Freedom of Religion and The Problem of Caste Reservation among Dalit Muslims

since 1947: A Case Study of District Srinagar (J&K)

(Published in International Journal of Research and Analytical Reviews - UGC Approved, 7.17 Impact factor,

Refereed Journal, Peer Journal and Indexed Journal (E-ISSN 2348-1269, P- ISSN 2349-5138 Paper ID IJRAR21D1790)

 Sanjay Dansalia

 Abstract

The complexities and dynamics of the Indian social system based on 'caste', the directives of the constitutional law and the role of the state policies offer a vast area of macro and micro research which escapes any generalized assumption regarding progress and social justice. Post-independence period centralised the role of the state in the upliftment of the weaker sections of the society. This necessarily engaged religion and religious identities. However, caste structures, being diverse and dynamic are highly contextual and get defined by the regional socio- cultural trends and the incumbent predicaments. Recent social scientific ethnographic studies and surveys on Dalits in general reveal common forms of exclusion and discrimination across religions, which affect their social status viz: Endogamy, Occupational, Socio-cultural and economic Injustice. Thus, the Muslim Dalits undergo the same social discrimination like their Hindu, Sikh or Buddhist counterparts. The present research is focused on the problem of exclusion of Dalit Muslims from the Scheduled Castes reservation category, studying the case of Dalit diaspora presently working in Srinagar district of the Union Territory of Jammu and Kashmir.

 Key Words: Caste, Dalits, Muslims, Reservation, Srinagar, Religion.

Dalit Muslims remain invisible as a formal social category, unlike the SCs and STs, or OBCs. There is lack of statistical data for the creation of a constitutional category for Dalit Muslims. Recent sociological study reveals three layers of existing Muslim social reality viz: ‘ashraf’ 'ajlaf' and 'arzal'. However, Muslim community and its stratification gets defined by the complexities of the local area and get sub divided into numerous sub groups and share an analogous similarity with the castes among Hindus like, hereditary, endogamy, rituals etc. Relation between castes, apart from supplementary gauges, is managed by the concept of pollution and purity, and usually, maximum commensality occurs within caste.1 The two main reasons that the caste system pervades in the non- Hindu communities in India in various degrees; Firstly, caste system is a great conditioner of the mind and leaves an indelible mark on person’s social consciousness besides cultural mores, therefore, even after conversion, the ex-Hindus carried with them their deep-seated ideas of social hierarchy and stratification which resulted in the Hindu converts unconsciously acting as virus of caste system entering among highly egalitarian religions such as Islam, Christianity, Sikhism etc. and Secondly, non-Hindu minorities living in pre-dominantly Hindu India could not escape from its dominant social and cultural influences. Thus both from within and without, caste among non- Hindu communities received continuous sustenance and stimulus. Like Syeds and Sheikhs in Muslims are priestly castes like Brahmins in Hindus and the Mughals and Pathans famous for their chivalry are equal to the Kshatriyas and there are other occupational castes that are considered lower in the hierarchy.2

Dr B.R. Ambedkar, who was the Chairman of the Drafting Committee of the Constitution, was much interested in providing safeguards to weaker sections of society in order to uplift their social, economic and political status.3 Therefore, various provisions were added to safeguard rights of Scheduled Castes, Scheduled Tribes and Other Backward Classes and thus, the Preamble of the Indian Constitution along with the Chapter of the Fundamental Rights contained in Part 3rd of the Indian Constitution provided for “Liberty of thought, expression, belief and worship” (Article 25,26) and “Equality of Status and Opportunity” (Article 15,16). Other important Articles that require a mention here are Article 330 and 332 which provide reservation for Scheduled Castes and Scheduled Tribes in Lok Sabha and Vidhan Sabha. Article 335 provides reservation for SCs and STs in appointment to services and posts under the Union or a State. Article 340 needs a special mention here which provides that “President may by order appoint a commission to investigate the condition of socially and educationally backward classes within the territory of the country”. In addition to above mentioned provisions, Chapter 4 of the Indian Constitution “Directive principles of State policy” also under Article 46 directs the state to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the scheduled castes and schedules tribes, and shall protect them from social injustice and all forms of exploitation.4

