Caste Discrimination: A Twenty‐First Century Challenge for UK Discrimination Law?1

AuthorAnnapurna Waughray
Publication Date01 Mar 2009
DOIhttp://doi.org/10.1111/j.1468-2230.2009.00740.x
Caste Discrimination: ATwenty-First Century Challenge
for UK Discrimination Law?
1
AnnapurnaWaughray
n
Discrimination based on caste a¡ects at least 270 mil lion people worldwide, mostly in South
Asia. Caste as a system of social organisation has been exported from its regions of origin to dia-
spora communities such as the UK, yet despite the prohibition of caste-based discrimination in
international human rights law caste is not recognised as a ground of discrimi nation in English
law.The overhaul of its equal ity frameworkand the proposed new single equality act present the
UK with a n opportunity to align national legislation with international law obligations.The
Government’s decision not to include protection againstcaste di scrimination in the newlegisla-
tion le aves race and religion as the on ly possible legal‘homes’for caste.This article considers the
argument for legal recognition of caste discrimi nation in the UK, the capacity of race and reli-
gion to subsume caste as a ground of discrimination, and the role and limitations of law in
addressing ‘new’forms of discrimination such as casteism.
INTRODUCTION
There is no legal recognition of caste in UK law.
2
Discrimination on grounds of caste
is not recognised as such in existing anti-discrimination legislation, and in criminal
law casteist assault does not count as an aggravated o¡ence, nor is hostility on
grounds of caste recognised as an aggravating feature for sentence.
3
Ye t f o r s om e
groups and individuals within the UK caste exerts a divisive force, albeit one which
is not readily acknowledged and which is largely invisible to the majoritypopulation.
In February 2005 the Labourgovernment announced a two-stage overhaul of
the UK’s equality framework, leading to a new Single Equality Act.
4
The ¢rst
n
Senior Lecturer in Law, School of Law, Manchester Metropolitan University, UK. I am grateful
to Javaid Rehman, Patrick Olivelle, Roger Ballard, Catherine Little, Nick Dearden, Dominc
McGoldrick and Nuno Ferreira fortheir comments on earlier drafts of this article.
1 This article was written with the support of a grant from the UK Arts and Humanities Research
Council.
2 Caste discrimination is unfamiliar to many UK lawyers although the Privy Council and the
Immigration Appeal Tribunal have long addressed questions of caste; see RvSabh arwal [1973]
WL 40695. See also MA (Galgale ^ Sab clan) Somalia CG [2006] UKIAT 00073 where ‘caste’was
construed to include‘clan’.
3 Not all forms of recognised discrimi nation ^ for example age ^ count as an aggravating factor in
English criminal law.Casteist assault is an under-researched issue; see W. Pavia,‘You get involved
in a gang just to take your caste forwardTheTimes11 October 2008.
4 See http://archive.cabineto⁄ce.gov.uk/equalitiesreview/background.html (last visited 13 May
2008).The Labour partycommitted to introduce a Single Equal ityAct in its 2005 General Elec-
tion manifesto.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 7 2(2) 182^219
stage, the Equalities Review,
5
was completed in February2007.
6
In October of the
sameyeartheEqualityandHumanRightsCommission(EHRC)wasestab-
lished under the Equality Act 2006.
7
The second stage, the Discrimination Law
Rev ie w (DLR ),
8
was intended to culminate in the drafting of new legislation to
replace the plethora of existing anti-discrimination statutes and statutory instru-
ments.A Consultationon the new legislationwas launched in June 2007.
9
In June
2008 the government announced its intention to proceed with a Bill
10
with the
publication of its key proposals,
11
followed in July 2008 with its response to the
Consultation.
12
The DLR provided an opportunity to ascertain the existence, forms and
extent of caste discrimination in this country and to bring it within the
new legislative framework. Although the consultation paper did not speci-
¢cally address caste discrimination, the government conducted ‘an informal
survey of around 20 (sic) key stakeholders to determine whether they were
aware of any evidence that individuals or communities had been discriminated
against on grounds of caste, in the UK.
13
The responses led the government to
conclude:
We have decided . . . not to extend protection against caste discr imination. While
recognising that caste discrimination is unacceptable, wehave found no strong evi-
dence of such discrimination in Britain, in the context of employment or the provi-
sion of goods, facilities or services.We would, however,consult the [EHRC] about
monitoring the position.
14
The governments decision to exclude caste discrimination from the Bill runs
contrary to the UK’s obligation under international human rights law to include
a prohibition of ‘descent-based’discrimination ^ of whichcaste discriminationis a
5 The Equalities Review was mandated to investigate the causes of persistent discrimination and
inequality in British society. See Interim Report for Consultation (London: The Equalities
Review, 2006) at http://archive.cabineto⁄ce.gov.uk/equalitiesreview/upload/assets/www.
theequalitiesreview.org.uk/interim_report.pdf (last vis ited 13May 20 08).
6 ‘Fairness and Freedom: The Final Report of the Equalities Review’ (Norwich: HMSO,
2007).
