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Constitutionality of Delinking Religion and Making Scheduled Castes Religion-Neutral

Franklin Caesar Thomas Franklin Caesar Thomas
04 Mar 2024

The Constitution (SC) Order 1950, paragraph 3, issued under Article 341 of the Constitution, is religion-based, which says, "Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Schedule Caste." Article 341 (1) says as follows, "the President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be."

Since there is no provision for the existence of the word "religion" in Article 341 (1), the religious ban of paragraph 3 of the Constitution Scheduled Castes Order 1950 should be deleted. Religion is not the joint criterion for giving Scheduled Castes special privileges to any community. In the same way, religion should not be a criterion for denying Scheduled Castes status to any community. In the case of Scheduled Tribes and Backward Class status, religion is not a criterion.

The main reason for the denial of Scheduled Castes privilege to Christians and Muslims of Scheduled Castes Origin is as follows, "both Christianity and Islam are historically foreign religions and thereby do not recognise caste system/ untouchability practice as done in Hinduism."

Some of the white Christians of the Western world show racism/ apartheid against African American/ Black Christians. Similarly, Christians and Muslims of SC origin are generally treated as untouchables by some Christians and Muslims originating from dominant castes and dominant castes other religious people/in society.

Hinduism, or any other religion, for that matter, never motivates/promotes untouchability based on its ethics; it is practised by some people who promote untouchability practice because of casteist mindsets/ menial or "low" jobs/ birth. Social exclusion is different from religious perception/ dogmas of all religions.

As per law, all Hindus of Scheduled Castes Origin people are allowed into all the Hindu Temples without any caste-based restriction. Article 17 and SC/ ST Prevention of Atrocities Act, 1989 (amended) do not allow/ practice the untouchability practice. As no religion would enable the practice of untouchability, it is incorrect to say that only the Hindu religion recognises untouchability and caste discriminatory practice. All the religions and Gods talk about religious morality, equality and non-discrimination based on caste/ untouchability. Still, due to the dominance of people with perverted mindsets, the traditional practice of untouchability prevails in society.

As per E. V. Chinnaiah vs. State of Andhra Pradesh, (2005) 1 SCC 394, para 93 (d)/ (Five Judges Bench), Supreme Court of India's judgment "A person even does not cease to be Scheduled Caste automatically even on his conversion to another religion."

Many Governments of India and other voluminous, cogent, authoritative, detailed testimonials are there to prove the socio, educational backwardness details arising out of the traditional practice of untouchability faced by Christians and Muslims of Scheduled Castes Origin people, such as the Report of the Committee on Untouchability, Economic and Educational Development of the Scheduled Castes and connected documents, 1969 (Government of India, p. 32), "The Committee found during its tours that all persons of Scheduled Castes who got themselves converted to religions other than Hinduism should be given all concessions which are available to Scheduled Castes. This is because the committee found during tours that they suffer from same disabilities, which the Scheduled Castes suffer" (also confer p. 170, X, 16).

Ministry of Welfare, Government of India's Note for the Cabinet, the Constitution (Scheduled Castes) Orders (Amendment) Bill, 1996, Paragraph No. 26 states, "The High-Power Panel on Minorities, Scheduled Castes, Scheduled Tribes and other Weaker Sections, in their 1983 Report referred to at para 13, had found that earlier disabilities continued even after leaving the Hindu fold. The National Commission on Minorities have also recently recommended the extension of statutory benefits to SC Christian converts (As also to Muslim converts from these communities) as Scheduled Castes. Taking these factors into consideration, the Ministry of Welfare proposes that recognition of Scheduled Castes converts to Christianity as Scheduled Castes be accepted."

Policy of Dalit Empowerment in the Catholic Church in India, An Ethical Imperative to Build Inclusive Communities, Catholic Bishops' Conference of India, December 2016 in chapter II, Status of Dalit Christians, page 10, paragraph No, 25 says, "…There is wider acceptance that the practice of untouchability and discrimination against Dalits exists in the Church and there is need to address these issues urgently..."

The Supreme Court of India's Judgment in K.P. Manu v. Chairman, Scrutiny Committee, (2015) 4 SCC 1, para 29 says, "If a person who is born to Christian parents who had converted to Christianity from the Scheduled Caste Hindu can avail the benefit of the caste certificate after his embracing Hinduism subject to other qualifications, there cannot be any soundness of logic that he cannot avail the similar benefit because his grandparents were converted and he was born to the parents who were Christians. They must have belonged to that caste and after conversion the community has accepted."

Archbishop George Zur, Apostolic Pro-Nuncio to India, in his inaugural address to the Catholic Bishops Conference of India (CBCI) in the meeting held in Pune in December 1991, observed that "Though Catholics of the lower castes and tribes form 60 per cent of Church membership they have no place in decision-making. Scheduled caste converts are treated as low caste not only by high caste Hindus but by high caste Christians too. In rural areas they cannot own or rent houses, however, well-placed they may be. Separate places are marked out for them in the parish churches and burial grounds. Inter caste marriages are frowned upon and caste tags are still appended to the Christian names of high caste people. Casteism is rampant among the clergy and the religious…"

The National Commission for Minorities has asserted that "That the Commission again its meeting dated 06.05.1997 made a statutory recommendation under section 9 (1) (g) of the NCM Act recommending in continuation of its earlier recommendation for outright removal of the proviso in (Constitution Scheduled Caste) Order, 1950 which confines the SC status strictly to three specified religions (Hindu, Sikh and Buddhist) to the exclusion of all other religions. It is necessary in the opinion of the Commission to do so in order to fully implement Constitutions stress on the guarantee of equality before law and equal protection of law and Constitutional prohibition of all religion-based discrimination."

The National Commission for Scheduled Castes had taken the following stand: "In view of the Full Report being laid before the Parliament, the NCSC may reiterate its earlier position & fully endorse the recommendations of the NCRLM- National Commission for Religious and Linguistic Minorities, (This Commission had recommended to delink religion for the consideration of SC status and also it had recommended to make Scheduled Castes net as religion neutral), Date: 22.04.2010."

Christians and Muslims of Scheduled Castes dwell among the wider society where, unfortunately, caste-based discrimination and even untouchability are practised to this day, and it affects them. Caste discrimination and the practice of untouchability are common in places like farms, fields, institutions, workplaces, communal areas, hotels, festivals and burial places, to list a few. The caste discriminatory mindset is engraved into the dominant caste irrespective of religion. All the castes listed in the Schedule should be extended the SC privileges without religious restriction. So, delinking religion for the consideration of Scheduled Castes' status and making the safety net for scheduled castes religion-neutral is the timely need forthwith.

(Franklin Caesar Thomas is a practising Advocate of the Supreme Court of India. He has worked as an engineer in BHEL, ETDC and the Indian Railways and is also one of the founders of National Council of Dalit Christians)

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