While controversy over the legal position on caste discrimination simmers on in California, it is now virtually forgotten that among Western countries it was the United Kingdom that first undertook to legislate against this discrimination. Anti-caste activists had identified Britain as the soft target country that would do their bidding and add a caste clause to the Equality Act 2010 as it went through its parliamentary stages. And they did succeed, thrice. First in adding the caste clause, the implementation of which was made conditional by legislators. Again in 2013, when they made implementation mandatory, and then in 2015, when they pushed through a case allegedly involving caste discrimination through the courts. The caste law in Britain remains characterised by ambiguity and there is a lack of urgency to provide any clarity.
On 5 September 2018, an ambiguously titled panel discussion on Dissolving Caste Consciousness was convened at the Palace of Westminster to celebrate the result of the British government’s consultation on caste. On the panel were those who tend to Hindu political affairs in Britain — Jitesh Gadhia, member of the House of Lords; Bob Blackman, MP; Trupti Patel, president, The Hindu Forum of Britain; Satish Sharma, then general secretary, National Council of Hindu Temples; and Jasdev Singh Rai, general secretary, British Sikh Consultative Forum.
The celebratory mood was justified by the victory of sorts claimed by the panellists and seemingly shared by many of those in the audience. The caste consultation result showed that a majority of respondents had preferred to repeal Section 9(5) of the Equality Act 2010, which mandated the implementation of caste as an aspect of race. The British government’s decision was predicated on the existing case law of the Employment Appeal Tribunal (EAT) which it undertook to reinforce in future litigation. Whether they realised it or not, a majority of consultation respondents not only favoured deleting the caste clause but also supported the legal precedent allowing caste claims to be pursued in British courts and tribunals. The issue in the consultation therefore boiled down to what legal option was best to combat caste discrimination, and not to eliminate any reference to caste in law.
A smaller group favoured the deletion of both the caste clause and the effect of the legal precedent in the case law. Gadhia said, during the Westminster meeting, that this was a politically impossible option although he never made his rationale clear. Among other influential Hindus, Manoj Ladwa, chairman and chief executive of the India Inc Group, had also advocated the retention of the case law. Some, including those on the 5 September panel, had circulated the idea during the consultation that case law cannot be overturned by an act of Parliament. This is of course legally incorrect since the British Parliament is sovereign and can overturn the effects of court rulings. But the falsehood was enough to sway a majority to opt for the case law in exchange for repealing the Equality Act’s caste clause.
The conduct of the consultation indicated that a sizeable segment of prominent Hindu spokespersons and the British Hindu public are distinguished by a good measure of political illiteracy and remain easily swayed by misinformation. Satish Sharma has since claimed that a deal had been made with the Conservatives. While the British government worked to secure its desired outcome in the consultation, several Conservative Party candidates, some of whom got (re)elected, had previously stood on a ticket of overturning the caste clause in the legislation as well as the case law.
For her part, on 28 July 2018, then Minister for Women and Equalities, Penny Mordaunt (who eventually went on to compete with Rishi Sunak for the Conservative leadership), declared that: “In light of changed circumstances since 2013, we intend to legislate to repeal the duty for a specific reference to caste as an aspect of race discrimination in the Equality Act once a suitable legislative vehicle becomes available.”
The statutory duty to implement the caste provision in section 9(5) of the Equality Act 2010 still exists, however.
The promises made by the British government in its caste consultation report, the announcement to parliament, and the fanfare and celebratory mood of the 5 September meeting were never followed up by the British government. Nobody in Whitehall seems to have realised that the British government remains vulnerable to a judicial review action for failing to implement the caste clause. Nor have British Hindu spokespersons ensured the British government stuck to its word.
Also read: American Bar Association’s anti-caste resolution isn’t just progress but a revolution
Hyperbolic demands
Currently, the issue of transgender rights is particularly controversial, and the British government may introduce amendments to the Equality Act regarding biological sex. Although it’s been over five years since the caste consultation concluded, it is understood that no plans are in place to repeal Section 9(5). Several changes in government and ministerial posts have made institutional memories somewhat hazy.
Besides, any amendment to the Equality Act scares the British government as it threatens to stir controversy on the transgender issue that it would rather not face. The current Minister for Women and Equalities, Kemi Badenoch, remains reticent about the unfulfilled promise on caste. She may well be preoccupied by the endless discussions on the India-UK trade deal which comes under her other portfolio as Trade Secretary.
It seems likely that any trade deal will entail immigration commitments by Britain. As things stand, new, and already settled, immigrants from India will remain exposed to frivolous legal claims of caste discrimination. The most prominent example of such groundless litigation is the Cisco case, which was eventually, but only partly, dropped by California’s Civil Rights Department. Nevertheless, no claims of caste discrimination have come up in Britain since the initial EAT case, which may not have been based on ground reality. The lack of such cases is out of sync with the hyperbolic demands made by those advocating legislation on caste. It may also indicate that the groups pushing for a law on caste discrimination, which now appear to have shifted their focus to the United States and Australia, have aims in mind other than protecting those who they allege suffer from caste discrimination.
Also read: Seattle caste ban isn’t about Hinduism or Indians. It’s America’s Great Culture War
The Hindu voter
Since the consultation in Britain, references to caste have proliferated. For instance, prosecution guidance on hate crimes now includes reference to caste. This entails an extension to the criminal law regarding which there has been no public debate or specific legislation. Inquiries with the Crown Prosecution Service and the police have not yielded any replies, despite freedom of information rules. Nor have the consequences of such an extension been thrashed out. This is particularly concerning given that, in its consultation, the British government had agreed that caste cannot be defined. Any repeal of Section 9(5) ought to simultaneously ensure circumscription of caste claims based on existing case law only to the Equality Act so they do not intrude on the criminal law.
The caste episode continues to furnish data for further reflection. British Hindu spokespersons have shown once again that they are neither legitimate representatives nor have relevant domain knowledge. Nor have they held the British government to its promises. The adage about people getting the leaders they deserve is quite apt here. Politicians are more than happy to work with them knowing that they can be cajoled to present a particular picture to voters. These groups also act as gatekeepers and prevent better alternatives from gaining traction. It is a multicultural model of doing government business with ‘communities’ which is in serious need of reform. Like its colonial antecedent, it offers the illusion of having a say but without any real power or accountability.
The Hindu voter is, meanwhile, low maintenance and easily manipulable given their preference for self-advancement, combined with a general disinterest in political and policy questions. The Conservative Party leadership certainly knows that some key constituencies can be influenced by the Hindu voter, but it also surely knows that they will make no substantial demands so as to threaten parliamentary seats. Unsurprisingly, British governments as well as local governments of all political shades likewise tend to treat the Hindu voter with disdain. Last year’s violence directed at Hindus in Leicester, seemingly encouraged by the city’s political establishment, and the continued governmental failure to tackle its causes, was a grim demonstration of that.
This does not mean that Rishi Sunak’s Conservative Party is not vulnerable. Assuming no miracle occurs between now and the next general election, its days in government are numbered. The best it can probably hope for is to secure some of the seats it already has. By not taking steps to right the wrong of the caste legislation, it may yet continue its disregard of the Hindu voter, especially since they have been voting Conservative in increased numbers. Still, ensuring the caste provision is repealed and that caste litigation does not penetrate the criminal law is the least it can do to come out of the caste episode with some of its dignity intact.
The author is a Reader in Culture and Law at Queen Mary, University of London. He is the author of Against Caste in British Law (2015) and co-editor of Western Foundations of the Caste System (2017). Views are personal.
(Edited by Theres Sudeep)