist academics such as Chetan Bhatt, who hold a hostile stance against Indian traditions.2 As we will see in this chapter, recent British case law on caste has already moved to the position that recognizes caste discrimination, even though the Equality Act’s provision on caste has not been implemented. What implications this has for the legislation and its prospects for implementation are not currently clear, although it can already be broadly maintained that Indians and, more widely, South Asians are open to litigation for discrimination on caste grounds. DOI: 10.1057/9781137571199.0010

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Prior to an examination of the recent case law that directly pertains to caste, it may be useful to make some reference to the manner in which equality law comes to be at odds with tradition. This manifests itself in different ways and, interestingly, it does so in case law that has more recently been invoked to argue for the inclusion of caste as part of the existing definition of race. Well before the agitation on caste, British equality law had already begun to move towards slicing the Indian traditions according to the logic of divisiveness established during British colonial rule. Looking back into the theological roots of the European construction of religion in India (Balagangadhara 1994; Bloch et al. 2010; Balagangadhara and Jhingran 2014), we can see how Sikhs could come to be recognized as an ‘ethnic group’ in British law today. As is now fairly well acknowledged, the drawing of a boundary between ‘Sikhism’ and ‘Hinduism’ was supported by the British and participated in by those Sikhs loyal to the Tat Khalsa (Ballantyne 1999; Ballard 1993; Elst 2002; Barrier 2005). As Roger Ballard (1996) observes, efforts have been made for a century or so to transform a panth (a group following the teachings of a master) into a quam (community, nation, people), with the latter’s Semitic connotations of a community of believers. Khalsa mobilization, sometimes violent, has focused largely on the symbolism of distinguishing Sikhs from other Indian traditions. Such symbols as the turban, kirpan, and beards have played a significant role in such mobilization, especially among Sikhs in the diaspora (Singh and Tatla 2006). This follows on from the idea that Sikhs have their own ‘religion’ and are therefore a separate ‘ethnic’ community. Thus British law has moved to recognize such a division based on a symbol, the turban, in the Mandla case in which Sikhs were recognized as an ‘ethnic group’, effectively a part of the broader idea of a racial group in the Race Relations Act 1976.3 For many Sikhs then, Sikhism as a ‘religion’ would ideally either ignore caste divisions or would become a pan-caste movement (McLeod 2000: 50, 144). Until 2015, Sikhs avoided getting involved in the campaign with other Indian groups against the caste provision in the legislation, since a predominant perspective among Sikhs views the caste system as a manifestation of Hinduism or Brahmanism, that is, they accept as true the Christian–Orientalist construction of the caste system. This was seen in Chapter 2 in the way Lord Singh, who supported Lord Harries’ proposed amendment, discussed the caste system as an attribute of Hinduism, and in his depiction of a true core of religion encumbered by ‘rituals, superstitions and cultural practices’, mirroring Christian polemic against DOI: 10.1057/9781137571199.0010

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Hinduism.4 Indeed, opposition to the caste provision in the Equality Act has been articulated in terms of an opposition to the allegation that Sikhs practice ritual purity.5 In the British context, Valmikis and Ravidassis have followed the same argumentative logic of discrimination as the Khalsa Sikhs on account of their claimed separate ethno-religious status, although their claims are based on the ground that they predominantly have lower caste followers. Such claims by Valmikis and Ravidassis are given some prominence in the NIESR report (Metcalf and Rolfe 2010), which mostly furnishes case studies for the existence of caste discrimination among Sikhs, as well as in the reports by the EHRC (Dhanda et al. 2014a, b). These claims also help to shield the Christian Churches from charges that they have engineered the caste provision in the Equality Act (as does the entry of the National Secular Society as a supporter of the caste provision). The Protestant Christian framework can again be seen working against tradition through the equality and anti-discrimination law in the way the issue of descent among Jews has been dealt with by the UK Supreme Court in the JFS case.6 That case concerned the admission to a Jewish maintained school of a child whose mother had converted in a manner not accepted by the Chief Rabbi and the United Synagogue in the United Kingdom. The Supreme Court decided by a majority that the test of descent applied by the Chief Rabbi was not lawful. The reason given was that such a descent-based test fell foul of the provision against discrimination on racial grounds in the Race Relations Act, which the Equality Act 2010 effectively now incorporates and builds upon. The JFS decision sent shock waves through the Orthodox Jewish community in the United Kingdom, sections of which were used to such a test for being Jewish applied in their affairs. Some writers have criticized the UK Supreme Court for imposing upon Jews a Christian test for religious group membership (Weiler 2010; Herman 2011). Indian groups and organizations did not react at the time, being unable to see the writing on the wall, since the anti-traditional dimension would eventually be applied against their traditional practices and ability to self-organize too. The most recent in this line of cases now indicates that caste is also part of descent and therefore ethnicity, and discrimination on caste grounds is therefore unlawful. The case is Chandhok & Anor v Tirkey (Race Discrimination), decided on 19 December 2014 by the Employment Appeal Tribunal (EAT).7 It arose in unusual circumstances, having begun DOI: 10.1057/9781137571199.0010

