Examining the Constitutional Validity of The Constitution (Scheduled Castes) Order, 1950

Tanmay Durani and Prakhar Singh


Introduction

For an exceedingly long period of time, the Scheduled Castes (hereinafter referred to as “SC”) converts have not been able to avail the benefits under the Scheduled Castes quota. Although the Union Government is exploring its options to constitute a panel for researching this notion, disputes with regards to obtaining the membership of the Scheduled Caste group, in order to obtain these benefits, are still arising. Notwithstanding its perplexing nature, for over a decade, Courts have opted to avoid the question of whether or not the individuals in question, should be regarded as a member of such a preferred group. While deciding on the question, the courts encountered a number of puzzling questions:

  1. What is the yardstick that determines membership of SC Status;
  2. Is caste a birth-based concept or a religion-centric concept;
  3. Does one lose caste by conversion or ex-communication?

All these questions, with regards to the notion being researched, are constituents of one substantial question of law: Whether reservation, on the basis of religion, is constitutionally coherent or not?

So far as the topic of castes is concerned, it is noticed that the definition of the same is contested. Ideas from contemporary professionals have clashed regularly on this problem, without achieving any meaningful result. It cannot be contested that the caste system is a component of the Hindu social structure, additionally, it cannot be characterized as an invariable characteristic.

How are the Scheduled Castes (SCs) category defined?

Scheduled Caste is not a caste, but a legal name awarded to members of sub-caste/communities within the framework of the Hindu caste system. This idea is relevant exclusively in the context of government initiatives. Along the same lines, for the purposes of offering affirmative advantages to the Scheduled Caste Category, Constitution (Scheduled Castes) Order,1950 (“1950 Order”) was issued by the president, by exercising his powers under Article 341.

At the outset, only Hindus were considered members of Scheduled Castes groups. However, Sikhs and Buddhists were added to the Scheduled Caste Quota in 1956 and 1990, respectively. This action was motivated by taking into consideration the historical condition of certain sects in these religions, which are destitute, and have been subjected to great social isolation in India owing to their considered ‘low rank’ in traditional rituals. Additionally, it was owing to their affiliation with Hinduism that their participation in the SC community was expanded. However, castes of different Abrahamic faiths have not been included in the mandate of Article 341 or the 1950 order. Since the goal of this order was to advance the SC groups, they were not included in this, because of the lack of caste-based systems in their religious doctrine.

However, legal challenges to the government’s position in this regard are pending. Despite the fact that Sikhs and Buddhists do not recognize caste hierarchies in their religious doctrines, they receive the same benefits as SCs under the Presidential order. Unfortunately, this does not apply to Abrahamic religions such as Christianity, which is in brazen contravention with Article 14 and Article 15, which provide for equality in general and non-discrimination on the grounds of religion. Secondly, insofar as the question of their affiliation to Hinduism is concerned, the government has erroneously invoked the second explanation to Article 25(2), which states that “a reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jains or Buddhist religion”. If in the present context, Buddhism and Sikhism were to be considered offshoots of Hinduism, the 1950 Order would have provided all Sikhs and Buddhists of SC Origin with Scheduled Caste privileges impliedly, but the Parliament enacted separate amendments in 1956 and 1990 to give Scheduled Caste privileges to those people.

Caste System outside the Indic order

A number of Constitutional Scholars and experts have drawn attention to texts, commentaries, commission reports, and multiple cases viz. Indra Sawhney v. Union of India and Soosai v. Union of India which established that while the caste system is unique to Indian civilization, it also encompasses non-Hindu communities in India and spreads regardless of religious sanction. Discrimination based on ethnicity is widespread in Christianity, where the social elite has distinct seating in churches and even separated burial grounds. Even Islam, which is supposed to be an egalitarian religion, is not free from the division of the caste system. Thus, it is clear that Indian Dalits cannot escape caste through conversion to Christianity, and caste is retained upon conversion. It is clear from these critical observations that although the notion that caste systems are prohibited under their personal laws is theoretically true, the ground realities illustrate otherwise.

