Rakshit Agarwal
ABSTRACT
The issue of providing reservation to Dalit Muslims and Dalit Christians has been the subject of public debate for a very long time. With the constitution of a committee for the purpose of looking into these demands, this paper re-examines the constitutionality of the laws that excludes Dalit Muslims and Dalit Christians from availing the benefits of reservation. It concludes that the relevant law in question, the Constitution (Scheduled Castes) Order 1950 is unconstitutional. Thus, every Scheduled Caste ought to be provided with reservation irrespective of their religious status.
INTRODUCTION
The topic of reservation has been a contested one in India for a considerable time. In furtherance of the goal of substantive equality, the law provides reservations in educational institutes and public employment to the Scheduled Castes (“SC”). While Dalit Hindus have been provided with reservation, Dalit Muslims (“DMs”) or Dalit Christians (“DCs”) have been denied the same. While certain sections of the latter communities may have been provided with reservation under the OBC category, it is prudent to grant them SC status for two fundamental reasons. First, it establishes religion is not the sole criterion for determining socio-economic backwardness. Second and more importantly, it gives them access to beneficial legislations such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) 1989 which is critical to prevent crimes and atrocities against the members of the community.
Although the government has created a committee under the leadership of former Chief Justice KG Balakrishnan to inquire into these demands, it is not the first time that this has happened. There exists the earlier recommendation of the Ranganath Mishra committee on the same. The larger question that lingers is on the constitutionality of the law that systematically excludes different religious minorities from SC status.
This essay will be divided into two sections. The first section will trace the history of the SC status in India. The second section will argue why a failure to grant the SC Status to Dalit Muslims and Dalit Christians violates Articles 14, 15, and 25 of the Constitution of India 1950, and accordingly renders the Constitution (Scheduled Castes) Order, 1950 as unconstitutional.
I. SCHEDULED CASTES: A HISTORICAL OVERVIEW
The origin of the SC status lies in the Government of India 1935, wherein certain depressed classes, who had been the unfortunate victims of untouchability, were provided with reservations in matters of public employment. They were granted reservations because the practice of untouchability contributed to their extreme socio-economic and educational backwardness. The Constitution furthered the same by providing reservations to the SCs by providing the President of India the power to notify a list of Scheduled Castes under Article 341.
However, Section 3 of the Constitution (Scheduled Castes) Order 1950 categorically held that the SC status could not be awarded to anyone outside the Hindu community. While this was amended to include Sikhs and Buddhists in later years, showcasing the inherent Indian governance trend of clubbing these religions under the umbrella of Hinduism, it failed to include within its ambit Islam and Christianity. The following section contends that this exclusion violates certain constitutionally-guaranteed fundamental rights.
II. RELIGION AS A DETERMINING FACTOR FOR GRANTING SCHEDULED CASTE STATUS
Article 14 of the Constitution permits reasonable classifications to be made among different classes of individuals.[1] To prove that there exists a reasonable classification among categories of individuals, two prongs of the test need to be satisfied. Firstly, there must be an intelligible differentia between the classes. Secondly, there must exist a rational nexus between the classification and the object sought to be achieved by it. In this case, the state has classified Indic religions of Hinduism, Buddhism, and Sikhism from non-Indic religions including Islam and Christianity. However, the justification behind the same is that the separation of classes of individuals into four varnas is recognized by Hindu texts including the Vedas. Buddhism and Sikhism were also granted SC status because they were offshoots of Hinduism. On the contrary, religions including Islam and Christianity recognize an egalitarian society with no hierarchy among individuals.
However, such a nexus is not rational to the object sought to be achieved by the state, which is equality in the fullest sense. It provides greater recognition to the text of the religious texts over the livid realities of individuals. More often than not, DMs and DCs consist of individuals who converted from Hinduism in the hope that the egalitarianism inherent in Islam or Christianity would ensure their prosperity and well-being. However, these individuals carry their caste identity along with them despite converting. The Supreme Court has repeatedly emphasized the principle of substantive equality in cases such as NM Thomas,[2] which highlight that reservations are in furtherance of equality. Moreover, the Court has highlighted how casteist practices exist in non-Hindu religions as well, thus rebutting any claims to the contrary. The principle of substantive equality focuses on achieving equality by considering the socio-economic and educational backwardness of a community and the role a person’s caste has to play in it. It is submitted that an interpretation limiting SC status to Hindus, Buddhists, and Sikhs vitiates the principle of substantive equality.
While the state argues that Muslims and Christians are not provided with SC benefits because their religions recognize egalitarianism, it gave Buddhism the benefits of SC reservation. This was despite Buddhism being a break from the Brahmanical order of Hinduism that sought to promote equity in the fullest sense. Furthermore, the notion that conversions remove disabilities arising out of caste is nothing but ignorance of the actual experiences and ground realities of aggrieved individuals. The Supreme Court has opined that the change in religion neither abrogated one’s caste status nor ameliorated their socio-economic condition.[3] In the case of S. Anbalagan v. B Devaraju,[4] where a Christian convert sought to re-convert back to Hinduism, the Court held that “it may be more accurate to say that he never lost his caste in the first instance”.[5] It is evident that caste remains a pervasive social construct and has little to do with religion. The provisions of the Constitution, including Articles 330, 332, 334, and 335 nowhere speak of caste as a function of religion. It is the state that has attached a religious connotation to it.
