There is a growing demand to delist those tribals from the Schedule Tribe (ST) status, who have undergone a religious conversion and still enjoy all the rights given to STs. The tribal community itself is raising the demand. Also, protests are being organised in states like Madhya Pradesh, Jharkhand, Chhattisgarh, and different parts of North East. Therefore, it becomes vital to look at this matter in various courts and Parliament.
A comprehensive bill to provide for the inclusions in and exclusions from the lists of Scheduled Castes and Scheduled Tribes and corresponding readjustment of representation and redelimitation of the reserved parliamentary constituencies was introduced in the Lok Sabha on August 12, 1967. The Lok Sabha resolved to refer the Bill to a Joint Parliamentary Committee of both Houses on March 26, 1968; the Rajya Sabha concurred with the reference on March 28, 1968. The Joint Committee on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967 was constituted under the Chairmanship of Shri Anil K Chanda; it had 22 members from the Lok Sabha and 11 members from the Rajya Sabha, besides representatives of the relevant ministries. MC Chagla was the Secretary of the Committee.
Along with its detailed recommendations about the inclusion or exclusion of different Castes or Tribes from the Schedule, the Committee in its Report stated that:
“20 (iii): The Committee also considered the question as to whether members of the Scheduled Tribes should continue to be treated as a Scheduled Tribe after conversion to another religion other than a tribal religion. The Committee are of the opinion that no person who has given up the tribal faith or faiths or has embraced Christianity or Islam should be deemed to be a member of Scheduled Tribe. …”
The Committee accordingly suggested the following amendment:
“In the Constitution (Scheduled Tribes) Order 1950 –
(a) for paragraph 2 substitute –
2A. Notwithstanding anything contained in paragraph 2, no person, who has given up tribal faith or faiths and has embraced either Christianity or Islam, shall be deemed to be a member of any Scheduled Tribe.”
Similar amendments were proposed in the Constitution (Scheduled Tribes) Orders of various Union Territories. The Joint Parliamentary Committee thus sought to plug the lacuna that was left in the Constitution (Scheduled Tribes) Order 1950, make it identical with the Constitution (Scheduled Castes) Order 1950, and thus restore the spirit of the Constitution expressed in the identical language of Article 341 and Article 342.
The Government of India, however, came under great pressure from various Christian quarters to reject the amendment proposed by the Joint Parliamentary Committee. The Cabinet Minister-in-Charge of the Bill had in fact conveyed some idea of the Government’s position to the Committee; the Committee in its report had mentioned that “The Minister-in-charge expressed his difficulties with regard to the acceptance of the proposed amendment. He stated that the proposed amendment is required to be examined very carefully in the Ministries of Law, Home Affairs and External Affairs.” The reference to the Ministry of External Affairs in this context seems odd, but apparently the Government were expecting to face pressure not only from Christian missions within India, but also from abroad.
In 1970, Kartik Oraon’s memorandum to Parliament said converted Christians (then) formed 5.53 per cent of the Scheduled Tribe population of India. These 5.53 per cent Christians occupied 62 per cent of the positions reserved for the Indian Administrative Services (IAS)
In response to the Christian mobilisation, Kartik Oraon, a Scheduled Tribe member of the Lok Sabha, one of the members of the Joint Committee, and later a Minister in the Government of India, sent a memorandum urging Srimati Indira Gandhi, the then Prime Minister, to accept the amendment proposed by the Committee and thus alleviate the “injustice done to 3.5 crores of poor, loyal and patriotic tribes at the instance of about 22 lakh Indian Christians, known for their aggressive, vocal and advanced status.” The memorandum was signed by 348 Members of Parliament, 322 of whom were from the Lok Sabha. The memorandum was originally submitted on June 17, 1970 with the signatures of 235 MPs and again on November 10, 1970 with the signatures of 348 MPs. Many of the precedents and orders that we have quoted above have been taken from this well-researched and documented memorandum.
The Lok Sabha began discussing the Bill on November 16, 1970. The same day the Chief Ministers of the newly created States of Meghalaya and Nagaland arrived in New Delhi to lobby against the amendment proposed by the Joint Parliamentary Committee. On November 17, 1970, the Government moved an amendment withdrawing Clause 2A that the Joint Committee had inserted in the Bill. Several MPs opposed the Government’s amendment and supported the recommendation of the Joint Committee. The Bill came up for discussion again on November 24, when Kartik Oraon made a passionate appeal to the members asking them to either accept the recommendation of the Committee or let him die. And, notwithstanding the whip issued by the Indian National Congress to its members requiring them to vote in favour of the Government’s amendment and against the proposal of the Joint Committee, the mood of the House was in favour of the latter. It became obvious that if the Bill were to be put to vote, a large number of Congress MPs would defy the whip and the Bill as proposed by the Committee would pass with an overwhelming majority. The Government, at that stage, decided to postpone further discussion on the Bill on that day and did not bring it to the House again in that session. This was the last session of that Lok Sabha. A month later, on December 24, 1970, the Lok Sabha was dissolved, and the Bill lapsed.
