Should the UK include Caste within the Equality Act? Critical Race Theory and the Complexities of Caste Justice
Including caste within the Equality Act is insufficient to achieving caste justice. Only individuals and social movements can provide lasting social change.
Caste refers to the multiple overlapping systems of hierarchy originating in India to organise economic and social life. It divides people into inherited social groups (castes) at birth and are often assigned a particular role or occupation in society. Non-dominant castes such as Dalits (formerly known as ‘untouchables’) and Adivasis are considered ‘impure’ and are often forced to do the most unpleasant jobs and face atrocious violence and discrimination, despite casteism being illegal in India after gaining independence. Caste discrimination often takes the form of ‘untouchability’ such as endogamy (controlling marriages), restrictions to accessing services such as education, and non-dominant castes being restricted from sharing eating or drinking spaces with dominant castes.[1]
As Indian nationals migrated to other countries including the UK, so did the caste system. A Government-commissioned report shows of caste discrimination across the UK such as bullying in schools, harassment at work and discrimination in healthcare.[2] In response, several caste justice organisations in the UK have emerged such as the Dalit Solidarity Network (DSN) and Anti-Caste Discrimination Alliance (ACDA). Their activities involve raising awareness, delivering trainings for trade unions, organising protests and providing spaces for people born into non-dominant castes to share their experiences.[3]
(Photo Credit: Alamy, accessed on BBC News 2019 https://www.bbc.co.uk/news/world-asia-india-35650616)
The caste issue has been picked up by the media and sympathetic allies in the British left and legal community. Their focus is the inclusion of caste to within the Equality Act. Indeed, the DSN argues that despite caste being considered an aspect of race within an important piece of caste law, the explicit inclusion of caste in the legislation would encourage more discrimination cases to be brought to UK courts and ultimately achieve caste justice.[4] It is also worth noting that the British legal system has been historically complicit in the formalisation of caste in India during colonialism; the unification of previously diverse Indian communities into ‘a single society with a common law.’[5]
Legal recognition would certainly be an improvement to the current ambiguous situation in accessing formal justice. Yet the history of equality legislation gives us reason to be wary of the ability of legal change to bring caste justice and eliminate discrimination. I make this argument not to disparage caste justice organisations but to stress the importance of their other work which often goes ignored in the media and left wing or legal allyships. Moving forward, I will assess the position of caste in the current legislative context, using Critical Race Theory to delineate the limits of legislative change and point to opportunities for broader caste justice.
Caste in UK law
Caste retains an ambiguous position in UK equalities legislation. The power to include caste as an ‘aspect’ of race was included in Equality Act 2010 s 9(5)(a)[6]. Later, the Enterprise and Regulatory Reform Act 2013 s 97(3)[7] turned that power into a ‘duty’, requiring the government to add caste to race yet without illuminating how this was to be done. After consultation, the Government concluded that it was not necessary to expand the Equality Act because caste was already covered by a recent piece of case law from an Employment Tribunal – Tirkey v Chandhok & Anor.[8][i9]
This case was the first time the Equality Act was used to find that a plaintiff was discriminated against because of their caste. It found that Tirkey was recruited by Poojay and Ajay Chandhok from India to be their cleaner and nanny, taking advantage of her Adivasi caste status and inability to speak English. They subjected her to awful conditions including verbal abuse, meagre pay, 18-hour working days, forcing her to sleep on the floor, withholding her passport and preventing her from calling her family.[10] The tribunal found the working conditions to violate her employment rights, and hence established a precedent of including protection from caste discrimination within the Equality Act.[11] Tirkey rightly won significant damages, and the explicit and obvious casteism was such that it could not have been anything else – a point to which we shall return.
However, scholarly scrutiny uncovered that the Tirkey currently does not cover issues such as the public sector equality duty under the Equality Act and that it is a very weak precedent until caste as an aspect of race is confirmed in the Supreme Court or established as common ground.[12] Despite this, in 2018, the government considered Tirkey was enough to repeal the duty to name caste in the Equality Act.[13] While organisations differ on the way the law should be expanded to protect caste systems, all of them agree that this confused legal situation will detrimentally deter potential claimants and opportunities for justice. However, the assumption that expanding equalities law will lead to broader caste justice is worth examining further.
(Photo Credit: Thinkstock, accessed on BBC News 2015 https://www.bbc.co.uk/news/uk-34330986)
Critical Race Theory and Caste
How can we know whether legal coverage will be enough to protect people from caste discrimination? Predicting the future is a mug’s game but our best option is to learn from the history of anti-discrimination legislation and the theories which help us make sense of it. The most useful – and most misunderstood – is Critical Race Theory (CRT). CRT emerged in critical legal scholarship in the US as it became obvious that the hard-fought gains of the Civil Rights Movement for legal protection had not translated into the broader elimination of racism in society.