7 EqualityAct 2006, c 3; the EHRCmerges the Commission for Racial Equality (CRE),the Equal
Opportunities Commission and the Disability Rights Commission: see Equality Act 2006
Part 1 s 1, at http://www.opsi.gov.uk/acts/acts2006/pdf/ukpga_20060003_en.pdf a nd http://www.
equalityhumanrights.com/(lastvis ited 13May 20 08).
8 The Department of Tradeand Industry wascharged with developing a simpler,fairer legal frame-
work,informed by the ¢ndings of the Equalities Review; see DLRTermsof Reference, at http://
archive.cabineto⁄ce.gov.uk/equalitiesreview/about/dlr_terms_ref.html (last visited 13 May 2008).
The remit is now with the GovernmentEqualitie s O⁄ce;see http://www.equalities.gov.uk (last
visited 1 October 2008).
9 See‘AFramework for Fairness: Proposals for a Single Equality Bill for Great Britain ^ a consulta-
tion paper’(London: Department for Communities and Local Government, 2007).
10 HC Deb vol 478 col 499 26 Jun 2008.
11 Frameworkfor a Fairer Future:TheEquality Bill Cm 7431(2008).
12 The Equality Bill ^ Government respo nse to the Consultation Cm 7454 (2008).
13 ibid18 3.
14 ibid17 7.
AnnapurnaWaughray
183
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(2) 182^219
sub-category
15
^ in domestic law.
16
Instead, the pre-review position will apply,
namely that caste discrimination is unlawful only if considered a form of discri-
mination on othergrounds, for example race or religion.
This article considers the absence ofcaste discrimination inUK discrimination
law, against the backdrop of growing governmental and parliamentary concern
with caste discrimination overseas
17
and United Nations (UN) condemnation of
descent-based discrimination worldwide.
18
I argue that there is evidence of the
existence of caste and casteism within South Asian communities in Britain
(this is not the same, of course, as arguing that casteism is rampant nor that it is
present at all times, in all circumstances, among all members of South Asian
communities). I also contend that, on the basis of existing evidence, it is prema-
ture to conclude that caste discrimination is not a problem in this country. The
government’s decision not to legislate for caste discrimination raises the question
of whether caste is subsumedwithin any other recognised ground ofdiscrimina-
tion. Of the existing bases of discrimination only racial and religious grounds
contend as possible legal ‘homes’ for caste; yet caste cannot be captured by racial
grounds as currently formulated unless deemed a form of race or ethnicity (and
probably eludes capture by indirect discrimination as a non-regulated form of
discrimination); and religious discrimination law captures caste discrimination,
if at all, in speci¢c and limited circumstances only. I therefore argue for explicit
protection against caste discrimination, which I suggest is best achieved by
amending the de¢nition of ‘racial grounds’ in the Race Relations Act 1976
(RRA)
19
to include a new sub-category of descent or caste. The second section
of the article outlines the key features of caste and caste discrimination; the third
section charts the inter national huma n rights law response to cas te discrimination
and its signi¢cance for countries with caste-a¡ected diasporic communities
such as the UK; section four argues that caste has been exported to the UK, and
contrasts the readiness of parliamentaryand governmental actors to address caste
discrimination overseas with their apparent reluctance to engage with caste
discrimination as a domestic issue; the ¢fth section critiques the UKs
equality framework, arguing that existing provisions on racial and religious
15 See Committee on the Elimination of Racial Discrimination (CERD), concluding observations
on India’s n inth to fourteenth reports, 22 August 1996; UN Doc. CERD A/51/18 (1996), 352;
CERD,general recommendation XXIX, 22 August 2002; UN Doc. A/57/18(2002) 111. See also
Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human
Rights (UN Sub-Commission), Resolution 2000/4 Discrimination based on work and descent,
11August 2000; UN Doc. E/CN.4/Sub.2/2000/46,23 November 2000, 25.
16 See CERD, general recommendation XXIX, 22 August 20, ibid, Article 1(a)^1(c). See also
CERD, concluding observations on the UK’s sixteenth and seventeenth reports, 20 August
2003; UN Doc. CERD A/58/18 (2003), 544.
17 See eg HC Deb vol 439col 371^390 WH, 22 Nov2005, Caste Discrimination Overseas (Govern-
ment Policy);HC Deb vol 460 col 25^46 WH, 8 May 2007,India (Caste System); HL Debvol 690
col 1434^1436, 26 March 2007,India’s Dalits.
18 See UN Sub^Commission, n 15, above. See also R. K.W. Goonesekere, working paper on the
topic of discrimination based on work and descent, UN Sub-Commission; UN Doc. E/CN.4/
Sub.2/2001/16,14 June 2001, paras 8^44 and 49; A.Eide a ndY.Yokota, expanded working paper
on the topic of discrimination based on work and descent, UN Sub-Commission; UN Doc. E/
CN.4/Sub.2/2003/24, 26 June 2003,paras 10^43.
19 Race Relations Act 1976, c 74(London: HMSO,1995).
Caste Discrimination
184 r2009 TheAuthor. Journal Compilation r2009 The Modern Law ReviewLimited.
(2009) 72(2) 182^219

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