Constitutional provisions
1. The Constitution of India does not restrict the scheduled castes class to any select religions. The term “Scheduled Castes” has been defined in Article 366(24) read with Article 341(1) as: ““Scheduled Castes” means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be scheduled castes for the purposes of this Constitution.”
(a) “The president may with respect to any state or union territory, and where it is a state, after consultation with the governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be scheduled castes in relation to that state or union territory, as the case may be.”
(b) “Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”
2. Under these provisions, a Constitution (Scheduled Castes) Order was issued in 1950. Para 3 in the order said that any non-Hindu could not be regarded as a scheduled caste. Since this order was amended in 1956 to include Sikhs, and in 1990 the Buddhists, among the scheduled castes, since the latter amendment, this para says that nobody who is not a Hindu, Sikh or Buddhist can be a scheduled caste. The text of the order is reproduced below.
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, is pleased to make the following order, namely:
1. This order may be called the Constitution (Scheduled Castes) Order 1950.
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)) of the schedule to this order shall, in relation to the states to which those parts respectively related, 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.
4. Any reference in this order to a state or to a district or other territorial division thereof shall be construed as a reference to the state, district or other territorial division as constituted on the 1st day of May 1976.”
Moves for change by legislation
Efforts have been made in the past to get the Constitution (Scheduled Castes) Order 1950 amended by legislation so as to make it religion-neutral. A number of private members’ bills have been moved in Parliament but to no avail. An official bill called the Constitution (Scheduled Castes) Order (Amendment) Bill was at last drafted in 1996. The opinions expressed by the state/UT governments on the bill, obtained by the central government, were divided. The government also took note of the recommendations of the 1983 Gopal Singh Panel and the central Minorities Commission which were strongly in favour of deleting para 3 of the SC Order of 1950, and of the Scheduled Castes and Scheduled Tribes Commission which was against the same. In view of all this divergence of opinion, the bill was not introduced in Parliament.
Recent court cases awaiting a decision
1. In three different pending petitions before the Supreme Court of India, the petitioners have challenged para 3 of the Constitution (Scheduled Castes) Order 1950 saying that a person not professing the Hindu, Sikh or Buddhist faith cannot be included in the lists of Scheduled Castes. They have relied upon the following grounds:
(a) Secularism is a basic feature of the Constitution of India. The denial of equal privileges to persons of scheduled caste origin converted to Christianity is in violation of both the basic features enshrined in Article 25 and the preamble to the Constitution.
(b) The Constitution has provided for equality of opportunity to all those who are similarly situated. Persons of scheduled caste origin converted to Christianity are identically situated vis-à-vis their counterparts professing the Hindu, Sikh and Buddhist religions.
(c) Even after conversion, the caste label continues and it is difficult for a person in Indian society to get out of the vice of the caste system.
(d) Caste is more a social combination than a religious group and even though the tenets of Christianity do not recognise caste, it is in fact a reality.
(e) The only available judgement on this issue, namely the constitutionality of para 3 of the Constitution (Scheduled Castes) Order 1950, is in Soosai vs Union of India 1985 (Supp SCC 590). In the judgement, the Supreme Court had accepted that the caste continued even after conversion. It had however sought for more material to show that the handicaps of persons of scheduled castes had remained the same even after conversion to Christianity. In the said case, the court was not satisfied with the material placed before it.
(f) The position of persons of scheduled caste origin converted to Christianity remains the same as before. They continue to be forced into the most demeaning occupations. Their position both in the church as well as amongst fellow Christians is no better than that suffered by their counterparts in other religious denominations. They continue to be both poor and socially and educationally backward. Intermarriages between them and upper-caste Christians are rare. In the churches, they are segregated from the upper-caste Christians. Even after death they are buried in different burial grounds.
(g) The atrocities committed on the Dalits are uniform irrespective of the religions they belong to. Yet persons of scheduled caste origin converted to Christianity are deprived of special protective provisions solely on the basis of religion.
