Introduction
Recently, the Supreme Court in two different cases declared that reservations cannot be given on the basis of religion. For the same reason, one of its Benches on November 26, 2024 refused to recognise the SC status of a Christian women from Puducherry. On December 09, 2024 another Bench cancelled the BC reservations given to some Muslim groups in West Bengal, while observing, “Reservation cannot be on the basis of religion”. Likewise, Prime Minister Narendra Modi also reiterated the same principle, which he asserts often, on the floor of the Parliament on December 14, 2024, strongly opposing introducing religion-based reservations. As the eighth of the 11 resolutions for ‘Viksit Bharat’, he proposed: “All attempts to give reservation on the basis of religion should be stopped”.
Equal status to some sections of Indian citizens is being denied, divested and deprived and the demand for it is being deferred, deterred and delayed. All the citizens are equal before the Constitution of India as all of them are accorded equal status and equal opportunities under Article 15. Nevertheless, in reality the Christians and Muslims of Scheduled Caste origin are treated as second class citizens. They are deprived of equal status and denied the constitutional rights and benefits. It is markedly evident that they, popularly known as the Dalit Christians and Dalit Muslims, are thrice discriminated: (1) by the Government / State which deprives them of the equal status, fundamental rights, representation and protection; (2) by the society in which they live, which practises discrimination against them steeped as it is in the culture of casteism; and (3) by some sections within their own communities which follow the caste practices being part of the larger caste ridden society.
This article underscores the denial of equality and justice for the last 75 years to the Dalit Christians and Dalit Muslims by divesting them of Scheduled Caste status and constitutional rights on the basis of their religion. It highlights the issue of this constitutional anomaly being prolonged despite their struggles for equal status and recommendations of various panels. Attempting to counter the objections and arguments that are put forward for denying them their fundamental rights, this article endeavours to dispel the presumed assumptions and misgivings that justify the anomaly. It is written in the context of setting up of Justice K G Balakrishnan Commission and extending of its period recently, which seems to be another excuse for further delaying of justice to the Dalit Christians and Dalit Muslims; verily, justice delayed is justice denied.
1. Deferral using Balakrishnan Commission
On November 01, 2024 the Ministry of Social Justice and Empowerment through a Notification extended the tenure of Justice K G Balakrishnan Commission by a year. It was constituted on October 6, 2022 under the Commissions of Inquiry Act 1952. According to the latest Notification, the Commission is now required to submit its report by October 10, 2025. Although it was to submit its report by October 10, 2024, additional time is being given to it, as a request was made by the Commission. This Inquiry Commission consists of former Chief Justice of India K.G. Balakrishnan as its head and former Indian Administrative Service officer Dr. Ravinder Kumar Jain IAS and University Grants Commission member Prof. (Dr.) Sushma Yadav as its members.
The original Notification setting up the K G Balakrishnan Commission emphasised the need of detailed and definitive study, and extensive consultation on the condition of Dalit Christians and Dalit Muslims. It is mainly focused on the possible extension of Scheduled Caste (SC) status to new persons who are converts from religions not included in the Constitution (Scheduled Caste) Order 1950, mainly the Dalit Christians and Dalit Muslims. The reason given by the said Notification is that so far no Commission has studied this problem in depth. On the contrary, several commissions and panels established by the Union and State Governments, listed below, have examined the matter in considerable depth. The incumbent Inquiry Commission is asked to repeat the same by the Central Government by mandating it to collect the data related to the socio-economic conditions of the converts to Christianity and Islam. This seems to suggest that the matter is deferred again by the establishment of the incumbent Commission and its extension. Thus, the Government is buying time and delaying the response required of it by the Supreme Court in the cases related the matter. In effect, this delay of justice amounts to denial of justice to the deprived sections of the Dalits.
