Book review: Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010

Shah’s Against Caste in British Law is an important voice in the contemporary discussion on caste legislation in the United Kingdom. The debate around caste has intensified on both sides with pro- and anti-legislation groups consolidating their positions in the vacuum created by current and deliberate government inaction on the issue. In short, what began as a discretionary power under section 9(5)(a) of the Equality Act 2010 to make caste ‘an aspect of’ the protected characteristic of race was turned into a duty to make caste an aspect of race under section 97 of the Enterprise and Regulatory Reform Act 2013. This duty has yet to be implemented. In the meantime, the Employment Appeals Tribunal decision in Chandok v. Tirkey (2015) has led to speculation that caste is already part of the Equality Act through judicial interpretation, reflected in media reports that it is Britain’s first caste discrimination case. Shah’s book begins and ends at this point with the question of the status of caste in British law pending. Its strength lies in its consolidation of the case against caste in British law, aptly reflected in the title, and there can be little doubt that the text is representative of a view that is more widely held, although how wide is open to conjecture.

The book is divided into six chapters, and the format provided by the Pivot series means it is relatively short and readable, with a punchy tone that fits well with the urgency the author imparts to the question. It is broadly divided into a specific critique of the pro-caste legislation movement in the United Kingdom and a wider analysis of the conditions that foster a disposition to view caste as an important problem that requires legislative intervention in the United Kingdom. The specific critique has a number of targets, including the Equality and Human Rights Commission (EHRC), the National Secular Society and other organizations supportive of caste legislation, in the absence of proper evidence argues Shah; the members of the House of Lords who have tabled and pushed for legislation on caste, often without revealing what the author considers to be their motivations; academics exhibiting prejudices in relation to the need for caste legislation as part of a long European tradition of conceiving of India in terms of caste; Dalit organizations insofar as these reflect agendas of other concerned groups, in particular religious organizations seeking to use caste as an issue with which to promote historical and continued proselytization aims.

The wider analysis draws heavily on the work of SN Balagangadhara, a central thinker in the book, who has articulated a theory of ‘colonial consciousness’ in his writings and lectures to account inter alia for the continued dominance of an association between India and the caste system, with consequent depiction of Hindus in particular as inherently discriminatory. Importantly, the concept of colonial consciousness helps explain a critical problematic for the author – why Indians form part of the lobby for caste to be part of the British equality legislation. Colonial consciousness thus resolves a central conundrum as to how Indian academics and activists, along with Western thinkers and advocates, come to articulate a vision of India in terms of caste discrimination, both in India and now in the United Kingdom.

There is a sense of attack on Indian traditions and the British Hindu community that emanates from the start. The Foreword, written by Dr Gautem Sen of the London School of Economics, acknowledges the ‘highly politicized contemporary discourse on caste’ before describing on the part of caste lobbyists, ‘duplicitous bad faith that can only be described as obscene in its demeaning racist depiction of British Hindus’. The first chapter refers to challenging ‘unwarranted attacks on those who practice the Indian traditions’ (p. 2), ‘[d]iatribes against Brahmanism and the caste system [that] can be heard from every corner of the secular academic establishment and among academics abroad’ (p. 4), ‘castigat[ing] the Hindu community in Britain for “caste prejudice”’, leading to a ‘battle’ (pp. 9–10) against the ‘juggernaut-like agenda for legislation’ (p. 9). There is even a reference to ‘a frontal attack … by dark forces’ (p. 10). There can be little doubt of the passion the author feels for the issue, and the language although strong is reflective of this.

The opening chapters outline the author’s belief that Dalit organizations as well as Western voices articulate what is termed a Christian-Orientalist account of the caste system. Embedded within the structures of Western thinking, it provides justification for continued Christian proselytism in India (p. 18) in which caste is viewed as an uncontested fact by which to challenge the Hindu faith and convert its adherents. There is historical analysis from the 19th century in support (p. 19). A further historical aspect is the linking between caste and race, in which theories of caste abounded in the 19th century in terms of Aryan invasions and a perceived racialized structure of caste oppression. These Christian-Orientalist attacks have carried on in post-independence India – Ambedkar, a central figure in India’s story of caste and the architect of India’s Constitution, is noted to have thoroughly imbibed these accounts of the caste system (p. 24) – and are retold by Indian intellectuals today, a continuing manifestation of ‘colonial consciousness’ (p. 22). The discussion gains momentum in its shift to the United Kingdom with quotations from the interventions of pro-caste legislation members of the legislatures. The description of the array of numbers of Dalits in Britain offered to Parliament in debates, ranging from 50,000 to Jeremy Corbyn’s assertion of 1 million, skewers the belief that any concrete figure can be arrived at and lends weight to the argument that such numbers are ‘merely imaginary’ (p. 30). This is reflective of a central theme of the book that there is a lack of evidence on caste discrimination, in the United Kingdom as in India, which challenges the proposal to legislate for it:

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 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; that the real agenda is to further entrench the proselytism agendas of the Churches in India. (p. 38)

The EHRC reports, both entitled Caste in Britain, come in for sustained criticism in a similar vein. The argument is that the research team was already committed to the idea of the legislation and did not seek evidence as to its need. The withdrawal of anti-legislation groups from the consultative process is said to be reflective of the perception of a pre-conceived stance, meaning there was no point in taking part in the process for those opposed (p. 47) and the reports reflect this prior commitment of a particular vision of Indian society. Of course, as a member of the EHRC report team, I disagree with this assessment. The chapter does not give an adequate reflection of the starting point of the EHRC reports, which is not whether there should be legislation on caste, but rather how such legislation should be enacted. This was clearly set out in the reports, which were commissioned post-2013, and thus the team did not have a mandate to question whether caste should be part of the Equality Act 2010 but rather how this was to be achieved in light of the legislative direction. Whether caste should be part of the Equality Act, whilst a relevant question, was irrelevant to the scope of the reports, which sought only to establish how the mandatory provision should be achieved in the legislation and potential implications in legal practice.

The book includes arguments around the likelihood of civil actions which, it is stated, would principally target the Indian community (p. 68), which is being set-up as potential discriminators, rather than the generality of the population (p. 71). The author believes that the legislation will lead to many spurious claims, with a strong likelihood of success, given the lack of coherence on the meaning of caste. Indeed, and linked to the wider contextual arguments, presumptions in European culture at large that Indians generally, and Hindus specifically, discriminate on grounds of caste means there will ‘effectively be a presumption that caste discrimination has occurred’ (p. 73). This is underscored by the Tirkey judgement, a ruling that leads to the question as to whether caste is already a part of UK law (pp. 109–110).

Overall, the author believes that ‘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’ (p. 81). Hence caste is a vessel for ‘continuing foreign interference in India’s internal affairs’, which forms a chapter title. From outside, programmes for conversion have focused on Dalits under the placard of the ‘false religion of Hinduism and its corrupt caste system’ (p. 86). The truth about the caste system rests on Christian theological foundations of intolerance and hatred for Indian culture (p. 87). From inside, Indian intellectuals are complicit of ‘criminal neglect’ in failing to question fundamental assumptions, acting as ‘willing participants in defaming their ancestral culture’ (p. 87). The current debate represents ‘the conviction in the West that India’s age-old traditions should continue to be a target 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 [the home of the International Dalit Solidarity Network] and Washington’ (p. 96). Indeed, the author questions whether, in its current received understanding, the caste system can be said to exist at all (p. 116). This leads to the question – has colonial consciousness meant that caste discrimination, as portrayed in the literature across all disciplines, is being imagined, in the United Kingdom and in India? I find it impossible to believe it is. When faced with the proposition from Nicholas Dirks that colonialism created much of what is now accepted as Indian ‘tradition’, including an autonomous caste structure, Purushottam Agrawal responded: ‘We Indians may well have been denied the capacity to solve our own problems, but are we so incapable that we could not even create them on our own?’

There is much of interest in this work, in particular as a reflection of opposition to caste legislation in the United Kingdom, and to similar opposition in India and globally. I cannot agree with the underlying premise that caste is about proselytism, that it is an attack on Indian traditions or that colonial consciousness infects Indian intellectuals and others articulating that caste discrimination is very real and pervasive. The argument in relation to evidence cuts both ways; none of these positions has any proven basis in history, politics, anthropology or law. Moreover, by articulating a viewpoint of Indian traditions that is supposedly representative of UK communities, the author is engaging in essentialism that is quick to be condemned in others. The experience of caste is different for different sectors of communities, in India, the United Kingdom and globally, and the narrative of caste discrimination is a long one.