However, to legally prove this stance, that the 1950 Order discriminates against Christians, a test established in Soosai v. Union of India had to be satisfied, namely, that the disabilities associated with caste membership in Hinduism are still unjustly severe in a new religious environment, such as Christianity. This has been established in recent times by the NCRLM report

Freedom to Practise Any Religion

Individuals belonging to Scheduled Caste who wish to profess an Abrahamic faith are prohibited from doing so, as set forth in Article 341 of the Constitution since a person must be a practising Hindu or Sikh in order to qualify for the Scheduled Caste affirmative benefits. This again goes against the principles of the Preamble of India’s Constitution, which guarantees “liberty of expression, religion, faith, and worship” to all people, as affirmed by a number of historic Supreme Court judgments, including Kesavananda Bharati. The Constitution allows any individual who converts from one religion to enjoy all the rights and benefits that they were accessible to when they practised Hinduism since Article 25 stipulates the freedom to convert, and a mere change of religion does not transform a person’s disabilities.

In furtherance of the same notion, it is pertinent to note that the Secularist principle, which is a fundamental part of the framework of the Indian Constitution, derives its legitimacy from the fundamental rights enshrined in Article(s) 25 to 28. The State, as per the Constitution Bench ratioed in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ram Das Mehra, is obligated to be neutral or impartial in giving its advantages to citizens of all castes and creeds and has to guarantee that no disability is imposed on those who practice or profess any specific religion via its laws. Furthermore, the makers of the constitution endorsed the idea of freedom to convert voluntarily owing to the freedom of conscience and no restriction can be placed upon the same recognized by landmark judgments Ratilal Panachand Gandhi v. The State Of Bombay and S.P. Mittal Etc v. Union of India. Deviation from the existing legal jurisprudence will lead to an unscrupulous travesty of justice.

Ranganath Misra Commission Report and the Way Forward

After conducting a thorough examination of the Dalit Christians (Dalit Converts), a Report of the National Commission for Linguistic Minorities assessed whether it was possible to award them the designation of Scheduled Caste under Indian law. There is a detailed analysis of the problems and adversities the Dalit Converts group has faced, together with suggestions for addressing these issues through legal remedies. It is manifest from the study that in order to provide for their advancement and progression, it is important to consider interventions by the State via its Constitutional and statutory authorities while taking the suggestions into account.

As held in the Report, converted Christians and Muslims of Scheduled Caste origin continue to be identified, like the already recognised Scheduled Castes in Hinduism with the menial and occupations like scavenging and sweeping. To their utter dismay, they also got robbed of their protection under SC and ST (Prevention of Atrocities Act) 1989, which unsurprisingly attracted criticism and suggestions from the International World Order. In other words, excluding Dalits who have embraced Christianity or Islam from SC reservations under this order does not align with the Indian Constitution and binding international jurisprudence, namely, the ICESR; ICCPR; and the UDHR.

In light of many legal and practical concerns that have arisen as a result of the order, its present condition and form, call for quick reconsideration and revision by Parliament. As the government explores this angle, it is crucial to determine how many Dalit Christians and Muslims there are in the country today.

Conclusion and Suggestions

Based on a 2008 report prepared for the National Commission for Minorities, 32 lakh Dalit Muslims and Christians live in the country. Caste information is used to estimate the size of the population, but this is likely to be an underestimation due to enumerators’ inability to verify the details they collect. It is essential to collect information about different social groups before beginning the policy formation process, as limited and unreliable data can hinder informed policies and welfare measures. Additionally, post the stage of information collection, it should recognize the current situation and incorporate certain safeguards – one such safeguard can be sub-classification of the Scheduled Caste groups like done in the case of OBCs. Within the Scheduled Castes category, the existing SC groups and SC Converts can be segregated and provided with suitable relief.

Neither social groups nor experiences are the same. Within the Scheduled Castes, there is a great deal of variation. People who have been harshly excluded and suppressed at the bottom of the ladder have not yet received the benefits of reservations as a means of ensuring their representation. In order to be able to function in the current social climate, the authorities should not lose sight of the fact that caste and religion are forbidden as a basis for classification, and they should extend affirmative benefits without regard to religious sanctions. 


Tanmay Durani and Prakhar Singh are 1st year law student from Rajiv Gandhi National University of Law, Patiala


Image Credits: Bijay Kumar Minj/UCA News

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