2. Anomaly of the Constitution (SC) Order 1950
The List of Scheduled Castes was notified by the President of India through “Constitution (Scheduled Castes) Order 1950” on August 10, 1950 including in it the Para 3 that stated, “Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu religion shall be deemed to be a member of a Scheduled Caste.” It put a condition that the Scheduled Castes vide Para 2 must belong to Hinduism thus excluding others. But this was amended in 1956 to include SCs following Sikhism and in 1990 those belonging to Buddhism. However, it has debarred the SC reservation rights and benefits to the Christians and Muslims of Schedule Caste origin (SC) till today. Para 3 was added despite the fact that the constitutional mandate of the President was fulfilled by Para 1 and Para 2, and thereafter only the Parliament has the power and authority to amend it for making any addition or deletion from the List of Scheduled Castes. Hence, it was done illegally and against what was meant by Art 341(1), violating the provisions included in the Fundamental Rights vide Articles 14, 15, 16, 21, 25, and 366 (24); and Art.18 of the Universal Declaration on Human Rights by the UN. Since Para 3 of the Constitution (SC) Order is based on religion, it is blatantly communal, discriminatory, arbitrary, unjust and unconstitutional, contrary to secularism and the Articles mentioned above. This Constitutional anomaly was confirmed by the National Commission for Religious and Linguistic Minorities (NCRLM), also called Ranganath Misra Commission, in its Report submitted in 2007: “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. Para 3 of the Presidential Order is anathema which disfigures the beauty of the written Constitution of India.” (Vol. I, p. 141).
On August 30, 2022, through Solicitor General of India Tushar Mehta the Union Government informed the Supreme Court, “We do not accept the Ranganath Misra Commission report as it ignored many aspects.” The Government rejected the recommendations of the Misra Commission alleging it to be flawed, and declared that the Constitutional (SC) Order did not suffer any unconstitutionality. By this rejection, the Union Government paved the way for constituting the incumbent Inquiry Commission. On the other hand, the Commission is not tasked to examine the Constitutional anomaly of granting SC status on the basis of religion. However, the Misra Commission already dealt with this Constitutional matter and recommended to make the SC status religion-neutral.
The Constitution (SC) Order amounts to outright denial of freedom of religion for all the Dalits as it coerces them to remain in Hinduism or convert to Hinduism if they are born in another religion other than Buddhism and Sikhism in order to obtain certain constitutional rights and reservations, thus denying them religious freedom. Various courts, including the recent Supreme Court Benches, and some ministers and political leaders keep repeating that reservations cannot be given on the basis of region while conveniently forgetting that the original Constitution (SC) Order 1950 para 3 itself has used religious criterion to give reservations to Hindus and is still in operation on the basis of religion.
3. Reports and Recommendations of Panels
Various reports of the panels, particularly the affidavits filed in the Supreme Court by the National Commission for the Scheduled Castes (NCSC) in 2011 and by the National Commission for Minorities (NCM) in 2012, have recommended the restoration of constitutional rights and reservations to the Dalit Christians and Dalit Muslims. The NCM based its recommendation on the 2008 Report of the social scientific study commissioned by it which had established the fact of continuation of their backwardness after their conversion.
Several Commissions related to the Backward Classes and others, particularly the Kaka Kakelkar Backward Class Commission (1955), Elayaperumal Committee (1969), Mandal (Backward Classes) Commission (1980), High Power Panel on Minorities, SCs and STs and other Weaker Sections (1983), the Sachar Committee (2005), and National Commission for Religious and Linguistic Minorities (Ranganath Mishra) Commission (2007), and various Commissions set up by the State Governments, have reiterated the recommendation to accord equal status to the Dalit Christians and Dalit Muslims owing to the continued backwardness and discrimination suffered by them after conversion.
Justice Ranganath Mishra Commission recommended to delete the Para 3 of the Constitution (SC) Order 1950 to make reservations religion neutral and to delink the SC status from religion. It made the following recommendation: “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 de-link the scheduled caste status from religion and make the scheduled castes net fully religion – neutral like that of the Scheduled Tribes.” (Vol. I, p. 154). Unfortunately, as mentioned above, the Federal NDA Government 2.0 rejected forthrightly its recommendations and submitted an affidavit to that effect in the Supreme Court.
