Thursday, March 30, 2023

Reservation Redux

The recent move to set up a National Commission to study the socio-economic and educational status of Christian and Muslim Dalits is being seen by some as a move that will only prolong the issue of granting reservation to the poorest in the country

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By Dr Swati Jindal Garg

“So long as you do not achieve social liberty, whatever freedom is provided by the law is of no avail to you.”  

—BR Ambedkar, the father of the Indian Constitution

On September 19, the media reported that the central government is all set to constitute a commission to study the socio-economic and educational status of Christian and Muslim Dalits. According to statements given by Franklin Caesar Thomas, coordinator of the National Council of Dalit Christians, and John Dayal, a veteran journalist and activist, several commissions and committees set up by previous governments have endorsed the socio-educational backwardness among Christians and Muslims of Dalit origin people, but nothing has been done till date.

“The government is repeating what was done two decades ago by retired Chief Justice of India Ranganath Misra Commission, Justice Rajinder Sachar Commission and a high-powered committee led by Prof Satish Deshpande who found religion did not matter where social status of Dalits in India was concerned,” Dayal, reportedly, said. He also added that Dalits deserved affirmative action irrespective of religion. Article 341 part three discriminated against Pasmanda Muslims and Dalit Christians.

Franklin, on the other hand, cited several government commissions and committees and studies that have found the socio-economic and educational backwardness among Dalit converts to Christianity and Islam. These include the Kalelkar Commission report, Mandal Commission report, parliamentary committee on untouchability headed by Elayaperumal, high-powered committee on minorities 1983, cabinet note of 1996 and the related bill, national commission on review of the Constitution, Sachar Committee recommendation, and Ranganath Misra Commission report. He also said: “Affidavits of the National Commission for Minorities and the National Commission for Scheduled Castes filed in the Supreme Court have endorsed the socio-educational backwardness arising out of the practice of untouchability concerning the plight of Christians and Muslims of SC origin people.”

The existence of castes in Christian community in India cannot be denied. The Malabar Syrian Christians, for example, to which Booker winning author Arundhati Roy belongs, are considered to be one of the highest castes in the Indian Christian community and it is the centre’s primary concern that these Dalit Christians, who have wider access to education and other benefits, may get the upper hand in placements, thereby defeating the very purpose of the grant of reservation.

Then, there is the debate within Islam wherein many claim that there is no caste system in Islam—a claim that has also simultaneously been contested by members of Pasmanda Muslim communities of South Asia. It was Ghaus Ansari who had named four distinct categories to broadly summarise the division of Muslims in India way back in 1960. He claimed that the Ashrafs include the Sayyids, the Abbasids, the Mughals and are at the top of the social hierarchy. Thereafter, the upper caste converts such as Butts, Rajput Muslims or Jat Muslims take the second place and then come the members of other Indian tribes that have converted to Islam which include communities like the Darzis, Dhobis, Faqirs, Julahas, Kumhars and others. The last run of the social ladder, as per Ansari, is occupied by the converts from lower cas­tes that were considered “untouchable”, such as Bhangis. Today, the converted upper caste Hindus are also considered to be Ashrafs.

The issue of categorising Dalit Muslims and Dalit Christians among the Schedule Castes in order to allow them to reap the benefits of reservation is an old one now. Article 341 of the Constitution, which came into force on January 26, 1950, provided for the Schedule Caste category. However, it was later amended to include Dalit Sikhs (in 1956) and Dalit Buddhists (in 1990) under the beneficiaries of Scheduled Caste quota. Now a large section of political parties and Dalit activists have also started demanding the inclusion of Dalit Muslims and Dalit Christians under the Scheduled Caste category.

One of the biggest reasons for doing this is also because such an inclusion will provide them with a shield against atrocities under the SC/ST (Prevention of Atrocities) Act, 1989. Another contention raised by them is that the exclusion of Dalit Muslims and Dalit Christians is directly hit by Article 15 of the Constitution that mandates that the State shall not discriminate against any citizen on religious grounds. 

A large section of Dalit Hindus has been opposing this demand as they too feel that such a reservation, if granted, will eat into the quota already granted to them thereby, reducing their share.