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in the Employment Tribunal (ET), where the claimant had made claims for unfair dismissal, religion and belief discrimination, unpaid wages and holiday pay. At a late stage in the proceedings the claim was changed to argue that she was also discriminated against because of her status in the caste system and that caste discrimination should be read as part of race discrimination under the Equality Act 2010. The claimant had alleged that as an Adivasi German Catholic Christian she was subjected to various disabilities in her employment relationship, including not being invited into the house when she started her employment relationship in India, living in the respondent’s house but in separate quarters, not being allowed to sit on the same furniture as her employer, having to use separate cups and plates and being asked by the employer about her caste when she started working. She claimed that Adivasis are a servant caste. The employer, she claimed, would have known it anyway given her dark skin and the colour of the sari (white with red border) she would wear on festival days, her Bihari dialect, and because the way she spoke Hindi was different from the employers. At first instance, Employment Judge Sigsworth had allowed a hearing to take place on whether caste discrimination could be added to the existing claims, which entailed the question whether caste is already part of the Equality Act via the existing provision on race discrimination. The case could proceed further only after the decision on that legal point as a preliminary issue. He held that it should be, on the ground that the Equality Act 2010 had to be read as if caste was included since it was in part an incorporation of the EU Race Directive (2000/43 EC), which was meant to incorporate the UN Convention on the Elimination of Racial Discrimination (ICERD), which in turn had already been read as if it included caste as part of its provision on ‘descent’. Since UK law has to be read subject to EU law this reading was justified in Employment Judge Sigsworth’s mind. The above account of the factual background, and the way they were assumed to betray the existence of caste discrimination, basically reflects what was pleaded on the claimant’s behalf, and the factual dimensions of the case have not yet been argued out fully. These will assume importance and could be contested when the case reverts to the ET. It is not likely that the case will be appealed further to the Court of Appeal and a reference to the Court of Justice of the EU is also not likely at present even though the case has brought the interpretation of the EU Race Directive into play.8 One bar to the claimant’s argument was the existence of the as yet unimplemented provision on caste in section 9(5) of the Equality Act. DOI: 10.1057/9781137571199.0010

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The timetable for its implementation is not clear although, as noted (Chapters 2 and 4), the Enterprise and Regulatory Reform Act 2013 amended the 2010 Act so as to make it mandatory for the Minister to implement it (previously it was a mere power leaving it open to the Minister to do so). The existence of the caste provision in section 9(5) became the main bone of contention in the case at appeal before the EAT. How could an Act of Parliament, which referred to caste and was yet to be implemented, be consistent with the argument that the existing legislation should be read as if it already covers caste? This was in effect the argument of the Chandhoks (who became the appellants in the appeal). In deciding the case, Mr Justice Langstaff, President of the EAT, did not see any inconsistency. He held that the fact that the Equality Act already provided for caste, albeit unimplemented, was not a bar to recognizing that the ‘ethnic origins’ part of race in the same Act had some bearing on caste already. The court referred to Annapurna Waughray’s article (2014: 362) where she presents the following idea of caste: There is no agreed sociological or legal definition of caste, but a number of salient features can be identified. Castes are enclosed groups, historically related to social function, membership of which is involuntary, hereditary (that is determined by birth) and permanent ... Unlike class, it is not generally possible for individuals or their descendants to move into a different caste. Caste is governed by rules relating to commensality (food and drink must only be shared by others of the same caste) and is maintained by endogamy (marriage must be within the same caste). It entails the idea of innate characteristics and hierarchically graded distinctions based on notions of purity and pollution, with some groups considered to be ritually pure and others ritually impure. A crucial feature of caste in South Asia is the concept of ‘Untouchability’, whereby certain people are considered to be permanently and irredeemably polluted and polluting, hence ‘Untouchable’, with whom physical and social contact is to be avoided. Despite the notional nature of caste, Untouchability is conceptualised as an innate physical property separating the Untouchables from the rest of society

While Waughray honestly notes that there is actually ‘no agreed sociological or legal definition of caste’, she nevertheless goes on to distil the various ‘salient’ dimensions of caste that express the European experience of India as having a caste system. As we have seen in previous chapters, caste makes sense to Westerners, and regardless of whether it means many different things and whether they cannot theorize about it consistently, DOI: 10.1057/9781137571199.0010

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they feel sure that it exists. This is further evidence that although it cannot be theorized about, the old theological framework that gave sustenance to the moral idea of a caste system still functions in the background, providing support to the kind of claims that Waughray makes. Mr Justice Langstaff did not linger further over what caste is, but was content to say that at least some things that caste stands for must be covered by ‘ethnic origins’. In so far as that is the case, caste could, he held, be part of a claim of race discrimination. Putting it negatively, as Justice Langstaff did (at para. 45), ‘The fact that there is no single definition of caste, as the parties before me were agreed, does not mean that a situation to which that label can, in one of its manifestations, be attached cannot and does not fall within the scope of “ethnic origins”.’ Justice Langstaff fails to specify which of the ‘manifestations’ of caste he is thinking about, although his reference to Waughray’s article indicates his reliance upon her ideas. Positively, he said that if the claimant proves facts which – whether colloquially or accurately – could be described as ‘caste considerations’ which come within the heading ‘ethnic or national origins’ ... she will succeed in her claim if the Tribunal concludes that she was less favourably treated because of those facts: if she fails, then no matter how much it might be asserted that she is of a particular caste, and that that was a reason for her treatment, she will fail unless at least part of her treatment falls within [the colour, nationality, or ethnic or national origins grounds of the Equality Act]. (para. 53)

