The British Caste Law: Reflections on the Role of Hindus

The British Caste Law: Reflections on the Role of Hindus

The UK government announced its long-awaited consultation on the caste law in March 2017. It may be time therefore to reflect upon three and more years of concerted campaign against the law. This article especially considers the role played by UK Hindus in contesting the legislation on caste and attempts to draw out some lessons.

As a collective, Hindus are among the most educated group in Britain and perform better on socio-economic indicators as compared to other groups, except perhaps the Chinese. However, when one examines the reasons many Hindus give for their opposition to the British law against caste discrimination, they betray a weakness of one kind or another. It may appear counter-intuitive to suggest that Hindus have formulated weak responses against the law and this article is an attempt to say why it is justified to make this claim of weakness.

To the extent that this article bears out my contention, it also prises open the question of how, although a group may show a high average level of education, it can remain intellectually deformed and ineffectual. Intellectual deformation can coexist with education, and perhaps even be aided by it. If my interaction with UK Hindu leaders of all hues is anything to go there is currently a marked anti-intellectual tendency which goes against the grain of a culture whose past is distinguished by its intellectual achievements.

Today it is a commonplace that Indians have an oppressive caste system that was inspired and sanctioned by the Hindu religion and that layer upon layer of laws, including the Indian Constitution, have not managed to rid India of that system. In fact, it is so entrenched that wherever Indians have settled, including Britain, they have taken the caste system with them. Such platitudes only tell us that Christian theologians, and the social scientists succeeding them, have managed to spread ideas of the caste system in the guise of ‘facts’ about India. They do not tell us anything about India. More perniciously, the trope of the caste system so disingenuously mobilised by campaigners for the UK caste law, provides a ready-made explanation for how Indians act so that many an injustice can effortlessly be attributed to caste discrimination.

This way of talking has become so pervasive that those who believe in it have little doubt that discrimination consequent to the caste system explains the way human interactions take place within Indian society. When the Equality Act 2010 was a Bill in parliament, and the matter of inserting the caste provision was debated, the government pleaded for more time to conduct research. Lord Lester, a chief proponent of the clause objected why any research on the prevalence of the caste discrimination was necessary. To him it seemed obvious that the presence of Indians in Britain had to involve immoral practices of discrimination. What was there to research? In any case, what passed for research to justify inserting caste into law ex post facto also carries on this tradition of presupposing what remains yet to be proved about caste discrimination.

In a new book, Western Foundations of the Caste System, my research colleagues and I argue that the caste system is a Western construction. By this we mean that no caste system ever existed nor exists in India. Instead, the belief that such an entity exists is the outcome of, and contoured by, Protestant theological polemic against Indian religion. It was in the process of developing this polemic during the 19th century that the idea of ‘Hinduism’ as a caste ridden and oppressive religion first emerged among Protestant theologians, and later spread via the social sciences. To avoid ambiguity, the claim is that both Hinduism and the caste system were ideas developed by Western thinkers, but these units do not describe any aspect of the social and cultural reality of India. They say nothing about the Indian traditions.

It would be unsurprising that our account of the Western construction of the caste system does not tally with how Hindus generally think about caste. They have, like everybody else, been subjected to a generation or more of exposure to the idea that Hinduism is a religion that justifies caste discrimination. Those educated in India seem to have even less doubt that this is so given malignant afflictions about caste spreading since Indira Gandhi’s time in power. Those of us who grew up in East Africa may not share the same flagellating reflex. But one only had to listen to the speeches of Baroness Flather, Lord Parekh and Lord Desai in the House of Lords to notice how much this view of India and its diaspora has affected Indians. And it is not only avowed secularists like Baroness Flather who maintain it. The only acceptable position for a Hindu to take today is to decry the sins of his ancestors and proclaim that he stands against any such oppression. After all, who wants to be for oppression?

The account offered above constitutes the basis of my opposition to the caste legislation. Had I not come across the research programme on the Comparative Science of Cultures instituted by Prof. S.N. Balagangadhara of Ghent University, this way of looking at caste would not have dawned on me. The results of this research programme have not seeped into scientific opinion more broadly, and much dissemination and discussion needs to occur before that will happen. Yet we believe that the results of the research on the caste system can be defended. Those supporting the legislation and case law are aware of the research and, unless one attributes it to their intellectual inability to grasp the arguments, the fact that they have not withdrawn from their relentless pursuit testifies to their purely ideological posture. This signals the anti-intellectual tendency that underpins identity politics in the West no less than in India.

