Saji Koduvath.

It is a fact that certain weaker sections of the citizens of India suffer from their caste identity. The policy of reservation of employment in government-jobs, and fixing quotas/seats in educational institutions, legislatures etc.,  are ensured to these people by the Constitution of India itself.  It is with the view to uplift this weaker section, who faced with the ‘historical injustice’ and the ‘age-old sufferings’.

Why No Reservation to Backward Muslims and Christians (SCs/STs/Dalits)?

As observed in Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217, the Christianity does not acknowledge caste system. The same is the case of Muslims also. Therefore, it is strongly argued that it cannot be said that the members of these religions suffer from any social indifference, disadvantage or apathy.

It is also seen pointed out that the denial is out of fear that:

• (i) the extension would adversely affect the existing ‘reservation-quotas‘ for Hindu, Sikh and Buddhist SCs/STs;
• (ii) the Christians and Muslims would benefit from both ‘SC/ST-advantages’ and ‘minority-rights‘; and
• (iii) it would lead to sudden ‘mass conversion‘ from Hinduism, Sikhism and Buddhism to Christianity and Islam.

LEGAL AND CONSTITUTIONAL BARRIER

The Legal and Constitutional barrier to extending Reservation to Muslim and Christian SCs/STs (Dalits) is The Constitution (Scheduled Castes) Order, 1950.

The Constitution (Scheduled Castes) Order, 1950

In exercise of the powers conferred by clause (1) of article 341 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States concerned, made the Order.­ Para 2 and 3 of the Order reads as under:

• “2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in [Parts to [XXII], {XXIII}, XXIV of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of that Schedule.
• [3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu [, the Sikh or the Buddhist] religion shall be deemed to be a member of a Scheduled Caste.] ”

COUNTER ARGUMENTS

1. The Constitution of India

The Presidential Order, 1950 was promulgated disregarding the binding edicts in the Constitution, such as the Preamble, Articles 14, 15, 25, etc..

The Constitution of India, in its Preamble itself secure to all its citizens “EQUALITY of status and of opportunity”.

Article 14 of the Constitution eloquently guarantees “Equality Before Law” as the most valuable Fundamental Right as under:

• “14. Equality before law: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 15 Prohibits  discrimination as under:

• “15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth: (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

Clause 4 of the Article 15 reads as under:

• “(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.”

Article 25 declares the fundamental Rightto profess, practise and propagate religion as under:

• “25. Freedom of conscience and free profession, practice and propagation of religion:
• (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
• (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
• (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
• (b) …..”

2. International Declarations, Covenants and Recommendations

The Presidential Order, 1950 stands against Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, Report of the Committee on the Elimination of Racial Discrimination etc..

Article 2 of the Universal Declaration of Human Rights reads as under:

• “Freedom from discrimination: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Article 2 of the International Covenant on Civil and Political Rights Adopted on 23 March 1976,reads as under:

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
   • (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
   • (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
   • (c) To ensure that the competent authorities shall enforce such remedies when granted.”

The United Nations’, ‘Report of the Committee on the Elimination of Racial Discrimination’, Seventieth session, 19 February -to- 9 March 2007, reads as under:

• “179. The Committee notes with concern that Dalits who convert to Islam or to Christianity to escape caste discrimination reportedly lose their entitlement under affirmative action programmes, unlike converts who become Buddhists or Sikhs (arts. 5 (d) (vii) and 2 (2)).
• The Committee recommends that the State party restore the eligibility for affirmative action benefits of all members of scheduled castes and scheduled tribes having converted to another religion.”

3. Reports of Various Commissions and Committees Appointed by the Government of India

The Government of India appointed several commissions and committees to make recommendations on the situation of the SCs and STs. The following important commissions considered the ‘discriminatory exclusion’ of eligible groups from the list of ‘scheduled casts/tribes’:

1. Report of Backward Class Commission headed by Kaka Kalelkar, , 1955
2. Parliamentary Committee on Untouchability, Economic and Educational Advancement of the Scheduled Castes (L. ElayaPerumal Commission Report) 1969
3. Report on Minorities  by High Power Panel on Minorities, SCs and STs & Other Weaker Sections, Ministry of Home Affairs, Government of India, New Delhi, 1983
4. Mandal Commission Report of the Backward Classes Commission, 1980.
5. National Commission to Review the Working of the Constitution (NCRWC)(Justice MN Venkatachaliah Commission), 2002
6. National Commission for Religious and Linguistic Minorities – NCRLM: (Ranganath Misra Commission), 2007
7. The National Commissions for Scheduled Castes, 2004 (chairperson: Suraj Bhan), 2007 (chairperson: Buta Singh); 2010 (chairperson: P. L. Punia); 2013 (chairperson: P. L. Punia).

