Against Caste in British Law

A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010

Prakash Shah

• Publisher: Palgrave Macmillan
• Year: 2015
• ISBN:
  9781137571199
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book discusses the salience of the caste question in UK law. It provides the background to how the caste provision came into the Equality Act 2010 and how it was reinforced in 2013, and analyses the various interests that played a role in getting caste into law.

1

Intellectuals and the Indian Traditions

Abstract: Chapter 1 is a general introduction to the book and outlines the main issues. It discusses the intellectual context of Orientalist domination of knowledge on India and the caste system, in particular, why it has been difficult to formulate alternatives to Orientalist knowledge and why ‘colonial consciousness’ persists among Indian intellectuals despite formal decolonization. It argues that this is partly why Indian intellectuals have failed to produce critiques of the Orientalist constructions such as the caste system, which now affects Indians in the diaspora through legislation such as the Equality Act. It provides illustrations of how the spectre of a violent sacerdotal core to Indian religion lies at the pre-theoretical root of ideas about the caste system. It suggests that there is a strong ground within Western culture upon which ideas of the caste system can be successfully built to produce campaigns and legislation. The chapter provides a brief outline of the succeeding chapters.

Shah, Prakash. Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010. Basingstoke: Palgrave Macmillan, 2015. DOI: 10.1057/9781137571199.0005.

In the contemporary world, Indian traditions are not infrequently called into question, critiqued, stereotyped, suppressed and negatively affected in many other ways. In fact, one may say that it is a general part of the experience of someone who follows the Indian traditions. The caste discrimination provision in the United Kingdom’s Equality Act 2010, the Wendy Doniger Affair and the portrayal of India and Narendra Modi during and since the recent elections are all instances of this sort of occurrence. When they happen, different types of interventions are made. Representations are sent to politicians and court cases are sometimes brought. We write articles in newspapers that may or may not see the light of day and circumvent restrictions by resorting to blogging and using social media. Much of this activism is done by concerned organizations within the Indian communities or by individuals who take it upon themselves to make their voices heard in defence of Indian traditions. By ‘defence’ here I do not mean that practices found to be wanting or harmful should in some way be allowed to continue. Rather, I want to refer to the challenging of unwarranted attacks on those who practice the Indian traditions. When such challenges are made, the general picture emerging of Indians is nevertheless that they are defending discriminatory practices, that they are against freedom of thought and against academic freedom, and if they defend practices or express indignation as Indians it must be because of their nationalist or fundamentalist leanings, and because they support a fascist regime in India.

What is the role of intellectuals when it comes to the Indian communities of the diaspora? Not many voices of the intellectuals or academics are heard in defence of Indian traditions. Many academics today stand up to challenge racism against black people or raise their voices against Islamophobia. However, academics in Britain who choose to research or comment on the Indian traditions tend to adopt the attitude that Indian traditions are fair game for attack or ridicule, or they use research practices which would not stand up to scientific scrutiny in other contexts. This goes as much for those academics who share an Indian background as well as those of other backgrounds. Meanwhile, academics who choose to defend Indian traditions are few and far between. This raises a whole series of issues and questions about which we cannot go into detail here. However, a few points can be made to contextualize the problem and to note what the implications are.

It is trite to observe that India has suffered from colonialism. Balagangadhara (2012: 112–117) has argued that besides being much else, colonialism was an educational project. While Islamic colonialism in India left little behind in terms of investment in education, the Western approach was different (Balagangadhara, ‘Some Theses’). The British tried to educate Indians in their own vision of the world and that included their vision of Indian culture. Their vision of Indian culture can be conveniently brought together under the rubric of Orientalism (Said 1978) as it was applied to India. They spread this Orientalist vision of Indian culture, together with its ideas of the falsity of Indian religions, the moral backwardness of India and its corruption. Other Europeans added their own assessments to this archive. This is the ground on which the contemporary academic picture of Indian society and culture is built. All intellectuals are influenced by it, including those with Indian cultural background (Balagangadhara 2012: 95–120). Those who choose to think and write about Indian culture inevitably come up against the vast body of work that inscribes corruption and backwardness into the Indian traditions. They may choose to resist it but in so doing they will be left behind in their academic careers or even pushed out of them (De Roover 2014). Those who go along will be supported and promoted. These kinds of practices ensure that a genuine scientific scholarship about Indian culture will not be allowed to emerge in the West and, more tragically, even in India. Wealthier Indians might sponsor institutions and professorial chairs in Indian studies of various kinds but the outcome does not alter much.

