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'Untouchability Not Prevalent In Christianity Or Islam' : Centre Opposes Plea Seeking Scheduled Caste Status For Converted Dalits

Deepankar Malviya
9 Nov 2022 2:59 PM GMT
Untouchability Not Prevalent In Christianity Or Islam : Centre Opposes Plea Seeking Scheduled Caste Status For Converted Dalits

The Union Government has filed its Counter Affidavit in the Supreme Court opposing a petition which seeks Scheduled Caste status for Dalits who have converted to Christianity and Islam.

The petitioner seeks a declaration that the Constitution (Scheduled Castes) Order 1950 is discriminatory and violative of Article 14 and 15 of the Constitution as it does not confer Scheduled Caste status to persons converting to religions other than Hinduism, Sikhism and Buddhism.

Opposing the petitioner's plea, the Centre stated that "the object of the reservations and identification of Scheduled Castes is over and beyond the 'social and economic backwardness'. It is submitted that the identification of scheduled castes is centered around a specific social stigma [and the connected backwardness with such stigma] that is limited to the communities identified in the Constitution [Scheduled Castes] Order, 1950."

The Ministry of Social Justice and Empowerment submitted in its affidavit that the Report of Justice Ranganath Mishra Commission (which favoured Scheduled Caste status for Dalits in all religions) is flawed as the report was created without conducting any field studies and thus cannot be corroborated with the situation on the ground. The Centre stated that the said Commission had taken a myopic view of the social environment in India and has not taken into account the effect that the inclusion would have on the present castes listed as Scheduled Castes and thus the Government had not accepted the findings of the said commission.

It was stated by the Government in the affidavit that, given the importance and sensitivity of the issue, the Union has constituted a three member commission headed by former Chief Justice of India K. G. Balakrishnan to look into the issues of providing SC status to people who claim to have belonged to the Scheduled Caste but have converted to other religions.

Untouchability not prevalent in Christianity or Islam

The Government further stated that the exclusion of Christianity or Islam was due to the reason that the oppressive system of Untouchability was not prevalent in the Christian or Islamic Society.

"The Constitution (Scheduled Caste) Order, 1950 was based on historical data which clearly established that no such backwardness or oppression was ever faced by members of Christian or Islamic Society. In fact, one of the reasons for which people from Scheduled Castes have been converting to religions like Islam or Christianity is so that they can come out of the oppressive system of Untouchability which is not prevalent at all in Christianity or Islam."

The Centre also quoted from a dissent note in the report of the National Commission for Religious and Linguistic Minorities which stated that Christianity and Islam are essentially foreign religions and thereby they do not recognize caste system and conferment of SC status on converts will amount to introduction of caste system in those religions.

"That the criteria followed in deciding whether a caste/ community is eligible for inclusion in the list of Scheduled Castes is extreme social, educational and economic backwardness arising out of traditional practice of untouchability, practised by Hindus since time immemorial. Since the caste system and associated customs and practices of untouchability are a feature of Hindu society, historically the system of special representation for Scheduled Castes was evolved specially in relation to position of castes in Hindu society who were affected by the practice of untouchability. In its conception, Christianity is an egalitarian religion-which does not recognised caste and is therefore antithetical to practices of untouchability"

Oppressive system of untouchability not prevalent in Christian or Islamic societies

"That Constitution (Scheduled Caste) Order, 1950 does not suffer from any unconstitutionality inasmuch as the exclusion of Christianity or Islam was due to the reason that the oppressive system of Untouchability which leads to economic and social backwardness of some Hindu castes was not prevalent in Christian or Islamic Society. There is authentic data to suggest that the oppressive environment which existed in Hindu Society for hundreds of years qua Scheduled Castes also existed in Christian or Islamic Society".

Conversion to Buddhism not comparable to conversion to Islam or Christianity

Justifying the amendment of the Presidential Order to include Sikhism and Buddhism, the Centre said :

"The dispensation in case of Sikhs and Buddhists converts cannot therefore be cited as a precedent for a similar treatment of Scheduled Caste converts to Christianity. Moreover, the nature of conversions to Buddhism has been different from that of conversions to Christianity. Scheduled Castes converts to Buddhism embraced Buddhism voluntarily at the call Dr. Ambedkar in 1956 on account of some innate socio political imperatives. The original castes/ community of such converts can clearly be determined. This cannot be said in respect of Christians and Muslims who might have converted on account of other factors, since the process of such conversions has been taken place over the centuries".

The Centre added that "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".

Person loses his caste on conversion to another religion

Citing several judicial precedents, the Centre said :

"It is settled that on conversion to another religion, an individual loses his caste, and the only way it is reversed is if it is established that the person who has embraced another religion is still suffering from social disability, that he is following the customs and traditions of the community which he earlier belonged to and also be accepted by other members of the caste as a member of such tribe/ caste. In the absence of these principles, should all the converts/ convertees arbitrarily be given the perks of reservation meant exclusively for SC, without carefully examining the aforementioned aspects, it would cause grave injustice and an abuse of the process of law, that would consequently affect the rights of the SCs".

Court cannot direct to alter Presidential Order

The Government also pointed out in its affidavit that Article 341 empowers the President of India to specify the castes, races, or tribes or groups within which shall for the purposes of the Constitution be deemed to be Scheduled Caste. The decision is to be taken by the President under Article 341 in consultation with the Governors of the State. The affidavit also cited various judgments of the Supreme Court and submitted before the Court that it has no power except to give effect to the notification issued by the President under Article 341.

Classification based on intelligible differentia

The Government also submitted that the only requirement prior to making a particular classification or a special legislation is that the legislative classification should be based on an intelligible differentia having a reasonable relation to the object which the legislature seeks to attain. It was further submitted that the Central Government has concluded that there exists an intelligible differentia between the Scheduled Castes converts to other religion and Scheduled Castes included in the impugned order. The Government also submitted that twin test of classification should be applicable in the matters of classification and stated that, "the present is a case of classification between Indian citizens and foreigners which cannot be doubted on any count. It is well established that Article 14 forbids class legislation but does not forbid classification."

The affidavit submitted that, "such social issues are undoubtedly not judicial interventions, however, it may be noted that this Hon'ble Court has consistently held that Courts must give due regard to the wisdom of the Parliament/President in these issues"

Case : Centre for Public Interest Litigation and Anr. Vs Union of India – W. P. (C) No. 180/2004

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