Author: Virag Pachpore
Publication: The Organiser
Date: January 31, 2010
URL: http://www.organiser.org/dynamic/modules.php?name=Content&pa=showpage&pid=329&page=7
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 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.
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.)
