Thursday 13 August 2015

Re-legalising Caste-based Discrimination, by Meena Varma

Caste remains a sticky subject. In the UK, Caste discrimination is experienced amongst the South Asian diaspora – whether they are Sikh, Hindu, Muslim or Christian.

To people outside of those societies the discrimination is not obvious – only by looking at behaviour closely is it discernible. But to those who are the victims of caste discrimination it is a blight on their lives.

Be it the sudden block to promotion at work, the arbitrary refusal of a care worker to bathe your elderly relative, or your child at school bullied and taunted for being a Dalit – and ‘untouchable’.

Dalits, whether they live in South Asia or here in the UK are still seen as ‘lesser humans’.

UK Dalit organisations, including the Dalit Solidarity Network UK, have campaigned since 2007 for the inclusion of ‘caste’ as a discriminatory factor in what was then the UK’s Single Equalities Bill – now the Equality Act 2010 – where huge gains were, momentarily, made.

As a result of a meeting in February 2010 in the House of Lords, where national, regional and local Dalit organisations came together with one voice, an amendment was included in the Equality Act 2010 allowing for the introduction of secondary legislation as soon as evidence of caste discrimination comes to light.

Consequently, research into caste discrimination in the UK was commissioned by the then Labour Government from the National Institute for Economic and Social research.

Their report was published in December of that year, confirming the existence of caste-based discrimination in the UK.

The report recommended “extending the definition of race to include caste would provide further, explicit protection.”

Indeed, in 2012 the United Nations Committee on the Elimination of all forms of Racial Discrimination recommended to the United Kingdom in its review:  “that the Minister responsible in the State party invoke section 9(5)(a) of order to provide remedies for victims of this form of discrimination.”

In April 2013 the Government tabled an extraordinary last minute amendment in the Enterprise and Regulatory Reform Bill to convert the existing power in Clause 9(5)(a) of the Equality Act into a duty to include caste as an aspect of race for the purposes of the Equality Act.

Gains were being made to finally legislate against caste-based discrimination here in the UK.

In July 2013 the Government introduced a timetable which set out a series of steps including a public consultation leading to the commencement of caste legislation in the summer 2015.

While an initial stage of research was conducted by the Equality and Human Rights Commission that included a socio-legal review and a stakeholders consultation (published in February 2014), the next scheduled stage of the process, to issue a formal public consultation in spring 2014, was never conducted, resulting in the reforms being made to the bill stagnating.

There are two likely reasons this consultation was not issued.

First, the Equality and Human Rights Commission [EHRC] withdrew from its second phase of research to establish a baseline data into the extent of caste discrimination due to concerns it might be difficult to commission successfully and that “people could find [collecting data on caste] intrusive and it could have a detrimental effect on good relations in affected communities if not conducted with appropriate sensitivity.”

However Ministers then approved a feasibility study to be conducted into if, and how, it might be possible to estimate the extent of caste-based discrimination in Britain.

The report was due in November 2014. It has yet to be published.

Secondly, the employment tribunal case, Tirkey v Chandok. In this case, the Claimant was a woman whose caste was described as Adivasi (or Scheduled Tribe).

The Claimant claimed that her employers had treated her badly and in a demeaning manner, in part, because of her caste.

The employer sought to strike out the part of her claim related to discrimination by reason of her caste on the basis that caste is not a protected characteristic under the Equality Act.

The ET decision was appealed to the Employment Appeal Tribunal.

Its judgement in December 2014 concluded that, depending on the specific circumstances of an individual case, caste-based discrimination could already be unlawful under existing discrimination law, namely the ‘ethnic origin’ limb of the EA’s race provision, but not necessarily so.

Caste remains a contentious issue. So much so, that caste was appropriated for party gains in the final run ups to the General Elections.

Much to the delight of the pro-legislation lobby the LibDems included a pledge to implement the much delayed caste legislation in their Election Manifesto:

To tackle the racial discrimination faced by Black, Asian and Minority Ethnic (BAME) people we will…… Outlaw caste discrimination.

When asked for its position on the issue, the Labour Party stated:

In 2013 Labour voted for Cross-bench amendments in the House of Lords clarifying the law in relation to caste discrimination… We did so because we believe individuals have the right to protection against discrimination on the basis of their caste or perceived caste, in the same way that they do on the basis of race or gender.

Playing the Caste Card: Anti-caste Legislation Manoeuvres in Harrow East

Harrow East is one of the most economically and culturally diverse in the capital, with around a third of the electorate Gujarati Hindus and a large Jewish population. Caste is therefore an important political issue in this area.

