1] Chapter-IX of the Report relates to the Term of Reference which the Ministry of Social Justice & Empowerment, Govt. of India referred to the Commission on 24.8.2005 vide which the Ministry asked the Commission “as a part of its larger terms of reference for recommending welfare measures for the minorities including reservation in education and    Government employment, examine the justification for specification of Dalit Christians (or Scheduled Caste converts to Christianity) and Dalit Muslims (or Scheduled Caste converts to Islam) as Scheduled Caste for the purposes of reservation. If the opinion is in the affirmative, then Scheduled Caste converts to Christianity or Islam will have to be deleted from the Central list of Other Backward Classes and States wherever they are included”.  

The Commission was also asked “to examine whether the condition of ‘religion’ from Para 3 of the Constitution (Scheduled Caste) Order be deleted or Christianity and Islam be included in Para 3 of the Constitution (Scheduled Caste) Order, 1950”. The Commission was asked to give its specific recommendation on these aspects in its Report. Subsequently, vide Notification No.14/6/2005/MC dated 28.9.2005 a formal amendment to the terms of reference of the Commission was received which desired this Commission “to give their recommendations on the issues raised in Writ Petition No.180/04 and 94/05 filed in the Supreme Court and in certain High Courts of India relating to para 3 of the Constitution (Scheduled Castes) Order 1950, in the context of ceiling of 50 percent on reservations as also the modalities of inclusion in the list of Scheduled Castes.”

2] There are three Writ Petitions which have been filed by Christians in the Supreme Court of India - WF Nos. 180/04, 94/05 and 625/05.

Similarly, in various High Courts of the country, seven Writ Petitions have been filed by Muslims with reference to para 3 of the Constitution (SC) Order, 1950. All these Writ Petitions challenge para 3 of the Constitution (SC) Order, 1950 as discriminatory and violative of Fundamental Rights guaranteed under Articles 14, 15(4) and 16(4) of the Constitution.

3] The issues arising from the Terms of Reference assigned to this Commission and the Writ Petitions mentioned above which need to be examined are the following:

(i)    The justification for specification of Scheduled Caste converts to Christianity and Scheduled Caste converts to Islam as Scheduled Caste for the purposes of reservation.

(ii) Whether the condition of ‘religion’ from Para 3 of the Constitution (Scheduled Castes) Order be deleted or Christianity and Islam be included in Para 3 of the Constitution (Scheduled Castes) Order.

(iii)             The Constitutional validity of para 3 of the Constitution (SC) Order, 1950; and

(iv)             The impact of recommendations on para 3 of the Constitution (SC) Order, 1950

(a) on the ceiling of 50 percent on reservation.

(b) the modalities of inclusion in the List of SCs.

4] In order to examine the issues raised in para 3 above it would be necessary to understand the Constitutional provisions which authorize special dispensation for Scheduled Castes and the reasons and historical background which necessitated these provisions. In this regard apart from examining the Constitutional provisions, the Commission had also examined the response of the Government including those of specific Ministries/Departments on the Writ Petitions and similar issues raised earlier. Besides, it also invited views and opinion from members of public through press advertisement; held meetings and discussions with State authorities, community leaders, social workers, NGOs etc. at its headquarters and also during its visits to 28 States/UTs. We also took note of the reports of studies sponsored by the Commission and issue based workshops organized through premier institutions.

5] Before constitutionality of various provisions with reference to the Term of Reference is examined, it would be appropriate to refer to the grounds of the Writ Petitions pending in Supreme Court and High Courts. These have been examined in Part III of Chapter IX on ‘Demands for amending Constitutional (SC) Order, 1950 and are, therefore, not being repeated.

6] The arguments and justifications put forth during the visits, meetings and reports etc. mentioned above in favour and against conferment of SC status for persons of SC origin converted to Christianity and Islam were as follows:

In Favour of Conferment of SC Status

(i) Even though Christianity and Islam do not recognise 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 the Indian society.

(ii) It is not only the society that discriminates against them (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 church or the 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 the 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 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, protection and benefits available to similarly placed persons in other religions.

(vi) Although Sikhism and Buddhism do not recognise 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.

(vii) Such of the persons of Scheduled Caste origin converted to Christianity / Islam who are included in the list of OBCs should be de-listed therefrom and be given status of Scheduled Castes.

Against conferment of SC Status

(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 traditional practice of untouchability that flowed from a rigid caste system in Hindu religion.

