This article features in Public Spirit’s special theme on Equalities and Religious Difference.
In this comment, I draw attention to why legislation against caste discrimination came to be passed in 2013 even though a serious case for it had not been established. Drawing on parliamentary debates, this short article explains the push to legislate without due consideration by reference to the persistence of Orientalism in British culture and its linked notions of the corruption of Indian culture and society.
The latest action in the effort at enacting a legal provision against caste discrimination became a reality in April 2013. The government accepted that ministers would be obliged to implement the provision inserted at the last-minute in the Equality Act 2010, adding caste as another ‘protected characteristic’. The government, not wholly convinced of the need to extend a piece of legislation, has bought some more time, pending a study commissioned by the Equality and Human Rights Commission. Recent reports indicate that implementation would not be done for another two years, thus kicking its actual prospect once more into the proverbial long grass. Yet it remains the case that the 2013 amendment to the Equality Act, which was provoked by a House of Lords lobby of anti-caste peers who forced the government’s hand, had wide support among parliamentarians. The Lords voted in its favour twice and, in the end, the government did not resist, given ambivalence within its own coalition, while the Labour Party has adopted a blanket pro-equality stance.
When discussing caste and, more seriously, when legislating on it, a series of confusions occurs about what we are talking of and what we are aiming to do. The emotions stirred by the issue of caste, and a measure of self-righteousness, have a role to play in shaping the level of the discussion but, more critically, there is confusion as between Indian senses of caste and Western understandings of it. This does not make for a clear approach, particularly important where law-making is concerned. There is the unintelligibility when looking across from the Indian and Western cultural frames at the other. Western culture is based on religion, which constitutes it, while Indian culture is a traditional culture. Although the two frames of Western and Indian cultures can be used when considering the question of caste and discrimination, the dominant frame is the Western because it determines the shape of the contemporary discussion. Even arguments against caste discrimination legislation have to take place within the Western normative framework. When discussing caste, many Indians too speak as if they operate from within the Western framework, even though their underlying concerns may arise from more ‘hybrid’ and complicated stances, involving commitments to two different cultural frames.
“When discussing caste and, more seriously, when legislating on it, a series of confusions occurs about what we are talking of and what we are aiming to do.”
The specific quality of the Western culture that most immediately concerns us here is that it works on the basis of norms, and legislation proceeds according to underlying normative commitments. For instance, it postulates that everybody is equal and so there ought not to be any discrimination on grounds of caste. This normative framework is, however, further circumscribed in as much as the Equality Act deals with discrimination in certain delimited spheres. There is a distinction between strictly legally actionable prohibitions and other ethical norms, which cover a wider number of spheres. In a legal context such as the Equality Act, we are speaking of certain areas of life including employment, professions, service provision, education and housing. But these are often fused in the wider ethical framework with other concerns about caste specific preference in marriages or disputes around temples. One may say, meanwhile, that Indian culture enables neither normative ethics nor equality as an ethical norm to be made sense of. Distortions inevitably occur and, given the anti-traditional nature of the Western ethical order, Indians can legitimately feel under threat, although they may not be able to pin down what that threat consists of and why they feel threatened.
In the case of discrimination on religious grounds, legislation in Britain was largely introduced as a result of a persistent campaign by Muslims. There was the European legislation – Council Directive 2000/78/EC – which obliged Member States to adopt laws against religious discrimination restricted to employment. That Directive was implemented, but Britain went further making legal action possible for religious discrimination also in service provision, professions, housing, and education via the Equality Act 2006. This regime continues in the current Equality Act 2010. The push to include caste in the 2010 Act came from lobby groups linked to Churches that have a campaigning agenda, which appears to relate more to the Indian situation than to Britain. Briefly put, the agenda appears to be that efforts made towards gaining recognition for Christians in jobs and education reservations in India could bear greater fruit if it could be shown that Dalits, a political term employed for ‘low caste’ people, enjoyed the support of the British legislature. The efforts of Churches to proselytise in India appear directed more intensely among Dalits, with a reportedly large proportion of Christians said to be Dalits. So the campaign for legislation in Britain comes not from any significant section of the Indian communities, but from select lobby organisations, who have put up a spurious case that caste discrimination exists in Britain.
