Hate crimes and the law: Introducing caste hatred as a public order offence

Publication Date01 June 2021
Date01 June 2021
AuthorZia Akhtar
DOI10.1177/20322844211012095
SubjectArticles
Article
New Journal of European Criminal Law
2021, Vol. 12(2) 166183
© The Author(s) 2021
Article reuse guidelines:
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DOI: 10.1177/20322844211012095
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Hate crimes and the law:
Introducing caste hatred as
a public order offence
Zia Akhtar
Grays Inn, Honorary Society of Grays Inn, London, UK
Abstract
The UK government has been provided with evidence that minorities who are of South Asian origin
suffer discrimination based on castewhich is a particular characteristic of Indian sub-continental
culture and society. It is prevalent in the Hindu diaspora in the UK and beyond. The issue that needs
to be addressed is whether caste hatred can become part of any statutory denition of criminal law
that will bring it on the same level as religious and racial hatred. This requires an analysis of the
general category of hate crimes with a focus on the racial and religiously aggravated offences. The
article examines several trends within the domestic legislative framework and case law as well as
international law. It is proposed that caste should be considered as part of race for the purpo ses of
hate crimes and that in the UK jurisdiction specically Section 9 of the Equality Act 2010 should be
amended to include caste as part of race which will then lead to caste hatred falling within the
denition of a racially aggravated hate crime.
Keywords
Caste, racial hatred, racially aggravated offence
Introduction
There is a large South Asian community in the UK, and many community members belong to the
traditional clans that are stratied by a historic caste system. On the lowest rung are the Dalits who
are also known as the untouchables. They are descended from the lowest rung of the strata in the
Corresponding author:
Zia Akhtar, Grays Inn, Honorary Society of Grays Inn, South Square, London WC1R 5JS, UK.
Email: plawsgrad@gmail.com
Hindu religious pyramid.
1
The highest echelon are the Brahmins who traditionally dominate the
formal structure of the Hindu faith and exercise the most inuence.
2
The discrimination against the
lower castes who occupy the bottom tier in this hierarchy has been the object of legal action in the
civil courts for discrimination under the Equality Act 2010.
3
This article argues that remedies in
civil/administrative law are not sufcient and that caste hatred should be criminalized as a form of
racially or religiously aggravated hate crime.
4
Caste hatred is an insidious form of offensive behaviour. The denition of caste is based on very
narrow criteria that are set out in the explanatory notes to Section 9 of the Equality Act 2010. These
dene caste as
[...] [a] hereditary, endogamous (marrying within group) community associated with a traditional
occupation and ranked accordingly on a perceived scale of ritual purity. It is generally (but not ex-
clusively) associated with South Asia, particularly India, and its diaspora. It can encompass the four
classes (varnas) of Hindu tradition (the Brahmin, Kshatriya, Vaishya and Shudra communities); the
thousands of regional Hindu, Sikh, Christian, Muslim or other religious groups known as jatis; and
groups amongst South Asian Muslims called biradaris. Some jatis regarded as below the varna hierarchy
(once termed untouchable) are known as Dalit.
5
Section 9(5) of the Equality Act 2010, headed race, contained a provision giving a government
minister discretion to act via ministerial order to amend the section, so as to provide for caste to be
an aspect of race. This section was amended by Section 69 of the Enterprise and Regulatory Reform
Act 2013, so as to make the effecting of this change mandatory. However, such a ministerial order is
still missing at present, and until caste hatred is introduced into legislation as a form of self-standing
racial discrimination, the legal protection against this form of victimization remains within the scope
of racial and religious discrimination, if the racial and religious grounds for discrimination are
1. Bhimrao Ramji Ambedkar, one of the framers of the Indian Constitution who was from the Dalit background, dened caste
as an enclosed classand endogamy is the only characteristic of caste. See Bhimrao Ramji Ambedkar, Castes in India:
Their Mechanism, Genesis and Developmentin ValerianRodrigues (ed.), The Essential Writings of B.R. Ambedkar (OUP
2002) 241262.
2. The substantive and underlying principle of the caste system is VarnaDharma or in essence the division of labour. Marc
Galanter argues that the abolition of slavery at the middle of 19th century extended discriminatory rights to many
untouchablesincluding the untouchables who had access to the courts at least formally. The legal system was not
organised to deal with graded inequalityand the overall British approach towards caste was a policy of
interference. This was effected by the courts by the granting injunctions to restrain member of particular castes
from entering temples even ones that were publicly supported and dedicated to the entire Hindu community.There
were damages awarded for puricatory ceremonies necessitated by the pollution causedby the presence of the lower
castes; suc h pollution was actionable as a trespass on the person of the highercaste worshippers .See Marc Galanter,
Untouchability and the Law(1969) 4 Economic and Political Weekly 131133.
3. Chandhok v Tirkey and Anor [2015] ET 3400174/2013.
4. Also relevant is the Crime and Disorder Act 1998 (amended by Anti-Terrorism, Crime and Security Act 2001 and Part 11
of Schedule 9 of the Protection of Freedoms Act 2012). This Act created a number of specic offences of racially
aggravated crime, based on offences of wounding, assault, damage, harassment and threatening/abusive behaviour. See
Racist and Religious Hate Crime Prosecution Guidance(Crown Prosecution Service, 21 October 2021) https://www.
cps.gov.uk/legal-guidance/racist-and-religious-hate-crime-prosecution-guidance (accessed 17 March 2021).
5. Doug Pyper, The Equality Act 2010: caste Discrimination(Brieng Paper Number 06862, House of Commons Library,
31 December 2014).
Akhtar 167

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