(ii) Persons professing Christianity or Islam were not treated as depressed class/ scheduled caste by the British in pre-Independent India or by the Indian Government after independence. The status of depressed classes/ Scheduled Castes was an inseparable concomitant of Hindu religion in British and Independent India. The Scheduled Caste status was accorded to persons professing Sikh or Buddhist religions for the reason that they were basically sects of Hindu religion rather than being independent religions like Christianity or Islam.

(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 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 percent and 7.5 per cent respectively although, as per 2001 Census, their share in 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.

In order to appreciate the reasons for separate delineation of SCs, it is important that the historical background and constitutional & legal position with reference to the same is examined.

Scheduled Casts: Historical Background and Constitutional & Legal Position

7] In order to understand who the Sched­uled Castes are, it is important to go into its genesis. The term “Scheduled Caste” appeared for the first time in the Govern­ment of India Act, 1935. The Government of India Scheduled Castes Order 1936 was issued under this 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”. The concern for selected Hindu castes, however, dates back to 1880 when Sir Denzil Ibbetson, the then Census Commissioner in British India, 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 percent Hindus was adopted. The criteria for iden­tifying them was based on relationship of the castes with the Brahmins; their author­ity to worship God, recognise Vedas; entry into temples for them and whether or not their touch and proximity caused pollution.

It is obvious that even as early as 1880 the identification of depressed classes was from within the Hindu religious community. An elaborate attempt was made by the Census Commissioner J.S. Hutton in Census Report 1931 to specify criteria for identifying the untouchable groups. He proposed a series of steps, which revolved around the inci­dence of disabilities arising out of untouchability amongst Hindus. These included:

(i) Whether the caste or class in question is served by clean Brahmans.

(ii) Whether the caste or class in question is served by the barbers, water-carriers, tailors, etc., who serve high caste Hindus.             

(iii) Whether the caste in question pollutes a high caste Hindu by contact or by proximity.

(iv) Whether the caste or class in question is one from whose hands a high caste Hindu can take water.

(v) Whether the caste or class in question is debarred from using public conveniences, such as roads, ferries, wells or schools.

(vi) Whether the caste or class in question is debarred from the use of Hindu Temples.

(vii) Whether in ordinary social intercourse a well-educated member of the caste or class in question will be treated as an equal by high caste men of the same educational qualifications.

(viii)Whether the caste or class in question is merely depressed on account of its own ignorance, illiteracy or poverty and but for that, would be subject to no social disability.

(ix) Whether it is depressed on account of the occupation followed and whether but for that occupation it would be subject to no social disability.

The above criteria, which, in other words, means discrimination based on the obnoxious practice of untouchability, may appear to hold good for purposes of specifying the Scheduled Castes [1]. Thus the test applied was the social, educational and economic backwardness arising out of the historical custom of untouchability [2].

8] The very basis for inclusion of certain castes in the Schedule to the Government of India (Sched­uled Castes) Order 1936, and subsequently in the Schedule to the Constitution (Scheduled Castes) Order 1950 which was based on the earlier Or­der, was the traditional practice of untouchabil­ity that had plagued Hindu society for hundreds of years resulting in social, educational and eco­nomic backwardness of such castes. Parameters or criteria applied by the British authorities for identifying depressed classes, which later came to be known as Scheduled Castes, largely related to the practices and prejudices arising from un­touchability. “The phenomenon of untouchabil­ity in this country is fundamentally of religious and political origin. Untouchability is a part of the Hindu religious system” [3]. Thus religion was the basis for inclusion of castes in the list of ‘Scheduled Castes’ in 1936 as also in 1950.

9] In the year 1956, an amendment was made in the Constitution (Scheduled Castes) Order 1950 and the Hindu and the Sikh religions were placed on the same footing with regard to specification of Scheduled Castes. In the year 1990, another amendment was made in the Constitution (Scheduled Castes) Order, 1950 and the Buddhist religion was also brought under the realm of Scheduled Castes. These amendments referred to above were supported by the Explanation II of Article 25 of the Constitution of India, which reads as under:

“In sub-clause (b), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religions, and the reference to Hindu religious institutions shall be construed accordingly”.

It may be mentioned that the Scheduled Castes converted to Buddhism in large numbers after the 1950 Order were already enlisted as Scheduled Castes. They converted voluntarily to protest against the unseemly practice of untouchability. The notification continued the recognition so that they could benefit from the special protection/ facilities already available to them.

Constitutional Validity of Constitution (Scheduled Castes) Order, 1950

10] It has been argued that paragraph 3 of the Constitution (Scheduled Castes) Order, 1950 is

discriminatory and violates Articles 14, 15(4) and 16(4) as also Articles 15(2), 16(2), 25, and Article 341.

