'Social Stigma May Continue Even After Conversion' : Supreme Court Judge Says While Hearing Plea To Extend Reservation To Converted Dalits

The Supreme Court on Wednesday heard a bunch of petitions which seek the extension of reservation benefits available to the Scheduled Caste community to Dalits who have converted to Christianity and Islam. 

A bench comprising Justices Sanjay Kishan Kaul, Ahsanuddin Amanullah and Aravind Kumar was considering petitions which challenge the Constitution (Scheduled Castes) Order to the extent it excludes persons who have converted to Christianity and Islam, even while it includes the converts to Buddhism and Sikhism.

During the brief hearing on Wednesday, the bench considered issues such as the relevance of Ranganath Misra commission when it has not been accepted by the Government. There was also discussion as to whether scheduled caste persons continue to face social stigma even after converting to other religions.

The Court also pondered if the empirical date mentioned in the report of the Ranganath Mishra can be relied upon to decide the constitutional issues.

Social stigma at ground level

When Additional Solicitor General KM Nataraj, appearing for the Union Government, submitted that the Ranganath Misra Commission had not gone into all the aspects, Justice Amanullah told him, “The Ranganath Misra report is not that perfunctory. You should go through the report again…You are making too generalised a statement on the report. “

Re-phrasing the argument of the petitioners, Justice Kaul stated, “What they are saying is that the person is carrying a tag even when they move to Islam or Christianity.”

Justice Amanullah added, “Social stigma and religious stigma are two different things. I may convert to a different religion for very different purposes. But if the social stigma continues, that is why reservation came in for the Scheduled Castes. Then why can’t the Court determine whether under the Constitution such compartmentalisation is permissible or not. At the ground level social stigma may continue even after conversion…We cannot shut our eyes when we are considering all these constitutional matters.”

What was Ranganath Misra Commission report?

The 2007 report submitted by the National Commission for Religious and Linguistic Minorities, under the chairpersonship of retired CJI Ranganath Misra had found merit for granting Scheduled Caste status to Dalit who had converted to Islam and Christianity.  Last year, the Solicitor General of India, Mr. Tushar Mehta had informed the Apex Court that the Union Government does not accept the recommendation of the Ranganath Commission. Eventually, the Court was apprised that a new Commission headed by former CJI KG Balakrishnan has been appointed with a term of two years. The mandate of the Commission is to examine the matter of according Scheduled Caste status to new persons who claim to have historically belonged to the Scheduled Castes, but have converted to a religion other than those mentioned in the Presidential Orders under Article 341 of the Indian Constitution. At present, as per the Constitution (Scheduled Castes) Order, 1950 only those who are Hindu, Sikh and Buddhist can be granted Scheduled Caste status. Initially it was only for Hindus, however, later by way of an amendment in 1956 Sikhs were added and in 1990 Buddhists were included in the list.

Issues framed in the present case

As per the order of the Apex Court dated 21.01.2011, the constitutional issues recorded by it are -

1. Whether Paragraph (3) of the Constitution (Scheduled Castes) Order, 1950 issued in exercise of Article 341(1) of the Constitution of India, which says that "Notwithstanding anything contained in paragraph 2, no person who professes a religion different from Hinduism, Sikhism and Buddhism shall be deemed to be a member of a Scheduled Caste" is unconstitutional and void, being violative of Articles 14, 15, 16 and 25 of the Constitution of India?
2. Whether a Scheduled Caste professing a religion different from Hinduism, Sikhism and Buddhism can be deprived of the benefit of Paragraph 3 of the Constitution (Scheduled Castes) Order, 1950, in violation of Articles 14, 15, 16 and 25 of the Constitution of India?
3. Whether non-inclusion of "Christians" and "Muslims’ in Paragraph (3) of the Constitution (Scheduled Castes) Order, 1950, along with Hinduism, Sikhism and Buddhism, is discriminatory and violative of Articles 14, 15, 16 and 25 of the Constitution of India?