We cannot underestimate resistance to questioning the received story of the caste system in academia. I have already mentioned Lords Parekh and Desai, both retired academics, and who both supported the caste legislation. The Editorial Committee of the journal South Asia Research, based at South Asia Institute at SOAS, University of London created a big fuss when Emeritus Prof. Werner Menski, the journal’s chief editor, wrote a lukewarm review of my book, Against Caste in British Law, in which I raise questions about the justifications given for and the potential impact of the caste legislation. Otherwise unheard of in academic practice, members of the editorial committee insisted that it could be published only if a scholar who supports the legislation wrote a rival review, which was duly done by Annapurna Waughray, who in her quest to justify the caste legislation elsewhere accuses Indians of practising apartheid.

In a paper produced by Gavin Flood, the Oxford Centre for Hindu Studies (OCHS) has criticised the report of the National Institute of Economic and Social Research that the British government commissioned in 2010 to examine the extent of caste discrimination. The OCHS paper did not, however, challenge the legislation directly. If anything, the OCHS paper is based on the Indological scholarship that flows out of the same Western theological background as does caste studies. OCHS Director, Shaunaka Rishi Das, and others such as Gauri Das, who are linked to its mothership ISKCON, have not challenged the caste legislation and may even favour it. The OCHS has certainly never invited me to talk about the caste legislation. Similarly, in public, the BAPS Swaminarayan sanstha has remained conspicuously reticent about the caste law.

Those Hindus who are resisting the legislation have also made some mistakes. They have expressed their opposition on the basis that the caste legislation is an attack on ‘Hinduism’. Their reasons, while understandable, are not well founded. As noted, it is true that had it not been for the polemic of Protestant Christians against a religion they called ‘Hinduism’, no idea of the caste system might have emerged. So, to that extent, the link with ‘Hinduism’ is certainly there. While caste is associated with Hinduism, Hinduism is also everywhere closely associated with the caste system. That much is amply demonstrated by the continuing controversy over textbook content in California, where a replay of the UK discussions seems likely.

One could argue that without this implicit or explicit association with Hinduism, the story of the caste system breaks down, and those advocating legislation cannot but draw upon it for any account of the caste system to make sense. But it will strike anyone who examines the British parliamentary record carefully how circumspectly those advocates avoid specific mention of Hinduism except in the coded references to ‘religion’. Here I refer not only to the Christian theologians and lobbyists including Lords Harries, Griffiths and Alton but also to the secularists on the same side, like Lords Cashman and Collins. Rather, they wish to promote the view that caste discrimination extends across all South Asian religious groups.

At least for some of this lobby in parliament the aim is clear: proselytism in India is impeded because converts to Christianity lose entitlement to caste quotas and that impediment ought to be removed. Notwithstanding the vitriol he directs against myself and other opposers of the legislation all of whom he regards as Hindu nationalists, Prof. David Mosse of SOAS, another votary of the legislation, made this aim amply clear in his 29 November 2016 lecture at the India Institute at King’s College London. Incidentally, the Indian government, which subsidises that Institute, has become an unwitting accomplice promoting the caste legislation in Britain, which serves as a proxy ground for a battle that is being waged against India simultaneously through the EU and UN.

The inconsistency of pro-legislation lobby nevertheless betrays its deceitfulness. On the one hand, they need to draw on the old Christian story about Hinduism and the caste system. On the other hand, they need to pitch their tent on the caste-spans-across-all-religions field. In so doing, they are also making an admission that, although once propagated as securing release from the caste system, conversion no longer guarantees that. It all now hinges on the fight for caste quota freebies in India!

If Lord Singh and Baroness Flather make a meal out of the Hinduism-caste system linkage, partly this is because, as ‘ethnic’ peers, they may feel they can get away with slighting a particular religion openly. Partly, they are not insiders, and not privy to why the whole thing has been set up, but mere ornaments that decorate the Lords benches without being taken seriously by anybody. Otherwise, the Baroness performs the ritual mea culpa of all secularists, while Lord Singh spits up the common-sense conceit contemporary Sikhs hold to that they are part of an anti-caste movement.

Hindus have not properly understood this problem, let alone provided a suitable reply. Hence, to the extent they are not complicit with the pro-legislation camp, they only see an attack on the religion ‘Hinduism’ and respond accordingly. Typically, Hindus remonstrate that there is no scriptural sanction for caste discrimination: any discrimination is not down to the religion, Hinduism and, if it exists, it must be because of some social practice. Hinduism is saved from criticism! While many Hindus are rightly sceptical about the Muslim quip, ‘It’s nothing to do with Islam’, they do not notice that they use the same evasiveness for ‘Hinduism’. However correct they may be in their reading of scriptures, the more they resort to this argument, the more they strengthen the idea that, far from being fictitious, Hinduism is an entity with kinship to the Semitic religions.

So widespread is the kind of response I am describing that one can readily point to several Hindus making public declarations of this sort against the caste legislation. They will recognise themselves in this description and don’t need naming. The approbation they receive in social media and elsewhere indicates that the approach wins much popular support. In so doing, however, they unwittingly accept a secularised version of the Christian idea of Hinduism as a religion on whose scriptures the Hindus’ belief system depends. They also disclose their incomprehension of how the caste system idea emerged, of the arguments made by the pro-legislation lobby, and of how the legislation is likely to impact on Indians and others in the UK.

