Conversion, Reconversion & Caste: When Scheduled Caste Status Ceases Or Revives Under 1950 Order? | Explainer

Religious conversion is one of the most controversial topics in India, yet it remains a social reality.  

In the background of the ruling, the piece explains the various nuances of conversion and reconversion and their effect on caste.

History of Articles 341 and 342

In the Indian Constitution, Articles 341 and 342 talk about the Scheduled Caste and the Scheduled Tribes, respectively. Both provisions allow the President to issue a public notification as to which caste, race or tribe can be “deemed” to be considered as SC/ST. For any further inclusion or exclusion, the power has been given to the Parliament.

Articles 341 and 342 were originally not present in the Draft Constitution. An amendment was moved by the Chairman of the Drafting Committee, Dr BR Ambedkar, on September 17, 1949, to introduce Draft Articles 300A and 300B, respectively.

The idea of introducing these two articles was to eliminate the necessity of burdening the Constitution with long lists of SC/STs. But the real idea goes way back to the Indian freedom struggle movement, where caste was considered by the British Government as one of the weapons to divide and rule. The most prominent debate happened between Mahatma Gandhi and Ambedkar.

Gandhi justified the Varna system, which he said established a class-based hierarchy on merit and promoted social harmony. However, over time, the class-based hierarchy blurred with a caste-based system, which promoted untouchability and ostracised certain communities. He coined the term 'Harijan'(children of god) and believed in the self-purification, where the upper castes must lead initiatives for the upliftment of those in the lower castes.

On the contrary, Ambedkar termed the varna system as inherently oppressive and called for the complete annihilation of the caste system.

In 1932, the then British Prime Minister, Ramsay MacDonald, announced the Communal Award, which provided for separate electorates for the depressed classes. While Ambedkar favoured separate electorates for the depressed classes, Gandhi opposed it and went on a fast-unto-death. Gandhi argued that a separate electorate would further divide the society and lead to the exclusion of the depressed classes.

Ambedkar had to give in, and that's how the Poona Pact came to be signed between Gandhi and him in 1932, agreeing to a joint electorate. Three years later, in the Government of India Act, 1935, the term Scheduled Caste was used, and they were given representation in the Council of States along with Sikhs, Muhamadan and women. It was described that those castes, races, or tribes which 'His Majesty in Council' thinks correspond to the class of persons formerly known as the depressed classes.

This resulted in the Constitution(Scheduled Castes) Order, 1936, which now corresponds to the 1950 order.  

Now, coming to the Constituent Assembly, Muniswamy Pillai, a member belonging to the Scheduled Caste community, emphasised that the Scheduled Castes can't be defined outside of religion. He said that untouchability was practised in the Hindu community since time immemorial, which led to these people being called the Scheduled Caste because of the socio-economic disabilities and cultural and educational backwardness they suffer. He also described that there have been movements where people have moved from professing Hinduism to other religions and continue to claim to be Scheduled Caste. He said that such converts can't be considered part of this religion.

The Draft Articles 300A and 300A were then accepted without any amendments. Today, as it stands, Article 366(24) defines the Scheduled Caste as described in Article 341. Articles 330 and 332 provide for the reservation of the Scheduled Caste in the House of the People and in Legislative Assemblies, respectively.

What are the Constitutional Orders of 1950?

Invoking Article 341(1), the Constitution(Scheduled Castes) Order, 1950, came to be published on August 10, 1950, by the President after consultation with the Governors and Rajpramukhs of the States. The order in clause 3 made it clear that no person who professes a religion different from Hinduism shall be deemed to be a member of a Scheduled Caste. It provided for a State-wise list of castes, races, or tribes to be considered as the Scheduled Caste.

It also allowed certain classes of Sikhs, such as Mazhabi or Ramdasi, to be deemed to be members of the Scheduled Caste irrespective of whether they profess the Hindu or the Sikh religion. Later, in 1956, Sikhs were added as another religion, and then in 1990, Buddhists were added.

One of the scholars, Tanweer Fazal, suggests that while Sikhs were added because of the religious proximity, there was a bit more background to why Buddhists were added. He writes that the Courts were flooded with election petitions claiming that persons who fought from the reserved constituencies had later converted to Buddhism or Christianity and henceforth lost their membership of the Scheduled Caste.