Given that ‘could be described’ is a very tentative legal test for imposing liability upon another party should be fairly worrying for Indians especially, who will be targets of litigation after this case, particularly in light of the lack of an ‘agreed sociological or legal definition of caste’. Caste is therefore legally relevant now in so far as a nexus can be established between caste and ethnic origins, say through the idea of descent. As we have seen, the UK Supreme Court has already ruled in the JFS case that a school admission policy stipulating descent from a mother who is Jewish by conversion was unlawful because it discriminated on grounds of descent, which also amounts to ethnic origins discrimination. Some sort of caste ≤ descent ≤ ethnic origins ≤ race chain of thinking seems to be envisaged here. If this is the case, then caste in British law is a sub-set of both race and ethnic origin. Without saying as much, the judgment in Chandhok v Tirkey indirectly takes a position on the fraught question of the international law on racial discrimination and the extent of the descent provision in the DOI: 10.1057/9781137571199.0010

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International Convention on the Elimination of Race Discrimination. In the JFS case, Lord Mance, said (at para. 81) as follows: A second, point, based on the international legal background and of possible relevance ... derives from the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’), in force since 1969, to which the United Kingdom is party and to which Directive 2000/43/EC recites that it was intended to give effect. Article 1(1) of CERD defines ‘racial discrimination’ to mean “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. The reference to descent (although not explicitly repeated after the general prohibition on ‘racial discrimination’ in article 5) is, on its face, very pertinent in the present case. However, it is suggested that, having been introduced on a proposal by India, the word ‘descent’ is limited to caste, but India itself disputes this, and it has been forcefully suggested that the background to its introduction indicates that it was not concerned with caste at all: Caste based Discrimination in International Human Rights Law, David Keane (Brunel University, Ashgate Publishing Ltd., 2007, Chapter 5). Nevertheless, the Committee established to monitor implementation of CERD under article 8 has itself treated descent as including caste in its General Recommendation XXIX A/57/18 (2002) 111, where it recommended, in para 1, that states take “steps to identify those descent-based communities under their jurisdiction who suffer from discrimination, especially on the basis of caste and analogous systems of inherited status”. Whether or not ‘descent’ embraces caste, the concepts of inherited status and a descent-based community both appear wide enough to cover the present situation. That in turn tends to argue for a wide understanding of the concept of discrimination on grounds of ‘ethnic origins’, although the point is a marginal one.

While the Supreme Court did not have to decide the point whether descent included caste, it did note India’s refusal to accept that it did, and the matter had earlier been argued at the UN conference on Racism in 2001 in a manner which avoided including caste in the conference declaration, to the satisfaction of the Indian government. Undoubtedly, the whole effort by Western Churches and their Dalit clientele to enlist the help of UN and EU organs to repeatedly make statements about caste discrimination is directed to India in the global effort to proselytize among the pagan Indian population. In that light, we can see the UK courts and legal system becoming entangled in a larger game, which is DOI: 10.1057/9781137571199.0010

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not of their making, but in which they have become willing or unwilling participants. Justice Langstaff may be a willing participant in so far as he declared (at para. 52) that his interpretation ‘is consistent with the UK’s international obligations, including that derived from ICERD’. He declared that his interpretation is also compatible with EU law (para. 52). The case could well have gone differently and a reference could have been made to the Court of Justice of the EU for an authoritative interpretation of the Race Directive’s scope. That did not happen, and as noted, it seems unlikely, but the spectre of EU law in the background, which Justice Langstaff ’s reliance on it underlines, potentially means that caste can be said to be included in ethnic origins discrimination throughout the territories of EU Member States. Caste has simply been read into the EU’s Race Directive by judicial fiat, without consideration of the documents preparatory to the Directive, and certainly in a way that goes against the documents preparatory to the ICERD 1965, in which the Indian position is clearly established. While not binding on the courts of other EU countries, the day may not be far away when Indians across the 28 countries of the EU are dragged to court in order to establish that caste discrimination, which they are presumed to practice, is unlawful. The EAT’s judgement has been delivered while a fight is on about the propriety of the Equality Act’s provision on caste. It is not clear what will happen to its implementation now that there is an in-principle acknowledgement that British case law accepts caste as an element of ethnic origins discrimination. It is open to question whether the judicial overtaking or by-passing of the Equality Act provisions, which the appellants had argued should not be done, compromises the government’s efforts to research and think through how best to implement the provision. Non-implementation is not an option since a specific duty to implement was introduced in 2013, unless of course either the 2013 amendment or the whole of the caste provision is repealed. To reverse the legal position after the Tirkey judgement would in fact require a specific amendment stating that the ethnic origins provision does not extend to caste. The Conservative Party Policy Unit has declared that it will not implement the caste provision without full consultation with religious groups. The Conservative Party’s response states: The Employment Appeal Tribunal issued a judgment in December 2014 opening the possibility that claims of caste-associated discrimination may already have a legal remedy under existing legislation. We are now carefully DOI: 10.1057/9781137571199.0010