But irrespective of such provisions provided under the Constitution of India, the Presidential Order, 1950 discriminately chose only specific groups following a particular religion to be included in Schedule Caste list for the purpose of reservation benefits making it caste based and religion based despite the fact that it goes against the basic values and the spirit of the Constitution of India as drafted and passed by the Constituent Assembly. Confining the SC status to only a particular caste or social group professing a particular religion is a direct impediment on the Freedom of Religion as provided under Article 25 of the Constitution of India as it allows a Scheduled Caste to choose a religion of his choice but only at the cost of losing his reservation benefits. In this way, a low caste still doesn’t gain freedom from exploitation as he is exploited by giving a choice of choosing only one right out of two provided for him under the Constitution of India, i.e. either he is free to adopt any religion of his choice or he can enjoy the reservation benefit.

Article 366 – defines "Scheduled Caste" as such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution. On the basis of Article 341 (1) only the President of India is empowered to specify the castes, races or tribes or parts or groups within castes that can be deemed to be Scheduled Castes.5

Article 341 – reads “The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be”.6

In 1950, while exercising the powers conferred on him in Article 341 (1), the President of India promulgated an order known as “The Constitution (Scheduled Castes) Order, 1950”. This Order of 1950 continued to use the same list used in the Government of India (Scheduled Castes) Order of 1936.

The third paragraph of the 1950 Order originally reads –“Notwithstanding anything contained in paragraph 2, no person who professes a religion different from Hindu religion shall be deemed to be a member of a Scheduled Caste.” This third Paragraph was amended in 1956, following the agitation by Master Tara Singh. The Constitution (Scheduled Castes and the Scheduled Tribes) Orders (Amendment) Act, providing for inclusion of Dalit Sikhs in the list of the Scheduled Castes, was passed in 1956 and in 1990 also in favour of Buddhist Dalits. Thus the members of Dalit origin who have converted to Christianity and Islam are still continued to be excluded from the list of scheduled castes in the Presidential Order of 1950.

It is important to note here that the Explanation given under Article 25 of the Constitution of India cannot be used to treat Sikhs, Jains, Buddhists and Hindus as a single class or group except for purposes of applicability of personal laws under Article 25(2); thus, the presidential order of 1950 has also misconstrued the impugned Explanation below Article 25. Sikhs have been demanding since long now that they should not be included within the Hinduism and must be represented as independent religion like Christianity and Islam. Also, the basic tenets of Sikhism and Buddhism do not recognize the caste system like Christianity and Islam. Nevertheless, Sikhs and Buddhists have been favoured while Muslims and Christians have been discriminated against by this Constitutional (Scheduled Caste) Order of 1950, which is patently illogical, unreasonable and unjust.

‘The Committee on Untouchability, Economic, Educational development of the Scheduled Castes’ headed by Mr. L. Elayaperumal, asserted that all Scheduled Castes who got themselves converted to religions other than Hinduism should be given all concessions which are available to Scheduled Castes, because the committee found that they suffer from same disabilities, which the Scheduled Castes suffer.7 Joint Secretary to the Government of India, Ministry of Social Justice and Empowerment via letter No. 14/6/2005-MC dated 28th September 2005 had resolved to expand the terms of reference of the National Commission for Religious and Linguistic Minorities, constituted vide Resolution No: 1-11/2004/MC (D) dated the 29th October 2004 to add the following clause to its terms of reference as-- “To give its recommendations on the issue raised in Writ petition 180 / 2004 (for granting Scheduled Castes status to convert Christian members of the enumerated castes people by deleting constitution scheduled castes order 1950, paragraph ‘3’) and 94/2005 filed in the Supreme Court of India and in certain High Courts relating to Para 3 of the Constitution (Scheduled Castes) order, 1950, in the context of ceiling 50% on reservation as also the modalities of inclusion in the list of the Scheduled Castes. After doing eighteen month’s study by getting twelve state Governments’ recommendations (Tamil Nadu, Pondicherry, West Bengal, Punjab, Utter Pradesh, Bihar, Andhra Pradesh, Haryana, Kerala, Mizoram, Sikkim, Uttaranchal), the above said NCRLM had submitted it’s report to Union of India on 21-05-2007 where it had very clearly recommended to Union of India for deleting the Constitutional (Scheduled Castes) Order 1950, Paragraph 3.”8 NCRLM in its Report9 also recommended that Para 3 of the Constitutional (Scheduled Castes) Order 1950, which originally restricted the scheduled caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis etc – should be wholly deleted by appropriate action so as to completely de-link the scheduled caste status from religion and make the scheduled castes net fully religion – neutral like that of the Scheduled Tribes. It mentioned -- “So the Presidential Order of 1950 is unconstitutional and it is a black letter written outside the constitution introduced through the back door by an executive order Para 3 of the Presidential Order and it is anathema which disfigures the beauty of the written Constitution of India”.10

