We have posted on several previous occasions about the inclusion of caste in the Equality Act 2010 as a protected characteristic. In this guest post, Prakash Shah looks at the issue as it might affect British Muslims.

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British Muslims have remained a silent party in the debates around the provision on caste discrimination in the UK’s Equality Act. In both 2010 (when the clause was introduced) and in 2013 (when its implementation was made obligatory), Muslim parliamentarians tended to vote along party lines. This means that Muslim Labour and Liberal parliamentarians voted in favour of including caste in the Equality Act and Muslim Tory parliamentarians voted against it. Importantly, none appears to have raised concerns about how the law would impact on the Muslim community. Muslim organisations, too, have remained reticent about the relevance or impact of the caste law on them. The forthcoming consultation on how to implement the caste law, announced by the Equalities Minister in September 2016, may provide an opportunity to reconsider.

This is consistent with how, from a religious point of view, Muslims tend to view caste. As a matter of religion, Muslims avoid talking about caste. Many are publicly compelled to assert that Islam and its universal community of the ummah, with its ideology of equality, is the salient grouping, rather than any divisions or segmentation along caste lines. Islamic unity is thus the rhetorical, though no doubt sincerely held, default position.

According to the Census of 2011, more than half of the total Muslim population in England and Wales of 2.7 million is of South Asian background with roots in Pakistan, Bangladesh and India. Many privately accept that, besides sect, caste plays some role in their social lives in decisions such as whom to marry, how to interact closely with others, and the basis on which relations are maintained ‘back home’ in countries of origin. For the generations raised in Britain, however, there may well be a swing to forgetting that heritage and, as with other social customs and ancestral traditions, ‘protestantised’ Western Islam further forces their consignment to the zone of the pagan, false religion. Under Western influence, Muslims have regarded caste as a ‘Hindu’ religious issue reinforcing the associations with paganism. Some Sikhs too, under Western and Islamic influence on their essentially Indian traditions, have argued that caste is a ‘Hindu’ problem and not one that concerns them.

The inability or unwillingness of Muslims clearly to articulate such tensions also partly accounts for why caste is not much discussed in public and, specifically, in relation to the effects of the law. This tessellates with the continued, albeit muted, application of the Protestant principle of toleration in Western liberal and multicultural contexts: what is not required by a religion can be legally controlled or prohibited by the law of the state. Since Muslims cannot say that observance of caste customs is an integral part of their social structures as required by religion, it can be assumed by the state that no resistance will be offered to a law purportedly working against caste. It would, however, be wrong of Muslims to see the Equality Act as serving the sharia through its penalisation of caste discrimination since the religious law demands no such thing.

It is true that ‘caste’ is an imposed term borrowed from the Latinate usage initially applied in Iberia during the Reconquista period and then to colonial America, and through which the notion of purity of blood lines, the tendency to equate race and religion, and the American obsession with degrees of whiteness probably have some precedent. Because of this baggage, it has never been quite certain what relevance the term ‘caste’ had in India and what social structures it actually picked out. Colonial anthropologists and census taking officials discovered this to their consternation, finding it impossible to fit local social designations to their ideas of caste.

Not surprisingly, it is often felt that there is a lack of fit between the term ‘caste’ and South Asian social structures. This goes for Muslims too who often use traditional names for various social structures such as zaat/jaat, biraderi, or quam. Anthropologists also relate that, besides the existing pre-Islamic Indian terms, Islamic invasions also brought terms such as Ashraf, Sayyed, Sheikh, Quresh, Shah, Mughal, Pathan, and so on, that point to affiliations (real or imagined) to Arab or Afghan invaders. Contemporary Muslim ambivalence about or rhetorical denial of caste is somewhat belied by both historical antecedents and contemporary social practice. The latter can be seen in the organisations of mosques and other activities being based on, say, biraderi membership, even if displaying an Islamic silhouette. The former is further testified to by the fact that medieval Muslim diplomatic and travel accounts of India saw Indian social classifications in neutral terms. Rather, it was the Protestants, who came up with theologically-grounded descriptions of India as having a ‘caste system’ that was priest-ridden, immoral, hierarchical and oppressive. These associations have stuck and have led to the caste clause in the Equality Act being passed without any credible research backing.

