In a major development in the fight to secure the rights of Dalit Christians and Muslims, the Supreme Court of India has issued a notice to the Union Ministry of Social Justice and Empowerment of India as a result of a petition filed by All India Catholic Union and its past president, Dr John Dayal, challenging the validity of Article 341 para 3 of the Constitution of India.
The article better known as the President’s Order or Constitution Order (Scheduled Castes) 1950, Paragraph 3, continues to deny Dalit Christians and Muslims, reservation and other benefits.
The struggle for Dalit rights has been a long and hard-fought constitutional battle. In 1935 the British, who were then ruling India, gave special privileges of reservations in government jobs and elected bodies to a number of low castes whose names were written down in a schedule. These castes were not demarcated by religion and hence included people following various religions such as Islam, Christianity, Buddhism and Sikhism.
After independence, the Constitution of India, continued to provide these affirmative actions for Scheduled Castes (whose names were in the schedule) under Article 341. However in 1950, a Presidential order took away those rights and conferred Scheduled Caste (SC) status only to Hindu Dalits saying that no person professing any other religion than Hinduism would be deemed to be a member of the Scheduled Caste.
Because of the opposition to the order by the Buddhist and the Sikh communities, it was amended twice in 1956 and 1990 respectively to extend the SC status to Sikh Dalits and Buddhist Dalits. However, Dalit Christians and Dalit Muslims are still denied this equal right despite their a long campaign.
“The biggest denial of justice for Indian Christians has been denial of affirmative action to Christian Dalits brought in by a discriminatory Presidential order in 1950 that essentially limited the “scheduled caste” rights to Hindus,” said the Rev Vijayesh Lal, General Secretary of the Evangelical Fellowship of India, in an interview with Global Christian News. “Later, after protests, these rights were extended to other ‘Indic’ religions such as Sikhism and Buddhism but the ‘Semitic’ religions: Christianity and Islam were kept away from it,” he added.
“This law has resulted in the denial of the right to freedom of faith to Hindu Dalits. Religion, and change of religion, is a right otherwise guaranteed by the Constitution of India. Now Dalit Hindus cannot convert to any religion other than Buddhism and Sikhism. Millions of them are converting to Buddhism because then they do not lose their jobs or scholarships that would happen if they chose Islam or Christianity.”
The Rev Lal said, “For all practical purposes, there is an ‘underground’ church of the Dalits – all denominations, including Catholics and Evangelicals – consisting of Dalits who believe in Christ, but are certified and recorded as Hindus on government records. The estimates of this group range from a ten million to over 20 million. That means that at a rough estimate, there are as many Christians officially recognized as followers of Christ and baptized into various denominations, as there are others who follow the Lord, but list themselves as Hindus in the national population register. This may be the biggest denial of Freedom of Faith other than in China.”
Dalit Christians filed a Public Interest Litigation (Writ Petition No. 180/2004) in 2004 in the Supreme court asking whether the fact that Dalit Christians and Dalit Muslims are deprived of the benefits of reservation did not amount to hostile discrimination under Article 14 of the constitution of India. The petition pleaded for equal scheduled caste rights for Dalit Christians by deleting the paragraph 3 of the constitution(SC) Order 1950.
As a result of this the Union Government constituted the National Commission for Religious and Linguistic Minorities(NCRLM) headed by former Chief Justice of India, Justice Ranganath Misra on 29 October 2004 to study the conditions of Dalit Christians and Dalit Muslims and give its recommendations. The commission, which submitted its report to the Government on 21 May 2007, clearly brought out the fact that change of religion does not in any way change the socio-economic conditions of Dalits and validated the point that the Scheduled castes net should be made fully religion-neutral like that of Scheduled Tribes.
It said, “Para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the Scheduled Caste only to Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely de-link Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.”
“It was in 2010, while denouncing the Misra commission report that Mr. Ramnath Kovind, now President of India, but then BJP spokesperson and a Dalit leader himself, had said that Muslims and Christians are alien to India and that it would be unconstitutional to include them in the Scheduled Caste category,” said the Rev Lal.
“Not only Misra Commission but following it, the National Commission for Scheduled Castes and the National Commission for Minorities also recommended to the Union government that Dalit Christians should be conferred the SC status they were demanding. But the then UPA government failed to take any action on those recommendations. Even more, both the last and the present governments have also failed to file a reply to the queries of the Supreme Court in this case and have dragged it on for 13 years now,” he added.
It is in this backdrop that the Supreme Court bench comprising of Chief Justice JS Khehar and Justice DY Chandrachud has sought the Centre’s response on a plea by AICU and Dr John Dayal. The ministry of social justice and welfare is expected to reply to this notice within two weeks.
The Apex Court also ordered that the new Writ Petition number 693 of 2017, filed by Advocate PI Jose on behalf of AICU and Dr John Dayal be tagged with the existing Writ Petition number 180/2004.
The new filed petition says that “para 3 of the Constitution (SC) Order 1950 amounts to the State identifying with or adopting the Hindu religion and through the amendments thereon unduly favoured it to propagate Hindu religion.”
The petition said, “Because the advantage of gaining, or the disadvantage of losing, the benefits specially provided to members of a Scheduled Caste through various reservation and other laws/ policies of the Government to a Christian of SC origin upon ‘Ghar Vapasi’ or to a Hindu of SC origin upon deciding to profess Christian religion, respectively, under the 1950 (SC) Order by itself is not only discrimination but also amounts to granting of a special privilege by the State to the preferred Hindu religion.”
The petition also points out that “it is not in the larger interest of the Nation and its people to permit the State to indulge in a tacit or open identification with a religion, if not adoption and any such law is violative of the basic structure of the Constitution.”
Advocate Jose told the court that Hindu right wing organizations like the RSS and VHP were misusing the existing provisions to indulge in Ghar Wapsi, that is re-conversion of Christians and Muslims into Hinduism.
“It is important to mention that on the one hand the poor Christians of Dalit origin are deprived of their constitutionally guaranteed freedom of faith and worship, on the other hand large groups of politically and institutionally patronised narrow fundamentalist religious bigots openly come out with violent intimidatory programs like “Ghar Wapsi” and other like programs depriving the poor Christians of Scheduled caste origin their basic human rights of peaceful living (Article 21)”, the petition said.
The petition also raises the point that RSS and its affiliates are misusing the delay in not hearing the original 2004 petition on this issue by engaging in Ghar Wapsi etc. and therefore there is a need to hear the matter early, even though the Union of India is delaying it by not filing a reply.