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considering the judgment’s implications for discrimination law in respect of caste in order to ensure the appropriate level of protection against casteassociated discrimination exists. However we will not take any further action to include caste within the provisions of the Equality Act without full consultation with religious groups.9

It is difficult to see how the new government elected in May 2015 could not implement the provision, as that would not square with the current duty upon a government to implement. The Labour Party position had not been made clear until 5 May 2015, when Ed Miliband made a statement also referring to full consultation with all groups, although he stated that the party remained committed to implement the provision.10 It was understood that a three-line whip was used to ensure that Labour Party MPs vote for the 2013 amendment. The Labour Party leadership and individual MPs have remained conspicuously unwilling to discuss the matter despite many attempts to engage them by different Indian organizations and individuals. The Liberal Party and Green Party positions indicate that they would have pushed ahead with implementation. The Equality and Human Rights Commission (EHRC) had previously declared itself to be in support of the caste provision in the Act itself, even before it had been commissioned by the government to arrive at some sort of understanding of what caste actually means for that Act. The ensuing reports (Dhanda et al. 2014a, b), co-authored by the earliercited Annapurna Waughray, failed to yield a coherent account of caste, as indeed there could not have been. The EHRC was requested to provide funding for the claimant by the Anti Trafficking and Labour Exploitation Unit (ATLEU) who were representing her. After some consideration, the EHRC chose to act as intervener in the EAT proceedings, instead of directly funding the claimant. EHRC took the stance that caste could be read into the scope of the existing ‘ethnic origins’ provision and opposed the idea that the existence of the unimplemented caste provision in the legislation should act as a bar to the judicial stretching of another of the grounds to include caste. This position is reinforced in internal EHRC documents revealed to the present writer pursuant to a Freedom of Information request. It is clear from the documents that the reason for non-implementation so far by the government of the caste provision in the Equality Act, at least according to EHRC officials, was the pendency of the Tirkey proceedings. Yet, the EHRC communications also reveal that its officials wanted to maintain and ensure the bringing into effect of that provision while, at the same time, supporting the argument that DOI: 10.1057/9781137571199.0010

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caste could already be read into the existing ‘ethnic origins’ provision. EHRC documents estimated that the legislative provision may not be brought into force until early 2016, well after the 2015 general election, and that the case law route of recognition was the fastest avenue available. Since the Tirkey case began, advocates of the caste provision, including the EHRC, have switched to arguing that legislation is needed to provide clarity and to decide on what exceptions would apply to caste discrimination, an argument that is going to be hard to resist for any government, despite widening opposition to the legislation.11 Although Sikh organizations tended not to publicly oppose the caste provision, largely because of the work done by Jasdev Singh Rai, General Secretary of the British Sikh Consultative Forum, to garner support among Sikhs against the provision, several meetings at Sikh gurudwaras resulted in public opposition by the spring of 2015. Internal ECHR documents from 2014 already reveal the tense relationship, especially with Hindu ‘stakeholders’. One document for the prioritization process as to whether the Tirkey case should be funded directly by the EHRC recalls the statement by Helen Grant, the Parliamentary Under-Secretary of State for Women and Equalities made in July 2014. The actual statement was as follows: The EHRC had originally intended to commission a second research phase that would establish much-needed baseline data that could be used as a starting point for consideration of whether caste legislation was doing its job and stopping unlawful discrimination. Unfortunately, on further consideration the EHRC felt that that research would not be possible and that it might be intrusive and ruin good relations in communities. We have discussed those problems with the EHRC and we are now deciding how best to establish baseline data. We are conducting a feasibility study on the matter.12

This statement provides a hint that the EHRC had begun to realize the difficulties it had put itself under in conducting a research exercise that lead to the two existing reports, and did not want to expose itself by conducting yet another research project. One internal e-mail communication virtually warns off the EHRC not to intervene in the Tirkey case given Hindu and Sikh opposition: Unsurprisingly, my views haven’t changed ... I don’t think we should get involved in this case as to do so could stir up a hornet’s nest. I won’t bother to repeat the arguments except to say that [redacted portion] we are told by a representative of a Hindu anti-caste legislation organization that the EHRC was not fit for purpose as an organization. This was because of our DOI: 10.1057/9781137571199.0010

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caste research project; if we are seen as intervening on one side or the other in this high profile case, we will either increase the suspicions of one side in the highly polarized caste legislation debate that we are not neutral or alienate the opposing camp ... . I don’t see any advantage in us becoming directly involved – only yet more FOIs [Freedom of Information requests], PQs [Parliamentary Questions] and problems. I am also concerned that if it becomes known externally that we are intervening, then there could be a detrimental impact on our call for evidence on religion or belief in the workplace and service delivery (to be launched in mid August), since some Hindu and Sikh organisations might refuse to support this.13

The Senior Management Team’s (SMT) discussions during the summer of 2014 on what to communicate to the EHRC’s Commissioners reveal that it wanted to assure them that the state ‘should not intervene in cultural or social usages which are a matter of private practice. Therefore in regulating in this area particular regard should be given to individuals’ rights under the European Convention on Human Rights’. Another version of the same document by the SMT, which appears to be in the final stage of drafting, says: Another factor is the interest of groups such as the Hindu community, where caste plays an important role in religion and family life, and who have unjustified concerns which we must allay that making caste a protected characteristic would provide a basis for interference in religious observance. We will need to manage these relationships to ensure continued engagement by relevant groups with the work of the Commission, including in relation to forthcoming strands of work on religion and belief.

