Rejecting the grounds on which the Ranganath Misra National Commission on Religious and Linguistic Minorities (NCRLM) recommended bringing at par the converted Dalits with those of Hindu, Sikh and Buddhist Dalits, the Member-Secretary of the Commission placed on record her dissent note.
Asha Das, a former Secretary, Government of India, was appointed Member-Secretary of the NCRLM (vide the government notification No. 1/11/2004-MC(D) New Delhi, dated, 10th May, 2005. In her 10-page dissent note Das expressed her views in most elaborative manner against conferment of Scheduled Caste status on SC converts to Christianity and Islam, thus defeating the very purpose for which the NCRLM was set up by the Government of India.
Explaining the background of the NCRLM, Das, at the very beginning of her dissent note, said that the Commission was asked by the government “to give their recommendations on the issues raised in writ petition No 180/04 and 94/05 filed in the Supreme Court and certain High Courts of India relating to para 3 of the Constitution (Scheduled Caste) Order 1950, in the context of ceiling of 50 per cent reservations as also the modalities of inclusion in the list of Scheduled Castes”. (NCRLM Report, Page 156)
It may be noted that three writ petitions have been filed by Christians in the Supreme Court of India-WP Nos. 180/04, 94/05 and 625/05. Similarly some Muslims have also filed similar petitions in the High Courts of India challenging the validity of the Constitution (Scheduled Caste) Order 1950. All these writ petitions challenge the para 3 of the said order as discriminatory and violative of fundamental rights guaranteed under Articles 14, 15(4) and 16(4) of the Constitution.
Taking cognizance of the arguments presented in favour of granting SC status to the converted Dalits point by point, Das in her note states in most uncertain terms that the term Scheduled Castes was first used in the Government of India Act of 1935. The Govt of India Scheduled Caste Order was issued under the Act. Paragraph 3 of this Order issued on 30th April, 1936, provides that “No Indian Christian shall be deemed to be a member of Scheduled Caste”.
It was in 1880 when the then Census Commissioner Sir Denzil Ibbetson classified certain marginalised caste groups involved in diverse occupations into 17 groups. However, when apprehensions were raised regarding their Hindu background, more stringent criteria for identifying those who were 100 per cent Hindus was adopted. The criteria was based on their relationship with the Brahmins, their authority to worship God, recognise Vedas, entry into temples, and whether or not their touch and proximity caused pollution. Later, Census Commissioner JS Hatton made a special effort to specify criteria for identifying untouchable groups in the census report of 1931.
Based on these criteria, which in words means discrimination based on the obnoxious practice of untouchability may appear to hold good for the purpose of specifying the Scheduled Castes. (Report of the Commissioner for Scheduled Castes and Scheduled Tribes, Govt. of India, 28th Report, 1986-87, PP 549-550)
Thus, Das infers that the “test applied was the social, educational, and economic backwardness arising out of the historical custom of untouchability”. (Handbook on Schedulde Castes and Scheduled Tribes, Office of the Commissioner for SC, ST, 1968, p. 27)
Quoting from the Report of the Committee on Untouchability, Economic and Educational Development of the Scheduled Castes and Connected Documents, 1969, Das further says, “Thus religion was the basis for inclusion of castes in the list of the Scheduled Castes in 1936 and later in 1950.”
In 1956 an amendment was effected in the 1950 Constitution (SC) Order and its scope was extended to Dalits in Sikh religion. Again in 1990 by another amendment the Buddhist Dalits were also brought under the purview of the said order. These amendments were supported by the Explanation II of Article 25 of the Constitution which reads as under:
“In sub-clause (b), the reference to Hindus shall be construed as including to persons professing the Sikh, Jain, or Buddhist religions as the reference to Hindu religious institutions shall be construed accordingly.”
Even the Supreme Court while considering the validity of the 1950 Order in case of Soosai Vs the Union of India and others (case no. 9596/83), observed: “Now it cannot be disputed that the Caste System is a feature of the Hindu social structure. It is a social phenomenon peculiar to Hindu society.” The apex court further observed: “It is quite evident that President had before him all this material indicating that the depressed classes of the Hindu and the Sikh communities suffered from economic and social disabilities and cultural and educational backwardness so grass in character in degree that the members of those castes in the two communities called for the protection of the Constitutional provisions relating to Scheduled Castes.”
