The Union Government, by way of a counter affidavit, has opposed the plea filed by the Centre for Public Interest Litigation seeking Scheduled Caste Status for Dalits who have converted to Christianity or Islam, stating that the concept of untouchability only exists among Hindus, but fails to explain how and why the SC converts to Sikhism and Buddhism stand on a different footing.
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THE Union Government, recently, by way of an affidavit filed in the Supreme Court, opposed the granting of Scheduled Caste ('SC') status to Dalits who have converted to Christianity and Islam, arguing that they already receive the benefit of reservation under the Other Backward Class ('OBC') quota in certain states.
The counter affidavit has been filed by the Union Government in response to a petition filed before the Supreme Court by the NGO, Centre for Public Interest Litigation ('CPIL') seeking SC status for Dalit converts to Christianity and Islam. The petition contends that the socio-economic disabilities of SCs continue to persist even after conversion and in this regard, there cannot be any distinction between SC converts to Sikhism and Buddhism, and converts to Christianity or Islam.
In view of this exclusion, the CPIL had asked the Supreme Court to declare Paragraph 3 of the Constitution (Scheduled Castes) Order, 1950 as unconstitutional. The said provision of the Order states that "no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of Scheduled Caste".
The Supreme Court had asked the Union Government to state its stance on extending the benefits accorded to SC Hindus, Sikhs, and Buddhists under the 1950 Order to other religions not covered by it. Pursuant to this direction, the Union Government filed the present affidavit arguing against the inclusion of Christians and Muslims.
The Union Government argued that once a Hindu converts to other religions, they cannot claim backwardness as it is based on untouchability, which is a concept only prevalent in Hinduism. Further, it argued that the present case is one of classification between Indian citizens and foreigners, which cannot be countered on any count. However, the Union Government did not elaborate its point regarding the foreign origins of those converting to Christianity or Islam.
The Union Government acknowledged the hundreds of years of oppression prevalent in the Hindu religion on account of the caste system and its constitutive practice of untouchability. It stated that the criteria followed in deciding whether a caste/ community is eligible for inclusion in the list of SCs is extreme social, educational, and economic backwardness arising out of the traditional practice of untouchability, practiced by Hindus since time immemorial.
"Once they have come out and ameliorated their social status by converting themselves to Christianity or Islam, they cannot claim to be backward since backwardness based on untouchability is only prevalent in Hindu Society or its branches and not in any other religion.", it claims. Meanwhile, Christianity is an "egalitarian religion which does not recognize caste and is, therefore, antithetical to the practice of untouchability." said the Union Government.
The petitioners, however, contended that the argument that Christianity or Islam does not recognise castes cannot be a valid justification for excluding them since in theory even Sikhism and Buddhism do not recognise castes.
The Union Government, on the contrary, argued that the inclusion of Buddhist and Sikh converts in the Order cannot be cited as a precedent for the present case as SC converts to Buddhism embraced the religion voluntarily on account of some innate socio-political imperatives, and the original castes/community of such converts can be clearly determined. This cannot be said in respect of Christian and Muslim converts who might have converted on account of other factors, it claims.
It contends that the inclusion of Sikhs and Buddhists, by later amendments to the Order was supported by Explanation II of Article 25 of the Constitution, which states as follows: The reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jains or Buddhist religion.
The Union Government cited the Supreme Court's judgment in Kedar Nath Bajoria versus The State Of West Bengal (1953) in the affidavit and stated that equal protection of laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character and universal in application. The Supreme Court in Kedar Nath Bajoria further held that the State has the power of distinguishing and classifying persons or things for the purposes of legislation.
Also read: Denial of reservations for Dalit Christians/Muslims is in the teeth of substantive equality
The Union Government has argued that provisions relating to reservation under Articles 15(4) and 16(4) are enabling provisions, implying that the protection provided under these provisions are not facets of equality guaranteed under the Constitution, but are rather exceptions to it. To support its argument against the exclusion of Christians and Muslims from the Order, the affidavit states that members of the two minorities receive the benefit of reservation as OBCs in certain states of India and the same is sufficient for their respective amelioration.
The Union Government has argued that unless the oppressive severity of such backwardness is conclusively established by the petitioners, the present petition deserves to be dismissed.
The Union Government has rejected the report of the National Commission for Religious and Linguistic Minorities, chaired by former Chief Justice of India Ranganath Mishra, which in 2007 had recommended ten per cent reservation for Muslims and five per cent reservation for other minorities in government jobs and schemes. The Union Government has termed it "flawed", and stated that it did not contemplate the impact of inclusions on the present castes listed as SCs.
The Union Government appointed a new commission in October this year, headed by former Chief Justice of India K.G. Balakrishnan to examine the matter of according SC status to new persons, who claim to have historically belonged to the Scheduled Castes but have converted to a religion other than those mentioned in the 1950 Order. The Commission has been mandated to submit its report within a period of two years.
In the affidavit, the Union Government has conveyed that if the Balakrishna Commission concludes that there exists an intelligible differential between SCs covered under the Presidential Order and SC converts to other religions after conducting a field study, the classification would clearly be sustainable. It, however, fails to pledge whether a contrary recommendation by the Balakrishnan Commission to grant SC status to Christians and Muslims would be implemented by the Union Government.
Despite the Union Government's fresh stand before the Supreme Court, which does not answer all the queries that question exclusion, Dalit bodies and allied Left organisations have backed reservation for converted Dalits. According to them, extending reservation to Dalit Christians and Dalit Muslims should not come at the cost of reducing the share of total reservations already available to SC communities. The logic of extending reservations to Dalit Buddhists in 1990, for example, is based on the understanding that those who convert take the caste with them, as they don't cease to suffer from caste discrimination and oppression.
The argument in defence of separate reservation for converted Hindu Dalits is likely to derive its strength from the recent Supreme Court judgment in Janhit Abhiyan versus Union of India, which has justified the breaching of the 50 per cent barrier, while extending reservations.
Also, the very rationale for the Union Government to appoint a three-member commission to consider the inclusion of Dalit Muslims and Dalit Christians as SCs is the lack of data on the two minority groups. There is a view that one doesn't need data to see the bias built into the constitutional provisions on identifying SCs. Since a Constitution bench of the Supreme Court is concerned with the validity or lack thereof of the 1950 Order, sub-clause (3) under Article 341 of the Constitution, which expressly forbids the inclusion of persons who follow a religion other than Hinduism, Buddhism, and Sikhism, it has been suggested that it must be tested against the fundamental rights of equality before the law and non-discrimination based on religion, race or caste.
As the Union Government's affidavit before the court refers to the setting up of the Balakrishnan Commission, it fails to answer the central question before the Constitution bench, that is, whether the petitioners' challenge to the 1950 order on the ground of its validity lacks merits, and if so why.