Article 14 establishes equality before or equal protection within the territory of India. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 guarantees right to equality of opportunity and employment in public offices. All these Articles while guaranteeing equality before law, prohibiting discrimination on grounds of religion, caste etc. and/or guaranteeing equality of opportunity for employment, specifically make provisions for certain categories on the ground of social and educational backwardness and for Scheduled Castes and Scheduled Tribes under Articles 15(4), 16(4) and 16(4A).

11] The Constitution in recognition of the social stratification of the society and the unequal status of different groups makes provisions for several categories of people from amongst the backwards who needed special protection and ameliorative steps for enhancing their status and standing in the society. Articles 15(4), 16(4), 46 and 341 are relevant in this regard. These included the Scheduled Castes, who were the only category recognised on the basis of religion and discriminatory practices existing within Hinduism by the Constitution.

Castes of Hindu religion identified on ‘untouchability’ related parameters were already scheduled under the 1936 Order. The Scheduled Tribes were also given a special status on the basis of geographical isolation. Articles 15(4), 16(4) and 46 made provisions for identifying socially and educationally backward classes and the weaker sections in addition to the Scheduled Castes and Scheduled Tribes and providing for their advancement. Thus the Constitution makes provision for those discriminated against within a religion, or on account of residing in inaccessible areas, or because of educational and social backwardness or belonging to weaker sections. These are all exceptions provided within Articles that guaranty equality and non-discrimination etc.

12] The validity of the order was considered by Supreme Court in Writ Petition No. 9596/83 in the case of Soosai Vs The Union of India and Others (AIR 1986 SC 733). In para 7 of the judgment the Court had observed that “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 in para 8 of their aforesaid judgment further observed that, “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 gross in character and degree that the members of those Castes in the two communities called for the protection of the Constitutional provisions relating to the Scheduled Castes. It was evident that in order to provide for their amelioration and advancement it was necessary to conceive of interventions by the State through its legislative and executive powers. It must be remembered that the declaration incorporated in paragraph 3 deeming them to be members of the Scheduled Castes was declaration made for the purposes of the Constitution. It was declaration enjoined by clause (I) of Article 341 of the Constitution.” The Apex Court in para 8 of the judgment thus observed that, “it is therefore, not possible to say that President acted arbitrarily in the exercise of his judgment in enacting paragraph 3 of the Constitution (Scheduled Castes) Order, 1950.”

13] The Constitution (Scheduled Castes) Order enlists those communities, which are eligible for getting benefits as Scheduled Castes. Under Article 341 the criteria followed for identification of communities is their extreme form of social and educational backwardness arising due to age-old practice of untouchability. Article 15(4) of the Constitution provides “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”. Thus, the State is empowered by the Constitution to make special provision for Scheduled Castes and Scheduled Tribes in addition to the backward classes. In this context, it is relevant that Article 341 should be read harmoniously with Article 15(4) of the Constitution, which makes it clear that communities identified under Article 341 are a separate class of people belonging to Hindu religion who are given special protection by the State on account of discriminations they have suffered for hundreds of years.

14] This is also sustained by the debate in Constituent Assembly which recognized “That the Scheduled Castes were a backward section of the society who were handicapped by the practice of untouchability” and that “This evil practice of untouchability was not recognized by any other religion” i.e. other than Hindu. It is apparent that the Constitution (SC) Order, 1950 relates to castes of Hindu religion. The Constitution (Scheduled Castes) Order 1950 is not an exhaustive list of all socially backward classes in India nor is it intended to be so. It only relates to the Castes discriminated within the Hindu religious system. The Constitution (SC) Order, 1950 is thus not discriminatory or violative of Articles 14, 15, 16 & 25 of the Constitution nor is it ultra vires of the Constitution as it provides for a special category i.e. the Scheduled Castes who have been given a special status under the Constitution.

15] Article 341 of the Constitution does not intend that all socially and economically backward classes be included in it; nor does the Constitution limit measures such as reservations to Scheduled Castes and Scheduled Tribes. The protection provided by Article 16(4) is intended to cover all backward classes and is wider in scope than Article 341. The categories included under Scheduled Castes are so included for certain historical reasons that are applicable to that particular class.