“Given the anti-traditional nature of the Western ethical order, Indians can legitimately feel under threat, although they may not be able to pin down what that threat consists of and why they feel threatened.”
Well before the caste discrimination legislation came onto the scene there was a pre-existing, tried and tested model of anti-discrimination law to which different grounds have been added successively over the years. Different kinds of exceptions have also been made, for sex, disability, religion or sexuality, to limit the scope of actionable discrimination. So, in the past, legislators carefully considered the extent to which the public interest required the scope of legal provisions against discrimination on a particular ground to be reduced or enlarged. Important here is not whether we agree with the exceptions or special applications to anti-discrimination law, but rather to notice the fact that they exist, tailored to the type of discrimination one is talking of. Religion, for example, enjoys very large exceptions that allow certain services to continue to be provided according to criteria, which distinguish according to religion. This is understandable in a culture such as the United Kingdom or the West, which is constituted by a religion. Not to provide broad exceptions for religious conscience would be to create havoc in society because, suddenly, all types of highly disruptive claims may be coming forth. The intelligibility that religion lends to conscientious objection among Jews, Christians, and Muslims is not accessible to members of other cultures, so the law effectively caters to preferences of some groups but not of others. Recently, I was contacted by a BBC correspondent about the refusal to provide funeral services by some mosques because the deceased were members of a different sect of Islam, a Shia or an Ahmadi. We are at not at the stage yet where we might oblige anybody offering funeral services to provide them to members of different religions or sects.
“The background framework to the Western understanding of caste means that evidence is not required for legislating against it because its immorality is clear.”
The point is that not only has no debate taken place about the propriety of introducing caste as a ground for discrimination, still less has it been considered what the proper scope of any such legislation should be. The issue of legislative coverage, in so far as it is aimed at curbing any mischief, is ambiguous. The official report by National Institute for Economic and Social Research (NIESR) showed no clear case for applying caste discrimination legislation. It cited temples and marriage as being among the concerns, although no serious case can be made for extending anti-discrimination law to these areas. Indeed, sometimes, one gets the impression that the aim is to eradicate caste in general, not surprising, given the default intuition that caste is an inherently discriminatory and immoral institution. What will happen to the many caste-based organisations which constitute the associational structure of many Indians? Many Hindu, Jain and Sikh organisations have said they were bypassed in consultations on the legislation. Some legislators showed great confidence in their ability to see the mischief and act upon it. Some said that a single case of caste discrimination is enough to act. The NIESR study’s refusal to give support to the claim that caste discrimination was a problem was irrelevant. Another said research was not required. A member of parliament for a Leicester constituency since revealed that ‘I have never seen any evidence of caste discrimination in Leicester.’
The background framework to the Western understanding of caste means that evidence is not required for legislating against it because its immorality is clear. European travellers and missionaries in the past told stories of how the Brahmins in India prevented their followers from converting to Christianity. As such they were the evil priests who kept their people languishing in idolatry. The European missionaries’ problem with Indian society was not with socio-economic equality, but with the religion the people followed. Once connections were made between Indian and European languages, it was thought incumbent upon the European Aryans with their superior religion, Christianity, to bring new civilising light to the parlous moral state of the Indians. Orientalist writings depict the Brahmins and those who followed them because of the religion they espoused, the language they spoke, and institutions and laws they established, as one people, race or nation, the Aryans. Others, upon whom the ‘Brahmanical’ religion and laws were imposed, being a different people, were excluded from the laws and institutions of the Hindu Aryans. This was backed up by the Aryan intrusion theory and the idea that India’s population is composed of dominant and subordinate races. It lies behind secular theorising of the caste system and the corruption of Indian culture and society although it was established by Christian hatred of Indian idolatry and the frustration of being unable to convert Indians in large numbers.
