Reservation for converted Dalits: Supreme Court mulls biding its time till K.G. Balakrishnan Commission report is out

In December last year, another three-judge Bench of the court had similarly dithered on these petitions, saying that it first needed to decide whether it should await the report of the Chief Justice Balakrishnan report.

THE Supreme Court on Wednesday contemplated whether the report of the commission of inquiry formed by the Union government to examine if Dalits converting to Islam or Christianity could be accorded Scheduled Caste (SC) status would be germane to the constitutional issue before it. The issue is whether such persons continued to carry their caste status despite conversion to a religion different from Hinduism, Sikhism or Buddhism.

The Constitution (Scheduled Castes) Order, 1950, under Article 341 (Scheduled Castes) of the Constitution, mandates that no person professing a religion different from Hinduism, Sikhism or Buddhism can be deemed to be a member of the SCs.

A three-judge Bench of the court comprising Justices Sanjay Kishan Kaul, Arvind Kumar and Ahsanuddin Amanullah heard the 19-year-old matter briefly today. The Bench wondered whether it should wait for the report of the commission headed by former Chief Justice of India (CJI) K.G. Balakrishnan to decide the issues before it.

The bench also inquired from counsel appearing for multiple petitioners whether the court could issue a writ mandating inclusion of the converted dalits in the presidential list.

On October 7 last year, the Union government formed the commission to examine the matter of according SC status to persons who claim to historically have belonged to the SCs, but have converted to a religion other than those mentioned in the Presidential Orders issued from time to time under Article 341. The commission also comprises former Indian Administrative Service officer Dr Ravinder Kumar Jain and University Grants Commission (UGC) member, Prof. (Dr) Sushma Yadav, as its members.

The government has asked the commission to submit its report within two years.

The Bench, at the next hearing in July, would be discussing whether commission reports which are not accepted by the government can be relied upon by the court and to what extent, and whether the caste system can be imputed to Islam or Christianity.

During the course of today’s hearing, Justice Kaul observed that the issue had a political colour to it. He made this observation after noting that the government had rejected the 2007 report by the National Commission for Religious and Linguistic Minorities, headed by former CJI Ranganath Mishra.  

With the new government, different political ideologies have a different take on this issue, that is a fact. Tomorrow, the new government will also reject the report by another commission,” Justice Kaul said.

The commission headed by Justice Mishra had recommended 10 percent reservations for Muslims and 5 percent reservations for other minorities in government jobs, and favoured extending SC status to Dalits of all religions.

Additional Solicitor General of India K.M. Nataraj, for the Union government, submitted that the court must await the outcome of the report of the Justice Balakrishnan Commission. He relied upon the decision of the Supreme Court in Soosai versus Union of India (1985) in which the court observed, “To establish that para 3 of the Constitution (Scheduled Castes) Order, 1950 discriminates against Christian members of the enumerated castes it must be shown that they suffer from a comparable depth of social and economic disabilities and cultural and educational backwardness and similar levels of degradation within the Christian community necessitating intervention by the State under the provisions of the Constitution. It is not sufficient to show that the same caste continues after conversion. It is necessary to establish further that the disabilities and handicaps suffered from such caste membership in the social order of its origin— Hinduism— continue in their oppressive severity in the new environment of a different religious community.”

Nataraj submitted that only a commission of inquiry could provide the data and study whether Hindu Dalits, after conversion, continued to suffer caste disability.

Advocate Prashant Bhushan, for the non-governmental organisation, the Centre for Public Interest Litigation, submitted that there was no report in place when Soosai was delivered. He submitted that since 1985, there have been at least 20 studies on the subject, including the 2007 report by the Chief Justice Mishra-led National Commission for Religious and Linguistic Minorities.

Nataraj, however, sought to submit that the government had rejected the report of the commission headed by Justice Mishra. He added that the report was bereft of any analysis and data. This invited a sharp reaction from Justice Amanullah, who asked Nataraj to go through the report.

The report is not so perfunctory. It is a reasoned report. You should not come [with] such [generalised] comments,” Justice Amanullah told Nataraj.

Justice Amanullah also observed that social status and religious conversion are two different concepts altogether.

Even without religious stigma, social stigmas have carried across,” he noted.

Justice Kaul sought to know from Bhushan as to the reliability of the report rejected by the government. Bhushan submitted that the government’s rejection of the report is irrelevant to the issue at hand. Justice Amanullah intervened to opine that the report rejected by the government might not be relied upon per se, but the data used by such a committee or commission may hold persuasive value.

Bhushan invited the Bench’s attention to an order passed by the court on January 21, 2011, framing the following three issues to be decided:

  • “Whether Paragraph (3) of the Constitution (Scheduled Castes) Order, 1950 issued in exercise of Article 341(1)of the Constitution of India, which says that “Notwithstanding anything contained in paragraph 2, no person who professes a religion different from Hinduism, Sikhism and Buddhism shall be deemed to be a member of a Scheduled Caste” is unconstitutional and void, being violative of Articles 141516 and 25 of the Constitution of India?
  • Whether a Scheduled Caste professing a religion different from Hinduism, Sikhism and Buddhism can be deprived of the benefit of Paragraph 3 of the Constitution (Scheduled Castes) Order, 1950, in violation of Articles 14, 15, 16 and 25 of the Constitution of India?
  • Whether non-inclusion of ‘Christians’ and ‘Muslims’ in Paragraph (3) of the Constitution (Scheduled Castes) Order, 1950, along with Hinduism, Sikhism and Buddhism, is discriminatory and violative of Articles 14, 15, 16 and 25 of the Constitution of India?”

In October last year, the government decided to form the commission of inquiry headed by former CJI Balakrishnan after the Supreme Court had asked the government to clear its stand on the issue of extending the benefit of reservation to Dalits who have converted to other religions, namely Christianity and Islam.

At present, the SC community is provided with 15 percent reservation for direct recruitment in Union government jobs, election to legislatures, and admission in public universities, with 7.5 percent reservation for Scheduled Tribes, and a 27 percent quota for Other Backward Classes.

In its affidavit filed at the Supreme Court, 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 government did not elaborate its point regarding the foreign origins of those converting to Christianity or Islam.

The 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 or 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, practised by Hindus since time immemorial.

In December last year, another three-judge Bench of the court, comprising Justices Kaul, A.S. Oka and Vikram Nath had similarly dithered on these petitions, saying that it first needed to decide whether it should await the report of the Chief Justice Balakrishnan report.