By Adv. Saju Jakob-Lily Thomas Jr and Adv. Mili Verma
The shackles of caste and casteism still bind India even after 75 years of Independence. India is home to millions of Dalits who share a common history of oppression, discrimination and humiliation because of untouchability based on their birth. This is combined with a high level of social, educational and economic backwardness, which determines a person’s status as a Scheduled Caste (SC), irrespective of their religious affiliations.G
It is no secret that ethnic divisions and oppressed/Dalit communities are present in every religion. In spite of the fact that most of us have only heard about Dalits belonging to indigenous religions, i.e., Dalit Hindus, Dalit Sikhs and Dalit Buddhists, there are also Dalit Muslims and Dalit Christians. This leads to questions about their whole existence per se. In terms of social welfare and policy making, only Dalits who are classified as SCs are recognised.
After Independence, various welfare policies were introduced for the betterment of Hindu Dalits, according to which their living conditions and social status improved significantly. Later, this protection was extended to Sikh Dalits and Buddhist Dalits, but not to Christian and Muslim Dalits. Due to this, they have been treated differently or poorly by Dalits of other faiths.
This abominable situation led to the appointment of various commissions to study the conditions of the economically and socially weaker sections of Muslim and Christian communities. Unfortunately, no concrete action was taken by any government on their reports for various reasons, including lack of sufficient data and corroborated information.
Recently, the government appointed a new commission led by former Chief Justice of India KG Balakrishnan to consider whether Dalits belonging to Christians and Muslims should be included in SCs. The government’s decision was based on its deliberations and statements on this issue, including a lawsuit before the Supreme Court. In fact, several petitions are pending before the Supreme Court seeking SC reservation benefits for Dalits who have converted to Christianity or Islam. The petitioners have challenged Paragraph 3 of the (Scheduled Caste) Order, 1950, which excluded SCs professing a religion different from Hinduism, Sikhism and Buddhism from the purview of reservation. This prevented their economic and social upliftment on the basis of their religion.
As a result of the Supreme Court’s direction, the centre has clarified its position on this issue and finally, taken a bold and proactive decision to resolve the matter by appointing the new commission. The issue involved is delicate, complicated and has been in existence since time immemorial. Therefore, it requires deep study and research before reaching any conclusion on it.
Since the 1950s, Dalits of these two communities have been denied their fundamental rights, which they would have been entitled to if they had not converted to another religion. The said Paragraph 3 was challenged earlier also before the Supreme Court in Soosai versus Union of India & Ors (1985) on the basis of violations of Articles 14, 15 and 25. But the Court only examined the question of arbitrariness and upheld the 1950 Order on the basis of evidentiary grounds and its deferential nature. The Court stated that such conversions are motivated by a desire to escape caste-based exclusion and violence and a desire to dissociate from caste in its entirety.
Recently, a Supreme Court Bench, comprising Justices L Nageswara Rao and Hemant Gupta in Mukesh Kumar vs State of Uttarakhand ruled that there is no constitutional duty on the part of the state government to provide reservations and that Article 16 (4) and 16 (4-A) are merely enabling provisions.
In reality, Dalit Muslims and Christians have originally been associated with the same occupations as their Hindu counterparts, with some exceptions. As such, they have been disadvantaged because of their backwardness and societal bonds on the basis of their birth. While they may have chosen to convert to another religion, they cannot be denied the right to equal opportunities and treatment with their counterparts in other religions merely on the basis of conversion or change of religion if such conversion is made out of volition. Freedom of faith, belief and expression is a fundamental right and it cannot be denied to any citizen.
In the past, while ruling on reservations in promotions, the Supreme Court recognised equality as central to the ethos of the Constitution in State of Kerala & Another vs N.M. Thomas & Others, 1975. As the equality code covers a broad range of issues and the State is responsible for ensuring such equality, unjustified action against disadvantaged groups must be prohibited. Article 15 clearly prohibits discrimination on the grounds of religion, race, caste, sex or place of birth, whereas Article 16 ensures equality of opportunity in matters of public employment. It is wide enough to encompass compensatory measures within the concept of equality of opportunity in employment so that members of Dalit communities among Christians and Muslims would be on par with other communities in public service, and thus have a share of equal representation.
But in Navtej Singh Johar vs Union of India (2018), it was held that the State is more accountable for actions that appear arbitrary. Upon establishing a prima facie case of discrimination on the basis of arbitrariness, the State would be required to disprove the existence of such discrimination by taking affirmative action against it.