Defending inclusion, the Supreme Court observed: “Is it, therefore, not possible to say that President acted arbitrarily in the exercise of his judgment in enacting paragraph 3 of the Constitution (Scheduled Caste) Order, 1950.”
Das maintains that this evil practice of untouchability was not recognised by any other religion, i.e. other than Hindu. The Constitution (SC) Order, 1950 is thus not discriminatory or violative of Articles 14, 15, 16, and 25 of the Constitution nor is it ultra virus of the Constitution as it provides for a special category, i.e. Scheduled Castes who have been given a special status under the Constitution.
The Member-Secretary further says that expanding the net of reservations to SC origin converted to Christianity or Islam would mean direct interference in the internal religious matter of these religions as they do not recognise castes at all. Therefore, the argument that despite conversion the social, educational and economic status of these converts remained unchanged and hence they too should be given the benefits of reservation, does not hold good. In fact, according to Das, these people are being discriminated against by their own religious institutions like church, mosque, cemetery and their clergies.
Das maintains that discrimination against the converts from Dalit communities is the internal matter of the respective religion and they need to be addressed by them through religious reforms or some other ways and not by introducing the caste system into religions that do not recognise intervention of inducting them into the caste system from which they chose to move to an egalitarian religion.
Granting SC status to such converts by the government would amount to formal introduction of caste system in Islam or Christianity and changing their basic tenets of the religion, which will be outside the jurisdiction of the Parliament and the judiciary.
She further argues that both Islam and Christianity are religions which originated outside India. These came from foreign lands to India along with traders, invaders and preachers or missionaries over a period of time. Both religions do not recognise castes. A vast majority of Muslims and Christians in India today comprise of the converts and their progeny and the identification of such Muslims or Christians who were originally of SC origin will pose many problems as no authentic records have been maintained.
Further, any procedure adopted to identify SC converts to Christianity and Islam is bound to produce innumerable hazard rational and equitable decisions for identifying those truly eligible. The chances of abuse and of the ineligible siphoning benefits at the cost of deserving are tremendous. (emphasis added)
In view of these factual position vis-à-vis conversion to Christianity and Islam by the Dalits and the demand to include them in para 3 of the Constitution (SC) Order 1950, or delete the reference to religion from the Order, is not justified, according to the Member-Secretary.
Asha Das gave her observations in most clear terms and in most unambiguous way stating:
(1) There is no justification of SC converts to Christianity or SC converts to Islam as Scheduled Castes.
(2) The Constitution (SC) Order 1950 issued under Article 341 of the Constitution read with Article 15(4) is religion based. Therefore, the condition of ‘religion’ from para 3 of the order should not be deleted.
(3) The ceiling of 50 per cent of reservation should continue as has been adjudicated by the Supreme Court.
(4) As SC converts to Christianity/Islam do not qualify for inclusion as SCs, they should continue to form part of the OBCs and avail of facilities and reservations given to the OBCs until a comprehensive list of SEB’s is prepared.
However, Dr Tahir Mahmood, a member of the NCRLM, defended the recommendations of the Commission for inclusion of Dalit converts to Christianitiy and Islam into the Scheduled Caste list and bring them under the ambit of reservation as enjoyed by their Hindu, Sikh and Buddhist counterparts.
The note, prepared by him contradicting the observations of Member-Secretary Asha Das made in her dissent note, was “fully endorsed by the Chairman, Justice R Misra, and Members Dr Anil Wilson and Dr Mohinder Singh”.
The note ‘deplored’ the statement that Sikh and Buddhist religions were primarily home-grown sects within the Hindu religion as “it offends the religious sensitivities of the Sikh and Buddhist citizens of India who have regarded their faiths as ‘independent’ religions”. The note also deplored the attempt to place Christianity and Islam as religions which originated outside India. This is absolutely an “unconstitutional distinction” between the two self-created categories of religions prevailing in India. The note has denounced this in the “strongest possible terms”.
The note rejected the contentions made in the dissent note by the Member-Secretary and firmly stood by every word of the recommendations “we have made under this Term of Reference”.
(The writer is a senior journalist.)