What are the case laws?

Constitutionality of 1950 Order, caste ceases to exist upon conversion

G. Michael v. Mr S Venkaeswaram (1951) was one of the earlier cases in which the issue of whether clause 3 of the order created an arbitrary classification was examined. In this case, the petitioner was a member of the Paraiyan caste but later converted to Christianity. He argued that the President can't arbitrarily create a part within a caste.

The Madras High Court that while the caste system is peculiar to the Hindu religion. It was held that in other countries, they don't recognise the caste system. At the same time, the judge recognised that there could be instances where, in spite of conversion,  caste distinction might continue. But ultimately held, “the general rule is conversion operates as an expulsion from the caste; in other words, a convert ceases to have any caste”.

Professing a religion must be an open declaration

Then came the Punjab Rao v D.P. Meshram and Others(1964), in which the Supreme Court invalidated the election of D.P. Meshram to the Maharashtra Legislative Assembly on the ground that he had embraced Buddhism and ceased to be a member of the Scheduled Caste. This was during the time when Dr Ambedkar had himself renounced Hinduism and converted to Buddhism.

In this, the Court interpreted the word 'profess' and said it is an open declaration that the person belongs to the religion specified in clause 3 of the order. Any contrary declaration would mean that the person no more benefit from the order.

Untouchability and nexus with caste

Similarly, in Ganpat v Returning Officer & Others(1974), the issue arose as to whether the election could be invalidated after the person embraced Buddhism. In this case, the petitioner was a doctor and had contested in the Maharashtra Legislative Assembly, but his election was challenged on the grounds that his two nieces had married in a Buddhist form and that he had participated in Buddhist Vandana.

The Supreme Court here said that just because his niece had married in a Buddhist form and they had garlanded Dr Ambedkar, it cannot be establish that the petitioner ceased to be a member of the Scheduled caste. The Court said that the Hindu religion is tolerant and the practices are so varied that just because a person goes to a Buddhist temple, Church or a Dargah, it can't be said that he is no longer a Hindu unless clearly provided that they have changed religion.

Most importantly, the Court acknowledged that untouchability is not only associated with Hinduism. Practices have shown that there are separate churches in the South for Scheduled caste Christians, or that Punjabi Muslims used to look down upon Bengal Muslims, etc. But the Court nevertheless upheld the 1950 order.

In G. M. Arumugam vs S. Rajgopal & Others(1975), the Supreme Court explored the issue of whether caste ceased to operate on conversion to any other religion. It did agree with the general rule laid down in Michael that caste ceased to operate upon conversion. But the Supreme Court said that it ultimately depends on the structure of the caste.

As the caste system has evolved over the years, a caste may consist not only of “persons professing Hindu religion but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because where caste is based on economic or occupational characteristics and not religion identity or the cohesion of a caste as a social group is so strong that conversion into another religion does not operate to snap the bound between the convert and the social group”.

The Supreme Court said its infact a frequent phenomenon in South India where, in some of the castes, even after conversion ot Christianity, a person is regarded as continuing to belong to the caste. The basis for this is that the religion or the faith the person converts to does not take exception to this social order, which does not interfere with its spiritual or theological aspect of the religion.

The Court also explored the issue of reconversion to the original religion and said that the longstanding view suggests that the moment a person reconverts, the social and economic disabilities, which gives him a favourable treatment by the Constitution, revives provided the community is ready to accept him back. But, on the merits of the case, the Court did not allow the claim of the appellant that he became an Adi Dravada upon reconversion from Christianity.

This was more comprehensively dealt in Soosai Etc vs Union Of India And Others(1985), in which the Supreme Court took a step away from the interlinkage between caste and Hinduism. It said that in order to establish that Clause 3 discriminated against Christians, it must be shown that they suffer from a “comparable depth of social and economic disabilities and cultural and educational backwardness”. But the Court rejected the claim of an Adi Dravida who had converted to Christianity on grounds that there was no evidence to suggest that such conditions prevailed in the Christian society.