As per the Report of (PMHLC) Prime Minister’s High Level Committee11 “while the Ashrafs and the Ajlafs occupy the highest and the middle positions in the Muslim social structure, the Arzals are the lowest comprising of those having similar traditional occupation as their Hindu counterparts in the list of Schedule Castes. It is widely believed that these communities are converts from the ‘untouchables’ among Hindus. Change in religion did not bring any change in their social or economic status. Because of the stigma attached to their traditional occupation, they suffer social exclusion. Despite this, they have been deprived of SC status available to their Hindu counterparts. Their exclusion from the SC list dates back to 1936 when the Imperial (Scheduled Caste) Order rejected Schedule Caste status to Christians and Buddhists of similar origins.” Depressed classes among the Muslims such as Halalkhors were included in the list but were barred from availing the benefits. This colonial decree remained the basis on which the government of Independent India, through the Constitutional (Scheduled Caste) Order, 1950, has denied them the status in accordance with the deprivations that they face. As a result, such Muslim groups namely, gadheris, gorkuns, mehtars or halalkhors, Muslim dhobis, bakhos, nats, pamarias, lalbegis and others remain impoverished and marginalized. Their inclusion in the OBC list has failed to make any impact as they are clubbed with the more advanced middle castes.12

Ranganath Misra Commission, Sachar Committee Report along with other Minorities commissions set up to inquire into the conditions of the minorities in India in their respective reports have recommended de-linking of religious status from the benefits of reservation granted to Scheduled Castes under Indian Constitution and have suggested to delete para 3 of the Constitutional (Scheduled Caste) Order, 1950 which makes such irrational demarcation between the Dalits following different religions, but nothing has been done by the government to give effect to these valuable recommendations.13

Dalit Muslims are included under the category of Other Backward Class (OBC) in almost all of the Indian states. The Bihar state having a large percentage of Muslim Population, in the year 2013 divided OBC (having total 22.5% quota) reservation into two parts viz. BC i.e. Backward Class (having 15% quota) and another as EBC i.e. Extreme Backward Class (having 7.5& quota) respectively not exceeding the total 22.5% quota given to OBC. Dalit Caste of Muslim community for e.g. Chamar, Chura are included in the list of Extreme Backward Class which is a religion neutral reservation as it comes under OBC which itself is a religion neutral reservation. This step taken by Bihar state is certainly a step forward to recognise the utmost need of Dalit Muslims for special reservation but still it is not up to the mark as under Schedule Caste reservation quota granted is 15% and only Hindu (including Sikh and Buddhist) Dalits enjoy the benefit, whereas under Extreme Backward Class quota granted is only 7.5% and that too available to all Dalits irrespective of religion which ultimately leads to very bleak chances for Dalit Muslims to enjoy the benefits of this reservation policy.