The petitioners have sought the relief that the Supreme Court should strike down para 3 of the Constitution (Scheduled Castes) Order 1950 as unconstitutional, being violative of Articles 14, 15 and 16 of the Constitution, and direct the government to extend the protection available under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and the Protection of Civil Rights Act 1955 to all persons of scheduled caste origin irrespective of their religion.
2. Seven writ petitions making the same demand are pending in different high courts, based mainly on the following pleas:
(a) The presidential order of 1950 was issued by the president of India under Article 341 of the Constitution. The power conferred on the president by public notification is a delegated power which cannot run contrary to Article 13(2) of the Indian Constitution which states as follows: “The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Under Article 13(3), unless the context otherwise requires, “law” includes any ordinance, order, by-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. So the presidential order of 1950 is unconstitutional and it is a black letter written outside the Constitution, introduced through the back door by an executive order. Under Article 341, the president has no authority to proclaim the para 3 of the Scheduled Castes Order contrary to the Articles 15(2), 16(2), 29(2), and it is also against the basic structure of the Constitution as decided in Kesavananda Bharati vs State of Kerala; and para
3 of the presidential order can be quashed as per the judgement of the Supreme Court in Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur vs Union of India (AIR 1971 SC 530 (1) SCC 85). Para 3 of the presidential order is an anathema which disfigures the beauty of the written Constitution of India.
(b) Even under Article 341 the president is not given the power to proclaim to prohibit any citizen from professing any religion of his choice. But the president under Article 341 prescribes indirectly people, particularly scheduled castes, not to profess any religion different from the Hindu or Sikh religion. In other words, to get a benefit under the Scheduled Castes Order 1950, a citizen should profess only the Hindu or Sikh religion. This is against the preamble to the Indian Constitution, which secures “liberty of thought, expression, belief, faith and worship” to all its citizens. Under Article 341, the power given to the president is to specify the caste and not to specify religion or to identify the caste by the symbol of religion and hence it is a coloured legislation under the guise of a presidential order.
(c) The explanation given under Article 25 cannot be construed as exception to treat Sikhs, Jains, Buddhists and Hindus as a single class or group except for the purpose of applicability of personal laws under Article 25(2) and the presidential order has misconstrued explanation II of Article 25 for the purpose of discriminating other religions such as Christians and Muslims. Para 3 of the Scheduled Castes Order of 1950 suffers as it discriminates citizens on the ground of religion only, whereas the Scheduled Tribes Order 1951 has omitted para 3 deliberately and citizens of backward class and the forward class are not subject to discrimination on religion only in getting the equality of status and of opportunity [that] is undermined in the case of scheduled castes under the presidential order of 1950 [which] does not promote fraternity among all citizens irrespective of caste, religion and creed.
(d) In view of the judgement passed by the apex court in Indira Sawhney vs Union of India (Supp (3) SCC 217), the impugned Constitution (Scheduled Castes) Order 1950 is required to be struck down. The apex court in the said judgement, delivered by BP Jeevan Reddy (on behalf of Kania, CJ, Venkatachaliah, Ahmadi, and for himself), in majority view came to the conclusion that the concept of castes is not confined to the Hindu religion only but it extends irrespective of religious sanction.
(e) That the action of the government is arbitrary and discriminatory on the ground that on one hand the Muslims have been excluded for the purposes of treating their caste as scheduled caste but on the other hand the Muslims are included in the list of backwards, meaning thereby that a person belonging to a caste which has been included in the list of Scheduled Castes shall stand excluded from being treated as scheduled caste on the simple ground that he is a Muslim. But on the contrary, if a person though Muslim, but his caste is included in the list of backwards, shall stand included for the purpose of treating him as a backward. In view of this, the action of the government suffers from hostile discrimination against scheduled caste Muslims.
These petitioners have also sought the same relief as sought in the petitions pending before the Supreme Court.
Diversity of views
There is a wide divergence in the views/opinions expressed on this subject before the commission. The following views, for and against, have been expressed before us:
A. Views in favour
(i) Even though Christianity and Islam do not recognise the caste system or untouchability, the ground reality in India is different. Persons of scheduled caste origin converted to Christianity/Islam continue to be subjected to disabilities, including untouchability associated with caste and occupation, as they continue to be part and parcel of Indian society.
