By Abdul Hafiz Gandhi
Corridors of power and public space seem to be fully involved in the on-going debate with regard to the rights of Dalit converts to enjoy the reservation benefits even after converting to non-Hindu religions like Islam and Christianity.
Major political dispensations like Indian National Congress, Lok Janshakti Party, Bahujan Samaj Party and Left parties have begun raising their voice to end discrimination against Dalit converts to non-Hindu religions. Talks and parleys are in the offing to amend the Presidential Order of 1950 which is seen as a big hurdle in the way of reservation for these Dalits.
Indian Constitution prohibits State from discrimination on the basis of religion. But the Presidential Order 1950 negates the constitutional intent of equality and equal protection of laws. The part III of the order says, “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.” This order restricted the benefits of the reservation policy to the Dalits of these Indian born religions and discriminated against the Dalit converts of Christianity, Islam, Parsi religion etc. Before 1956, Sikh and Buddhist Dalit converts were also not treated as Scheduled Castes.
Nothing can be more harassing and tortuous for man than to deny his legally ordained rights. In an independent India, which subscribes to the policy of non-discrimination on the grounds of religion, the existence of the Presidential Order of 1950 is the negation of the constitutional promise of non-discrimination enshrined in articles 14 and 15 of the Constitution.
Under article 341 President of India issued the order that Dalits belonging to Hindu religion shall be considered Scheduled Castes (SCs) for giving them benefits of reservation in government jobs and educational institutions. As a result, the Dalits, who converted to Sikhism, Buddhism, Christianity, Jainism, Islam and Parsi religion were deprived of constitutional reservation as after conversion they ceased to be Hindu Dalits. This gave rise to unrest among Sikh and Buddhist Dalits who, in order to escape the agony of disrespect and shame in their community, had chosen to convert. The Sikh Dalits were the first to protest against this blatant discrimination. Government of India was forced to bring an amendment to the Presidential Order 1950 to include Sikh converts in the ambit of Scheduled Caste category. The demand of other Dalit converts to non-Hindu communities was kept in abeyance for long. After a prolonged struggle Buddhists got their share in 1990 during the regime of V.P. Singh.
But the inclusion of Dalit converts to Sikhism and Buddhism does not alter the anti-constitutional character of the order. Still a large number of persons remained outside the domain of SC status as these do not belong to any of the religions mentioned in the presidential order.
The major argument in favour of doing away with the order is that in a democratic set-up, where Constitution is the guide book for the government to abide by, it cannot enact laws which are ultra vires or which go against the very spirit of Secularism.
Secularism is the essence of the Indian Constitution and in several cases Supreme Court has held that secularism is the basic structure of the Indian Constitution. The law restricting the benefits of reservation in jobs and educational institutions to Hindu Dalits (who convert to non-Hindu religions) is blatant negation of the secular spirit. Mere conversion does not change the economic condition of a person. It is far from logic that a person is educationally and socially backward when he belongs to Hindu Dalit community but when he converts he becomes economically and socially sound. A person from the same profession and having same economic status but belonging to non-Hindu Dalit section should also enjoy the benefits of reservation.
The case should also be seen in the caste system prevalent in almost every community. Like Hinduism, caste system has crept in other religions too. So, it is not good to say that since Christianity and Islam do not subscribe to caste system they are not entitled to SC status. In both these religions, the religious scriptures though prohibit caste classification, on ground the evils of caste system have affected them also. Outside the mosque, Muslims are divided among various groups on caste lines. Islam very strictly talks against having any division on racial or social lines but Muslims do practice caste divisions.
In Azamgarh division of Uttar Pradesh, there exist Halal-Khors who are Muslim equivalent to scavenging community among Hindus. They lead a life of total exclusion. Therefore, Muslims are not different when it comes to treating the Dalits converted to Islam. Mandal Commission report clearly pointed out that Muslims too are inflicted by the caste system.