16] It may further be pointed out that including all socially or economically backward classes, irrespective of religion, in paragraph 3 of the 1950 Order would be tantamount to a failure to recognise the specific historical discrimination suffered by those classes included in Scheduled Castes. Inclusion of all backward classes in the 1950 Order would constitute a discrimination against Scheduled Castes by treating the experience of all sections of backward classes as similar to the historical discrimination faced by Scheduled Castes in India.

The Constitution (SC) Order, 1950 is thus neither unconstitutional nor ultra-vires of the Constitution nor it is violative of any fundamental right guaranteed by the Constitution.

Conferment of Scheduled Castes Status on Scheduled Caste Converts to Christianity and Islam

17] The principal arguments of the section demanding Scheduled Caste status for persons of Scheduled Caste origin converted to Christianity or Islam, both as per Writ Petitions and arguments made available to the Commission, are primarily two. First, that such converts continue to face discrimination, disabilities and handicaps, as also social, educational and economic backwardness as their Hindu counterparts, notwithstanding their conversion, whether voluntarily or otherwise, to Christianity or Islam. While they concede that the tenets of Christianity or Islam do not sanctify or even recognise caste system or any disability including untouchability arising there-from, they also contend that the ground reality is totally different, basically for the reason that despite the conversion, these people continue to be part and parcel of the Indian society which is still largely caste based. Such converts face discrimination not only by upper caste Hindus and the better off sections within the Christian or Muslim community, but also by Christian or Muslim religious institutions like the Church, Mosque, Cemetery and their clergies.

The second important argument is that, given the situation that persons of Scheduled Caste origin converted to Christianity or Islam continue to be subjected to caste based disabilities and discriminations, the distinction made by the Constitution (Scheduled Castes) Order 1950 between followers of Hindu, Sikh or the Buddhist religions on the one hand and Christianity and Islam on the other hand, are alleged to be discriminatory and violative of fundamental rights guaranteed by Articles 14, 15, 16 and 25 of the Constitution.

18] Viewed in this background the eligibility of Christians and Muslims for inclusion in SC list is examined below:

(i) Admitting, for arguments sake, that persons of scheduled caste origin converted to Islam/Christianity face discrimination within their own community, a pertinent question that needs to be answered is whether the discrimination or the disabilities/ handicaps arising there-from is comparable in their oppressive severity to the discrimination faced by depressed classes in Hindu religion. Separate enclosures in prayer halls of Churches or in burial grounds or the reluctance on the part of certain sections within their community to socialize with converts, though reprehensible, do not appear to match the oppression and consequential disability that has to be braided by depressed classes or untouchables in Hindu religion. There is also no documented research and precise authenticated information available to establish that the disabilities and handicaps suffered by Scheduled Caste members in the social order of its origin (Hinduism) persists with their oppressive severity in the environment of Christianity/Islam.

However, studies conducted by Rev. Samuel Mateer a British Missionary in Kerala and Tamil Nadu (i.e. erstwhile Princely State of Travancore, Cochin and Madras Presidency) during his stay of over 25 years in India, and published in the form of two books titled “Land of Charity” and “Native Life in Travancore” in 1870 and 1883, respectively, show that the “slave caste” (the present Scheduled Castes) converted to Christianity in these States became socially, educationally and economically in a better position than their brethrens who remained in Hinduism.

(ii) Incidentally, available social indicators in regard to Christians (separate figures for persons of SC origin converted to Christianity is not available) reveal that in terms of literacy and education levels, work participation rate, etc. Christians are way ahead of other major religious groups (other than Jains) like Hindus, Muslims, Sikhs or Buddhists. For example, as per 2001 census, the literacy rate for Christians is 80.3 percent against 65.1 percent for Hindu, 59.1 percent for Muslims, 69.4 percent for Sikhs, 72.7 percent for Buddhists and 64.8 percent for all religions. This lead holds good both for males and females. In the case of Scheduled Castes the literacy rate is 54.60 percent and work participation rate is 42.9 percent.

The work participation rate for Christians at 39.7 percent is the highest among religious communities after Buddhist (40.6%) and Hindus (40.4%). However, the work participation rate in respect of females in Christian community (28.7%) is the second highest after female Buddhists (31.7%) and ahead of Hindu (27.5%), Muslims (14.1%) and Sikhs (20.2%). Literacy rate of Muslims at 59.1 percent is lower than the all India average (64.8%) though higher than that of Scheduled Castes. However, up to the primary education level, the percentage of Muslims is highest at 66.31 percent as compared to Hindus 54.91 percent, Christians 45.79 percent, Sikhs 46.70 percent, Buddhist 54.69 percent and Jains 29.51 percent. The above indicators are pointers to the fact that in terms of important indices like literacy and work participation, Christians are somewhat better off compared to their counterparts in other religions while Muslims are by and large comparable.