Members of Indian communities worldwide sense that there is ‘something wrong’ about the situation but they cannot find a point of entry through which to challenge the status quo. Part of the problem is that little research training has been available to understand how the picture of Indian culture has been developed over the past hundreds of years. We do not understand how Western scholarship, now perpetuated by many Indians themselves, has insinuated itself in every strand of research about Indian culture. This can be done first only by having knowledge of the Western culture and its Christian religious background. In his book Reconceptualizing India Studies (2012), S.N. Balagangadhara continues his efforts to expose these patterned ways of thinking about India. As he argues, we may speak Western languages such as English but it does not mean that we have understood Western culture, for which a much deeper process of research and training needs to occur.

Sacerdotal violence and the caste system

In the current scenario, even when we try to challenge those portrayals of Indian traditions that we do not like, we end up partly accepting the premises on which they are built. So, for example, when challenging the caste discrimination legislation, we might argue that the caste system is a problem, say, in India but not here in Britain. Or we might contend that the caste system existed once upon a time but it is not of relevance now. Or we might even say, as M.K. Gandhi (1869–1948) or the philosopher Radhakrishnan (1888–1975) did, that the original caste system (varna) was a good one but it has since degraded (Inden 1990: 72–73; Bayly 1999: 251–253; Dirks 2001: 234). Such responses basically accept that something of the Western account, which gave rise to the idea of the caste system, represents true knowledge about India.¹ We might say, following Balagangadhara (2012: 95–120), that these are instances of ‘colonial consciousness‘, being a result of the intrusion of the colonial account of Indian culture and society, compelled by the accompanying violence of colonialism. Colonial consciousness involves the compelled acceptance of the colonizer’s account on the part of the colonized even though it is not rationally justifiable. In the process, the colonized is prevented from accessing his own experience, even as he lacks access to the experience of the colonizer.

It is instructive to learn that the idea of the Indian caste system was created by Europeans as they drew on Protestant critiques of Catholicism and positioned the Brahmins as priests of a false religion, Hinduism or Brahmanism, which they said mandated discriminatory practices based on a hierarchy. This constituted the background around which Orientalist accounts of India and its caste system then crystalized. The Aryan invasion theory was brought in to justify the claim of the caste system by adding the idea that there are different races in India. In its simplest form, this meant the aboriginals and the Aryan immigrants, the caste system being the outcome of their resulting interaction. These ways of constructing ‘knowledge’ about Indian society have their roots in Christian, theologically driven assessments of Indian culture and traditions. However, this background framework has been accepted as fact in the theories of those conducting studies on India and Indian communities abroad. Diatribes against Brahmanism and the caste system can be heard from every corner of the secular academic establishment in India and among academics abroad (Gelders and Derde 2003). They do not describe India at all, but merely repeat ideas that Christian theological polemic first installed into Indian minds. It is worth citing the observation by Gelders and Derde (2003: 4617) here:

[W]hen Indian intellectuals take the same story for granted, they end up repeating a protestant Christian theme without Christianity being fundamental to the construction of the Indian culture. What they say must, therefore, be vacuous to a double extent. That they keep repeating the west in endless mantras of anti-brahmanism is not only puzzling, it is tragic as well. They do not only stop thinking, they are bereft of their own experience. The world of the west will never be theirs while the world of their own is no longer accessible due to the western mantras which prevent them from seeing and reflecting upon their own experience. Therefore, if a novel and innovating step towards a different approach of Indian culture is desirable and sought after, it is high time that the Indian intellectuals start taking their colonial experience seriously.

A lot of work remains to be done in terms of carving out a new research agenda capable of defending Indian traditions in ways that are scientifically credible. That this is patchily done today speaks volumes about how Indian intellectuals have been suborned by the colonial visions of their society, described by Venkat Rao (2014: 6) as a state of ‘postcolonial destitution’. Venkat Rao (2014: 18–19) continues his assessment of the colonial impact on Indian intellectual life thus:

It can be argued that European epistemic violence disrupted the prevailing cognitive sense of the colonized people through a two-pronged onslaught: denial of rationality on the one hand and stigmatization of jati (as caste) on the other. If the former distinguished and celebrated European intellectual heritage, the latter configured Christianity’s sense of heathens. But this double attack contributed to the self-denigration of colonially educated Indians; it made them defensive and apologetic about their inherited lot. These two points can be said to offer a litmus test for postcolonial intellectual even to this day; colonial and postcolonial intelligentsia continues to be defensive on these two counts. If from Bimal Matilal to Amartya Sen these highly reputed intellectuals devoted their energies to shore up a “theory of rationality” for India, from Gandhi to “annihilators of caste” our intelligentsia only validated caste as stigma.

