The controversy surrounding the caste certificate of Sameer Wankhede, zonal director of the Mumbai unit of Narcotics Control Bureau, has raised a moral and constitutional question — can members of Muslim community, who claim to be victim of caste discrimination, be included in the Scheduled Castes category? Senior Journalist Dilip Mandal recently wrote a thought-provoking commentary in ThePrint, arguing that such communities are entitled for the SC list because Article 341 of the Constitution, which empowers the President of India to identify Scheduled Castes, does not mention the criterion of religion, and therefore, the Presidential Orders of 1950 through which the SC list has been notified, based on the religion, is discriminatory. He further argued that the Presidential Order of 1950 and its subsequent modifications in 1956 and 1990 were an afterthought, intended to prevent conversion from Indic to Abrahmic religions, and hence violate the doctrines of equality, and freedom of religion and conscience enshrined in Articles 14, 15, 16 and 25.
Based on the historicity of the SC category and the Constituent Assembly debate, I examine these claims and refute the argument.
Was SC category envisioned religion neutral?
The first argument that Dilip Mandal makes, which has also been raised by Muslim and Christian leaders previously, is that the SC category envisioned in Article 341 is supposed to be religion neutral because it does not mention exclusion based on religion. Actually, this argument emanates from Justice Rangnath Mishra Committee Report, which said that “the Constitution of India does not restrict the Scheduled Castes class to any select religions” (Page-139). However, this expectation will not arise if one investigates the Constituent Assembly’s debate on SC category.
In the Constituent Assembly, there was consensus that the SCs would be given reservation, and the President of India would issue a notification specifying the list of castes, race, and tribes to be included in the SC list. The idea was that the President would utilise the already existing SC list notified through the Government of India (Scheduled Castes) Order 1936. Section 2 of the said order empowered “the council of his majesty to specify any caste, race, tribe, or party of or group within caste, race tribe to be treated as Scheduled Caste”. Section 3 introduced religious criterion:
Notwithstanding anything in the preceding paragraph
a.) No Indian Christian shall be deemed to be a member of Scheduled Castes.
b.) In Bengal, no person who professes Buddhism or a Tribal religion shall be deemed to be a member of the Scheduled Caste.
The Government of India (Scheduled Castes) Order 1936 makes it crystal clear that since its inception, the SC category was never religion neutral. The Constitution makers had been aware of this fact, and during debate on Article 341, they were working under the assumption that the existing list would be reproduced through a Presidential order. The Presidential Order of 1950 did the same by removing the ambiguity which had arose due to partition and integration of princely states.
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Inclusion of the Sikhs not an afterthought
Dilip Mandal argues that ‘initially, the SC status was meant only for those who professed Hinduism and the Constitution (Scheduled Castes) Order of 1950 was amended in 1956 to include Sikhs, and in 1990 to include Buddhists’. This proposition is also taken from the Rangnath Mishra Committee Report, which says that the 1950’s Presidential Order “was amended in 1956 to include Sikhs, and in 1990 the Buddhists” (Page 139). Based on this proposition, Dilip Mandal argued that there has been a deliberate attempt to exclude Muslims and Christians. Members of these communities also make similar accusations that the State has made distinction between Indic and Abrahmic religions while framing the criteria for inclusion in the SC list.
However, a closer examination of the 1950 Order proves that the above argument is at best a half-truth because the Order per se makes provision for the inclusion of Sikhs rather than 1956 order, as critics claim. The clause 3 of the Presidential Order 1950 says:
Notwithstanding anything contained in paragraph 2, no person who professes a religion different from Hinduism shall be deemed to be a member of Scheduled Caste.
Provided that every member of the Ramdasi, Kabirpanthi, Muzhabi or Silkgar caste resident in Punjab or Patiala and East Punjab State Union shall, in relation to that state be deemed to be a member of Scheduled Caste whether he professes Hinduism or Sikhism.