CRT purports that race is not a biological concept but a social construct that changes over time: it can be reinforced, recreated or undermined in everyday interactions, however subtly or overtly. Racism is also embedded within our institutions evident in the outcomes for racialised people, for instance in the criminal justice system or education. The everyday and institutional natures of racism make it is difficult to find an area or interaction untouched by it.[14] Unfortunately, legal justice is simply unable to address this kind of racism because it presupposes that there is a clear line where normalcy ends and racism begins. That is why despite legal equality there is still an abhorrent level of racism in society, and equalities legislation can only address the most explicit and obvious manifestations of racism.
Nonetheless, we should be wary of making a general comparison between race and caste because they have crucial differences. There are hundreds of caste groups in multiple systems, arranged differently across space and time and allows for a possibility of mobility which is impossible in the racial hierarchy. And of course, many living in the UK have never even heard of caste so it does not hold anywhere close to the same structural position as race. Nevertheless, the anthropologist Gajendran Ayyathurai has called for a ‘Critical Caste Theory’ departing from traditional legal counter-caste solutions and recognising the everyday practices of Indians and their movements both in India and the diaspora.[15] To support his theory, the normality and everyday socially constructed nature of casteism in the South Asian diaspora present similar challenges to any expanded equalities law as racism.
Arguably, explicitly naming caste in the Equality Act would encourage more people to bring cases and would probably help with cases less clear-cut than Tirkey. The current confusion reinforces both the perception that caste issues cannot be resolved in courts and the reluctance to bring cases forward due to the financial costs and fears of reprisals in the diaspora. Furthermore, there is no guarantee that further case law would take the issue of caste discrimination in a desirable direction. Addressing caste directly in legislation could contribute to a greater confidence that caste discrimination cases would be taken seriously and have a good possibility of success.
However, the practical issue arises of how claimants would be able to convince courts that discrimination is due to caste. if someone’s facial expression changes when they hear your surname, they avoid eating with you or refuse to let you a room, how will you be able to convince a court that it is because of your caste? The ACDA report titled ‘Hidden Apartheid’ shows the scale and often subtlety of casteism such as exclusion from social events, missing promotion, and peer-on-peer cases in schools; emphasising that up to 58% of the Adivasi diaspora in the UK may have experienced caste discrimination.[16] Recognising the normalcy and diversity in scale of casteism, the DSN has set up a project called ‘Everyday Casteism’ encouraging everyone to report their experiences of discrimination regardless of its severity.[17] Even if the law is expanded, the many often subtle or unrecorded scenarios of caste discrimination would fall well below the threshold for a possible legal case.
A further issue is that courtrooms themselves are already sites of institutional racism. A recent report uncovered the widespread discriminatory practices by judges in UK courts against racialised people, especially against working-class ethnic minorities.[18] The caste intersection of race and class places potential claimants in a precarious situation and until current issues are addressed it is difficult to see why potential non-dominant caste claimants would be treated fairly in courts.
To sum up, when few instances of caste discrimination would carry enough evidence to convince a courtroom, legal change is insufficient to achieve caste justice, especially given the institutional racism evident in courts. Instead, CRT and its concomitant Critical Caste Theory suggests that long-lasting social change happens not in the courts, but in everyday interactions and through non-dominant caste social movements.
Prospects and opportunities
Unfortunately, there are good political reasons for caste justice activists not to rely on government intervention for action. Despite 26 of India’s opposition parties uniting into an electoral coalition, Narendra Modi’s BJP is still on track to win the 2024 election.[19] In the UK, the Conservatives and Labour are allying themselves with powerful Hindu lobby groups with links to the BJP who vociferously oppose other countries legislating against caste discrimination.[20][21] These groups such as the Hindu Forum of Britain and the National Council of Hindu Temples are influential with Hindu voters so both parties have a domestic political interest to refuse the proposed legal change. From a geopolitical perspective, it is in the interest of the UK government to maintain positive diplomatic relations with the BJP. Any UK government would face pressures to secure a good post-Brexit trade deal and a long-term security partnership to balance against the regional influence of China. Attempts to change the law are likely to be frustrated by these domestic and geopolitical contexts.