Although official figures are not possible to obtain, and further research could be usefully done on this topic, a quick perusal of reported legal cases gives rise to the hypothesis that Muslims tend to be more litigious than other groups in the UK. This seems to hold across the legal spectrum extending to criminal, civil, administrative and family, and could also apply to antidiscrimination law. Statistics periodically released by the US Equal Opportunity Employment Commission have shown a dramatic increase over the past few years of Muslims making claims of religious discrimination. Although being over just one per cent of the US population, they initiate some 40 per cent of religious discrimination claims. Such figures are not available for the UK, although it would not be surprising if a similar pattern were being followed. It is known, however, that religion and race claims are far less likely to succeed under the Equality Act. Basing claims on caste discrimination might therefore offer a greater chance of winning.

One of the first cases to examine whether the Equality Act covers caste was Naveed v Aslam [2012] ET 1603968/11, involving a Pakistani chef who claimed caste discrimination against two Pakistani restaurant proprietors. The Employment Tribunal decided at first instance that, because the caste clause in the Equality Act had not been implemented, no claim of caste could be made under that Act. That position has changed since the Employment Appeal Tribunal ruled on the case of Chandhok & Anor v Tirkey (Race Discrimination) [2014] UKEAT 0190/14/1912. The Tribunal in the Naveed case also held that, since the claimant and respondent brothers were from the same Arain ‘caste’, the caste discrimination claim could not succeed. With slightly different factual circumstances, however, the case would conceivably be decided differently today.

That Muslims will not be affected by caste-based claims in future seems to be more of a myth than based on any realistic appreciation of the socio-legal situation. The tendency of Muslims to engage disproportionately in litigation and the encouragement offered to make legal claims in a deregulated market for legal services, including no-win-no-fee deals, means that incentives point to the likelihood of Muslims making claims for caste discrimination against one another. Once initiated, legal advice to respondents will mostly be to settle claims, which means compensatory payments, even if not justified, will have to be made, while chances for vindication are commensurately reduced. In turn, this adds to incentives to begin cases in the hope of even minimal, though undeserved, money awards.

The disinterest among Muslim organisations and political figures regarding the caste law in the UK seems to be a case of unwitting blindness. It could result in a severe impact on a community that is already showing signs of internal conflict and litigiousness, and does not need branding with yet more negative associations that do its public profile no favours. Hindus and Christians could also bring discrimination claims against Muslims on caste grounds by analogy with the Tirkey precedent, where no bar was raised to prevent a Christian woman suing her Buddhist employers. Discrimination against Pakistani Christians is often said to have caste overtones, while most Dalits in Bangladesh and Pakistan are Hindus.

Nor should it be thought that only South Asian Muslims would be prone to actions of caste discrimination. A report presented in 2016 to the UN’s Special Rapporteur on Minority Issues to the Human Rights Council signals that countries with a majority of Muslims, such as Somalia, contain ‘caste-affected groups’. As the net of international legal definitions brings persons from a greater number of backgrounds into association with caste, Muslims will have further justifiable cause to fear their impact on them through the UK legal system.

Prakash Shah

Dr. Prakash Shah is a Reader in Culture and Law and Director of GLOCUL: Centre for Culture and Law at Queen Mary, University of London. He is co-editor of Western Foundations of the Caste System (Palgrave, 2017, with Martin Farek, Dunkin Jalki, and Sufiya Pathan) and author of Against Caste in British Law: A Critical Perspective on the Caste Discrimination Provision in the Equality Act 2010 (Palgrave, 2015).

Cite this article as: Prakash Shah, “Muslims and the British caste law” in Law & Religion UK, 19 October 2016, https://www.lawandreligionuk.com/2016/10/19/muslims-and-the-british-caste-law/.