(iii)Both Islam and Christianity do not accept ‘caste system’ which is a basic feature of Hinduism. It may also be mentioned that discrimination on the grounds of caste / untouchability within a religious community that does not recognise, much less sanctify, caste system calls for internal reforms within the religion and community-based interventions, rather than governmental intervention for inducting them into the caste system from which they chose to move to an egalitarian religion.

(iv) Granting Scheduled Caste status to such converts by the Government may amount to formal introduction of caste system in Islam/Christianity and changing the basic tenets of the religion, which will be outside the jurisdiction of both the Parliament and the Judiciary.

(v) In Soosai etc. vs. Union of India, the petition was disposed of by the Court on technicality rather than merit. The Court did not go into the question whether a person of scheduled caste origin converted to Christianity was entitled to the benefits/protection available under the Constitution to Scheduled Castes if such a person continued to be subjected to untouchability related practices despite the conversion. The petition was dismissed for the reason that no authoritative or detailed study dealing with the condition of persons converted to Christianity was placed on record.

(vi) Even though those who profess Christianity or Islam were never treated as Scheduled Caste in British India or in India after independence, efforts have been made from time to time to seek conferment of Scheduled Caste status on persons of Scheduled Caste origin professing Christianity. Private Members Bill had been moved more than once. The National Convention of the Parliamentary Forum of the Scheduled Caste/Scheduled Tribes in 1992 also passed a resolution for extending reservation facility to persons of Scheduled Caste origin to Christianity.

Constitution (Scheduled Caste) Order (Amendment Bill) was also prepared in 1996 though never introduced. The views of the various Central Ministries/Departments and State Governments were obtained in this regard. They drew attention to the debate of the Constituent Assembly and pointed out the need for determining the precise number of persons who would be covered. The absence of any suggestion on the cut off date for determining who would benefit was also pointed out. It was also mentioned by several States and Commissions that there was no justification for including Scheduled Caste converts to Christianity in the Scheduled Castes list. There would be enormous difficulty in identification of the original caste in the absence of authentic records. Besides, their representation in services was adequate and that they were already getting the benefits of reservation etc. as OBCs.

(vii) The Protection of Civil Rights Act of 1955 is a religion neutral Act. It is applicable to all “religions and religious denominations throughout India” [3]. Hence, the argument put forth by the petitioners that the benefits under the Act are not available to Christians and Muslims is not based on factual information. The SC/ST (Prevention of Atrocities) Act, 1989 is, however, specific to these two categories only.

(viii) Both Islam and Christianity are religions which originated outside India. These came from foreign lands to India along with traders, invaders and preachers/ missionaries over a period of time spanning hundreds of years and firmly established themselves as more and more indigenous people converted from their religion to Islam/Christianity. Both are religions that do not recognize caste. It may be extremely difficult to hazard a guess about the number of the progeny of such traders/ invaders/ preachers/settlers from foreign lands and Scheduled Castes who converted in the present population of Muslims/Christians in India. What can, however, be said with an element of certainty is that a vast majority of Muslims and Christians in India today comprise of the converts and their progeny. If this hypothesis is accepted, the identification of such Muslims/Christians who were originally of SC origin will pose many problems as no authentic records have been maintained.

(ix)Any procedure adopted to identify the SC converts to Christianity and Islam at this stage even if a cut off date is fixed, is bound to produce innumerable problems that will hazard rational and equitable decision for identifying those truly eligible. The chances of abuse and of the ineligible siphoning benefits at the cost of deserving are tremendous. Even for the Castes that are listed there is enough evidence that false certificates are being obtained. In fact, what is necessary is to ensure equitable treatment to converts from Hinduism or any other religion to another who continue to be socially and economically backward, for protection and access to services for their socio-economic upliftment. Uniform law for dealing with untouchability already exists. PCR Act is applicable to all.

(x) It may be difficult to fault the rationale adopted during British rule, and continued after independence, behind identification of depressed classes/scheduled castes on the basis of untouchability related disabilities which were peculiar to the Hindu society, arising from a highly rigid caste system. As already mentioned, the SC Order of 1936 was based on ‘caste’ and its application to the Hindu religion is apparent from the fact that paragraph 3 of the order issued on 30th April 1936 provides clearly that “No Indian Christian shall be deemed to be member of a Scheduled Caste”.

