Supreme Court to review Dalit Christian issue

New Delhi – In a significant step, the Supreme Court decided to consider afresh the crucial constitutional issue of affirmative action in the public sector for Dalit converts to Christianity.

This decision relates to a Presidential Order dating back to 1950 that excluded Dalit convert to Christianity from the quota system that reserved jobs to members of the Scheduled Castes or Scheduled Tribes in the public service. The same exclusion applies to those who convert to Islam but not to those who become Hindu, Buddhist or Sikh.

The Supreme Court division bench of Chief Justice R C Lahoti and Justice G P Mathur made this decision on February 11, pursuant to the submissions made by Centre for Public Interest Litigation’s (CPIL) counsels Shanti Bhushan and Prashant Bhushan and the Attorney General Milon Bannerjee.

In October 2004, CPIL had filed a petition on behalf of the Dalit Christians and the apex court sought a response from the Attorney General.

In his submission, Bannerjee recalled that in 2002, the pro–Hindu Bharatiya Janata Party (BJP)–led National Democratic Alliance (defeated in the May 2004 elections) government, rejected a request to add Dalit Christians to the list of groups included in the Scheduled Castes. He also suggested that the issue fell within the legislative domain and the courts should keep itself out.

Banerjee also recalled that the Supreme Court itself had earlier ruled that the list of entries in the SC and ST categories under the Presidential Order was final and the courts could not "add or subtract."

However, the Attorney General assured the apex court that he had urged the central government to consider the issue "sympathetically."

On the other hand, CPIL's counsel Shanti Bhushan and Prashant Bhushan sought a direction that Dalits converted to Christianity should be entitled to reservation for member of scheduled castes across the country.

Bhushan submitted that reservation was available to the Dalits while being a follower of Hinduism, Buddhism and Sikhism and there was no reason why Dalit Christians be not given the similar benefit.

Countering that the decision of the apex court cited by Bannerjee was based on scanty material, Bhushan claimed that the petitioners have gathered "overwhelming" material to support its claim for reservation to Dalit Christians.

Referring to a recent judgment which held that even if a tribal converted to Christianity, he or she could still avail of the reservation benefits as his/her status as ST remained unchanged, Bhushan pleaded that the same law laid down should be applicable to Dalits after their conversion to Christianity.

According to Bhushan, only the Christian community is now being excluded. Quota rights were denied to Dalit Christians on the grounds that Christianity does not discriminate between castes. However, this argument ignores the fact that Indians live in a society bound by centuries of caste tradition, said the senior advocate.

After hearing both the parties, the Supreme Court division bench ruled, “it is a crucial issue and we would examine its legal side on the basis of the rulings cited by the petitioner and the Attorney General.”

With the decision, the Supreme Court turned down a government plea to keep the judiciary out of public policy issues. It is expected to review the matter when it re–convenes in four weeks.

Incidentally, in 2004 the Supreme Court had ruled that a Dalit who converted to Christianity did not lose his or her status as a member of the Scheduled Castes or Tribes. An observation was made then by the apex court that “The same law should be applicable to Dalit Christians also. Reservation was available to Dalit followers of Hinduism, Buddhism and Sikhism and there was no reason why Dalit Christians should not be given a similar benefit.”

According to news reports, the BJP has criticized the Court’s decision. L. Ganesan, BJP’s national secretary has remarked that the promise to work for a separate quota of reservation for Muslims and Dalit Christians in jobs was ‘dangerous’ and would only pave the way for secessionism in the country.

Nonetheless, the decision has been welcomed by the Christian leaders nationwide.

Calling it a “joyous day,” All India Christian Union (AICU) president John Dayal hoped that “the Supreme Court will soon finally end a historic injustice that was done in 1950 to the Dalits professing the Christian faith.”

“Whenever the Supreme Court gives its final judgment recognizing that the cruel and debilitating inequities and injuries of the 3,000 year old caste system [. . .], it will also change the law books that penalized Dalit Christians,” he said. “We are hopeful that justice will be done, finally.”

According to the outspoken activist, the Church of North India, Catholic Bishops’ Conference, the All India Catholic Union, the All India Christian Council and other groups have spoken to government and opposition leaders to sway them in favor of changes in favor of Dalit Christians.

This is part of an advocacy campaign launched last year to get the government to “grant Dalit Christians the same rights now available to Dalits of other major religions such as Hinduism, Sikhism and Buddhism,” Dayal said.

However, some Christians still remain skeptical. The Poor Christian Liberation Movement (PCLM) president RL Francis has opposed inclusion of converted "Dalit" Christians in the list of Scheduled Castes for reservation in jobs saying it amounted to discrimination against them.

Terming the Church proposal as a betrayal of confidence, the PCLM president demanded equal status for Dalit Christians within the church framework itself.

"Most Dalit Christians went for conversion after being promised human dignity and a decent standard of living. Inclusion of Dalit Christians in the schedule caste list negates this purpose," he said. "What the Dalit Christans really need is compensation for years of discrimination faced by them. The government should create a 'Dalit Christians' Finance and Development Board' for addressing their problems."

Dalits occupy the lowest rung on India’s caste ladder. As such they are often denied access to certain types of employment and institutes of higher learning.

India’s quota system reserves a certain number of employment and educational placements for members of lower castes. Initially, Dalits converting to Hindusim, Sikhism or Buddhism were excluded from the reservation provision. After lobbying in recent years, the government amended the law so that followers of these religions were covered by the quota system. However, Dalit Christian and Muslim converts are still excluded.

Presently, about 26 percent of government jobs in India are reserved for the Dalits and other so–called “backward castes” with the aim of bringing them to the political and social mainstream.

As early as 1996, the Congress government under Narasimha Rao had accepted the case of the Dalit Christians and had moved a Bill in Parliament when on March 11, the then Social Welfare Minister Sitaram Kesri submitted to the Lok Sabha the Constitution (Scheduled Castes) Order Amendment Bill 1996. However, the Bill could not be introduced in Parliament due to the dissolution of the 10th Lok Sabha.

In the past, Mahatma Gandhi and Dr. B.R. Ambedkar had observed that change of religion does not bring about any change in the social status of the weaker sections and they continue to suffer the same social and economic disabilities.

The National Minorities Commission acknowledged this reality in its Annual Report for 1997–98 and recommended that “the Constitution (Scheduled Castes) Order 1950 should be amended so as to omit altogether the proviso that a person belonging to a particular religion cannot be regarded as a member of a Scheduled Caste, so that the unconstitutional nexus between caste and religion is eliminated.”

Since India’s independence, various memorandums have been presented to successive prime ministers and at many rallies held throughout the country and worldwide in support of the long–pending demand of the Dalits.