Further, affirmative action represents a reaffirmation of the principle of equality rather than a departure from it, as explained in the N.M. Thomas’s case. Article 15(4) and Article 16(4) are incorporated into the principles of equality, which itself restates the foundational principle of “equal protection of the laws” referred to in Article 14. As such, both the Supreme Court and the central government have taken a proactive stand to appoint a commission to enquire into the inequalities of the Dalits of two religions.
However, the centre’s recent stand on appointing a commission to study the intricacies of the present issue is not a novel gesture; various committees have been appointed in the past too. These commissions focused on the social, educational and economic conditions of converted Dalits who are not recognised as SCs. It is evident from them that a change in religion did not change their deplorable conditions.
The first report was that of Kaka Kalelkar, Chairman of the Backward Classes Commission, which was released on January 3, 1955. The Report said: “While the Harijans amongst the Hindus, classified as Scheduled Castes, stand a fair chance of bettering their condition under the Indian Government’s reservation policy, their Christian counterparts stand twice discriminated against.”
Further, in 1975, the Chidambaram Report admitted: “That casteism is practised widely among the members of the Christian fold as judged by the characteristics of the caste system and going by the economic status of the Harijan Christians. It is evident that they are a poverty-stricken lot.”
The Report of the Mandal Commission of Backward Classes under the chairmanship of BP Mandal was released in 1980 and reflected the reality of Dalits in various religions. It stated that conversion from one faith to another did not change the socio-economic status of a person. It was, therefore, desirable that converts from SCs to Christianity, etc., should be treated as SCs. But until this change is brought about by legislation, all such converts should be listed as OBCs (Other Backward Classes). The Mandal Commission Report concluded that among Indian Christians, caste is a reality. It said that “social and educational backwardness among” the Christian community is more or less the same as among Hindu communities. Though the caste system is peculiar to Hindu society, in actual practice, it also pervades Christian society. Christian Dalits suffer the same disabilities as their counterparts belonging to other religions, it stated.
According to the National Commission for Religious and Linguistic Minorities (called the Ranganath Misra Commission’s Report), the requirements for inclusion in SCs should be made religion-neutral. This is in order to ensure the inclusion of such deserving groups under the system of reservation for the purpose of achieving their upliftment.
In March 2005, the Sachar Committee was appointed to study the socioeconomic, educational and cultural status of the Muslim community in India. Several myths concerning Muslim appeasement in India were busted by Justice Rajinder Sachar. The Report showed that Muslims lag behind other communities, except SCs and STs, on nearly every socioeconomic index. SCs and STs actually outperformed Muslims on some indices such as education and government employment.
According to the Report, the community is splintered by caste just like any other religion. A number of recommendations were made by the Committee to address the status of the Muslim community. It said that policies should “sharply emphasise inclusive development and mainstreaming of the Community within a diversity-sensitive framework”.
Many studies have been conducted on the backward class of the Muslim community. They clearly state that untouchability is still a widespread practise among Muslims, with Dalit Muslims performing poorly on all societal and economic measures. They lag behind other groups in literacy and educational attainment, as well as in state services and white-collar jobs. They also have restricted access to formal financial sources, institutional delivery and social welfare schemes, and accordingly, have a high share in child labour and poverty. Additionally, both Muslim and Hindu groups continue to practice untouchability against their own people who belong to the Dalit community.
All these commissions have made various recommendations but nothing was implemented due to various reasons, including lack of relevant data. There was also a government draft of a Constitution (Schedule Castes) Orders (Amendment) Bill in 1996. However, it was not introduced in Parliament.
Satish Deshpande, a famous anthropologist, and his team of sociologists concluded in January 2008 that SC status should be extended to Dalit Christians and Dalit Muslims. But due to insufficient data in all these studies and committee reports, they were considered unreliable. This was also the case of a report conducted by the National Commission for Minorities. Again, it was not implemented.
An extremely large section of a marginalised group has been fighting for its rights over the past few decades in the hope that the India envisioned by the Constitution would strive to provide justice, liberty, equality and fraternity to all its citizens. It is, therefore, important for the proposed commission to study Dalits social backwardness due to untouchability and economic weakness in order to consider their inclusion as SCs. The fact that they have exercised their right to practice another religion, a different Almighty, or a different way of life, does not disqualify them from receiving the same level of equality as their neighbours. Changing society’s attitude towards oppressed communities, regardless of their religion, is essential in order to ensure that they are treated with respect and dignity. Discrimination and oppression have no religious foundation; they are the result of arbitrariness and perhaps, ignorance.
—Saju Jakob-Lily Thomas Jr is an advocate practising
before the Supreme Court