The same form of repudiation rears its head in the United States where, in a report commissioned by the US Committee on International Religious Freedom (USCIRF, an evangelical organisation constituted by statute), Suhag A Shukla of the Hindu American Foundation expresses indignation that, “shockingly, for the first time in USCIRF’s history, the Commission makes the overtly Hinduphobic declaration that caste-based discrimination is rooted in Hindu scripture.” Shukla’s statement accepts the existence of the “social evil of caste-based discrimination” but challenges its foundation in the “scriptures of Hinduism”. Of course, the objected-to comment in the USCIRF report is about as shocking as it is novel, Shukla’s objection to it rather suggesting that one’s shock absorbers malfunction upon immigration to the United States.

Lord Popat, a recent addition to the group of challengers to the caste law, spoke out against the legislation in a House of Lords debate on 11 July 2016, rightly citing various obstacles such as difficulty of definition and implementation. Consistent with the story of Hindu victimhood, Lord Popat said: “The British Hindu community has felt somewhat persecuted by this caste discrimination campaign. They cannot understand why, when there is so little evidence of caste discrimination, we are pressing ahead with legislation that our elected representatives did not support.” This statement testifies to the main line narrative identified here that Hindus feel they are not only vilified by this law but are also made its primary targets. It makes the dominant sort of response by Hindus appear justifiable even though, as I have argued, it misses the mark.

Those bodies affiliated to the Sangh Parivar, who are equally prevented from being effective, convey a distinct variation of the dominant response. As with its antecedent Hindu revivalist movements, the Sangh has tended to emphasise the importance of Hindu unity such that caste divisions are seen as the one major cause of disunity. In their own way, members of this movement tend to adopt the secularised Christian account of the caste system as their own and the consequent need to fight caste oppression. This disables them from taking any coherent approach on caste. In fact, if caste oppression is the real target of activism, then endorsing the legislation against caste discrimination may be regarded as a small yet consistent step towards that aim. It is therefore only those secularists and leftists, who are typically illiterate about Hindu revivalism, who castigate the Sangh for being an instrument of Brahmanical caste oppression. Rather, as an anti-caste movement, its aims can only tessellate with the Western diagnosis of a deep-seated Hindu problem of caste oppression.

The Hindu Lawyers Association (HLA) launched in 2011 as an organisation independent of its original base, the National Hindu Students Forum. Perhaps one might have expected that a body such as the HLA might have played a key role in the challenge to the caste law. Its emergence indexes the educational achievements and large-scale Hindu entry into the professions in recent decades. However, the HLA has made no analysis or any formal representations on the caste legislation even though the topic is a quintessentially legal one. Speaking with HLA members and the wider set of Hindu spokespersons in various organisations, one soon realises that none has a measure of understanding of the caste clause or of the Equality Act of which it forms a part. The HLA, it turns out, is not an association intellectually equipped to respond to law-related policy issues.

In their respective versions, UK Hindus fail to meet the charge behind the legislation. Those favouring the legislation do not say that only Hindus practice caste discrimination. They argue that all South Asians and potentially that many other communities across the world do it. Hindus appear not to have noticed that the legislation, when implemented, will not depend on proof of scriptural sanction for any discriminatory practice, and nor will scriptural citations absolve those being sued for caste discrimination. The legislation will bring within its scope any alleged practice of caste discrimination whether practiced by Hindus or by others.

The Employment Appeal Tribunal has meanwhile gone ahead in 2014 and recognised caste as part of ‘race’ in the Equality Act without waiting for the government to introduce a statutory instrument to implement the caste clause. That too in a case that was doubtless a ‘set up’. The claimant’s lawyers, who have subsequently made disingenuous claims about the unequivocal evidence of caste discrimination the case disclosed, had submitted no evidence but only innuendo of caste discrimination during the proceedings. In a sense, therefore, the horse has already bolted since legal actions against caste discrimination can be brought even now. Worse, the reading into the word ‘race’ of ‘caste’ by the British courts means that other statutes, including the Racial and Religious Hatred Act 2006 and the Crime and Disorder Act 1998, which carries add-on sentences for racially aggravated offences apply to caste and that means the courts have thereby extended the scope of caste-related actions wider than anybody dreamt of or has ever publicly debated. If the Indian experience of caste atrocities legislation is anything to go by, a chilling effect on free speech is going to be produced also in British law. We can draw cold comfort from the fact that British identity politics has been pushing us in that direction for some time, caste being merely the latest addition to an array of thought crimes.