This document thereby plays down the concerns of Hindus that only religious observances would be affected, whereas objections to the caste provision are far broader than that. Even in that area any concerns are played down as ‘unjustified’. The same document argues that the EHRC’s ‘reputation could be at risk if we do not act in this strategic case’. It then flags as a ‘recent development’ that the National Secular Society ‘has requested the Commission to go on record and express the opinion that the NIESR research found that caste discrimination exists and to do all it can to encourage the introduction of the Order prohibiting case discrimination as soon as possible’. Given that the document is an exercise in justification to the Commissioners why the EHRC should intervene, it underplays the significance of the Hindu objections while postulating National Secular Society’s urgings as an important factor to be considered in favour of the intervention. Some ‘stakeholders’ are clearly better DOI: 10.1057/9781137571199.0010

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regarded than others in the SMT’s estimation. Other documents show that when formulating the reasons for intervening in the case, the SMT wanted to convey the message that the NIESR report had found that ‘caste discrimination is a problem in employment, access to services and education’. The public maintenance of this position is at odds with the warning provided in one e-mail communication which discusses the question of evidence of discrimination. The respondent warns that ‘there is no robust evidence on the incidence of caste discrimination – that wasn’t NIESR’s purpose. There is research by stakeholder organizations, but this is not reliable’.14 The EHRC can thus be said to knowingly stretch the manner in which it provides information on the extent of caste discrimination and the existence of research about it. The declaring of descent tests as being unlawful, the prospect of the caste provision of the Equality Act being implemented and indeed fresh case law saying that the Act already covers caste threaten Indian life in the United Kingdom. What seems to many parliamentarians, officials and pro-legislation lobby groups as a simple moral question of supporting an innocuous anti-discrimination measure will turn out to have particularly harsh consequences against Indian individuals, groups, organizations and businesses. A less charitable view might, however, be that, perhaps, the insidious effects of the Equality Act are actually a planned attack against Indian communities in Britain and elsewhere. The alignment of various official institutions within Britain and elsewhere together with organizations and interests beyond the strictly official are testament to that.

Notes 1 Martin Beckford, ‘Last Catholic Adoption Agency Faces Closure after Charity Commission Ruling’, Daily Telegraph, 19 August 2010, http://www. telegraph.co.uk/news/religion/7952526/Last-Catholic-adoption-agencyfaces-closure-after-Charity-Commission-ruling.html; Riazat Butt, ‘Catholic Adoption Agency Loses Gay Adoption Fight’, The Guardian, 26 April 2011, http://www.theguardian.com/society/2011/apr/26/catholic-adoption-agencygay-lesbian 2 A recent such example is the investigation against the Hindu Swayamsevak Sangh after an ITV documentary ‘Charities Behaving Badly’, screened on Wednesday 18 February 2015, alleging exposure of minors to extremism and religious hatred, in which Bhatt acted as the academic ‘expert’. DOI: 10.1057/9781137571199.0010

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3 Mandla v Dowell-Lee [1982] UKHL 7. 4 Lord Singh, House of Lords Debates, 4 March 2013, col. 1305. 5 ‘Sikh Council UK Vindicated on Caste Legislation’, https://www.sikh24. com/2015/01/18/sikh-council-uk-vindicated-on-caste-legislation/#. VVDkUs7in8E; ‘Caste Legislation 2010 and 2014, Makes Sikhs to be Followers of a Varna System’, http://sikhissue.com/caste-legislation-2010and-2014-makes-sikhs-to-be-followers-of-a-varna-system/. The British Sikh Consultative Forum has maintained a similar position on the issue of ritual purity as confirmed to the author by its General Secretary Jasdev Singh Rai. 6 R(E) v Governing Body of JFS [2009] UKSC 15. 7 [2014] UKEAT 0190_14_1912. 8 That the case would not be appealed further to the Court of Appeal and that a reference would not be made to the Court of Justice of the EU was confirmed to the writer, 29 April 2015 by Victoria Marks, solicitor in the Anti Trafficking and Labour Exploitation Unit (ATLEU), the claimant’s representatives. 9 E-mail communication from Aline Nassif citing a Conservative Party spokesman, 6 May 2015, on file with author. 10 The statement by Ed Miliband was made on the Nihal programme on BBC Asian Network, 5 May 2015, http://www.bbc.co.uk/programmes/p02qp5fz 11 See Lord Avebury, House of Lords Debates, 2 February 2015, col. 456. 12 House of Commons Debates, 9 July 2014, col. 139WH. 13 E-mail to Wendy Hewitt, Acting Legal Director, EHRC, 1 August 2014. Author name redacted. 14 E-mail to Rebecca Hilsenrath, Chief Legal Officer, EHRC, 7 August 2014. Author name redacted.