The Constitution (Scheduled Castes) Order, 1950 was based on the Constitution (SC) Order of 1936 and adopted the same criteria for identification of castes i.e. practices and prejudices arising from untouchability that had plagued Hindu society for centuries and had resulted in the social, educational and economic backwardness of the castes enlisted. The 1956 and 1990 amendments to the Constitution (Scheduled Castes) Order 1950 have been justified on the ground that Sikh and Buddhist religions were primarily home­grown sects within Hindu religion rather than being independent religions in the nature of Christianity or Islam. Besides they draw support from Explanation II below Article 25 of the Constitution which provides that reference to Hindu in sub-clause(b) of clause(2) of Article 25 shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion.

(xi) The positive discrimination on the ground of social and economic backwardness arising out of untouchability was granted to certain castes professing Hinduism with the objective of achieving the constitutional guarantee of equality. And hence the provision of Article 15(4). In pursuance of the special status of the Scheduled Castes as a first step, untouchability was abolished by Article 17 of the Constitution and its practice in any form forbidden. Enforcement of any disability arising out of untouchability was an offence punishable under the Protection of Civil Rights Act of 1955. After 50 years of effort to eradicate untouchability to enlarge the list of the untouchables would bring to naught all initiatives taken so far to change the age old social structure. It would in fact be a retrograde step not in keeping with the constitutional commitment of non-discrimination.

(xii)The rigidities and severities of the traditional Caste structure and discrimination which were a part and parcel of the Hindu Caste system have changed substantially. The Caste distinctions have eroded and the behaviour towards Scheduled Castes has undergone a tremendous change. Caste distinctions have largely transformed into class distinctions specially in urban and semi-urban areas. There is adequate evidence to establish this through various socio-economic studies. In the case of Christians and Muslims the discrimination reported is within the community itself. Separate enclosures in Churches for “Dalits” or separate Cemeteries are issues to be addressed primarily by the religious leaders through reform within their system and through welfare and legal measures and not by introducing Caste system into religions that do not recognize it.

In the last 60 years the effort has been towards eradicating the practice of ‘untouchability’ and Caste distinctions and discriminations existing within the Hindu religion. There is therefore no justification for incorporating this abominable and discriminatory practice into other religions, notwithstanding that the religious tenets of both Christianity and Islam do not permit it, and notwithstanding the fact that the very competence of the State - executive, Parliament or even judiciary - to introduce ‘caste’ into religions that profess egalitarian regime is questionable.

(xiii) There is enough evidence to establish that ‘untouchability’ is on the decline. The Annual Report of the Government of India, Ministry of Social Justice & Empowerment, laid on the Table of the Lok Sabha and the Rajya Sabha on 25.11.05 and 28.11.05, respectively, on the Protection of Civil Rights Act, 1955 for the year 2003 reveals that during 2003 only 651 cases were registered in the country in 12 States. Out of these, 495 (76.04%) cases were registered in Andhra Pradesh alone, followed by 69 cases in Karnataka, 39 in Maharashtra and 17 each in Madhya Pradesh and Puducherry. The number of cases registered in Jharkhand (4), Tamil Nadu (3), Kerala (2), Orissa (2), Chandigarh (1), Gujarat (l) and Himachal Pradesh (l) varied between one to less than five. In all other States/Union Territories, viz, Assam, Arunachal Pradesh, Bihar, Chattisgarh, Goa, Haryana, Jammu & Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Punjab, Rajasthan, Sikkim, Tripura, Uttar Pradesh, Uttarakhand, West Bengal, Andaman & Nicobar Islands, Dadra & Nagar Haveli, Daman & Diu, Lakshadweep and NCT of Delhi, no case was registered under the Act.

Compared to this, the average yearly number of cases registered under the Act during first half of 1980s was in the region of 4000, which declined to 2493 in 1991-92, 1581 in 1992-93, 1387 in 1993-94 and 982 in 1994-95. Admitting that like offences under numerous other statutes including the Indian Penal Code, a large number of offences committed under the Protection of Civil Rights Act, 1955 are either not reported or, if reported, are not registered, the number of registered cases in relation to the Scheduled Caste population of the country is an indicator of the fact that the incidents of untouchability, outlawed and punishable, have become more of an exception rather than the rule.

57 years of Government’s and society’s crusade against untouchability, increase in the level of education and awareness of the people boosted by nearly all pervasive reach of print and electronic media, assertiveness by Scheduled Castes of their own status and rights, etc. had a definite impact on people’s thinking and behaviour pattern in regard to untouchability. Social change has impacted on the Caste structures with the result the rigidities of the system and the severities of the practice have been diluted. It is necessary to prune the list of Scheduled Castes on the basis of comprehensive surveys so that the benefit of positive action in favour of Scheduled Castes percolates to the people who deserve it the most and is not cornered by the elite amongst the Scheduled Castes.