(ii) It is not only society that discriminates against persons of scheduled caste origin converted to Christianity/Islam (inasmuch as such converts are not treated by other members of their own religion or by members of other religions as their equals); they are being discriminated against even by their own religious institutions like the church or mosque, the manifestation of discriminations being separate churches/mosques or separate prayer halls or prayer timings in the same church/mosque for them and earmarked areas for burial of their dead.
(iii) Denial of scheduled caste status to them despite untouchability-related practices being enforced against them or atrocities committed against them deprives them of the protection of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.
(iv) Despite no visible change in their social or economic status as a result of conversion, the converts are deprived of the benefits of reservation, support and development schemes formulated for their counterparts in the Hindu, Sikh and Buddhist religions. This amounts to discrimination by the state on the ground of religion.
(v) Exclusion of Christianity and Islam from the purview of the Constitution (Scheduled Castes) Order 1950 is discriminatory and unconstitutional, being violative of the provisions of fundamental rights guaranteed under Articles 14, 15, 16 and 25 of the Constitution. Change of religion being a strictly personal matter, such change should not deprive persons of scheduled caste origin [of the] protection and benefits available to similarly placed persons in other religions.
(vii) Although Sikhism and Buddhism do not recognise the caste system, like Christianity and Islam, both Sikhs and Buddhists have been given the status of scheduled castes by amending the Constitution (Scheduled Castes) Order 1950. There is no reason as to why similar dispensation cannot be extended to similarly placed persons who profess Christianity or Islam. That this is not being done is discrimination on the ground of religion that is prohibited by the Constitution.
(viii) Groups and classes of persons of scheduled caste origin professing Christianity/Islam who are included in the list of OBCs should be delisted therefrom and be given the status of scheduled castes.
B. Counterviews
(i) The very basis of identification of a certain class of people as scheduled caste is social, educational and economic backwardness arising from the age-old practice of untouchability that flowed from a rigid caste system in the Hindu religion.
(ii) Persons professing Christianity or Islam were not treated as depressed class/scheduled castes by the British in pre-independent India or by the Indian government after independence. The status of depressed class/scheduled castes was an inseparable concomitant of the Hindu religion in British and independent India.
(iii) Persons of scheduled caste origin converted to Christianity/Islam who are socially and educationally backward are included in the list of OBCs and are benefiting from reservation in services/educational institutions in favour of OBCs and from other schemes and institutional support systems formulated for OBCs.
(iv) Apart from the benefits available to the socially and educationally backward amongst Christians and Muslims as OBCs, they are also benefiting from the constitutional, legal and institutional protection/arrangements as members of minority communities.
(v) Presently, reservation is available for SCs and STs @ 15 per cent and 7.5 per cent respectively although, as per the 2001 Census, their share in the population is much more. Grant of SC status to converts to Christianity/Islam would therefore adversely affect the benefits available to scheduled castes in the matter of reservation in services/posts and educational institutions and related matters.
Conclusion
1. Inclusion of castes in the old Government of India (Scheduled Castes) Order 1936 itself was based on general impressions and not on any actual survey of the caste situation in the country. The same can be said about the Constitution (Scheduled Castes) Order 1950 which was based on the old SC Order of 1936; inclusion of additional castes from time [to time] to the lists under the present order of 1950 is also not based on a scientific survey of the actual caste situation in the country.
2. By all available evidence we do find the caste system to be an all-pervading social phenomenon of India shared by almost all Indian communities irrespective of religious persuasions.
3. It is claimed and agreed to by almost all sections of society in India, in various contexts and especially in respect of the issue of reservations, that no special benefits can be given to any community or group on the basis of religion. At the same time however, it is generally insisted upon that the class of scheduled castes must remain religion-based. This seems to be illogical and unreasonable.
4. Our recommendations on this matter, made in accordance with these conclusions, are given in Chapter 10.
5. Member-secretary of the commission did not agree with these conclusions and has given a Note of Dissent.