One of the prime reasons to set up the National Commission is because of the unavailability of definitive data to study the issue and find a solution. Consultations on the proposal are, reportedly, ongoing among the ministries of home, law, social justice and empowerment, and finance. 

The proposed Commission also assumes mammoth importance owing to the several petitions pending before the Supreme Court, seeking Scheduled Caste reservation benefits for Dalit converts to Christianity or Islam. In fact, on the last hearing in these petitions, Solicitor General of India Tushar Mehta told a Supreme Court bench that he would place on record the government’s stand on the issue raised by the petitioners. The comment came during the hearing of a petition filed by an NGO Centre for Public Interest Litigation, which had flagged the issue for consideration by the Court in 2004. In the 18 years that have passed since, the centre has failed to file any response in the matter.

The mad race for being added in the Schedule Castes list is owing to the various benefits that it grants. Among the key benefits available to the Scheduled Caste people is 15% reservation for direct recruitment in federal government jobs. The Scheduled Tribes are entitled to 7.5% reservation while the Other Backward Classes get 27% quota. While the government has been actively involved in deciding this issue for many years now, no conclusion has been arrived at, till date, owing to the sensitive and volatile nature of the demand.

Way back in October 2004, the government headed by Manmohan Singh had set up the National Commission for Religious and Linguistic Minorities, headed by Misra, to recommend measures for the welfare of socially and economically backward sections among religious and linguistic minorities. The Commission came out with its report in May 2007 and recommended delinking of the Scheduled Caste status from religion and making it religion-neutral like the Scheduled Tribes. The government, however, did not accept the recommendations on the grounds that it was not substantiated by field studies.

In another study commissioned by the National Commission for Minorities in 2007, it was concluded that Dalit Christians and Dalit Muslims need to be accorded the Scheduled Caste status. That finding, too, was not accepted on the grounds that it was based on minuscule sample sizes that could have led to unreliable estimates. Ultimately, the problem in all committee reports is that the lack of sufficient data makes it impossible to arrive at a reasonable conclusion regarding the grant of Scheduled Caste status.

It is important to note that, as of now, only Hindus, Buddhists and Sikhs can avail the Schedule Castes status under the Constitution (Schedule Castes) Order, 1950, but finally the day has come when the question of inclusion of other minorities also needs to be answered specially in the light of the statements like the one made last year by the then Union Law Minister Ravi Shankar Prasad, who had said in the Rajya Sabha that Dalits who had shunned their faith and converted to Islam and Christianity will not be permitted to contest parliamentary or assembly elections from constituencies reserved for the Scheduled Castes and will not be allowed to claim other reservation benefits.

The same was said in the light of what was held in the CM Arumugam vs S Rajgopal and others, wherein the court observed: “It is no doubt true, and there we agree with the Madras High Court in G Michael case that the general rule is that conversion operates as an expulsion from the caste, or, in other words, the convert ceases to have any caste, because caste is predominantly a feature of Hindu society and ordinarily a person who ceases to be a Hindu would not be regarded by the other members of the caste as belonging to their fold.” 

This principle was further reiterated in Coopoosami Chetty vs Duraisami Chetty and Muthusami vs Masilamani. The basic premise of these judgements was that once someone converts to Islam or Christianity, out of Hinduism, their caste ceases to exist altogether, which is to say that they stop belonging to any caste, and therefore, they should not be eligible for any benefits under the Scheduled Caste category. 

One can easily argue that when the matter was apparently settled by the judiciary vide the above judgments, then where does the current controversy come from? Reservations to, begin with, were accorded to Scheduled Castes (Dalits) essentially because of the historical oppression faced by this community which also led to their economic and social backwardness. The question of social backwardness, so to speak, is ideally taken care of the moment the individual converts to Christianity or Islam; what remains is the question of economic backwardness which too can now be corrected by Economic Weaker Section (EWS) and therefore, additional reservation on the basis of an identity they gave up willingly will essentially work as an incentive for Hindus to convert to Christianity.

According to reports, 70% of Indian Christians are Dalit converts. If this is true then it essentially means that the majority of Christians would be taking benefits as minorities and as “Dalits”. Taking due note of all that has already been said here, the issue seems to be spiralling nonetheless and the apex court of the country has its work cut out.

—The writer is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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