(xiv) The prevalence of untouchability in the country and within the Hindu caste structure has vastly changed over the last 60 years. The access to services and facilities in the country is available to all irrespective of caste and religion and wherever discrimination is practiced, a system of dealing with and of corrective measures has been provided. In the recent past, there have been occasions when the higher caste or the so-called higher castes have come forward to permit free entry to all SCs in temples where they were not allowed earlier. It may not be out of place to mention that services and facilities are provided on equal terms to those following vocations which are pollution based e.g. manual scavengers and others engaged in unclean operations irrespective of their religious or caste affiliations.

(xv)    The    views    expressed   by   the   State Governments, Chief Ministers, other political heads, institutional heads and NGOs have an important bearing on whether or not the status of Scheduled Caste should be granted to Scheduled Caste converts to Christianity and Islam. Out of total of 35 States, only seven states have concurred with the proposal, five have opposed the inclusion and 10 have given no comments. Others have not yet formulated their views. Many Scheduled Caste organisations have opposed the grant of Scheduled Caste status to Scheduled Caste converts to Christianity and Islam on the grounds of their having embraced religions other than Hinduism only because of the discrimination faced by them on account of untouchability.

Similarly, Buddhist organisations in several States represented that the Buddhists should not be included in the Scheduled Caste lists because they adopted or embraced Buddhism only because of the stronghold of the Caste system in Hinduism and the discriminatory practices against them. Representatives of Muslim Organisation in several States were vociferous in stating that Muslims cannot be termed “Scheduled Castes” but should be included in OBCs and given benefits.

(xvi) In view of the foregoing, the demand for grant of Scheduled Caste status per se is unjustified. However, the reasons for the demand merit consideration and call for action for ensuring special facilities and dispensations if atrocities or discriminations on the basis of untouchability arising out of vocation are found to be practiced against them. It may be reiterated that the PCR Act is not religion-based and is available to followers of all religions. Opportunities for better education, employment etc. need to be ensured where needed and the discriminatory practices redressed through administrative, legal welfare, and developmental measures and not by inclusion in the Scheduled Caste list on the plea that caste continues even after conversion even though the adopted religion does not permit it.

(xvii) During the workshop held on “Social Economic and Educational status of Muslims: Problems and Policy options” organised by the Commission in collaboration with Indian Institute of Public Administration, the Muslim scholars opined that there are three globally accepted determinants of socio-economic backwardness, namely child mortality, degree of urbanisation and the average life expectancy at birth. As far as the Muslim community is concerned, they are ahead of the majority community in this regard. In the circumstances, they were of the view that the frequent attempts to provide religion-based reservations to Muslims cannot be justified either constitutionally or ethically. They were also of the opinion that non-acceptance of small family norm and abysmally low female work participation are responsible for relatively lower per capita income of the Muslim community. Both of these are controlled by the powerful clergy of the community. No amount of reservations can cure this situation. The solution lies in rescuing the community from clutches of fundamentalist scholars and Mullahs. Therefore, the Constitution should be amended to introduce affirmative action programmes for those minorities which are educationally backward and under-represented in legislative bodies and civil services. They also suggested that a common civil code should be formulated.

(xviii) The Scheduled Castes Organisations have also been demanding that if despite their request the Scheduled Caste status is given to converts to Christianity and Islam, this should not be at their cost i.e. it should not affect the reservation quota and other privileges/benefits available to them.

(xix) The solution lies not in expanding the list of castes and numbers for inclusion in the SC list. In fact a fresh assessment of the lists of SC persons is a dire necessity to identify those who still remain below pollution levels. After almost 60 years of concerted efforts, we need to move towards removing all differences as prescribed in the Constitution on the basis of religion, Caste, creed, class, etc. and evolving a uniform methodology for identifying the socially and economically backward in the country so that benefits from services, programmes and policies and legal and other protections against abuse or exploitation are provided on an equal basis without any discrimination to the deprived and/or socially and economically backward.

(xx) In this context, it may not be out of place to mention that the inclusion of caste in the Government of India (Scheduled castes) Order 1936 itself was not based on any authoritative data. No extensive survey of prevalence of untouchability related practices was undertaken. On the contrary, it was largely based on impressions, though painstakingly gathered. The same can be said about the Constitution (Scheduled Castes) Order 1950, which was based on the 1936 Order. Inclusion of castes from time to time in the schedule to the Order, too, is not based on any survey.