A number of judgements by diverse High Courts and the Supreme Court, including the judgement in the case on the Mandal Commission Report, have acknowledged the disabilities of the Dalit Christians and Dalit Muslims irrespective of their conversion. The public interest litigation (PIL) of WPC 180 of 2004 has been pending for the last two decades in the Supreme Court in which the Catholic Bishops’ Conference of India (CBCI) and the National Council of Churches in India (NCCI) have impleaded themselves as petitioners in 2013. There are nearly 15 such cases related to this issue pending in the Supreme Court including that of National Council of Dalit Christians (NCDC) and some Muslim groups. In 2007, after the PIL was adjourned serving a notice to the Union Government of India to file a reply in eight weeks, in what seems to be a travesty of justice, it took nearly fifteen years for the Government to respond.
The State Legislative Assemblies of some States have passed resolutions supporting the grant of SC status and statutory benefits to Dalit Christians and Dalit Muslims and have submitted the same to the Government of India. Many promises were made by Some Prime Ministers, numerous Ministers and political leaders on amending the Para 3 to include the Dalit Christians and Dalit Muslims. Several Union Cabinets, about 500 Parliamentarians, and most of the Political Parties have recommended the amendment to or deletion of Para 3. The Bill No. 17 of 1996 was brought into the Parliament on 12th March 1996 for the same purpose but fell through due to procedural lapses.
4. Condition of the Converted Basically Unchanged
In 1985 in the Case Soosai v.Union of India (Writ Petition No: 9596 of 1983) filed by a Dalit Christian to challenge the Constitution (SC) Order 1950, the Supreme Court commanded socio-economic data to prove the “continuation in their oppressive severity in the new environment of different religious community”. The same was demanded by Justice K G Balakrishnan as then Chief Justice of India in his order in 2007 on WPC 180 of 2004 on the issue of Scheduled Caste status to Dalit Christians. However, it is to be noted that whenever a person embraces another religious faith including Christianity or Islam, she / he does not automatically cease to be a member of that caste in which she / he was born and to which she / he belonged prior to her / his conversion. Even after their conversion to Christianity and Islam, their social position as well as the basic socio-economic condition of the converted do not change substantially.
The society at large continues to treat the Dalit Christians and Dalit Muslims in the same way as it treats other Dalits subjecting them to discrimination, exploitation and exclusion; it keeps looking down on them. Even the rituals and religious worship services of the Christians are often conducted separately in their local caste communities or at the local churches of the members. The occasional coming together of all the Christians in their churches and religious meetings does not eradicate the effects of social living in the midst of social milieu steeped in the practices of casteism and traditional practices of untouchability, despite the noble Christian teachings on universal brotherhood.
Hence, the contention that the Dalit Christians and Dalit Muslims have ameliorated their social status by conversion and that they cannot claim to be backward is not true to the fact.Caste discrimination and untouchability are practised against them within their communities as well as within the society at large. The change of religion does not change their caste, social status or legal status, and the disabilities arising out of the traditional practices of untouchability. The Government of India, the Parliament, and the Supreme Court have sufficient material including documentary evidence to show that the Scheduled Caste status, discrimination and subtle practices of untouchability do continue against the Dalit Christians and Dalit Muslims even after their conversion. This factuality also has been confirmed by various statements, documents and judgements of several High Courts and the Supreme Court and by the reports of the panels cited above.
The converts carry with them their caste and occupations to the new religions including Christianity and Islam. As a result, even among the Muslims and Christians, the exercise of caste system prevails in practice, notwithstanding their religious principles and teachings of equality of all humans as the children of God. Hence, it is not right and realistic to hold that the backwardness based on untouchability is only prevalent in Hinduism and so the Dalits converted to Christianity or Islam cannot claim to be backward and Scheduled Castes. Several official scientific studies made by various commissions and panels, especially the social survey report that was commissioned by NCM and presented in 2008, referred above, proved the continuation of backwardness and discrimination suffered by the Dalit Christians and Dalit Muslims even after their conversion basing on the Census data and statistics of the National Sample Survey Organisation (NSSO). The study concluded that, “there is no compelling evidence to justify denying them of SC status” (Deshpande and Bapna, 2008).