In Jammu and Kashmir, following 13 castes14 were notified as Scheduled Castes under its own Constitutional Order, before Article 370 was scrapped: Barwala, Basith, Chamar or Ramdasia, Batwal, Chura, Dhyar, Doom or Mahasha, Gardi, Jolaha, Megh or Kabirpanthi, Ratal, Saryara, Watal. Out of a total population of 5,987,389 in the state in 1981, 497,365(8.31 percent) are scheduled caste. The socio-religious profiling of Srinagar Muslims especially the so-called 'Dalit Muslims' involves identifying the agriculturalist ethnic Kashmiri muslim families, the non-agriculturalist families and their ethnicity, the Bhat, Dar, Ganai, Khan, Lun, Malik, Mir, Paray, Rather, Shah, Sheikh and Wain and other important sub-castes among Kashmiri Muslims as also Kashmiri Muslim tribes from Hindu lineage, including various ethnic groups which reside in the Jammu and Kashmir state viz: Bodhs, Mons, Bedas, Garras, Purigpas, Brokpas, Baltis, Changpas, Arghuns, Kashmiri Pandits, Kashmiri Muslims, Dogras, Kishtwaris, Mahajans, Khatris, Harijans, Paharis, Gujjars, Bakerwals. Religion-wise break-up the Muslims constitute the predominant religious community, followed by Hindus, Sikhs, Buddhists, Christians and Jains. Besides the presence of diverse religions, the region has cultural, regional, tribal diversity.15 Regionality and vernaculars like Dogri, Pahari, Pothwari, Punjabi, Hindi, Gojri, Siraji, Bhaderwahi, and Kashmiri intertwine with ethnicity e.g: Dogra ethnic community comprises of Hindu, Muslims and Sikhs. The tribal Gujjars and Bakerwal Muslims form the most socio-economic deprived group.

Evidently, there are problems that deeply affect the caste reservation policies and engage with power dynamics between the state, mainstream culture, society, and the Dalit community. Issues of oppression and liberation at individual and community level lead to local change as well as demand for change in public policy so as to rethink about power and how it affects fundamental epistemological and transformational values.

The Supreme Court of India in the case of S. Anbalagan vs. Devarajan AIR16, said that "the practice of caste however irrational it may appear to our reason and however are repugnant it may appear to our moral and social sense, it is so deep rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion." In 1996, a memorandum dated February 20, 1996 and signed by 103 Bishops of India was submitted to Shri P. V. Narsimha Rao to include statutory benefits to Scheduled Caste Converts to Christianity in Presidential SC/ST Order 1950 by promulgating an ordinance immediately. In the same year, in a note for Cabinet dated March 3, 1996 Welfare Ministry had proposed to include Scheduled Caste converts to Christianity as Scheduled Castes in the Presidential SC Order 1950 to make them eligible for all statutory safeguards and benefits available to the members of Scheduled Caste. The Cabinet approved this proposal at its meeting held on March 7, 1996 to introduce the Bill to amend the earlier Constitution Scheduled Caste order. Although the Bill was listed for introduction on March 12, 1996, it could not be introduced as some procedural lapse and new government was expected to assume.

In 2004, Centre for Public Interest Litigation through its General Secretary and T. Franklin Caesar of Tamil Nadu filed a Write Petition dated March 22, 2004 under Article 32 of the Constitution of India challenging the Para 3 of Article 341 of Constitution (Scheduled Caste Order) 1950. More than dozen of individual and advocates have filed the writ petition challenging the same Para of same Article. Supreme Court gave the responsibility of inquiring into the conditions of non-Hindu Dalits to Ranganath Misra commission which in 2006 submitted its detailed report to the UPA government and supported the demand of Dalit Christians.17

In Jiwajiraja Sindhia Bahadur Madhava Rao vs Union of India18, the Supreme Court held that para 3 of the presidential order of 1950 is “an anathema which disfigured the beauty of the written Constitution of India”. Again in the famous case of Kesavanand Bharati19, the apex court said that the President has no authority to proclaim para 3 as it is contrary to Articles 15(2), 16(2) and 29(2) and also it is against the basic structure of the Constitution. The court said that “even under Article 341 the President is not given power to discourage any citizen from professing any religion of his choice”. Under para 3 of the 1950 Order the President indirectly prescribes the people (particularly the scheduled castes) not to profess any religion different from the favoured trinity: Hindu, Sikh and Buddhist religions, whereas under Article 341 the power given to the President is to specify the caste and not to specify religion. Therefore, it can be clearly seen that the Order of 1950 is a ‘coloured legislation under the guise of the presidential order’. But it has been seen that the independent judiciary of India which is the guarantor of citizen’s rights and though in many of its decisions held that religion cannot be basis in enacting such kind of laws which provide for positive discrimination in the favour of downtrodden people acted a bit passively and it looked like as it has submitted its greatest ideals of justice to the pressure of union government when Supreme Court instead of using its power of judicial review in this matter refers the matter to union government for its opinion. Rather than doing this the apex court should have declared para 3 of the Order of 1950 as unconstitutional and should have directed the union government to open the Scheduled Caste list to include the Dalits following any religion.