All this adds to a high probability of subjectivity and / or political considerations in the identification of Scheduled Castes notwithstanding that amendment/modification of a State specific schedule, after its initial notification by the executive, requires legislation by Parliament. However, in view of the fact that untouchability, which was the sole basis for identification of a class as Scheduled Caste, has been abolished by the Constitution and has been outlawed by a Parliamentary Statute and there has been a sea change in the attitude and perceptions of the society in post Independent India consistent with increased education and awareness, there should be no further inclusion in the list of Scheduled Castes.

Instead, the emphasis should be on exclusion of all castes from the list and preparation of a comprehensive list of socially and economically backward on criteria based on social and economic status. Many members of the Scheduled Castes have freed themselves from the pernicious yoke of untouchability and resultant disabilities in the last 60 years due to initiatives taken through positive discrimination in their favour as also the social change resulting from economic development and globalisation.

(xxi) The concept of identifying a caste or community As Backward Caste or Scheduled Caste has now become archaic and has created a vested interest in backwardness. After nearly sixty years of planned development and affirmative action in favour of backwards and Scheduled Castes, there does not possibly exist a single Caste or class of which every single constituent is backward. Admitting that social and economic emancipation is a long drawn process which has been further extended by an inefficient and often incorrect delivery system, a sizeable section in each caste has reaped the advantages of developmental schemes and positive action. They must make way for more deserving ones, more so because of severe constraints on resources.

Therefore, there is a need for a fundamental change in the policies and programmes where under every individual, regardless of his religion, caste, creed etc. qualifies for positive discrimination in his/her favour on social, educational and economic parameters. Under the new dispensation the caste, class and religion need to be replaced by the family/household as a unit for the purpose of eligibility for positive discrimination to be elbowed out as soon as the family reaches the prescribed threshold of social, educational and economic status. There is no alternative to targeting the socially and economically backward and poor except by identifying them individually and as a household.

We must recognise that the smallest minority is the individual who is socially and economically poor and marginalised and the social and economic advancement of each of the backwards holds the key to nation’s economic prosperity and social equality and justice. List of SEB families should be prepared on the basis of a universal survey and for those continuing to follow vocations considered ‘pollution based’ should be prepared and time bound programmes undertaken for rehabilitation - in alternate jobs and by changing the nature of jobs by improvements through technology in traditional occupations. Until such a mechanism/system is devised and established the concept of exclusion of ‘creamy layer’ from the benefits meant for Scheduled Castes and Scheduled Tribes should be introduced as an interim measure, as has been done in the case of backward classes for the purpose of employment under the state so that those who have benefited from the system and interventions do not deprive the eligible from reaping the benefits.

19] There are 2 other issues on which the Commission’s views have been sought with reference to the Constitution (SC) Order of 1950. They relate to 50 percent reservation and the modalities for inclusion. With regard to the ceiling of 50 percent in reservation the Hon’ble Supreme Court has already decided in the case of Indira Sawhney and Others Vs Union of India that the ceiling of 50 percent on reservations will continue. Since Scheduled Caste converts to Christianity and Islam are not to be included in the list of Scheduled Castes, no change in the ceiling merits consideration at this stage. Similarly, no change in modalities is called for.

20] In view of the preceding discussion with reference to the issues mentioned in para 3 of the note my views are as follows:

(i)    There is no justification for inclusion of SC converts to Christianity or SC converts to Islam as Scheduled Castes.

(ii)  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.

(iii)             The ceiling of 50 percent of reservation should continue as has been adjudicated by the Supreme Court.

(iv)             As SC converts to Christianity/Islam do not qualify for inclusion as SCs, they should continue to form part of OBCs and avail of facilities and reservations given to the OBCs until a comprehensive list of SEB’s is prepared.

References

[1] Report of the Commissioner for Scheduled Castes and Scheduled Tribes, Government of India, 28th Report, 1986-87, p. 549-550.

[2] Handbook on Scheduled Castes and Scheduled Tribes, office of the Commissioner for Scheduled Castes and Scheduled Tribes, 1968, p. 27.

[3] Report of the Committee on Untouchability, Economic and Educational Development of the Scheduled Castes and Connected Documents, 1969 - p. 7.

Ms. Asha Das was member secretary, National Commission for Religious and Linguistic Minorities (NCRLM), also known as the Ranganath Mishra Commission