Constitutional and Legal Ambiguity
As a consequence of the constitutional and legal ambiguity regarding the status of Scheduled Tribe persons who have given up their ancestral religion and practices and converted to Christianity, the latter have always occupied a disproportionately large number of positions reserved for the Scheduled Tribes. Kartik Oraon in his memorandum of 1970, that we have mentioned above, gave details of this disproportion. According to the data provided in the memorandum, converted Christians at that stage formed 5.53 per cent of the Scheduled Tribe population of India. And, these 5.53 per cent Christians among the Scheduled Tribes occupied 62 per cent of the Scheduled Tribes positions in the IAS, 52 per cent of the Scheduled Tribes positions in the IPS, 50 per cent of the positions in the IFS, 62 per cent of the ST positions in the Indian Forest Service and 79 per cent of the ST positions in Other Class 1 Allied Services.
State of Kerala vs Chandramohanan
In this matter, the Courts at different levels were called upon to directly answer the question whether a Scheduled Tribe person continued to remain a part of the Tribe even after conversion to Christianity, especially when the family in question had been converted centuries ago. While the question was simple and straightforward, the answer that the Supreme Court has provided is rather ambiguous and given rise to the possibility of endless litigation in every individual case of conversion.
The question arose in a criminal case. Chandramohanan, the respondent in the appeal before the Supreme Court, was accused of attempting to dishonour and outrage the modesty of an eight year old girl, Elizabeth P. Kora. Since it was alleged that the victim belonged to Mala-Aryan community, which is deemed a Scheduled Tribe in Kerala, the accused was charged under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in addition to Section 509 of the Indian Penal Code. The accused appealed to the High Court seeking quashing of the charges framed under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The High Court unambiguously ruled that “the victim in this case cannot be treated as a member of the Scheduled Caste or Scheduled Tribe in view of the fact that she was born to parents belonging to Christianity”, and quashed the charges under the Act.
The State of Kerala went in appeal against this judgement of the High Court, and the matter was heard by a Constitution Bench headed by the then Chief Justice of India, Justice V. N. Khare. The Court in its order of January 28, 2004 went into a detailed anthropological and legal exploration into what constitutes a Tribe. On the basis of this exploration, their Lordships dismissed the submission of the Learned Counsel for the State of Kerala that since the Constitution (Scheduled Tribes) Order 1950 does not have a provision corresponding to the provision in the Constitution (Schedule Castes) Order 1950 that bars persons other than Hindus, Sikhs and Buddhists to be deemed as members of a Scheduled Caste, therefore, a Scheduled Tribe person does not cease to be a Scheduled Tribe by reason of conversion. But they also dismissed the suggestion that a person ceases to be a member of a Scheduled Tribe after conversion to Christianity. Ultimately, the Supreme Court of India came to the following conclusion:
“We, therefore, are of the opinion that although as a broad proposition of law it cannot be accepted that merely by change of religion a person ceases to be a member of scheduled tribe, but the question as to whether he ceases to be a member thereof or not must be determined by the appropriate court as such a question would depend upon the fact of each case. In such a situation, it has to be established that a person who has embraced another religion is still suffering from social disability and also following the customs and tradition of the community, which he earlier belonged to.” With this observation, the Court set aside the order of the High Court and remitted the case to the Sessions Court, Palakkad, to proceed in accordance with law. After this judgement of the Supreme Court, the question whether a Scheduled Tribe person continues to be so after conversion to Christianity has to be decided through trial in every individual case. Since it is nearly impossible to take every case of conversion for adjudication by the Courts, the order defacto allows the converted Christians to continue claiming the Scheduled Tribe status until challenged in a Court. In any case, such challenges are not easy to prove. In the case before the Supreme Court, the family of the victim had converted to Christianity two centuries ago, and the father of the victim had undergone conversion again to marry a Roman Catholic wife. These were admitted facts before the Court. Yet the Supreme Court could not hold that the concerned family had ceased to be a Scheduled Tribe.
The judgements of the Supreme Court thus offer little solace to the Scheduled Tribes in their effort to preserve the privileges granted to them by the Constitution of India, and to save these from encroachment by the converted Christians.
Such was the disproportion in 1970 in the privileges enjoyed by Christian STs and the overwhelming majority of other Scheduled Tribes who had continued to follow their ancestral religion and customs. That is why Sri Kartik Oraon described the situation at that stage as 20 year long night of deep darkness that had enveloped the Scheduled
Tribes of India since the promulgation of the Constitution of India. The data shows that the long night of darkness is not only continuing but also is becoming deeper and deeper.