It has been seen in several Supreme Court decisions that when a person previously converted to Islam or Christianity reconverts to his ancestral religion he/she is again entitled to reservation benefits. Some of such important cases are mentioned below:

Principal Guntur Medical College, Guntur & Ors. v. Y. Mohan Rao20, In an Appeal by Special Leave from Judgment of Andhra Pradesh High Court the Supreme Court Bench held that there is no absolute rule applicable in all cases that whenever a member of a caste is converted from Hinduism to Christianity he loses his membership of the caste. It would depend upon r the structure of the caste and its rules and regulations. There are some ‘castes’ particularly 111 in South India, where this consequence does not follow on conversion since such castes comprise both Hindus and Christians. Whether Madiga caste falls in this category is a debatable question. But for the purposes of the present appeal it is not necessary to decide the contention of the respondent that there are both Hindus and Christians in Madiga caste and even after conversion to Christianity his parents continued to belong to Madiga caste. However, it could be said to have been established by the respondent that, on conversion to Hinduism, he was accepted as a member of Madiga caste by the other members of that caste, for it is only if he was so accepted that he could claim to be a member of a Scheduled Caste. But it is not necessary for us to undertake this inquiry because, it has been already agreed by the State that, whatever be the result of this appeal, the admission of the respondent will not be disturbed. The Supreme Court therefore, dismissed the appeal with costs in favour of the respondent.

In C.M. Arumugam v. S. Rajgopal and others21, Justice P.N.Bhagwati, viewed that since a caste is a social combination of person governed by its rules and regulations, it may, if its rules and regulations so provide, admit a new member just as it may expel an existing member. The rules and regulations of the caste may not have been formalized they may not exist in black and white they may consist only of practices and usages. If, according to the practice and usage of the caste any particular ceremonies are required to be performed for readmission to the caste, a reconvert to Hinduism would have to perform those ceremonies if he seeks readmission to the caste. But, if no rites or ceremonies are required to be performed for readmission of a person as a member of the caste, the only thing necessary would be the acceptance of the person concerned by the other members of the caste. The consistent view taken by the Courts from the time of the decision in Administrator General of Madras v. Anandachari22, that is, since 1886, has been that on re-conversion to Hinduism, a person can once again become a member of the caste in which he was born and to which he belonged before conversion to another religion if the members of the caste accept him as a member. If a person who has embraced another religion can be reconverted to Hinduism, there is no rational principle why he should not be able to come back to his caste, if the other members of the caste are prepared to re-admit him as a member. It stands to reason that he should be able to come back to the fold to which he once belonged provided the community is willing to take him within the fold. The Court also held that when a ‘caste’ is referred to in modern times, the reference is not to the primary castes but to the innumerable castes and sub-castes that prevail in Hindu society. The general rule is that conversion operates as an expulsion from the caste, that is, a convert ceases to have any caste, because, caste is pre-dominantly a feature of Hindu Society and ordinarily a person, who ceases to be a Hindu, would not be regarded by the other members of the caste as belonging to their fold. But it is not an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the caste in which he was born and to which he belonged prior to his conversion. Ultimately, it must depend on the structure of the caste and its rules and regulations whether a person would cease to belong to the caste on his abjuring Hinduism. If the structure of the caste is such that its members must necessarily belong to Hindu religion, a member, who Ceases to be a Hindu, would go out of the caste, because, no non-Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as it has evolved over the years, a caste may consist not only of persons professing Hinduism but also persons professing some other religion as well, conversion from Hinduism to that other religion may not involve loss of caste, because, even persons professing that other religion can be members of the caste. This might happen where caste is based on economic or occupational characteristics and not on religious identity or the cohesion of the caste as a social group is so strong that conversion into another religion does not operate to snap the bond between the convert and the social group.23 The court viewed that This is indeed not an infrequent phenomenon in South India, where, in some of the castes, even after conversion to Christianity, a person is regarded as continuing to belong to the caste.