Conservative Bob Blackman stood against Labour rival Uma Kumaran and Liberal Democrat candidate Ross Barlow for the position of local MP.

With a turnout of just under 70% to the poles, Tory Bob Blackman managed to double his majority, taking 50% of the vote to cement a majority of 4,757.

His unprecedented support may have been related to the controversial leaflets produced by multi-faith group Dharma Sewa Purvapaksha, claiming to speak for Hindus, Jains and Sikhs.

They urged people to vote for Bob Blackman over Ms Kumaran (Labour) and Ross Barlow (Liberal Democrat) due to their party’s support of laws banning caste discrimination.

Bob Blackman, while distancing himself from the leaflets, voted against legislation to criminalise caste-based discrimination in the Commons.

Uma Kumaran condemned the leaflet as “gutter politics”, adding:

“It saddens me that my faith is being used against me.

In Harrow we’re proud of our diversity and this divisive leaflet seeks to tarnish what we’ve all worked so hard to build. I will represent the whole of Harrow East.

It needs an MP who will unite our community rather than divide it.”

Yet Dharma Sewa Purvapaksha is not alone in its appropriation of caste as a means to sway voters.

The Hindu Forum of Great Britain, the National Council of Hindu Temples (NCHTUK) has published letters and articles clearly urging its members to vote Conservative.

An NCHTUK letter said: “British Hindus, Sikhs & Jains voting for Labour is now like Turkeys voting for Christmas”.

They were reported to the Charity Commission and after initiating an investigation, the organisations removed the letters and documents from their websites and the investigation was dropped.

According to the Dharma Sewa Purvapaksha, Patrick Forbes, a member of the Conservatives’ policy unit, told the DSP that his party was against discrimination of any kind.

But he said the party would “not take any further action to include caste within the provisions of the Equality Act” because it believes there are sufficient legal solutions to caste discrimination already in place.

Subsequent correspondence from the Conservative Party stated that Patrick Forbes never issued an official statement and was misquoted.

Since Parliament resumed, Bob Blackman MP wasted no time in calling for repeal of the legislation – despite denying any knowledge of the ‘Hindu’ call to arms in his constituency.

His question to the Minister on June 11th:

“In the last Parliament, the other place passed unwanted, ill-thought-out laws on caste discrimination, causing a great deal of concern in the Hindu community. The Government have said that they do not intend to enact those unwanted laws. May we have a statement on when the Government will repeal them?”

For the Government, Chris Grayling MP responded:

“I understand my hon. Friend’s concern, and I know that the matter has greatly concerned the community in his constituency. I will ensure that those concerns are drawn to the attention of the Department for Communities and Local Government, and I will ask the Department to respond to him.”

So where does that leave us?

It appears that the efforts to stall the caste legislation have indeed come from the very top of the Conservative Party.

Whether that is due to a word from a funder or the fear of upsetting Mr Modi’s India where the motto of ‘Make in India’ is a rallying cry to many UK and other international businesses.

Nonetheless, Her Majesty’s Government is under a statutory duty to introduce caste as an aspect of race into the Equality Act.

Ministers need to complete their stated programme of consultation with a view to the commencement of the Act as a matter of urgency.

It is two years since Parliament made its view clear on this issue. This was a provision that was voted for by MPs and Peers of all parties and of no parties.

Recent case law developments have ruled that, dependent on the facts of any individual case, in some circumstances claims of caste-based discrimination can be made through the existing ethnic origins element.

On one hand it is argued that the ruling means that ‘caste’ can be subsumed under race and ethnic origins; on the other the ruling was clear that each case must be decided on the individual circumstances - determined by whether the Claimant’s descent can fall within the definition of “ethnic or national origin”.

The uncertainty of case law on this issue makes it imperative for clarity to be given by incorporating caste as an aspect of race in the 2010 Equality Act, as Parliament agreed in 2013.

So as it stands, caste-based discrimination is yet to be outlawed in the UK. Victims and potential victims of this form of discrimination still have no recourse to justice.

And even if the government decides to go down the case law route, it can only do so by going to the Supreme Court, at a cost of many hundreds of thousands of pounds.

Of course, if the Dalit Solidarity Network’s Honorary Chair, Jeremy Corbyn, is elected Labour Leader on September 12th, then we shall finally have a champion at the highest level, to be the voice that Dalits so desperately need in order to protect them from one of the most hidden forms of discrimination in the world today.

Meena Varma is the Director of Dalit Solidarity Network UK.

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