Even the children of the same Dalit parents of the same family, who live under the same roof and share the same meals are discriminated because of this Order when one of them is a Christian / Muslim and another belongs to a different religion. While change of religion to Christianity / Islam has not succeeded in removing one’s caste and the stigma attached to it, yet, one loses the SC status. Conversely, if and when a Dalit Christian / Muslim gives up his / her faith and converts to Hinduism, he / she straightaway becomes eligible for all the SC reservation benefits. Whereas, in the case of the Scheduled Tribes (ST) and Backward Classes (BC) they retain the same caste status even after their conversion to Christianity or Islam. The NCRLM report confirmed that, “the caste system to be all pervading social phenomenon… shared by almost all Indian communities irrespective of religious persuasions”.
5. Countering Objections and Misgivings
Apart from the above arguments for acknowledging the SC status of Dalit Christians and Dalit Muslims, the objections and misgivings employed for denying reservations to them need to be countered. There are also some speculative implications, unfounded apprehensions, and false assumptions in circulation for opposing reservations to them that must be dispelled.
Justice K G Balakrishnan, then Chief Justice of India, while hearing the petition WPC 180 of 2004 on the issue of Scheduled Caste status to Dalit Christians, had raised an objection on July 18, 2007: “Would the Christians admit that they practise caste system and that Dalits (among them) face social discrimination requiring reservation to uplift their cause? This is not all that easy.” However, the Church in India has admitted the prevalence of the practice caste discrimination among its fold. In several statements of its general body meetings, the Catholic Bishops’ Conference for India (CBCI) acknowledged this unfortunate “sinful” reality in the Christian community. For example, it reiterated in its Statement of 1998 at Varanasi: “The prevalence of the caste system, not only in society but also in some parts of the Church in India even at the close of the twentieth century, is a matter of shame and disgrace to all of us.” The CBCI Policy of Dalit Empowerment in the Catholic Church in India promulgated on December 13, 2016 also confirms this: “There is wider acceptance that the practice of untouchability and discrimination against Dalits exist in the Church and there is need to address these issues urgently.” (No. 25)
One often raised objection for granting of SC status to Dalit Christians and Dalit Muslims is that it would lead toconversions and impact on the Hindu population. The same apprehension was alleged while granting reservations to the Dalits in Buddhism in 1990, pointing to the fact that Dr B. R. Ambedkar had effected a mass conversion in 1956. However, as feared, conversions to Buddhism did not take place in large numbers as the result of granting reservations to the Dalit Buddhists. Similarly, as the aftermath of granting reservations to the Dalit Christians and Dalit Muslims, huge conversions to Christianity or Islam may not occur as being presumed.
Another reason often posed to deny the SC status and reservations to the Dalit Christians and Dalit Muslims is the Minority Rightsgranted to them. It is to be noted that the Minority Rights under the Constitution of India vide Art 29 and 30 give only specific rights to them to maintain their culture and belief system, and to establish and administer their religious and educational institutions. These Articles do not grant any statutory benefits and rights like reservation, representation, protection and security to the Dalit Christians and Dalit Muslims.
The denying SC status to Dalit Christians and Dalit Muslims, and granting the same to the Dalit Sikhs and Dalit Buddhists, is justified by some by asserting that Sikhism and Buddhism are offshoots of Hinduism and so they are eligible for it. They utilise Article 25-2(b)-II of the Constitution of India to substantiate this. Such persons must be reminded that the clause 2(b) of 25 was formulated in the context of temple entry and Hindu religious institutions, since their benefits were restricted to certain sections of the Hindus till the enactment of this clause. If the Sikhs and Buddhists were to have been construed as Hindus with reference to Para 3 of the Constitution (Scheduled Castes) Order 1950 on the basis of Article 25-2(b)-II, there was no need of amending Para 3 of the Order in 1956 to include the SCs in Sikhism, and in 1990 for SCs in Buddhism. The benefits should have been applied automatically to SCs in Sikhism and Buddhism in 1950 with the original Order itself. This new argument is an after-thought by some anti–secular forces who disdain to misinterpret the Constitution. Moreover, the Sikhs and Buddhists themselves decline to accept the claim that Sikhism and Buddhism are offshoots of Hinduism.