Prior to the Second World War, the notion of an Aryan race was advocated widely in European intellectual circles and, although it suddenly disappeared from mainstream Western thought after the genocide during the Second World War, it is routinely invoked when India’s population and caste system are discussed. I cannot discuss in detail the significant role Asian peers in the House of Lords played, but it is worth noticing how the framework of Indian corruption has been internalised by some. This is Lord Singh of Wimbledon:
Caste has a very precise meaning attached to practices associated with the Hindu faith. It has its origin in the desire of the Aryan conquerors of the subcontinent in pre-Vedic times to establish a hierarchy of importance, with priests at the top followed by warriors, those engaged in commerce and then those engaged in more menial tasks. The conquered indigenous people were considered lower than the lowest caste. Accident of birth alone determined a person’s caste. Sadly, thousands of years latter [sic], and despite legislation by the Indian Government, which has been referred to, this hierarchy of importance still lingers on.
Interrupting Lord Singh’s erudition, Baroness Flather offers her insights:
The caste system was established very early in Hinduism. The Sanskrit for caste is ‘varna’, which is also the word for colour. The noble Lord mentioned the Aryan conquerors, who were supposed to be lighter skinned. They wanted a division not only on the basis of who would do what but on the basis of colour.
The link between an Aryan intrusion, the caste system, and different Indian races seems quite solidly in place even among those who are supposed to, in some special way, ‘represent’ and ‘speak for’ the British-Indians. A combination of Orientalism and ‘colonial consciousness’ stands in the way of our discovering how Indians actually make sense of caste, and yet also lies at the base of the confidence with which it is legislated away.
Prakash Shah is a Reader in Culture and Law at the Department of Law, Queen Mary, University of London, where he is also the Director of GLOCUL: Centre for Culture and Law. He specialises in legal pluralism, religion and law, ethnic minorities and diasporas in law, immigration, refugee and nationality law, and comparative law. His major publications include: Legal Practice and Cultural Diversity (Farnham: Ashgate, 2009, joint editor); Law and Ethnic Plurality: Socio-Legal Perspectives (Leiden and Boston: Martinus Nijhoff, 2007, sole editor); and Legal Pluralism in Conflict: Coping with Cultural Diversity in Law (London: Glass House, 2005, author).
 Amendment to Equality Act 2010, section 9(5), introduced by the Enterprise and Regulatory Reform Act 2013, section 97.
 ‘Caste discrimination law faces appalling delays, say campaigners’, BBC News, 30 July 2013 [http://www.bbc.co.uk/news/uk-politics-23501389, accessed 29 August 2013]
 See, in more detail, S.N. Balagangadhara, The Heathen in his Blindness: Asia, the West and the Dynamic of Religion (Leiden: Brill, 1994).
 S.N. Balagangadhara, Reconceptualizing India Studies (New Delhi: Oxford University Press, 2012), 82-85.
 Indeed, Westerners also do not see why Indians, or Hindus, should be insulted at the prospect of a law against caste discrimination law. See e.g. Lord Deben, House of Lords Debates, 22 April 2013, col. 1309.
 Naser Meer, Citizenship, Identity and the Politics of Multiculturalism: The Rise of Muslim Consciousness (Basingstoke: Palgrave Macmillan, 2010), 144-178. In Northern Ireland, where different concerns prevail, legislation against religious discrimination was introduced earlier.
 The term ‘untouchables’, also a political term, is used in place of Dalits by proponents of the legislation. See e.g. Lord Harries of Pentregarth, House of Lords Debates, 11 Jan 2010, col. 334 and 22 Dec 2010, col. 1099.
 The move in Britain could also boost an internationally orchestrated campaign within UN organs and the EU to have caste discrimination recognised in some form. Proponents of the legislation, however, appear to portray the Indian situation incorrectly arguing for there to be “very firm legislation in place, as there is in India, prohibiting discrimination in the areas of employment, public education and public goods and services” (Lord Harries of Pentregarth, House of Lords Debates, 22 Dec 2010, col. 1099, italics added). Indian legislation which varies from state to state applies reservations for jobs and in universities and otherwise criminalises prohibitions on access to facilities such as water wells, but there is no general anti-discrimination law applying to the fields to which the British Equality Act does. On the contrasts between India and Britain, see the still-relevant essay, Werner F. Menski, ‘The Indian experience and its lessons for Britain’, in Discrimination: The Limits of Law, eds. Bob Hepple and Erika M. Szyszczak (London: Mansell, 1992), 300-343.
