Narcotics Control Bureau’s Mumbai zonal officer Sameer Wankhede is in trouble. He is a 2008 batch Indian Revenue Service officer and has handled many high-profile cases. Currently, he is in news because of the drug case pertaining to Aryan Khan, son of Shah Rukh Khan. Wankhede is also facing bribery charges.
In India, an officer handling high-profile cases, facing bribery accusations or becoming a part of political conundrums is nothing new. The uniqueness of this case is a bit more personal. But as the saying goes, the personal is the political.
Who is Sameer Wankhede?
In brief, the story goes like this—a police officer in Mumbai marries a Muslim woman. A boy is born, who grows up and performs nikah with a Muslim woman in accordance with the Muslim Personal Law. The boy, in this case, is Sameer Wankhede, and the name inscribed on the nikahnama, made popular by Maharashtra minister and Nationalist Congress Party (NCP) leader Nawab Malik, is Sameer Dawood Wankhede.
Now, Nawab Malik says that Sameer is the son of a Muslim man and practices Islam, so his Scheduled Caste (SC) certificate is illegal. As Wankhede used it to get a government job, he should be charged and as per the law, lose his job. Malik also said that Wankhede grabbed the job from someone who is actually an SC.
Malik argues that according to the rules, Muslims cannot get SC certificates and because Wankhede is a Muslim, his claim to an SC status to get the job is an illegal act.
The Constitution Order of 1950—discriminatory towards religions
Malik actually refers to the Constitution (Scheduled Castes) Order of 1950, para three of which states “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 Scheduled Caste.” Initially, the SC status was meant only for those who profess Hinduism. The Order was amended in 1956 to include Sikhs, and in 1990 to include Buddhists.
It was an executive order notified in The Gazette of India on 10 August 1950. Interestingly, it was passed right after the adoption of the Constitution, which does not put any bar or religious prerequisite to be a member of the SC category. The term ‘Scheduled Castes’ has been defined in Article 366 (24) and Article 341(1) of the Constitution. Article 366(24) says “Scheduled Castes means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution”. Further, Article 341(1) says, “The President …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.”
Hence, it’s beyond any doubt that putting a religious bar on the SC status was an afterthought and the current controversy is related to the Government Order of 1950. With this Order remaining in force, if it is proved that Wankhede is Muslim, then his SC certificate and its use to get a government job are illegal. In that scenario, he might be tried for forgery.
SCs should include all eligible members
I would like to argue that because Sameer Wankhede’s family faced untouchability in the past and his ancestors were from a discriminated community, he should be considered as an SC member even if Malik’s claim is right. Wankhede’s SC status should not be subject to his being a Hindu or a Muslim. As the current rules, specifically the Constitution Order of 1950, will not allow this to happen, it should go.
I am placing five arguments in favour of my assertion:
1. Caste is a horizontal, all-pervading social category. Caste status remains the same or at least similar even after changing the religion. It is true that caste hierarchy and untouchability have religious and textual sanctions only in Hinduism, whereas other religions and their holy books generally talk about equality before God and egalitarianism. However, in practice, followers of almost all religions in southern Asia practice casteism in some form. Even the practice of untouchability is not unique to Hinduism. There are ‘untouchable’ communities in other religions as well, and they face similar kinds of discrimination and exclusion, but the State does not consider them fit for the SC list. Forefathers of Hindu outcastes might have migrated to other religions in search of salvation or to get freedom from caste discrimination but they ended up as the lowest of the low in those religions as well.
2. The Constitution Order 1950 is an afterthought and is against the idea of equality. It is violative of the provisions of the fundamental rights guaranteed under Articles 14, 15, 16 and 25 of the Constitution. The Constitution of India guarantees freedom of conscience and religious freedom as a fundamental right. As there is a provision of freedom to profess any or no religion in India, which is quite central to the idea of freedom, converting to another religion is also intrinsic to the same principle. Once a person has been included in the SC list, their willful change of religion should not affect their SC status. The Order actually says that if one wants to keep on availing reservation and other benefits and facilities provided to the SCs by the State, avoid conversion. At best, one can convert to Sikhism and Buddhism, but if they convert to Islam or Christianity, the SC status goes. This is, in fact, a provision to stop Hindu SCs from converting and thus against the constitutional idea of freedom to profess any faith or religion.
3. One argument given in favour of the Order is that as Islam and Christianity profess equality, there can be no untouchability among their followers. Sikhism and Buddhism also do not recognise the caste system and untouchability. Despite that, untouchable communities from both religions have been given SC status by the 1950 order. In this context, denying SC status to the Muslim and Christian untouchable communities is actually an act of practising discrimination on the basis of religion, which is against the Preamble of the Constitution.
4. If Muslims and Christians are included in the OBC and various state BC lists, what is the rationale for not including them in the SC list? One of the foremost criteria for including a community or social group in the OBC list is social backwardness. Caste identity is at the core of deciding social backwardness. The inclusion of Muslims and Christian castes in the OBC list proves that the concept of castes is there in these religions. The untouchable Muslims and Christians are included in the OBC lists. For instance, in the Maharashtra list of the OBCs, entry no. 256 mentions: “Muslim Religion Bhangi/ Mehtar/ Lalbeg/ Halalkhor/ Khakrob, the members of which are actually in the Safai Karamchari profession.” Such communities are there in the OBC lists of almost all states.
5. One of the arguments against the inclusion of Muslim and Christian untouchable communities in the SC list is that it will be against the interests of the Hindu/Sikh/Buddhist SCs. This is the most powerful and popular argument for the Constitution Order of 1950. This argument is more political and has nothing to do with constitutional morality or the principle of justice and fairness. Nevertheless, the fear is unfounded as the SC quota is proportionate to the total population of the SCs. If new social groups are included in this category, the quantum of the SC quota increases. If any government wants to give the SC quota to all communities, they might think of giving that in the form of a sub-quota.
A hotly debated issue that needs a paradigm shift
The issue has been on the table for a long time. More than 10 petitions related to it are pending in the Supreme Court and different high courts. It has also been raised in Parliament several times. Since 1990, when the Buddhists were included in the 1950 Order, no government has ever tried to disturb the status quo. The UPA government-appointed Rangnath Mishra Commission recommended a solution: “Para 3 of the Constitution (Scheduled Castes) Order 1950 … should be wholly deleted by appropriate action so as to completely de-link the Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.”
However, the UPA government never acted on this recommendation. While it was never easy to correct this historical mistake, it has become even more difficult after the Bharatiya Janata Party (BJP) came to power at the Centre. It needs a paradigm shift in Indian politics to correct this historical mistake.
The author is the former managing editor of India Today Hindi Magazine and has written books on media and sociology. He tweets @Profdilipmandal.
Views are personal.
(Edited by Humra Laeeq)