Caste in Britain: A Socio-Legal Review

 

A study done by scholars from University of Wolverhampton, Manchester Metropolitan University, Middlesex University and University of London has come out with the following findings and recommendations with respect to the pratice of caste among the population from the Indian Sub-continent:

 

"This report has examined the issue of caste in Britain with a specific aim to establish the manner in which caste can be made an aspect of race for the purposes of the Equality Act 2010. The process of consultation with stakeholders (detailed in Dhanda et al, 2014b) has provided insights into how communities, experts, practitioners and victims, among others, have viewed the legislative proposals; these have informed the analysis throughout. Caste has long defied categorisation, and its manifestations in Britain are a source of continued analysis across disciplines and cultures.

 

The report emphasises that the current state of the law is contested, with emerging judicial decision-making clouded by the absence of clear guidance on the status of caste within British law. It questions whether the existing law, as set out in the Equality Act 2010, is sufficient to engage with caste discrimination and provide judicial oversight and remedies.

 

While situated in a national context, the report has also sought an international perspective, drawing on the experience of legislating for caste discrimination in other jurisdictions. It has similarly drawn on the precedents set at the international human rights level. It has located the present proposals within a wider international push towards greater legal recognition of caste discrimination, with the UK potentially providing a template that may be followed by other States.

With this in mind, we conclude that implementing the statutory requirement that caste be made an aspect of race is a question of great import. It requires reflection as to how the law can respond to the complexity of caste in Britain, and provide sufficient flexibility to address the experience of victims, while ensuring clarity for those who will engage with the legal procedures.

 

Caste as an aspect of race

 

The report has sought precise answers as to the correct legal formulation of caste as an aspect of race, taking as its departure point that the legislative duty in section 97 of the Enterprise and Regulatory Reform Act 2013 reads only that caste be made an aspect of race, and does not specify how this is to be done.

 

It has outlined the options available to legislators in this regard, weighing these against the experience or practice of caste as witnessed in a marginal group of specific cases, or in wider caselaw on aspects of race and religion or belief.

 

The available pathways are an interpretative approach, whereby caste is read into existing subsets of race, in particular ethnic origins; or an iterative approach whereby caste is named as a fifth subset of race, additional to the four existing subsets.

A further pathway is to employ the international term „descent‟, although this option has been rejected by legislators; descent already has its own meaning within UK equality legislation and it is a feature of caste but does not capture all the elements of caste.

 

It does not appear as a statutory term in the UK, and the fear has been voiced that to introduce it as an express term could open the door to claims based on other grounds such as social class, which Parliament has rejected.

 

The caselaw at present is divided as to whether caste can be read into ethnic origins. The report has outlined differences in kind between the concept of ethnicity and the concept of caste. Similarly, it has indicated the shortfall in other characteristics, notably religion or belief. Caste is a complex and evolving concept in Britain, and as such, it seems that the judicious path is to name caste as a fifth subset of race.

 

This would provide legal clarity, situate caste within the Equality Act 2010, and avoid complex and rebuttable interpretative arguments.

 

The proposed “sunset clause” is without precedent in discrimination law. Specific timeframes are usually reserved for affirmative action policies rather than non-discrimination clauses. The spirit of the Equality Act 2010 is to combat specific instances of discrimination as it arises, and generate attitudinal change.

 

If caste discrimination is to recede, it ought nevertheless to remain within the ambit of the Equality Act 2010 to guard against future practices, rendering it congruent with the other characteristics and subsets within the legislation, and with the nature of equality and non-discrimination law.

 

Definition of caste

 

Currently there is no consensus on how a definition of caste should be formulated. The existing Equality Act Explanatory Notes on caste (2010) provided the first elaboration of caste in British equality law, although the text is now perceived as unsatisfactory by experts and stakeholders (see Dhanda et al, 2014b).

 

Consequently there is a need to elaborate a new formulation or definition that more accurately reflects the experience of caste in Britain. The international experience is largely unhelpful, with the question of a definition sidestepped in other jurisdictions that have a legal engagement with caste.

 

A starting point for a definition is provided by CERD General Recommendation 29, quoted above, but this document is of an international character and its formulation is consequently wide-ranging.

 

The present report has explained both the complexity of caste and the need for separate treatment of caste in law, for example by way of express iteration of caste as an independent sub-category of race. We conclude that any definition – whether on the face of the Act or in the Explanatory Notes - ought to be expressive of caste in Britain and should draw on key terms.

 

It needs to be sufficiently open to cover caste as understood and experienced in Britain; it should delineate the boundaries of the category but should not be overly prescriptive. In this regard, it is suggested that the definition, whether forming part of the wording of the Act or its Explanatory Notes, could include the following elements: endogamy, social stratification, and (inherited) status and examples could be provided in the Explanatory Notes as is currently the case with race and religion.

 

Path Ahead

 

There is a growing research community on caste in Britain, exploring its facets and manifestations. This is multi-disciplinary and asserts a variety of perspectives. Caste has a long legal history in a range of jurisdictions, and the present research in Britain is linked to the wider international study of caste discrimination.

 

At the international level, the UN literature emphasises the indicative nature of its present standards, notably General Recommendation 29, which is exploratory in tone as it seeks more information on the nature of caste and descent-based discrimination as experienced by a number of States and regions, and the form and efficacy of legal remedies.

 

Given the particular focus of the present report, it is perhaps appropriate to signal that the functioning of caste in the Equality Act 2010 will be played out in caselaw. At present, resources are being diverted in terms of legal analysis towards arguments as to how existing characteristics can be interpreted to include caste.

 

With greater legal clarity provided by the legislative amendment, the focus will shift to how caste is manifested, the forms discrimination may take, and the experience of victims of caste discrimination.

 

The present report is a contribution to an emerging area of discrimination law, outlining the context and legal pathways available to situate caste within the Equality Act 2010. It is intended to provide guidance as to the options available and generate discussion on potential legal pathways. The multi-layered experience of caste in Britain will emerge in the application of the Equality Act 2010, as more voices are added to this growing discourse. Full report

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