The 1956’s amendment order was just to remove the ambiguity arising due to reorganisation of states, rather than inclusion of Sikhs. The assessment that the inclusion of Sikhs was an afterthought process is also incorrect. The demand for the inclusion of Sikhs in SC list was made in the Constituent Assembly Debate on 14 October 1949, and assurance was given. The relevant part of the debate is reproduced in the table below:
Sardar Hukam Singh: My question has not been answered. Have these four Sikh classes* been included in the Scheduled Castes?
Dr. B. R. Ambedkar: Of course, they will be.
K. M. Munshi: The President is empowered to issue, under article 300-A, a list of Scheduled Castes. In that. These Scheduled Castes will find a place.
Sardar Hukam Singh: Where is the guarantee that the President will include these people in that list? We have given up all safeguards to secure this in the Constitution. That has not been done.
K. M. Munshi: The President has that power. The President is sure to keep to the pledge which has been given. This decision finds a place in the Advisory Committee’s Report that the Sikh Scheduled Castes will form part of the Scheduled Castes and provided with the safeguards under Article 296, which we have already passed. There is no question of going back upon that pledge, you may take it from me. I repeat the Sikh Scheduled Castes will be included in the list of Scheduled Castes and Scheduled Tribes in the Punjab.
*Mazhbis, Kabirpanthis, Ramdasias, Bawrias, Sareras and Sikligars.
The excerpts of this debate further clarify that the SC category was not envisioned to be religion neutral to begin with; if this would have been the case, the Constitution makers instead of giving assurance for inclusion of Sikhs, would have said that this question did not arise because the category is going to be religion neutral.
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Why Muslims are not entitled?
The provision of reservation for the SCs is an outcome of the Poona Pact of 1932, which was a trade-off between leaders of the SC community and the Congress and the Hindu Mahasabha. The SC leaders had abandoned their demand of a separate electorate and so, were extended the provision of reservation, which was later incorporated in the Constitution. Muslims and Sikhs were not party to that agreement and both communities had been enjoying separate electorates. So, the issue of representation of SCs was seen as a matter within the Hindus. That is why the Hindu Mahasabha signed the Poona Pact along with the Congress. If Muslim leaders would have insisted for inclusion of some of their communities in the depressed class/Scheduled Caste categories, the Muslim League would have been required to surrender some seats from its share (of separate electorate) and would have become signatory to the Poona Pact. The same would have been the case with Sikhs.
As far as Sikhs are concerned, they had surrendered their separate electorate to the Minority Committee of the Constituent Assembly, and hence, as a trade-off, some sections of their community were assured to be included in the SC list. Since Muslim League’s demand had culminated into the formation of Pakistan, Muslims were out from the negotiation table because they had nothing to surrender. This does not mean that the post-colonial Indian State was envisioned to subordinate the Muslims. If this would have been the objective, the community would have never been included in the ST and OBC categories.
Only those Muslims are demanding to be in the SC category who are availing the benefit of OBC reservation. One must ask why they are feeling suffocated in the OBC category, and what is attracting them towards the SC category. I see two possible reasons — a.) they are not able to avail the benefit of reservation in the OBC category, and b.) their demand might be guided by the ‘race against the bottom’.
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Does exclusion violate religious freedom and conscience?
The exclusion of Muslims and Christians from the SC category is argued to be violating the fundamental right of religious freedom and conscience of SCs, since it limits their choice to convert. The right to convert is an essential component of freedom of religion and consciousness. Echoing the same sentiment, Dilip Mandal argues that the said provisions are against the constitutional morality. However, the function of constitutional morality is to ensure the realisation of constitutional values, norms, and provisions, rather than facilitating conversion.
The individual’s choice of religion and conscience are deeply related with his/her relationship with God and the supernatural power. Such relation is primarily guided by the heavenly good, or otherworldliness, rather than material goods. No material good or power can prevent a person from converting if the person is convinced based on his/her inner consciousness that X god or religion would be best fit for his/her conscience. Therefore, the argument that the religious cap on the SC reservation is meant for preventing conversion is fallacious. In fact, it stigmatises the conversion of the Dalit, since it assumes that their religious affiliation is linked to material benefit.
Arvind Kumar (@arvind_kumar__), PhD Scholar, Department of Politics & IRs, Royal Holloway, University of London. Views are personal.
(Edited by Anurag Chaubey)