Although this might sound defeatist, it isn’t supposed to be. The outcome of equalities legislation expansion may not achieve caste justice in wider society but the very act of coming together gives caste justice organisations meaningful agency to assert their interests and concerns. Movement efforts such as reporting Everyday Casteism, raising awareness, protests, calling out powerful Hindu lobby groups, and forcing caste onto the political agenda are all necessary for challenging caste discrimination on the ground. In the same way, individual efforts to challenge and put aside the assumptions of their predecessors should be recognised as a legitimate front of the caste justice struggle.
In conclusion, there are manifold opportunities for lasting social change beyond legal change, many of which are being propagated by non-dominant caste movements today. Broader cultural change is necessary to counteract such a deeply ingrained system of thought. The wide-ranging activities of caste justice movements and those of individuals are to be commended and provide a source of hope for those interested in comprehensive justice.
[1] Dalit Solidarity Network UK, ‘What is Caste?’ <https://dsnuk.org/caste-discrimination/what-is-caste> accessed 16 October 2023.
[2] National Institute of Economic and Social Research, ‘Caste discrimination and harassment in Great Britain’ (December 2010) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/85523/caste-discrimination.pdf> accessed 15 October 2023.
[3] Dalit Solidarity Network UK, ‘What we do’, <https://dsnuk.org/what-we-do/> accessed 15 October 2023.
[4] Dalit Solidarity Network UK, ‘Caste in the UK’, <https://dsnuk.org/caste-in-the-uk/> accessed 16 October 2023.
[5] Sanjoy Chakravorty, ‘Viewpoint: How the British reshaped India’s caste system’, BBC News (19 June 2019) < https://www.bbc.co.uk/news/world-asia-india-48619734>
[6] Equality Act 2010 s 9(5) (a)
[7] Enterprise and Regulatory Reform Act 2013 s 97(3)
[8] Penny Mourdaunt, ‘Government Response to Caste Consultation’, statement UIN HCWS898, <Written statements - Written questions, answers and statements - UK Parliament>
[9] Tirkey v Chandhok & Anor [2014] UKEAT/0190/14/KN
[10] BBC News, ‘Woman awarded £184k in ‘first caste discrimination’ case’, BBC News, <Woman awarded £184k in 'first caste discrimination' case - BBC News>
[11]Tirkey v Chandhok & Anor [2014] UKEAT/0190/14/KN
[12] Annapurna Waughray and Meena Dhanda, ‘Ensuring protection against caste discrimination in Britain: Should the Equality Act 2010 be extended?’ (2016) 16 International Journal of Discrimination and the Law 2-3.
[13] Nafees Mahmud, ‘How the caste system impacts lives of South Asians in the UK’ TRTWorld <https://www.trtworld.com/magazine/how-the-caste-system-impacts-lives-of-south-asians-in-the-uk-58939>
[14] Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction. (3rd edn, New York University Press 2017)
[15] Gajendran Ayyathurai, ‘It is time for a new subfield: ‘Critical Caste Studies’’ LSE Blogs (5 July 2021) <https://blogs.lse.ac.uk/southasia/2021/07/05/it-is-time-for-a-new-subfield-critical-caste-studies/>
[16] Anti Caste Discrimination Alliance, ‘Hidden Apartheid – Voice of the Community’<https://idsn.org/wp-content/uploads/user_folder/pdf/New_files/Other_documents/Hidden_Apartheid_-_Voice_of_the_Community_Executive_Summary_2.pdf>
[17] Dalit Solidarity Network UK, ‘Report Everyday Casteism’ <https://dsnuk.org/caste-in-the-uk/report-everyday-casteism/> accessed 16 October 2023
[18] Keith Monteith QC et al, ’Racial Bias and the Bench’ (November 2022) <https://documents.manchester.ac.uk/display.aspx?DocID=64125> accessed 22 October 2023.
[19] YP Rajesh, ‘Inflation hurting Modi, but still likely to win India’s 2024 polls, survey shows’ Reuters <https://www.reuters.com/world/india/inflation-hurting-modi-still-likely-win-indias-2024-polls-survey-2023-08-25/>
[20] Nafees Mahmud, ‘How the caste system impacts lives of South Asians in the UK’ TRTWorld <https://www.trtworld.com/magazine/how-the-caste-system-impacts-lives-of-south-asians-in-the-uk-58939>
[21] South Asia Solidarity Group, ‘Letter to Keir Starmer: Don’t Align Labour with Modi’s Regime’ Tribune (17 June 2020) <https://tribunemag.co.uk/2020/06/modi-kashmir-and-the-indian-diaspora-a-letter-to-keir-starmer>