Justice Ranganath Misra Commission, 2007 recommended, inter alia, as under:

• “Para 3 of the Constitution (Scheduled Castes) Order 1950:
• 16.3.4: We recommend that Para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely delink Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.”

The National Commission for Scheduled Castes, on 22nd April 2010, had endorsed the recommendation of the NCRLM concerning the deletion of Paragraph 3 of the Constitution (Scheduled Castes ) Order 1950 for extending the Scheduled Castes status to Christians and Muslims of Scheduled Castes Origin.

National Commission to Review the Working of the Constitution (NCRWC), 2002,   stated as under:

• “In view of the fact that in some parts of the country particularly in the south converts to Christianity from specific SCs are subjected to crimes and atrocities as their exact Hindu counterparts are (difference of religion making no difference in this regard) and the fact that trials in such cases get bogged down on the issue whether this is an atrocity since they are not SC on account of conversion. Clause (c) of section 2 of the Act should be amended by adding the following words at the end of it and converts to Christianity from Scheduled Castes.”

L. ElayaPerumal Commission Report (“All Scheduled Castes who convert to religions other than Hinduism should be given all concessions available to Scheduled Castes”), Kaka Kalelkar Report, and Mandal Commission Report, emphatically recommended that the Dalit Muslims and Dalit Christians should be included as the Scheduled Caste.

4. Supreme Court Decisions – One continues to be SC even after conversion

1. In Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217,  it was observed as under:

• “Though Christianity does not acknowledge caste system, the evils of caste system in some States are as prevalent as in Hindu society especially among the converts. In Andhra Pradesh, there are Harijan Christians, Reddy Christians, Kamma Christians etc. Similarly, in Tamil Nadu, there are Pillai Christians, Marvar Christians, Nadar Christians and Harijan Christians etc. That is to say all the converts to Christianity have not divested or set off themselves from their caste labels and crossed the caste barrier but carry with them the banners of their caste labels. Like Hindus, they interact and have their familial relationship and marital alliances only within the converted caste groups.” (Referred to in: The State of Punjab vs Davinder Singh, 27 August, 2020: Arun Mishra)

2. In Puneet Rai v. Dinesh Chaudhary, (2003) 8 SCC 204, S.B. Sinha, J. pointed out as under:

• “30. In Caste and the Law in India by Justice S.B. Wad at p. 30 under the heading “Sociological Implications”, it is stated:
  • “Traditionally, a person belongs to a caste in which he is born. The caste of the parents determines his caste but in case of reconversion a person has the liberty to renounce his casteless status and voluntarily accept his original caste. His caste status at birth is not immutable. Change of religion does not necessarily mean loss of caste. If the original caste does not positively disapprove, the acceptance of the caste can be presumed. Such acceptance can also be presumed if he is elected by a majority to a reserved seat. Although it appears that some dent is made in the classical concept of caste, it may be noticed that the principle that caste is created by birth is not dethroned. There is also a judicial recognition of caste autonomy including the right to outcaste a person.”
• 31. If he is considered to be a member of the Scheduled Caste, he has to be accepted by the community. (See C.M. Arumugam v. S. Rajagopal, [1976] 1 SCC 863 and Principal, Guntur Medical College v. Y. Mohan Rao, [1976] 3 SCC 411).
• 32. A Christian by birth when converted to Hinduism and married a member of the Scheduled Caste was held to be belonging to her husband’s caste on the evidence that she had not only been accepted but also welcomed by the important members, including the President and Vice-President of the community (See Kailash Sonkar v. Maya Devi, [1984] 2 SCC 91).”

3. State of Kerala v. Chandra-mohanan, (2004) 3 SCC 429, AIR 2004 SC 1672, in a matter arose under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, it is held as under:

• “We, therefore, are of the opinion that although as a broad proposition of law it cannot be accepted that merely by change of religion 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. Under such circumstances, we set aside the order under appeal and remit the same to the Sessions Court, Palakkad, to proceed in accordance with law.”

4. In E.V. Chinnaiah vs State of Andhra Pradesh, (2005) 1 SCC 394, it is observed that the Scheduled Caste consists of not only the people who belong to some backward caste but also race or tribe or part of or groups within castes, races or tribes (State can also make sub­classification); they are not merely backward but the backwardmost; and that a person even does not cease to be a Scheduled Caste automatically even on his conversion to another religion.  [This decision is now stood referred to 9 judge bench (on the question: whether State can also make sub­classification) by virtue of the 5 judge bench decision in The State of Punjab v. Davinder Singh, 2020-8 SCC 1.]