What is, therefore, material to consider is how the caste looks at the question of conversion. Does it outcaste or excommunicate the convert or does it still treats him as continuing within its fold despite his conversion. If the convert desires and intends to continue as a member of the caste and the caste also continues to treat him as a member notwithstanding his conversion, he would continue to be a member of the caste, and the views of the new faith hardly matter.

In Kailash sonkar v. Smt. Maya devi24, The Court held that when a child is born neither has he any religion nor is he capable of choosing one until he reachesthe age of discretion and acquires proper understanding of the situation. Hence, the mere fact that the parents of a child, who were Christians, would in ordinary course get the usual baptism certificate and perform other ceremonies without the child knowing what is being done but after the child has grown up and becomes fully mature and able to decide his future, he ought not to be bound by what his parents may have done. Therefore, in such cases, it is the intention of the convertee which would determine the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and abjures the new religion in unequivocal terms his caste automatically revives.

‘Justice B Sudershan Reddy’ in T Muralidhar Rao v. State of Andhra Pradesh25, wrote that-- “Non-Hindu religions like Islam, Christianity and Sikh do not recognise caste as such, but the existence of caste-like social stratification among the Muslims is well-recognised that in spite of egalitarian philosophy of Islam, which opposes all kinds of discriminations, almost all types of caste groups have emerged in the Muslims. The Muslims have developed different caste-groups at different places, but they call themselves as Jamat or Biradari and do not use the term Jat or caste e.g. Nadaf or Mansoori Jamat or Biradari, but in actual practice, they possess practically all the traits of caste structure such as endogamy, stratification, occupational, monopoly, dress-code etc. including their own different kind of marriage rituals.” The Andhra Pradesh High Court in the said case held “Reservations for Muslims or sections/groups among them, in no manner militate against secularism, which is a part of the basic structure of the constitution. The concept of secularism is based on a benign neutrality to benefit all including religious groups and it seeks to advance "good" for all including religious groups.” Articles 14, 15 and 16 enjoin upon the State to treat its entire people equally irrespective of their religion, faith or belief. The State while discharging its constitutional obligation cannot make any distinction between one group of citizens and other on the ground of religion, faith or belief. The religion, faith or belief of a person or group of persons is totally immaterial so far as the State action is concerned. The State cannot exclude from its consideration the demands, entitlements of any constitutional claimants on the ground of religion, faith or belief. Therefore, Muslims categorised as backward cannot be denied reservation benefits just because they are Muslims.

Similarly, in Sanjeet Shukla v. State of Maharashtra26, the Bombay High Court has permitted 5 percent quotas in Maharashtra state owned or aided higher education for 50 Muslim sub-castes on the grounds that data shows that they are educationally under represented.

In K.P. Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate27, On basis of the enquiry report submitted by Mr Naphade, learned senior counsel for the Appellant, the Court concluded that the anthropological study has revealed that the claimant K.P. Manu’s father K.P. Paulose and his mother Kunjamma belong to Christian Community of Pulayan origin and the investigation further revealed that they still profess Christianity. In the Government Circular No. 18421/E2/87 SCSTDD dated 15.12.1987 it has been made clear that the religious status of parents will not affect the caste status of neo-converts provided they become major. So the claimant after becoming major embraced Hinduism and revived his caste. The caste organisation to which he belongs has also accepted his conversion. It has also been found that he has a registered marriage with Sylamma belonging to Christian community of Pulayan origin and the claimant and his children do not follow Christian religion. Consequently, the appeal was allowed and the judgment and order of the High Court, and the findings of the Scrutiny Committee and the orders passed by the State Government and the second respondent are set aside. The Supreme Court held that the appellant shall be reinstated in service forthwith with all the benefits relating to seniority and his caste, and shall also be paid back wages up to 75% within eight weeks from today.