Related to this is the preconception and prejudice prevailing among the vehement opponents of granting SC status the Dalit Christians and Dalit Muslims of deeming Christianity and Islam as “a foreign religion”, which do not possess caste system, as according to them only the religions of Indian origin have it. As the historians affirm, Christianity is present in India even from its very beginnings for about 2000 years now, and Islam from the 7th century of its origin. They exist here even before the formation of some of the Indian religious traditions like the present day branches of Vaishnavism, as well as Sikhism whose followers have been granted reservations. It is also a fact that the members of Christianity and Islam in India are not migrants from the lands of their origin, rather they are of Indian origin itself and natives of Indian civilisation which is steeped in caste culture. It is also to be kept in mind that Christianity and Islam are Asian religions in their origin, and they spread to Asian counties including India much before they reached Europe. Hence, the assumption and denigration that Christianity is a “Western / European” religion is fallacious.
One of important arguments put forward by the Union Government for not accepting the findings of the Misra Commission is that its assertion the Constitutional (SC) Order did not suffer any unconstitutionality and “the oppressive system of untouchability is not present in Christianity and Islam”. Many avow that it would be an affront and insult to Christianity and Islam that profess and propagate the principle of equality to allegethey contain the practice of untouchability and caste system. Definitely, this is not going to disgrace and dishonour the religions of Christianity and Islam as such, although the caste practices within them do debase their communities and bring scandal to them. It is to be stressed that this cannot be a reason for the denial of reservations to the Dalit Christians and Dalit Muslims because the Dalit members of Buddhism and Sikhism which also hold the similar principle of equality of all human beings have been granted reservations by amending the Para 3 of the Constitution (SC) Order 1950.
Another implication feared and apprehension propagated by the staunch opponents of granting reservations to Dalit Christians and Dalit Muslims is that it would adversely affect those who are already enjoying them by depriving them of their share of quota. The reason cited for this that the Christians in a few States like Kerala and Tamil Nadu are better educated than the other Dalits. A way to avert this from happening to the Dalit brethren in other religious traditions could be, by allocating a separate quota to the Dalit Christians and Dalit Muslims as a socio-economic sub-group in the Dalit sub-castes to which they belong. Now that the honourable Supreme Court has permitted the State Governments to create internal categorisation and sub-classification of various Scheduled Castes under the SC List in order to allocate reservation quota to these groups according to their population, a way could be found to accommodate the Dalit Christians and Dalit Muslims too in this internal categorisation and sub-classification of SCs. Thus, they could be considered as sub-groups among the various Scheduled Castes they already belong to and a proportionate quota can be allocated to them in proportion to their population.
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Conclusion
The factualities and arguments highlighted above suffice for the Justice K G Balakrishnan Commission to recommend deleting of Para 3 of the “Constitution (Scheduled Castes) Order 1950” or to include the Dalit Christians and Dalit Muslims in Para 3, for availing SC constitutional rights and statutory benefits. Even from 1950, many representations have been made to the Prime Ministers and others concerned to do justice to the Dalit Christians and Dalit Muslims. From then on, multiple struggles are being waged for this cause by way of submitting memorandums, holding demonstrations and conducting rallies. Dalit Christians and Dalit Muslims have been asserting their rights for justice and equality for several decades. August 10th, the day on which this Order was promulgated, has been observed as “National Black Day / Protest Day” by them for over two decades now. One wonders how those who advocate that reservations cannot be given on the basis of religion could be blind to the fact the basis of the very Constitution (SC) Order 1950 granting reservations to the SCs of Hinduism and later to Buddhists and Sikhs, itself is based on religion. As they emphasise, if the reservations cannot be given on the basis religion, why are they being given to the Dalits of some religions, while to those of other religion? If reservations are given on the basis of religion to some, same reservations cannot be denied on the basis of religion to others. The only way to set right this Constitutional anomaly is to make the reservations religion-neutral. All those who believe in freedom of religion and secularism, and aspire for equality and justice need to strive to put an end to this on-going apartheid policy and Constitutional anomaly.
Fr Dr Anthoniraj Thumma, a contextual theologian and authour, is the National Secretary to the Office of Dialogue & Desk for Ecumenism of the Catholic Bishops’ Conference of India (CBCI) and Advisor to Federation of Telugu Churches (FTC).