5. In The State of Punjab v. Davinder Singh, 2020-8 SCC 1, also it is accepted that a person does not cease to be a member of the Scheduled Caste, automatically, on his conversion to another religion. (The bench relied on Punit Raj v. Dinesh Dhaudhary and State of Kerala v. Chandra-mohanan).

6. National Council of Dalit Christians v. Union of India is the latest case (2019), that is admitted in the Supreme Court, challenging the The Constitution (Scheduled Castes) Order, 1950. It is pending, with the Order: “Tag with Writ Petition (Civil) No. 180 of 2004, Diary No.832 of 2020, and connected matters, if any”.

5. SC/ST Election Cases – Christian is one who ‘Profess’ Christianity

M Chandra Vs. M Thangamuthu, AIR 2011 SC 146

The Supreme Court held in this case that ‘the burden of proof lay squarely on the Election petitioner to show that the appellant indeed practiced and professed Christianity’ and that ‘the Election petitioner has not been able to prove conclusively that the appellant professes Christianity’. With respect to the meaning of ‘profess‘ in Clause (3) of the Constitution (Scheduled Castes) Order , 1950 the Court referred the following decisions:

•  Karwade v. Shambhakar, AIR 1958 Bom 296, to enter publicly into a religious state and that for this purpose a mere declaration by person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient.
• Punjabrao v. D.P. Meshram, [(1965) 1 SCR 849], followed Karwade v. Shambhakar, above.
• Perumal Nadar Vs. Ponnuswamy, (1970) 1 SCC 605: A bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiation is necessary to effectuate conversion.
• Ganpat v. Returning Officer, (1975) 1 SCC 589: Hinduism through the ages has absorbed or accommodated many different practices, religious as well as secular, and also different faiths. Hinduism is so tolerant and Hindu religious practices so varied and clectic that one would find it difficult to say whether one is practising or professing Hindu religion or not.
• Kothapalli Narasayya vs. Jammana Jogi AIR 1976 SC 937: C.M. Arumugam vs. S. Rajgopal, (1976) 1 SCC 863: Consistent view taken in this country from the time Administrator-General of Madras v. Anandachari was decided, that is, since 1886, has been that on reconversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion, if the members of the caste accept him as a member.
• S. Anbalagan vs. B. Devarajan, AIR 1984 SC  411: (1984) 2 SCC 112: No particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. He regains his caste unless the community does not accept him. He never lost his caste in the first instance when he embraced another religion. The mark of caste does not seem to really disappear even after some generations after conversion.
• Kailash Sonkar vs. Smt. Maya Devi,(1984) 2 SCC 91 : A member of the scheduled caste, is converted to Christianity and marries a Christian girl and a daughter is born to him who, according to the tenets of Christian religion, is baptised and educated. After she has attained the age of discretion she decides of her own volition to re-embrace Hinduism. In such a case, revival of the caste is not depended on the views of the members of the community of the caste concerned, although the views of the members of the community would be an important factor. It would automatically revive on her reconversion. If too much stress is laid on the views of the members of the  community the same may lead to dangerous exploitation. Christian parents had baptised her at a time when she was still a minor and knew nothing about the religion. This is indeed not an infrequent phenomenon in South India where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.

Kodikunnil Suresh @ J. Monian vs N.S. Saji Kumar, (2011) 6 SCC 430

The Supreme Court found that the High Court was right in coming to the conclusion that the appellant was born to Christian parents has not been seriously disputed by the appellant. But, it was held that the appellant had been elected four times from the Adoor Parliamentary Constituency reserved for the Scheduled Caste was a very strong circumstance to establish that he had been accepted by the members of his caste after his reconversion to  Hinduism. On this finding it was held that his nomination was validly accepted by the Returning Officer. The Court referred, among other, the following decisions:

• Kailash Sonkar v. Smt. Maya Devi, [(1984) 2 SCC 91]: A member of the Scheduled Caste, who is converted into Christianity and after she attains the age of discretion, can decide of her own volition to re-embrace Hinduism.
• S. Anbalagan v. B. Devarajan, AIR 1984 SC  411: [(1984) 2 SCC 112] The precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for re-conversion to Hinduism of a person who had earlier embraced another religion and unless the practice of the caste makes it necessary, no expiatory rites need be performed.
• Perumal Nadar v. Ponnuswami, [1970 (1) SCC 605]: A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism but a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion and no formal ceremony of purification or expiation is necessary to  effectuate conversion.
• Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram, (1954 SCR 817): Vivian Bose, J. : What is to be determined is the social and political consequences of such conversions and that,  we feel, must be decided in a common sense practical way rather than on theoretical and theocratic grounds.
• S. Rajagopal v. C.M. Armugam, [1969 (1) SCR 254]: The law relating to acceptance of a person by members of caste to which the appellant originally belonged after his reconversion to Hinduism has been laid down.