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Conclusion Abstract: The conclusion reviews the book’s arguments and makes the point that the background to caste is important in understanding how law is currently made about it and how such developments can be manipulated to achieve ulterior aims unrelated to caste discrimination in the United Kingdom. Shah, Prakash. Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010. Basingstoke: Palgrave Macmillan, 2015. doi: 10.1057/9781137571199.0011.

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Christian-Orientalism established the idea of a violent sacerdotal or priestly core of the Indian religion, which has since primarily been associated with Hinduism. The secular social sciences have preserved this idea of a violent priestly core to Indian religion as an implicit criterion which acts at a pre-theoretical level informing all attempts at the formation of theories about caste. Such attempts result in incoherence and contradictions so much so that the idea of an Indian caste system is slowly collapsing. However, attempts persist because of the embedded nature of the theological idea that, as stated, acts as the pre-theoretical core of the caste discourse, which continues to portray Indians as active participants in, and justifiers of, an inherently immoral system of discrimination. In India, the Christian–Orientalist idea of the caste system was preserved in post-independence legal and political discourse and resulted in the framing of the reservations system. It is the exclusion of Christians from that system that underpins attempts by Christian Churches and their Dalit allies to argue for the extension of reservations to Christians. This they hope will assist in the proselytism effort actively underway in India and further afield in Asia. Extending the system of reservations would be the wrong direction of travel for India. Rather, the dismantling of the reservations system is required not least because it has opened up successive and unmanageable demands for inclusion in it, while rewarding lack of merit. The infusion of ‘political correctness’ about caste and reservations in the Indian context appears to offer little hope that this will happen in the near future. Meanwhile, the grounding of the idea of the caste system in Christian theological reflections on Indian religion and the large proselytism effort that is taking place now has largely remained hidden from view in the United Kingdom. However, this is the broader context in which the United Kingdom’s Equality Act 2010 was introduced and without considering which it does not make sense. The legislation is implicitly framed around the same ideas and imperatives, whose deep penetration among the political class, NGOs, Churches, and academics this book demonstrates. These agents ignore alternative accounts of caste and systematically propagandize against Indian culture and society. The ‘research’ conducted since the 2010 Act is palpably reliant on the Christian–Orientalist framework. While hardly reflexive as to its own orientation, it has nevertheless crucially justified the legislation in the United Kingdom. Indians have been held up to ridicule for raising such DOI: 10.1057/9781137571199.0011

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problems as self-serving bigots, protecting their ‘vested interests’ in perpetuating discriminatory practices. The United Kingdom is being used as a surrogate for a disingenuous international campaign to interfere especially in India’s internal affairs. Although the legal position is somewhat ambiguous, current case law suggests that the Equality Act already covers caste via the provision on ethnic origins. The implications of such judicial blindness are bound to be consequential for the associational and economic freedoms of Indians in the United Kingdom, as would the implementing of the Equality Act’s provision on caste. No doubt the pro-legislation lobbies will not be satisfied with this status quo, having already decided that the Equality Act’s provision on caste must be implemented. One hopes this book has said enough to act dissuasively for those willing to listen to reason. There is little hope for the others. The legislation needs reversing and the case law needs qualifications so that all imputed references to descent-based discrimination are made illegitimate. Making descent-based discrimination unlawful has wide potential to act against the mores of traditional cultures that transmit inherited practices, and such a trend should be of extreme concern worldwide. There is plenty of evidence to demonstrate that ideas of an Indian caste system is not grounded empirically, but is the result of Christian theological presumptions-cum-conclusions that have entered the secular social sciences. Ideas of the caste system have proliferated widely throughout the world in popular images of India, so much so that it seems ridiculous to question the existence of the caste system. However, this is precisely the type of question that a serious research effort yields. If the caste system does not exist, it is natural to wonder what then exists in Indian society. Far more work than has been possible here is required to theorize adequately just what caste is and the role it plays within Indian society and culture. The evidence offered in this book will, it is hoped, act as part of a wider research effort at rethinking the problem of caste in India and the Indian diaspora.

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Index Adivasis, 104 Alliance of Hindu Organizations, 40, 62 Alton, David, Lord, 88, 92, 94 Ambedkar, B R, 23, 24, 26, 28, 31, 33, 41, 42, 61, 85, 95 Amnesty international, 98 Anglican Church, 30, 53, 84, 88, 92, 93 Anti Caste Discrimination Alliance, 37 Arendt, Hannah, 8 Ashworth, Jon, MP, 42 Avebury, Eric, Lord, 30, 33, 37, 41, 42, 63, 71, 82, 85, 96, 113 Balagangadhara, S N, xii, 2, 3, 4, 17, 18, 21–23, 28, 29, 32, 39, 40, 48, 49, 61, 90, 102 Bangladesh, 67 Bangladeshis, 34, 57 Bayly, Susan, 4, 19, 20, 22, 24, 26, 41, 50, 52, 86, 91 Begraj case, 70, 71, 74 Bhatt, Chetan, 5, 6, 65, 101, 112 biradaris, 55–57, 72 Brahmanism, 4, 17, 19, 21, 22, 24, 27, 28, 41, 85, 102 Brahmins, 4, 7, 9, 17, 19, 20–22, 24, 25, 41, 54, 56, 69, 76, 79, 80, 86, 90 British Broadcasting Corporation (BBC), 32, 42, 43, 66, 81, 113