It should not go unnoticed that that judges anywhere in the British Commonwealth can use the British case law as persuasive and thereby extend their reading of ‘race’, wherever it appears in the legislation of their countries, to caste. Especially Indians resident in Australia, Canada, to South Africa, are thus exposed to caste related legal claims. Meanwhile, Shashi Tharoor’s Anti-Discrimination and Equality Bill, introduced into the Lok Sabha in March 2017, keys into the Indian version of identity politics remotely controlled from abroad. Drafted by an Oxford Fellow, Tarun Khaitan, it is a sign that the UK legislation has already served its purpose. That Bill will not only make the fight against the UK law look like a kindergarten affair. It has the ability to rip India apart from the inside and create a war of all against all. Indians will have to be extra vigilant it does not get through the national parliament or in some form, bit by bit into any of the state legislatures.

Meanwhile, on the legal front too, UK Hindus have consistently chosen the wrong battle. Various Hindu voices have said that the case law constitutes grounds for not implementing the Equality Act’s caste clause. What that argument amounts to saying is not only that some sort of law on caste is necessary in British law, but also that we need the wider scope of caste-related actions (including crimes) to remain in British law. Partly, this smacks of an ill-disguised face-saving exercise for an embarrassed Labour party, which could not convincingly justify the caste legislation on any ground, while its current leader, Jeremy Corbyn, as Chair of the All Party Parliamentary Group on Dalits, fraudulently stated in the House of Commons that Britain has 1 million Dalits, all presumptively subject to mass discrimination and harassment.

The advocated ‘solution’ is not in any case accepted by hardliners whose equally phony gloss on the case law is that it only incidentally covers caste. They have, via the Equality and Human Rights Commission (EHRC), convinced the UN Committee on the Elimination of Racial Discrimination to convey to the British government the necessity of implementing the caste legislation. Hindus have once again been outgunned. All in all, sections of the British establishment are urging that caste be part of British law in some form. The government’s current caste consultation seems specially designed to make British Indians complicit by prompting them to make a choice for the case law. This complicity was led by the secretariat of the All Party Parliamentary Group on Hindus, which early on pushed the argument that the case law justified repeal of the caste clause.

Anyone researching the story of the caste legislation in future will notice that the agitation for it was partly grounded in (unproven) allegations surfacing from the Ravidasi community. Already in 2009, Southall Labour Party MP Virendra Sharma, was championing the inclusion of a caste discrimination clause in the Equality Bill. Although that should have irked the Jat Sikhs the most, Sikhs have remained remarkably silent on the legislation, or like Lord Singh and the Sikh Federation, even supported it. Conversations with experienced Sikh barristers have failed to elicit their interest in possible court challenges to the legislation. Virendra Sharma, much celebrated by Hindus, has since assumed chairmanship of the Indo-British All Party Parliamentary Group, and recently resigned from the All Party Parliamentary Group on Dalits. A trip to visit PM Modi and India’s cabinet members in February 2017 signals that his collusion with evangelist fronts like the Voice of Dalit International to include caste in law has by now completely receded from view.

Opposition to the legislation by Hindus, as the only significant front against the law, has thus occurred almost fortuitously, if understandably, and was probably not counted on by the pro-legislation lobby. Regardless of the strength of this opposition, and I argue that it reveals Hindu weakness rather than any particular strength, the caste legislation has led to problems within Hindu-Christian and other inter-faith fora. Others supporting the legislation such as the National Secular Society, the EHRC, the Labour Party, all of which anyway treat Hindus derisively and as presumptive caste-racists, have been subject to criticism because of their unwarranted support for the law. This explains why there have been recent moves to quell Hindu opposition, such as it is. On 6 February 2017, Lord Harries called a meeting in House of Lords committee room between members of the pro-legislation lobby and some of those holding themselves out as spokespersons for Hindus. Lord Harries was expected to assure Hindus that they would not be the targets of the legislation, thereby attempting to quash the only opposition to the nefarious caste law.

So where should the focus of opposition to the caste law lie? The government’s consultation on the caste law opened in March 2017. Naturally, policymakers should take on board the impact of the legislation and case law on various groups, Hindus included, and Hindus would be right to bring those to light. However, the mainline opposition has to focus on the fact that the caste legislation as well as the case law (which must be overridden by the same amendment that would rid us of the caste clause in the Equality Act 2010) is simply bad policy. It does not just affect Hindus on the basis of the presumed existence of the caste system, which we have shown to be demonstrably grounded on false assumptions. It affects a variety of groups whether their origins lie in South Asia or elsewhere. The law will be unable, as its protagonists have been claiming, to teach any useful lessons to improve public behaviour. No law based on false foundations can; it will merely create more injustice. Being rather more content to pursue their own ambitions, Hindus have been unable to play their full part in making the required case.

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Prakash Shah

Prakash Shah is a Reader in Culture and Law at Queen Mary University of London.