Reconversion

In Principal, Guntur Medical College, vs Y.Mohan Rao(1976), the issue was whether a person, whose parents were Scheduled Caste but converted to Christianity, who was Christian by birth, could reconvert to Hinduism to avail the reservation benefit for admission to medical college. The admission was denied because the appellant did not belong to Hinduism by birth. However, the Court, applying G. M. Arumugam, said that upon conversion ot Christianity, the caste may continue to exist.

It said that the 1950 Order says nothing about professing a religion at birth. It merely says a person must be professing it at a relevant time. In this case, the Court said the appellant would not automatically become a member of the caste his parents originally belonged to, but he would become one if that community accepts him within its fold.

In K.P. Manu v. Chairman, Scrutiny Committee, the issue arose if a person could convert to his original caste; it was his grandparents who had converted to Christianity. That is, whether the caste is escliped on conversion and revived on reconversion. The Court, applying the Principal, Guntur Medical College judgment, held that a person upon reconversion has to show all three things: 1. Clear proof he belonged to a caste mentioned in the 1950 order, 2. There has been a reconversion to the original caste from which his parents or earlier generation reconverted, and 3. Evidence of acceptance by the community

Recent case laws

In the Chinthada Anand, the Supreme Court said that a person cannot simultaneously profess and practice a religion other than the ones specified in Clause 3 of Constitution (Scheduled Castes) Order, 1950 and claim membership of a Scheduled Caste at the same time. On conversion to any religion other than Hinduism, Buddhism or Sikhism, SC status ceases to exist.

In another judgment, the Supreme Court had denied Scheduled Caste status to a woman whose family reconverted from Christianity. The woman had sought reservation benefits under the SC category. A bench comprising Justice Pankaj Mithal and Justice R Mahadevan had said that conversion only to avail reservation benefits is a fraud on the Constitution.

In Chinthada, the Supreme Court laid down three conditions which the person had to mandatorily establish if he reconverts from a religion not specified in clause to 3 to back to Hinduism, Sikhism or Buddhism.

These are: 1. There must be clear proof that the person originally belonged to a caste notified in the Order; 2. There must be unimpeachable evidence of reconversion to the original religion, accompanied by complete renunciation of the religion to which the conversion had taken place, and 3. There must be credible evidence of acceptance by a member of the original case.

Similar to the 1950 Order for the Scheduled Caste, a similar Order was passed for the Scheduled Tribes. While there is religion-based exclusion when it comes to the Scheduled Caste, there is no such thing under Article 342. Therefore, conversion does not automatically lead to a loss of the Scheduled Tribes status. 

Demands for Muslim and Christian Dalits reservation

These have been demands to delete Clause 3 of the 1950 Order, which provides a religion-based exclusion for the Scheduled Caste. . A private member's Bill was introduced in 2022 to delete the clause so that Dalit Christians and Dalit Muslims can also be granted the status of Scheduled Castes.

It may also be noted that Kaka Kalelkar Commission (1955) and Mandal Commission (1980) recognised that untouchability was not limited to Hinduism. Then in 2007, the Justice Ranganath Mishra Commission recommended that the criteria for backwards classes should be socio-economic and not caste or religion. It recommended de-linking the status of the Scheduled Caste from religion.

However, the Union Government has called the report of the Ranganath “flawed” on the grounds that it was created without conducting any field studies.

In 2004, a writ petition was filed by Centre, Public Interest Litigation And Another v. Union Of India, which sought for the inclusion of Christians and Muslims in the 1950 Order. In 2022,  the Union Government opposed the plea saying that untouchability is not prevalent in these two religions.

In 2022, the Union constituted a three-member commission headed by former Chief Justice of India K.G. Balakrishnan to look into this issue. But the tenure of this committee has been extended from time to time, and is yet to give a report.

Another petition filed by an organisation named National Council of Dalit Christians(NCDC) seeking a direction to grant Scheduled Castes (SC) status to Dalit Christians is also pending.

During the hearing of this petition, the Supreme Court had orally remarked that social stigma for a person may continue even after conversion to Islam or Christianity.

Postscript

The core issue, however, remains that courts have often failed to fully appreciate that while the practice of untouchability may have originated within Hinduism and is historically linked to the caste system, the abhorrent practice has, over time, manifested across religious communities. This raises a fundamental question: is reliance on theological distinctions, without adequately considering ground realities and evidence of continuing social discrimination, the appropriate constitutional approach?