124

British Hindu Voice, 63 British Sikh Consultative Forum, 110, 113 Cameron, David, 36, 40 CARE, 27 Cashman, Michael, Lord, 37, 88, 91, 92, 97 caste as descent, 17, 57, 58, 61, 101, 104, 106, 107 as occupation, 20, 51, 56, 72 Catholics, 18, 20, 40, 41, 55, 88, 101, 104, 112 Holy See, 27 census, 50 England and Wales, 30 India, 22, 26 Chandhok v Tirkey case, 13, 74, 76, 82, 103, 106, 108, 109, 110 Charity Commission, 101 Christian anthropology, 94 Christian Solidarity Worldwide, 28 Christianity and Aryan invasion, 27 and Indian religion, 4, 5, 10, 16–19, 48, 67, 85, 87, 103 and Orientalism, 9, 11, 18, 25, 51, 85, 87, 102, 115 as Aryan religion, 21, 22 conversion to, 21, 76, 86, 90, 91, 96

DOI: 10.1057/9781137571199.0013

Index

converts to, 13, 19, 29, 76, 86, 87, 90, 93, 94, 95 heathens and, 5, 19, 49, 51 proselytism, 11, 12, 18, 19, 27, 37–39, 40, 53, 61, 81, 86–88, 92, 93, 95 Christians caste, 94 caste reservations in India, 13, 26, 29, 31, 37, 52, 61, 72, 86, 91, 93, 94 Dalits, 29, 86, 97 tribals, 29 City Hindus Network, 63 Claerhout, Sarah, 20 Coalition for Dialogue, 63 colonial consciousness, 4, 9, 17, 22, 23, 28, 35, 41, 86, 96 colonialism, 2, 4, 5, 10, 17, 18, 21–23, 26, 28, 41, 50, 54, 55, 61, 67, 86, 100, 102 Committee on the Elimination of Racial Discrimination, 51, 57, 61, 73 Conservative Party, 6, 108, 113 Corbyn, Jeremy, MP, 30, 31, 98 Dalit Freedom Network, 13, 92, 93 Dalit Solidarity Network-UK, 30, 36, 92 Dalits, 12, 13, 15, 16, 23–25, 27, 29, 30, 37, 39, 41, 42, 52, 56, 59, 61, 66, 72, 76, 84, 85, 86, 88, 90, 92–94, 97, 98, 107 population size, 30 Davis, Donald R, 8, 9, 13, 24, 40 De Roover, Jakob, 3, 20, 39, 51, 85, 87 Deben, Lord, 29, 30, 31, 42, 63 Department for International Development, 88, 89, 93 Derde, Willem, 5, 24, 61, 86 descent discrimination on grounds of, 17, 25, 27, 58, 103, 106, 107, 112 dharma, 8, 9 dharmashastra, 8, 9, 25

DOI: 10.1057/9781137571199.0013

125

Dholakia, Navnit, Lord, 34, 88 Dirks, Nicholas, 4, 6, 19, 22–24, 26, 41, 100 Doniger, Wendy, 2 endogamy, 33, 51, 105 Enterprise and Regulatory Reform Act 2013, 15, 16, 40, 62, 65, 66, 105 Equality Act 2006, 29 Equality Act 2010, 17, 18, 27, 28, 31, 46, 66, 67, 74, 77, 80, 100, 101, 104, 108, 116 2013 amendment to, 15, 16, 36, 37, 40, 45, 65, 84, 88, 108, 109 caste definition, 72 caste provision, xii, 2, 9, 11–13, 15, 16, 25, 27, 33, 36, 38, 40, 45, 46, 57, 58, 59, 60, 65, 66, 68, 70, 74, 77–79, 88, 89, 100, 103–105, 109, 112, 115 race, 103 religion, 29, 32, 42 Equality and Human Rights Commission, 11, 13, 15, 33, 40, 45–47, 53, 58, 59, 62, 63, 66–68, 71–73, 75, 78, 80–82, 97, 103, 109–113 European Convention on Human Rights, 71, 111 European Court of Human Rights, 95, 98 European Parliament, 12, 86, 88, 92, 96 European Union, 30, 88, 107 Court of Justice, 104, 108, 113 Indians in, 108 Member States, 108 Race Directive, 104 European Union law, 88, 104, 108 Flather, Shreela, Baroness, 35, 37, 38, 63, 76 Gandhi, Mohandas K, 4, 5, 23, 61, 95 Gelders, Raf, 4, 5, 17, 18, 24, 61, 86, 90

