Pressure is mounting in Westminster to review the Equality Act of 2010 to include discrimination on the basis of caste, as part of race discrimination, opening up the possibility of prosecutions under the criminal law. It is quite extraordinary that as India moves away from caste based issues, the UK is considering reintroducing them. To his credit, David Cameron understood the minefield this presented and did everything to steer away from the debate.
Based on the findings of the Employment Appeal Tribunal in 2014 in the unfortunate case of Chandhok & Anor v Tirkey, whereby the claimant, an Indian Christian of Adivasi background, Ms Tirkey was allegedly overworked, underpaid and altogether taken unfair advantage of by her Buddhist employers. Somehow, the erroneous issue of caste was introduced into an unfair dismissal case. Originally the Tribunal found the Equality Act 2010 did not provide protection against discrimination on grounds of “caste”, but the Employment Appeals Tribunal found that “caste”, in as much as it is an aspect of “ethnic origin”, could fall within the scope of the Equality Act 2010. Tirkey was awarded nearly £184,000 in respect of unpaid wages and a further £35,000 for damages to feelings, which is said to be one the biggest ever awards for non-pecuniary losses. The Anti-Caste Legislation Committee offered to appear as expert witnesses, but was denied the opportunity, whereas the European Court of Human Rights was given full access. The presumption of discrimination facing the defendants is deeply worrying. While caste remains ill conceptualised, practitioners within the legal system could act to penalise Dharmic community members and the case above shows how disingenuous claims could result in defendants facing bankruptcy.
In July, peers in the House of Lord debated caste-based discrimination. Baroness Williams of Trafford said “…we are currently unaware of any cases of race discrimination with an alleged caste element coming before the courts since the Langstaff judgment (re: Chandhok & Anor v Tirkey) was delivered”. Lord Popat said that the issue of caste is outdated and talked about reversing the amendment to the Equality Act 2010. Many Labour and cross bench peers support the amendment. This debate signals that the caste issue will be a thorn in the side of both Prime Minister Theresa May and her Secretary of State for Justice, Elizabeth Truss.
A broad group of the UK Dharmic community organisations found the caste provision was introduced on false and dubious premises to mislead Parliament and the British public; they are urging the government to revisit the caste provision in the Equality Act and to gain parliamentary approval to repeal it. They feel the presumption of discrimination facing defendants substantiates worries that while caste remains ill conceptualised, practitioners within the legal system act to penalise Dharmic community members and litigation would be asymmetrically stacked against defendants because of prevalent stereotypes. Litigation would infringe on traditional festivals and the charitable status of many community organisations. Public authorities, businesses and employers would be exposed to risks of failing to guard against caste discrimination and failing to conduct caste monitoring. Caste is ill-understood by UK “experts” and by the general population, thus the law creates unpredictability. It is unclear how they could enact good practice so that claims did not arise. Inevitably, even frivolous claims would be likely to be settled, given the risk to reputation and costs of defence. Dharmic experts say that in the parliamentary debates, legislators have shown ignorance of, or simply misrepresented, the laws prevailing in South Asian countries, but yet invoked them in support of the very differently structured UK legislation. “Dalits” are used at every opportunity to create and fuel the impression of a caste discrimination problem.
Dr Prakash Shah, Director of Centre for Culture and Law, Department of Law, Queen Mary, University of London says “the stereotype of the caste system goes back to Christian theological accounts of India. Protestant polemic against Indian religion linked it to the idea of a violent priesthood within Hinduism, as well as to the Aryan invasion theory. While long since discredited, these notions continue to ground contemporary stereotypes about caste, saying little about the positive community cohesion to which practitioners of Dharmic traditions contribute. Instead, Dharmic communities claim they suffer from colonial-style defaming of their communities by politicians, academics, the Church, NGOs, the EHRC and the legal profession.”