The Union government has filed a fresh affidavit before the Supreme Court, through the Ministry of Social Justice and Empowerment, stating its current position on the inclusion of Dalit Christians and Dalit Muslims in the Scheduled Castes list and on the petitions challenging the constitutionality of Para 3 of the Constitution (Scheduled Castes) Order, 1950, which allows only members of Hinduism, Sikhism and Buddhism to be identified as SCs.
In the affidavit filed on Wednesday, the Union government said it had examined the issue and noted the demands from Dalit Christian and Dalit Muslim communities for inclusion in the SC list and accordingly formed a three-member Commission of Inquiry headed by former Chief Justice of India Justice K.G. Balakrishnan to look into all aspects of the matter. It said this was done because the “issue is a seminal and historically complex sociological and constitutional question” that requires a “definitive study and extensive consultation with all stakeholders”.
However, in the following pages of the affidavit, the Union government has reiterated the position it took in November 2019, and argued that the petitions in the matter were “devoid of merits” and should be dismissed, “without prejudice” to the fact that a commission had already been appointed. In the 2019 affidavit, the Centre said Dalits who converted to Christianity and Islam could not be compared to those who converted to Sikhism or Buddhism; the erstwhile Registrar General India and the National Commission for Scheduled Castes and Scheduled Tribes had in early 2000s already considered these requests and rejected them; the Dalit Christians and Dalit Muslims are already getting reservation and other social benefits from being part of Central OBC lists and State OBC lists; and that the criteria for inclusion in the SC list is extreme social and education backwardness due to the practice of untouchability, which is a feature of Hinduism and its branches alone.
In addition, on the one hand, while the Centre has at the outset declined to accept the findings of the Ranganath Misra Commission also known as the National Commission for Religious and Linguistic Minorities, which recommended inclusion of Dalit Christians and Muslims in the SC list; on the other, it has cited select portions from a dissent note published with the same report, to conclude that such converts “are not eligible for consideration as SC persons”. Based on this dissent, it also adds, “A Uniform Law (referring to the Protection of Civil Rights Act) which deals with untouchability is already applicable to all persons regardless of their religious faith. The benefits accorded to Scheduled Caste converts are in tune with the benefits given to the OBCs.”
Furthermore, the Union government has argued by placing a plethora of court precedents to assert that when it comes to Article 341 of the Constitution, “the power of the President and Parliament in this regard is conclusive” and that courts in their constitutional jurisdiction “have no power except to the notification issued by the President under Article 341”.
It argued similarly, “The question as to which groups [within which religions] are eligible to be identified as Scheduled Castes, is inherently a social question and cannot be adjudicated before the Hon’ble Courts”. The Centre also argued that there is no substance in the petitioners’ claim that limiting SC classification to only a few religions was violative of rights under Article 14 of the Constitution and that in case of making special laws, the only requirement prior to legislative classification is it “should be based on an intelligible differentia having a reasonable relation to the object which the legislature seeks to attain”, which is satisfied in the instant case.
The Centre added, “It is reiterated that there exists an intelligible differentia that these classifications are not a mathematical nicety and the backwardness as pleaded by the instant petitioners is duly taken care of by the respective State governments by providing them benefits under the OBC class.”
In the latest affidavit, the Union government has said the Justice K.G. Balakrishnan Commission will also be examining whether this “intelligible differentia” exists and if it concludes so “after field study and holistic determination of the issue”, the classification as it currently exists would be sustainable.
Further, the Centre has limited the question in this case to whether Scheduled Caste converts to other religions suffer from the “same degree of oppressiveness as suffered by Scheduled Castes practising Hinduism, Sikhism and Buddhism” and asserted, “The Commission appointed by the Central government will establish, one way or the other whether the oppressive severity of backwardness remain the same or not, and till the time the same is established, it cannot be said that the impugned classification is discriminatory.”
Further, the Centre said that after conversion to another religion, the only way to establish the backwardness is to see if they are “still suffering from the same social disability, that he is following the customs and traditions of the community which he earlier belonged to and also be accepted by other members of the caste as a member of such tribe/caste”. If such converts are “arbitrarily given the perks of reservation” in the absence of these principles, “it would cause grave injustice and abuse of the process of law, that would consequently affect the rights of the SCs”.