On a previous occasion, the Apex Court had flagged the issue whether the court should stay the hearings till the report of the Balakrishnan Commission comes or proceed on the basis of the materials already on record. On Wednesday, the petitioners vehemently argued that there is sufficient material on record to consider the constitutional issues raised in the petition. The Union Government averred that the Balakrishnan Commission’s report should be awaited. The other respondents raised several issues including that issue - whether the caste system can be imported into Islam and Christianity. During the course of the hearing two other issues were also flagged -

1. What is the effect of the Commission’s inquiry which is rejected/not accepted by the Govt?
2. Whether the empirical data stated to have formed the basis of the report can be looked into for purposes of determination of the constitutional issue?

The Bench comprising Justice SK Kaul, Justice Ahsanuddin Amanullah and Justice Aravind Kumar noted that the aforesaid issues ought to be debated.

“The aforesaid will require some time to debate the issues as to how to proceed with the matter. In any case we have to take up the matter.”

The matter has been posted to 11th July, 2023 to ensure the synopsis, compilation and all other documents are filed by the parties.

Arguments of the petitioners

Advocate, Mr. Prashant Bhushan appearing for Centre for Public Interest Litigation (CPIL) submitted that the issue before the Bench is a constitutional one and, in essence, is - whether the State can discriminate on the ground of religion. He referred to the Justice Ranganath Commission report. Justice Kaul pointed out that the Union Government has not accepted the said report. Mr. Bhushan argued that they have only said so now. However, he emphasised that the Court need not await the report of the new Commission in order to decide the constitutional question in the present matter.

Additional Solicitor General, Mr. KM Nataraj representing the Union Government submitted that the constitutional issue cannot be decided until and unless there is relevant material in that regard. He argued on the need to await the new Commission’s report. Mr. Bhushan countered the submission stating that there are 20 authoritative studies already on record and there are adequate documents to decide the constitutional issues. Senior Advocate, Mr. Colin Gonsalves, appearing for petitioners, pointed out that though there are over 60 studies on the situation of Dalit converts in the country, in its counter affidavit the Union Government has only referred to a 1800 report by a British explorer. He submitted, “This is the casualness with which Centre is approaching the issue.”

The Counsel representing the Schedule Caste Hindus assailed the maintainability of the petition which seeks to amend a presidential order. He submitted that the relief petitioner lies in the domain of the executive and the legislature. Furthermore, it was argued that the writ petition does not refer to any empirical data on the basis of field research. It is submitted that the petition seeks equivalence with Schedule Caste Hindus who suffered untouchability. It was added that the ones who converted to Christianity were not found to be suffering from the same disability as the Scheduled Caste Hindus, which was the basis for the Presidential order.

Relevance of Ranganath Misra commission report

Justice Kaul was of the opinion that there is no difficulty in considering the constitutional issue. But he stated that the Court cannot rely on the Ranganath Commission inquiry, which has not been accepted by the Union Government. He asked the petitioners what documents are to be referred to consider the issue.

“What is the status of a commission inquiry that has not been accepted? The Court cannot gather material itself. Then what would be the material to be considered?”

J. Amanullah suggested that the empirical date in the Ranganath Commission report may be referred to by the petitioner, which would add persuasive value to their arguments.

However, Justice Kaul asked the parties to consider if the empirical data in the report which was not accepted by the Union Government can be the basis for deciding the constitutional issues.

“Can we imbibe the empirical data from a report that has not been accepted by the Centre can form the basis…They (Centre) say that they do not accept the report so they are not even accepting the authenticity of the empirical data.

Mr. Bhushan submitted that the Union Government accepting or not accepting the report or the data therein is irrelevant to the consideration of the present case.

The Centre filed a counter-affidavit in the matter last year stating that as the concept of untouchability is not prevalent in Christianity and Islam, the reservation intended for historically disadvantaged sections cannot be extended to the converted Dalits.

[Case Title: Ghazi Saaduddin v. State of Maharashtra CA No. 329-330/2004]

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