The Supreme Court on Wednesday said that a 2007 report of the Justice Ranganath Mishra Commission for Religious and Linguistic Minorities, which recommended Scheduled Caste reservation for Dalit converts to Christianity and Islam, is not all that “perfunctory”, adding that the government may need to “re-check” its stance on the report.
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The oral observation by Justice Ahsanuddin Amanullah, a member of a three-judge Bench headed by Justice S.K. Kaul, comes a few months after the government discredited the 2007 report as “myopic”, and something prepared within the “four walls of a room”.
“Nothing was gone into by the Ranganath Mishra Commission. There was no comparative analysis, no empirical data, no field study,” Additional Solicitor General K.M. Nataraj, for the Centre, submitted.
‘Not perfunctory’
“Are you sure? You probably need to re-check. It is not that perfunctory. You are making a generalised statement on this report,” Justice Amanullah responded.
Rejecting the Mishra report, the government had recently constituted a new Commission headed by a former Chief Justice of India K.G. Balakrishnan, giving it two years to prepare a report on the question of granting SC status to “new persons who have historically belonged to the Scheduled Castes but have converted to religions other than Hinduism, Buddhism and Sikhism”.
Using Mishra report data
On Wednesday, the court rekindled interest in the Mishra report, asking whether its empirical data could be used to determine if the exclusion of Dalit converts to Christianity and Islam from the Constitution (Scheduled Castes) Order 1950 was discriminatory and unconstitutional.
Paragraph 3 of the 1950 Order, post amendments in 1956 and 1990, mandates that anybody who is not a Hindu, Sikh or Buddhist cannot be granted Scheduled Caste status.
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“If a report [Mishra Commission] is not accepted by the government, can we use its findings and empirical data to sustain a legal challenge?” Justice Kaul framed the question for debate. The court fixed the hearing for July.
The Bench was hearing a series of petitions filed 19 years ago, which had challenged the exclusion of Dalit converts to Islam and Christianity from the 1950 Order.
The government has argued that Dalits who converted to Christianity or Islam to overcome the burdens of caste cannot claim reservation benefits enjoyed by those who chose to stay back in the Hindu religious system.
Continuing social stigma
But Justice Amanullah said that social stigma may continue to be attached to members of historically backward communities among Hindus who convert to Islam and Christianity to overcome caste oppression.
“Social stigmas are carried across. Religious stigma and social stigma are two different things. I may convert for very different purposes, but social stigma continues… That is why there is reservation for Scheduled Castes… Otherwise, why is there a need for reservation… every citizen is equally a citizen of India,” Justice Amanullah reasoned.
Justice Kaul said that the court would look into the question of whether the “caste system can be imported into Islam and Christianity”.
“Wait for new panel’
Mr. Nataraj said that the court should first wait for the Justice Balakrishnan Commission to complete its inquiry.
“Unless there is a categorical study of the current data, etc, there is no question of going into the constitutional issues now. The Commission is doing its work,” Mr. Nataraj argued.
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He said that the new Commission’s terms of reference were in tune with the Supreme Court judgment in Soosai versus Union of India. That 1985 judgment had held that for inclusion in the 1950 Order, there should be proof through empirical data that Hindu Dalit converts were suffering from the same “oppressive severity” in the new environment of a different religious community.
Pending for 19 years
“Well, the petitioners say the exercise may be unending. You may have one Commission today and another tomorrow. Different political dispensations may come and bring different political ideologies to the issue. Twenty years have gone by. So much material has been collected through the years. Now, you constitute a new Commission. Tomorrow this Commission may also end up with the same scenario,” Justice Kaul posed the petitioners’ apprehensions to the government.
“Let us hear this case which has been pending for 19 years. Why shy away? We cannot shut our eyes,” Justice Amanullah said.
‘No reason to wait’
Petitioners’ lawyers, including senior advocates C.U. Singh and Colin Gonsalves, and advocates Prashant Bhushan, Franklin Ceasar Thomas and others, urged the court to examine the issue on the basis of the “authoritative” empirical data collated by the Ranganath Mishra Commission, as well as 20 other reports and studies done over the years into the issue.
Mr. Bhushan said that the legal questions in the case were framed way back in January 2011. He said that there was sufficient material on record for the court to decide the case without waiting for the Justice Balakrishnan Commission report.
“There is absolutely no reason to wait. The new Commission will take two years. Can this court go on to wait for years and years, decades together?” Mr. Bhushan asked.