126

Index

Grant, Helen, MP, 40, 110 Green Party, 109 Green, Kate, MP, 32, 33 Green, Roger, 46, 47 Griffiths, Leslie, Lord, 88–90, 95, 97 Gujaratis, 54, 75 Harries, Richard, Lord, 30, 31, 33, 41, 42, 53, 63, 84–86, 88, 89, 92, 96, 102 Hindu Council UK, 38 Hindu diaspora, 6 Hindu Forum of Britain, 27, 30, 38, 86, 97 Hindu law, 8, 9 Hindu Lawyers Association, 63 Hindu scriptures, 24, 25, 41 Hindu Swayamsevak Sangh (UK), 63 Hinduism and caste, 17, 19, 23, 24, 53, 54, 61, 86, 91, 93, 94, 102 as false religion, 4, 8, 93 Protestant accounts of, 5, 10, 17, 19, 20, 24 Hindus and caste, 6, 7, 8, 35, 52, 54, 69, 72, 111 Holloway, Adam, MP, 71, 82 Howorth, Toby, Canon, 92 Human Rights Watch, 92 Inden, Ronald, 4, 7, 13, 20, 22, 23 Indian legal system, 26, 33, 50, 67, 87, 91, 95 Constitution (Scheduled Castes) Order 1950, 52, 53, 67, 87, 100 Supreme Court, 51, 87, 95 International Dalit Solidarity Network, 30, 36, 92, 96 Islam, 2, 3, 32, 76, 94

Keppens, Marianne, 21 kshatriyas, 20, 54, 72 Labour Party, 6, 15, 42, 88, 109 language, 21, 36, 41, 48, 72, 96 Lester, Anthony, Lord, 17, 34, 46, 63, 71, 82, 85 Lubin, Timothy, 9, 13, 20, 40 Luther, Martin, 20 marriage, 7, 15, 29, 32, 33, 42, 54, 70, 79, 101, 105 Marx, Karl, 20 Matilal, B K, 5 Mehta, Nitin, 63 Mehta, Pratap B, 26 Mill, James, 7–9, 24 Modi, Narendra, 2, 84, 95 Muslims, 32, 72, 94, 95 in India, 13, 31, 52, 61, 72, 91 in the United Kingdom, 29, 57 Muslims, 57 National Council of Hindu Temples, 42, 53, 63 National Hindu Students Forum, 63 National Institute of Economic and Social Research, 15, 32–34, 42, 46, 58, 59, 66, 103, 111, 112 National Secular Society, 11, 18, 35–40, 71, 82, 103, 111 Nepal, 53, 67 Nepalese, 36 normative ethics, 6, 20, 28, 29, 51, 56

jatis, 5, 54–56, 72, 94, 101 Jews, 30, 32, 78, 103, 106 JFS case, 103, 106, 107

Oddie, Geoffrey, 19, 32, 85, 95 Orientalism, 3, 8, 9, 20, 23, 26, 35, 47, 48 area studies as, 7 Other Backward Castes, 26, 76, 85, 91

Keane, David, 17, 24, 25, 46, 61, 94, 107

Pakistan, 67 Pakistanis, 34, 55, 57

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Index

Parekh, Bhikhu, Lord, 49, 68, 69, 75, 76 Parsis, 31 Periyar, 23, 41 Porteous Wood, Keith, 36 Poulter, Sebastian, 6, 7, 60 proselytism laws on, 95 Protestants, 4, 5, 8, 10, 17–20, 24, 32, 34, 40, 41, 51, 55, 61, 85, 91, 94, 103 Puruṣa-sūkta, 25 Radhakrishnan, Sarvepalli, 4 Rai, Jasdev Singh, 110, 113 Ravidassis, 103 Rigveda, 25 Risley, Herbert, 22 Roy, Arundhati, 24, 25, 28, 87 Said, Edward, 3, 7 Sanskrit, 21, 22, 35, 41, 54, 56 secular academia, 4, 6, 20, 37, 115 caste as, 20 secular state, 39 secularism, 11, 18, 39, 40, 43, 65 Sen, Amartya, 5 Sen, Ronojoy, 27, 87, 93, 95 Sharma, Alok, MP, 42 Sharma, Satish K, 53 Shourie, Arun, 24, 26, 52, 67, 86, 91 shudras, 21, 54, 72 Sikh Council UK, 113 Sikhism, 94, 102 Sikhs, 16, 30, 45, 49, 52, 72, 89, 94, 102, 103, 110, 111, 113 Singh, Indarjit, Lord, 35, 102, 113

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127

Singh, Manmohan, 95 Sunday Times, 36, 38, 40 Swinson, Jo, MP, 42 United Nations, 12, 30, 53, 58, 73, 107 Conference against Racism, 12, 25, 27, 73, 107 United Nations Convention on the Elimination of Racial Discrimination, 58, 61, 71, 104, 107 United Nations Declaration on Human Rights, 95 United States, 91, 98 Indian diaspora in, 10 race problem in, 26 untouchables, 21, 41, 56, 67, 69, 72, 76, 92, 94, 105 Valmikis, 103 varna, 4, 8, 20, 25, 35, 41, 54–56, 72, 100, 113 Venkat Rao, D, xii, 5, 29, 40, 41 vaishyas, 20, 54, 72, 75 Vishwa Hindu Parishad (UK), 63 Voice of Dalit International, 37, 85, 92, 93, 98 Waughray, Annapurna, 9, 13, 27, 29, 33, 40, 46, 60–62, 67, 71, 75, 94, 97, 100, 101, 105, 106, 109 Western culture, 3, 6, 28, 35, 47, 85 religious basis of, 3, 28 Whittle, Stephen, 46, 47 Wilson, Kalpana, 61 Wolpert, Stanley, 24