While the state may be against the idea of granting DMs and DCs reservations, the Courts have been rather supportive of it. In the Soosai case,[6] The Supreme Court held that it would provide reservations to such communities if it could be shown that there existed a “comparable depth of social and economic disabilities, cultural and educational backwardness as well as similar levels of degradation within the Christian community that they suffered to avail the SC status.” There have been consistent developments in this area of anthropology since this case was decided in 1985.
The practices of untouchability pervade the day-to-day lives of DMs. In a similar fashion to caste-divides in Hinduism, rules concerning food, social relations, and access to religious places of worship are governed by practices of strict separation. Besides being made to sit separately from other Muslims, they are made to access different burial grounds. They also reside separately when compared with non-Dalit Muslims. While the divide in their case may be similar to Hindus, the only difference here is that upper-caste Muslims do not openly admit to following such practices, unlike Hindus. The larger Islamic community also fails to account for such atrocities because of the principle of equality enshrined in the religion. The situation of DCs is also bleak. While the religion believes in equality, it is a matter of concern that a mere 3.8% of priests and nuns are Dalit despite them constituting 65% of the Christian population.
It is also prudent to note that a classification such as this propagates untouchability rather than curbing it in line with Article 17, a vital tool against exclusion. Furthermore, the bar against untouchability is religion-neutral. If the Constituent Assembly genuinely believed that the practice existed only within Hinduism, it would have made a mention of the same. It also rejected an amendment that sought to limit the scope of the article to caste and religion-related untouchability. Having recognized alternate avenues of discrimination, the Constituent Assembly gave untouchability a broad interpretation.
Furthermore, as highlighted in the Sabarimala case, the fundamental purpose of Article 17 was promoting justice and equality amongst all individuals.[7] It seeks to promote an equal social order that gives the vulnerable a platform to achieve their collective good. The goal of transformative constitutionalism aims at ensuring a better future for all which is contingent on providing the socially disempowered with the means for a fruitful life. The Constitution is no doubt a harbinger of change that firmly frowns upon exclusionary practices.[8] Article 17 thus deserves an interpretation that furthers these goals. A denial of reservations goes against the basic tenets of Article 17 by subjugating individuals into stigmatized hierarchies.[9]
While the upper-caste of both these religions argue against these reservations because it would bring in caste in egalitarian religions, this approach negates progress that can be made for the betterment of communities. In the 37 years since the Soosai case, there have been reports at the national level including the Justice Ranganath Misra Committee Report that highlight the backwardness faced by DMs and DCs and the need to accommodate them within the SC category. The very presence of caste and social barriers hinder such individuals from reaching their fullest potential. For instance, the number of DMs below poverty are roughly 6% greater than Dalit Hindus. The caste that an individual left behind in Hinduism haunts him like a ghost despite the conversion to an egalitarian religion.
It is also argued that the current scheme of things is violative of Article 15 which promotes equality. This is because it denies an individual the benefits of reservation solely on the basis of religion, notwithstanding the fact that his socio-economic conditions may be similarly placed to someone provided with the benefits of reservation. As highlighted by Justice Chandrachud in Navtej Singh Johar v Union of India, it is the effect that the provision has and not the initial object that was kept in mind while enacting the statute that needs to be taken into account to ascertain whether Article 15(1) has been violated. Keeping this in mind, the state’s object implicit in the Constitution (Scheduled Caste) Order is secondary to the ultimate effect that the exclusion has on the larger well-being of DMs and DCs. Thus, the Order violates Article 15(1) as it fails to account for the disproportionate ramifications it has on those similarly placed yet excluded by religion.
This essay also argues that such a provision vitiates Article 25. While Article 25 provides for a free conscience to profess and practice a religion of one’s choice, the bar against reservations on the conversion of religion vitiates the free choice of conscience one has. By making reservations religion-neutral, the state conveys two things. First, it would entail the recognition of the fact that untouchability is not a function of religion. Second, it would protect the religious rights available to an individual under the Constitution. The state need not go into the merits of the conversion because the choice of conversion means professing one’s own free will.
CONCLUSION
While the topic of reservation may be contested, the onus lies on the state to further equality in society. This author believes that denying DMs and DCs the benefits of reservation violate several constitutional provisions, including but not limited to Articles 14, 15, 17, and 25. This essay proceeded to examine the rationale put forth by the state in denying DMs and DCs the benefits of reservation before arguing that they are violative of the Constitution. It examined the lived experiences of the affected individuals and concluded that religion need not be the sine qua non to determine socio-economic backwardness. Having established that Section 3 violates fundamental rights, this paper hopes that the Judiciary would take the stance of permitting such reservations in line with the constitutional goal and vision of promoting complete equality in the cases listed and pending before it.
[1] See Chiranjit Lal Chowdhury v Union of India AIR 1951 SC 41.
[2] State of Kerala v NM Thomas (1976) 2 SCC 310.
[3] Ganpat v Returning Officer (1975) 1 SCC 589.
[4] (1984) 2 SCC 112.
[5] ibid [13].
[6] Soosai v Union of India AIR 1986 SC 733.
[7] Indian Young Lawyers Association v State of Kerala (2019) 11 SCC 1 [71] (Chandrachud J’s Judgment).
[8] ibid [100] (Chandrachud J’s Judgment).
[9] ibid [75] (Chandrachud J’s Judgment).
The author is a second-year student pursuing B.A. LL.B from National Law School of India University Bangalore
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