The sense of stigma is well reflected in the vision articulated some years ago by Chetan Bhatt, now the Director of the Centre for the Study of Human Rights at the London School of Economics. In his assessment of the Hindu diasporic presence in Britain, Bhatt (1997: 249–250) has argued:

Hindu organizations, including most temples, many of which may be opposed to the extremism of the RSS, are universally structured through caste (jati) membership, as well as gotra (exogamous clan), sampradaya (a movement or loose community based around a spiritual leader), religious sect and regional origin. Every Hindu council is composed mainly of caste defined organizations. These Hindu councils receive significant local state, Labour and Conservative Party patronage, as well as some local authority funds. The persistence of caste prejudice in Hindu communities has barely received attention or opposition from black socialism. It also represents a considerable underdevelopment in secular thinking within multiculturalist and antiracist efforts in Britain.

Thus, long before the agitation on caste took hold in Britain, Bhatt had begun to castigate the Hindu community in Britain for ‘caste prejudice’ and had considered that ‘black socialism’ would be an antidote to such prejudice. On secularist grounds, he also opposes the funding of any Hindu caste-based organization. Bhatt’s stance reflects the kind of dilemma that faces an Indian scholar working in the contemporary academic context. He articulates the shame of caste and the necessity of a deracinated future of his own culture, which some kind of secular black socialism should replace. Western scholars are unable to accept this as a problem because, one assumes, they have little at stake in the questions posed, and the Western culture does not really prepare them to ask questions in ways that are relevant for Indian culture. On the contrary, taking the stance that normatively degrades Indian traditions, which Bhatt does, may well be a passport to being serenaded by Western scholars and courted by Western universities.

Reading contemporary accounts of the caste system, it may be easy to see why there is no escaping the conclusion that Hindus have a caste system which they are (im)morally compelled by their religion to defend. Nicholas Dirks (2001: 3) opens his book on caste by stating that ‘When thinking about India it is hard not to think of caste’. In his widely circulated book Ethnicity, Law, and Human Rights: The English Experience, Sebastian Poulter (1998: 239) wrote in the opening sections of the chapter on Hindus as follows:

One of the most striking elements of Hindu belief and practice – and certainly the most widely criticized – is the classification of individuals and families by caste. Social divisions are determined by birth and a person’s caste affects such crucial matters as marriage partners, forms of employment, and those with whom meals may be taken. Caste taboos in the field of work are hard to maintain in an urbanized environment and hence are to a large extent being broken down, both in Indian cities and in Britain. However, even where such boundaries persist in this country, for example in relation to arranged marriages, attendance at social functions, the formation of community associations, and in the establishment of separate places of worship, they are largely invisible to members of the white community.²

This observation, where Poulter mentions caste as being both an ‘invisible’ yet ‘striking’ element of Hindu belief and practice, underscores the fact that there is a fertile soil onto which ideas about India cultivated over the past centuries can be worked over if only because they have become common-sense Western notions about Indian culture. Centuries apart we can see common themes in how pictures of the caste system were painted. James Mill was one of the influential British thinkers who formulated his critique of India’s caste system. He shared his view of the caste system in his influential text The History of British India (1817, 2: 186–187):

We have already seen, in reviewing the Hindu form of government, that despotism, in one of the simplest and least artificial shapes, was established in Hindustan, and confirmed by laws of Divine authority. We have seen likewise, that by the division of the people into caste, and the prejudices which the detestable views of the Brahmens raised to separate them, a degrading and pernicious system of subordination was established among the Hindus, and that the vices of such a system were there carried to a more destructive height than among any other people. And we have seen that by a system of priestcraft, built upon the most enormous and tormenting superstition that ever harassed and degraded any portion of mankind, their minds were enchained more intolerably than their bodies; in short that, despotism and priestcraft taken together, the Hindus, in mind and body, were the most enslaved portion of the human race.

An image of priestly or sacerdotal violence upholding an oppressive caste system drowning those in its sway in superstitious ignorance comes through from James Mill‘s account here. This image of sacerdotal violence underpins and precedes the building of theories of the caste system. Even though at some variance from one another these ‘theories’ have endured. Such European ideas are now cultivated by Americans vigorously given they have inherited the field of ‘Area Studies’ (Said 1978: 2, 19, 106–107, 275–276; Inden 1990: 36–38), which is a latter-day Orientalism. In his Spirit of Hindu Law, Donald R. Davis (2010: 106) writes thus of his field of study:

This brings us to an ugly side of Hindu law, specifically its view of property. One must acknowledge that the system of castes and life-stages (varnāśramadharma), the notion of dharma that underlies all Hindu law, is an inherently hierarchical and exploitative system of social stratification by birth. Since the system also undergirds and...

Table of contents

• Cover
• Title
• 1  Intellectuals and the Indian Traditions
• 2  Religion, Caste and Race: The Moral Basis of Anti-Caste Legislation
• 3  Equality and Human Rights Commission Reports on Caste
• 4  Caste Discrimination Legislation: Implications for Business, Employers and Organizations
• 5  Caste and Continuing Foreign Interference in Indias Internal Affairs
• 6  Is Caste Already Part of UK Equality Law?
• 7  Conclusion
• Bibliography
• Index