 Among the indications of the spuriousness of the case, which were not lost on the various Hindu and Sikh organisations challenging the legislation, is the invocation of the size of the problem by citing the numbers of Dalits affected by caste discrimination in Britain, with estimates ranging from anywhere between 50,000 and 200,000 (Lord Avebury, House of Lords Debates, 11 Jan 2010, col. 332, also citing the lack of detailed research), to 500,000 (Lord Harries of Pentregarth, House of Lords Debates, 11 Jan 2010, col. 335).
 See, e.g. Equality Act 2010, Sch. 23, para. 2.
 Prakash Shah, ‘Asking about reasonable accommodation in England’, International Journal of Discrimination and the Law, published online 19 June 2013, DOI: 10.1177/1358229113487818.
 Hilary Metcalf and Heather Rolfe, Caste Discrimination and Harassment in Great Britain, December 2010 [https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/85522/caste-discrimination.pdf, accessed 28 August 2013].
 Although legislation exists allowing court orders to be made in case of forced marriages – see the Forced Marriage (Civil Protection) Act 2007 – no case has yet been made to compel a person to marry out of caste.
 For instance, Labour MP Kate Green, shadow spokesperson for Equalities, noted: “Everyone agrees that caste has absolutely no place in our society”. House of Commons Debates, 23 April 2013, col. 791.
 Labour MP Kate Green: “if there is even one case of such discrimination, proper action must be taken and there must be proper access to redress.” House of Commons Debates, 23 April 2013, col. 791. To similar effect, see Lord Deben, House of Lords Debates, 22 April 2013, col. 1310.
 See remarks of Lord Avebury, House of Lords Debates, 22 Dec 2010, col. 1098, where his interpretation comes through in the following question: “My Lords, does the Minister agree that the research shows that discrimination based on caste does occur within the areas covered by the Act, and that it would be reduced if Section 9(5) of the Act was activated?” Lord Dholakia, the only Asian peer in the House of Lords to have maintained a stance against the legislation noted, “However, in essence, there is a lack of evidence on caste matters. The report produced by the national institute [NIESR] clearly acknowledges that there is no evidence to suggest the existence of large-scale discrimination in this country based on caste… having acknowledged that the available evidence did not indicate that caste discrimination was a significant problem in Britain in the areas covered by discrimination legislation, Parliament proceeded to accept an amendment to the Equality Bill to include caste as an aspect of race by a ministerial decision.” House of Lords Debates, 22 April 2013, col. 1312.
 Lord Lester of Herne Hill, who had then tabled an amendment to introduce descent into what was the Equality Bill noted: “I simply do not understand why research is needed. The Minister has agreed that, even if there were one case of the kind that I described, that should be unlawful because it is wrong in principle.” House of Lords Debates, 11 Jan 2010, col. 344.
 E-mail communication from Jon Ashworth, 5 June 2013. The observation becomes more significant if one considers that the density of the Asian population (Indian, Pakistani, and Bangladeshi) in Leicester is some six times that in England and Wales.
 Raf Gelders and S.N. Balagangadhara, ‘Rethinking Orientalism: Colonialism and the Study of Indian Traditions’, History of Religions, 51, no. 2 (2011): 101-128.
 This account relies substantially on a paper the author was provided by Marianne Keppens, Doctoral researcher at the Research Centre Vergelijkende Cultuurwetenschap (Comparative Science of Cultures), Ghent University, Belgium.
 House of Lords Debates, 4 Mar 2013, col. 1304.
 House of Lords Debates, 4 Mar 2013, col. 1305.
 ‘Colonial consciousness’ in a term coined by S.N. Balagangadhara to refer to the persistence among Indian intellectuals of the framework produced by Orientalism beyond formal decolonisation and despite its unsustainability on rational grounds. See S.N. Balagangadhara, Reconceptualizing India Studies (New Delhi: Oxford University Press, 2012), 95-120.