Also, in view of SC Bench decision in Indira Sawhney v. Union of India28, para 3 of the presidential order of 1950 requires to be struck down as it came to the conclusion that caste is not confined to any specific religion only but it extends irrespective of the religious sanctions. This is surely a scenario reflected from the Indian social milieu across all faith affiliations. Muslims have been excluded from Scheduled Castes through para 3 of the 1950 Order. But the same Muslims have been recognized as backward under the OBC category. In view of this contradiction, the Mishra Commission notes that para 3 of the 1950 Order suffers from “hostile discrimination” against scheduled caste Muslims and Christians. The Justice Sachar Committee too has observed that Muslims should make maximum use of the prevailing ‘caste’ categories as the unit for quotas. It questioned the non- availability of the SC quota for Muslims while it was available for Sikhs and Buddhists.

It is imperative to realise that society being a lived entity never remains static. Its components including social behaviour, social relations, social organizations, size, composition and norms of interaction are in a constant state of flux and change. Multidisciplinary studies on social change, whether linear or cyclic theory, have engaged with history, politics, economics, sociology, science, anthropology etc. to discern elements of change. Diverse factors contribute to social change including geographical, migration, ethnic, economic, cultural, psychological amongst others, and often take shape through protest, revolution, politics or law. Social change through direct action engages the law and legal perspective of social justice through deliberate social change legislation.

In January 2020, Supreme Court of India admitted to examine a plea filed by National Council of Dalit Christians, to make reservations ‘religion neutral’ however, it was simply tagged with the earlier pending cases of connected matters and left to be decided later.29

Law is both an agency of social control and social change. However, the moving frame of social reality supervenes law. Rule of law exists to foster and regulate duties and obligations so as to preserve the higher concepts of socialization and curb exploitation of any form. All laws and statutes are formed to follow the social norms of equality and freedom. Law then draws its lessons from the ground reality and needs of the changing society, for which it exists. Hence, any social change through the legal provisions presupposes a deep understanding of the political, social, economic conditions of that society. Furthermore, it is also crucial to realise that social problems are interconnected and not isolated. Forms of violation of values such as dignity, autonomy, equality, and justice cannot be limited by categories of religion, caste, gender or any other category, especially in a pluralistic society like India.

In order to test the hypothesis/objectives of this study a field survey is conducted in Srinagar district of Jammu and Kashmir. A sample is selected from amongst the diasporic working30 population of Dalits/Scheduled Castes residing in Srinagar district. Individual respondents are interviewed. All the respondents are not natives of Srinagar but are working in Srinagar district either under UT/Central government or in Private sector. Some of them are employed as Teachers in Jammu and Kashmir Board of School Education, some are working as Assistant or Associate Professors in Central University of Kashmir or National Institute of Technology, Srinagar and others are from various UT/Central government departments or working in Private Companies (both national and multi- national). In addition to this, few students belonging to Scheduled Castes are interviewed. These students are pursuing their studies at Central University of Kashmir or National Institute of Technology, Srinagar. These students (like the employees) are also not natives of Srinagar but have come from other places. Some of the students are from different districts of Jammu and Kashmir and some have come from different States of India.

Total number of respondents is 200, out of which 148 are males and 52 female respondents. All the respondents here are literate. Though the sample size is definitely very small but it still serves the basic purpose of this study which is to understand the awareness level of the problem among the subjects. Each individual respondent was asked 8 proper questions pertaining to the main problem in addition to their basic profile information (name, age, occupation, qualification, religion and caste). The interview schedule31 starts with a very basic question about their awareness of reservation for Scheduled Castes in India. While seeing through the responses to this question it has been noticed that all the respondents are fully aware of the fact that there is reservation for SCs in India as all of them are Scheduled Castes and are getting benefits of this reservation in one way or the other. The second question is about their awareness of the fact that Scheduled Caste reservation is available only to those Dalits who profess Hinduism, Sikhism or Buddhism. And all the respondents are aware of this basic fact. The third question relates to their knowledge about the fact that conversion to Islam or Christianity or any other religion except Hinduism, Sikhism or Buddhism leads to loss of reservation benefits. And almost all the respondents know this reality also as all the respondents are literate. After this there are 5 questions related to the hypothesis/objectives i.e. “how they feel about the confinement of Scheduled Caste reservation only to those Dalits who follow Hinduism, Sikhism or Buddhism” and “what they think about the extension of Scheduled Caste reservation to all Dalits irrespective of their faith or religion.”

