Prakash Shah

Asking about reasonable accommodation in England

Interviews conducted with leading actors in England asking a range of questions about religious diversity and the legal framework and, in particular, about reasonable accommodation, helped identify a number of areas of concern. There was some doubt about whether specific legal provision should be brought in to guarantee reasonable accommodation. However, there was broad support for having the principle adopted in the practice of employers, whereas some preferred the current informality rather than the principle being enforced through litigation. None of the respondents came up with illustrations outside Judaism, Christianity or Islam. The results are consistent with recent critical studies showing that the assumption in social sciences that religion is a universal has been imported from theology. Religion-based questions only pick out certain phenomena specific to some cultures and an inevitable skew is created when asking such questions because they make sense only within an Abrahamic religious framework. Although enabling the identification of some aspects of culture considered to merit reasonable accommodation on the grounds of religion, the results also pose questions about the adequacy of current standard research methodologies which assume that religion is a universal.

A weak defence of an indefensible caste law

David Keane has not understood the arguments in my book. Whilst it does articulate a position against the caste provision of the Equality Act, it is not for the reasons or on the grounds that he thinks. His reading of my book raises questions as to how far proponents of the legislation are really able to take on the lessons of critiques of their support for it. My book critiques Keane’s position on the caste legislation as well as that of his close collaborators, who have helped engineer the law, and subsequently justified it, not least through their participation in the Equality and Human Rights Commission (EHRC) reports on caste. Although Keane argues that the EHRC team of which he was a part did not have a mandate to question the principle of the legislation, they could easily have done so had they considered the legislation was badly thought through. They could have even reported that the legislation, although by then in place, is simply unworkable and would have disastrous consequences for the communities of concern in my book. They do neither and, examining the EHRC reports closely, one will see passages justifying the legislation and advocating its problem-free implementation, with the widest possible scope and therefore the narrowest possible exemptions and exceptions. In so doing, they ignore the consequences the law would have, which I identify at some length in my book, whilst Keane’s review skirts that discussion. The EHRC reports that Keane co-authored are therefore not merely a fait accompli but actively endorse the EHRC’s own support of the legislation, and its widest possible application, expressed well before reports issued forth from the National Institute for Economic and Social Research and the EHRC’s own ‘independent’ investigation. Our national equality body and the researchers it hired to write the reports on caste had declared their pro-legislation proclivities well before researching the matter rather like Keane’s collaborator in parliament, Lord Lester, who complained why legislation had to await research, which in his view was not required. It is not merely a matter of adequate research, as Keane suggests, but the structural context

Orientalism, Multiculturalism, and Identity Politics: Hindus and the British Caste Law

This article discusses the role played by British Hindus in contesting legislation against caste discrimination. It gives an account of their limited objections to the law on caste by placing them within the context of British multiculturalism and the constraints that brings. It introduces some considerations concerning the form their objections to the legislation take, and explains their objections in terms of their inability to contest the premises behind the Western construction of Hinduism and of the caste system.

Introduction: Caste Studies and the Apocryphal Elephant

‘When thinking about India it is hard not to think of caste’, said Nicholas Dirks as the opening statement of his book Castes of Mind (Dirks 2001). Even though the book seemed to indicate some reservations about such a situation, neither the book, nor anything that has followed, has altered the situation. The study of India across disciplines has been significantly shaped and driven by the study of caste. Caste is still considered the ‘master key to unlocking the Indian world’ (Guha 2013, 21). References to caste in literature about India go back at least to the sixteenth century. Thus, it certainly has a well-established lineage of scholarly interest and research.

South Asian Legal Systems and Families in Foreign Courts: The British Case

This chapter discusses some salient features of the private international law framework applicable in Britain and compares it with that of the European civil law countries where different assumptions apply. It then provides a brief overview of the South Asian comparative backdrop against which some questions which come up in British and other European legal systems can be set, including the basic feature of personal laws which is the norm in South Asia but exceptional for Europe. It discusses the how South Asians in Europe have formed communities that result from immigration over several decades, including how that has conditioned the types of private international law questions raised and how recent developments associated with Muslims question previously favoured models of multiculturalism. Lastly, there is a focus on how the development of unofficial sharia fora in the UK, within a larger comparative context, is complicating and potentially undermining the existing model of private international law.

Dissimulating on Caste in British Law

The caste system is one of the most prominent global images of Indian culture and society. ‘When thinking about India it is hard not to think of caste’, says Nicholas Dirks (2001, 3) when opening his book on caste. The picture of the caste system is regularly projected both within India and increasingly so in Western settings such as the United Kingdom and United States where Indians have settled over the last few decades. The constant iteration of the caste system reinforces the impression that there is some stability to the idea and that its referent is existent. At the same time, multiple accounts and ideas of the nature of the caste system exist (e.g. Banerjee-Dube 2008), and there is, it appears, no consistent and coherent theory of caste out there (Jalki and Pathan 2015). Several chapters in this book question the classical conception of the caste system. This chapter examines one such invocation of the caste system in the context of the enactment of the Equality Act 2010 in the United Kingdom which contains the first provision on caste discrimination in the anti-discrimination legislation of any country, as well as in the linked case law.

Is Caste Already Part of UK Equality Law

Chapter 6 turns to a recent case, Chandhok v Tirkey (2014), in which the Employment Appeal Tribunal (EAT) decided that caste may already be part of UK equality law. It discusses the background to the case, the way in which the case was argued and decided by the EAT, and draws out possible implications. The discussion includes an examination of the stance of parties during this litigation and the potential contradictions given that the Equality Act provision on caste has not yet been implemented. The case creates difficulties given that it is now unclear what the reach of the existing law is and a question remains whether the Equality Act’s provision on caste should be brought into force. The account draws on documents revealed by the intervening party, the EHRC.

Caste and Continuing Foreign Interference in India’s Internal Affairs

Chapter 5 exposes the transnational dimensions of the caste question, including the role played by the caste provision in international relations and law. It examines how transnational activism for proselytism is a key reason why caste has emerged in the discourse of the Churches, Dalit organizations, and Parliament. The UK legislation is part of a wider campaign going back at least to the 2001 World Conference against Racism where an attempt was made to bring caste and race together in international law. This chapter shows how the European Parliament and UN human rights organs have been brought into play to highlight caste discrimination, to pressure India to amend its laws to enable Christians to gain more access to caste-based reservations.

Caste Discrimination Legislation: Implications for Business, Employers and Organizations

Chapter 4 adopts a practice-oriented perspective, explaining what challenges those employing South Asians, South Asian businesses and Indian community organizations face as a result of the caste provision. These challenges include the litigation each type of organization might be faced with and what areas of their work may be affected. For example, in the case of community organizations, the holding of community events, such as Navratri or even weddings, could be questioned on grounds of caste preferences. The employment of personnel to perform rituals for weddings could also be exposed to charges of discrimination. This chapter explains the pressures to be faced within litigation, including the burden and standard of proof. It points to the impact on the associational freedom of Indian communities, including possible impact on charity status and fund-raising.

Equality and Human Rights Commission Reports on Caste

Chapter 3 examines in detail two reports on caste produced by the Equality and Human Rights Commission (EHRC) through its research team as part of the post-Equality Act offcial investigation. The reports provide insights into stakeholder and academic positions, and how caste may be deployed within the legal context of the Equality Act. This chapter critically assesses both reports, examining the presuppositions behind their drafting, the consistency and coherence of their account of caste and the applicability within legal structures of these ideas. It shows how the ‘independent’ investigation commissioned by the EHRC relied on the same Orientalist ideas of the caste system that went into framing the wider discourse, and questions how reliable and useful such research can be for implementing law.