Words by Justine Chamberlain
This week Manchester Metropolitan University (MMU) held an open discussion about including the definition of caste in the UK’s legal framework,
hosted by employment law specialist barrister Barry Harwood-Gray, from Kenworthys Chambers in Manchester.
The topic of caste is becoming increasingly important in the UK and Europe and particularly so for the legal community. In a recent case Tirkey v Chandok, where a woman was allegedly treated like a slave because of her caste, the judge ruled that the plaintiff was indeed discriminated against because of her caste – a landmark ruling. Chris Milsom, barrister at Cloisters Chambers who represented Tirkey in the case, explained that while the number of cases where caste is a significant factor is few, a positive result of this case may lead to more cases being brought forward.
But why is caste becoming an issue? Caste is prevalent in various communities around the world. Professor David Mosse of the School of Oriental and African Studies (SOAS) has worked on the caste system of India for decades. He says, “Caste has changed but not disappeared… we have seen new manifestations of caste,” and it ‘acquires new forms’ such as moving away from agriculture to business. The result of caste distinctions is a barring from resources and jobs, keeping people in poverty. Although it might resemble class, it goes much further.
Dr Meena Dhanda, reader in Philosophy and Cultural Politics at the University of Wolverhampton, who is an expert on caste discrimination, says that in India, segregation of the castes is a serious issue. In Punjab, she says, residences are separated by streets that are not crossed, and there are even places where there are different kinds of cups for upper and lower castes.
This is all too similar to past racial segregation in counties such as the UK and USA so it’s not difficult to imagine why the UK has been directed to change its
law to include caste as a form of discrimination in the Equality Act.
Professor Annapurna Waughray, senior lecturer in law at MMU says that the UK is now required by section 97 of the Enterprise and Regulatory Reform Act 2013 to amend the Equality Act to “provide for caste to be an aspect of race” and that the lawmakers will be required to act on this. It has been unlawful in India to discriminate against people based on their caste since 1950, but it has never been defined.
The panel say some people migrating from South Asia are bringing the caste distinctions and continuing to treat people differently in Britain but others are shaking off caste and see a negative impact in defining it in UK law. Mosse says if we consider caste as something that is dying in British society, then there are people who say that defining it in law will reinstate or reinforce discrimination. Dhanda also argues that if caste is specified as an aspect of racism, it could make a definition that makes people feel excluded.
There is another aspect, senior lecturer in employment law at MMU Nessa Sharkett adds, in that if caste becomes explicitly stated in law, it could be a ‘back door for bringing in the class system’ into legal definition of discrimination, and open the floodgates to other accusations of discrimination and racism, such as on which council estate someone might have been brought up.
Although sometimes associated with certain religions, Mosse explains that in India, caste is established in Christian, Sikh and Islamic communities as well as Hindu but that ‘in all the world religions there are strong, anti-caste equality prioritising theologies’. The panel is agreed there is a sociological issue with culture, not religion, and an informed audience member adds that there could be more help from communities in Britain on opening up the issue, like the way forced marriages and FGM has escaped from private into public consciousness.
Sharkett, who is also an Employment Judge, points out that if caste becomes legally defined in UK law then the judiciary will quickly have to come up to date on what it is. Judges will have to be trained on how to interpret caste discrimination and experts will need to be found to advise on cases. But, she adds,
an expert in caste would not necessarily be available to a court to give evidence, and warns that her main concern is about the lack of general knowledge on the subject. Milson adds that people working on recent cases that have referenced caste, have had to refer to internet sources, including Wikipedia,
to understand the issue.
The panel unanimously agreed that caste needs to be brought out from behind closed doors.