Similar is the condition of Dalits converted to Christianity. Most so-called upper caste Christians do not marry or dine with these converts. The religious discrimination is so much that they have separate graveyards for the Dalit converts. The Mandal Commission, which submitted its report on 31st December, 1980 noted that “though caste system is peculiar to Hindu society yet, in actual practice, it also pervades the non-Hindu communities in India in varying degrees.” Not only this, Elayaperumal Committee (1969) says “The committee found during tours that all SCs who got themselves converted to religions other than Hinduism should be given all concessions which are available to SCs.” Besides, the Supreme Court of India in S. Anbalogan vs Devarajan, AIR, 1984, SC, 411, held that “the practice of caste, however irrational it may appear to our reason and however irrational it may appear to our moral and social sense, it is so deep rooted in Indian people that its marks do not seem to disappear on conversion to a different religion.”
All this proved beyond any iota of doubt that other religions are also inflicted by the caste system like Hinduism. Moreover, caste has ceased to be the criterion for deciding the SC status of a convert. Sikhs and Buddhists who have no caste system among themselves are assigned the status of SC and they benefit from the reservation mechanism. Therefore, the argument that since Muslims and Christians are not inflicted by caste system does not hold water any more.
This whole debate leads us to the conclusion that religions which have their roots or origin in the Indian sub-continent are treated fit to be given SC status but those having outside origins are discriminated against. Since Hinduism, Sikhism and Buddhism are Indian-born religions they are given preferential treatment over the others like Islam and Christianity, which originated outside the borders of Indian sub-continent.
Justice Ranganath Misra Commission, set up by the Central government to verify the constitutional validity of Para III of the Presidential Order 1950, submitted its report on 21st May, 2007 recommending that this order, where SC status is given to Hindu Dalits only and which was amended twice to include Sikhs and Buddhists in SC category is unconstitutional. It further observed that SC status should be given irrespective of religion. The Commission was of the view that exclusion of Dalits from SC list after conversion to non-Hindu religions violates the guarantee of non-discrimination on the ground of religion. The 1950 order violates Articles 15, 16, 17 and 25 of Indian Constitution. National Commission for SC/ST in one of its report in 1983 also recommended the recognition of Dalit converts as SC. The content of Para III of the Presidential Order of 1950 was discussed in the Constituent Assembly on 11th February 1949 and was outrightly rejected as it violated the right to freedom of religion.
Economic and social empowerment of Dalits should not be associated with religion and they must be allowed to exercise their right to remain in the religion of their choice. The Mandal Commission observed that “conversion from one faith to another did not change the socio-economic status of a person. It was therefore desirable that converts from SC to Buddhism, Christianity etc. should be treated as SC, but until this change was brought about by legislation, all such converts should be listed as Others Backward Classes.’
Keeping in mind that most Muslims and Christians in India changed their faith from low caste Hindus, denying them the benefits of SC status is unjustified and unconstitutional. It is high time to come out of the shackles of the past and support the cause of secularism and equal justice to Dalits irrespective of the religion they belong to and end this Indian prototype of the apartheid.
Dalits already suffer caste discrimination and their further exclusion by the Presidential Order of 1950 is double discrimination. Political and legal non-recognition of Dalit converts as SC have resulted in a slew of difficulties. These converts are not able to benefit from laws like Protection of Civil Rights Act, 1955 and the SCs/STs (Prevention of Atrocities) Act, 1989. Therefore, whenever any injustice or atrocity is committed against them, they found. If included in the SC list they may find their representation in Parliament, state assemblies and panchayats because then contesting elections on reserved seats would be open to the converts also. The policy and law makers must come to the rescue of non-Hindu Dalits by bringing necessary amendments in the constitution and help in erasing the blot on the Indian Secularism. Presently the matter is with the Supreme Court where the presidential order has been challenged through a PIL. We should hope that the court would come out with reasonable solution to the sufferings of Dalit converts to non-Hindu religions.
(The author is former AMU Students Union president and presently Research Scholar at Centre for the Study of Law & Governance, JNU, New Delhi)