All these 200 respondents are Scheduled Castes/Dalits. Out of these 200, only 12 are following religions other than Hinduism, Buddhism or Sikhism. 8 respondents have converted to Islam after marriage, 4 male respondent and 4 females; both of them are of the view that Dalits after conversion don’t need reservation as they get uplifted after conversion. “Only 4 respondents have converted to Christianity who are very determined to get Schedule Caste reservation even after conversion and believe that conversion is solely a man’s personal choice; a man can choose any religion which he desires or likes, further arguing that it is also guaranteed under ‘Freedom of Religion’ and religious conversion can be no criteria for expulsion from Schedule Caste reservation as it is granted for social, economic and political upliftment of Dalits. Therefore, they believe that changed religious status should not be treated as bar for the claim for reservation.” Apart from these 12 respondents who converted from Hinduism to Islam or Christianity, there are 16 more respondents, 8 of whom are following Islam and 8 are following Christianity in practice but keeping their faith as secret. When enquired about the reason for hiding their conversion, one of the reasons given by them is that they don’t want to lose their SC reservation. All these 16 respondents are of strong credence that reservation must be extended to all Dalits irrespective of their religious belief or faith.

The responses collected through interview Schedule have been statistically represented on basis of percentage of respondents and shown with the help of Pie Charts:

Fig.1. 80% of the respondents know that Scheduled Caste reservation is available only to those who profess Hinduism, Buddhism or Sikhism.

Fig.2. 88% of the respondents are aware of the fact that Scheduled Caste reservation is lost after converting to any other religion.

Fig.3. Only 48% of the respondents feel that many Dalits avoid to convert due to the fear of losing Scheduled Caste (SC) reservation.

Fig.4. 64% of the respondents feel that if SC reservation is made religion-neutral it will remove a reason for many Dalits to live within the fold of Hinduism, Buddhism or Sikhism.

Fig.5. 78% of the respondents feel that people can convert irrespective of the fact that it will lead to loss of reservation.

Fig.6. Only 42% of the respondents feel that Dalits even after Conversion need SC reservation.

Fig.7. 62% of the respondents feel that SC reservation should be extended to all Dalits irrespective of their religious belief or faith.

As it can be clearly seen through the Pie Charts that a considerable percentage of population i.e. 62% respondents feel that Scheduled Caste reservation should be made religion-neutral and it should be extended to all Dalits irrespective of the religion they are following. Therefore, the Hypothesis in the study i.e. “There is a denial of Justice to the Muslim Dalits by excluding them from the list of Scheduled Castes in para 3rd of the Presidential (Scheduled Castes) Order of 1950” stands proved.

Conclusion

The constitutional and judicial interpretation in a plethora of litigation suits sought clarity on the relationship between the right to religious freedom, caste reservation and socio-economic justice. In Srinagar the issue is being seen as a perpetuation of religio-cultural majoritarianism of the Indian state based upon cultural nationalism by de-facilitating religious conversions from Hinduism to other religions like Christianity or Islam. However, the social realism and its moving frame of reference has proved the redundancy of the Presidential Order 1950. The third paragraph of the Constitution (Scheduled Caste) Order 1950, popularly known as Presidential Order, stipulates that “no person who professes a religion different from Hinduism, Sikhism and Buddhism shall be deemed to be a member of Scheduled caste.” Thus the Christians and Muslims of Scheduled Caste Origin are deprived of Scheduled Caste rights. About 75% of the total Christians in India belong to Dalit communities who are still denied statutory benefits available to Scheduled Castes in India. Conversion to Islam or Christianity doesn’t change the socio-economic conditions of the Dalits in India and they continued to face same problems as faced by their other Dalit brothers who had continued to profess Hinduism. Thus, even after passing many of years after conversion such convertees were continued to be treated as Untouchables even in those religions which claim to believe in equality of mankind irrespective of any caste, creed or race.

The idea that "the faith in which one is born into is somehow one’s authentic chosen identity, while the faith adopted after conversion is the forced one," is totally strange and false. In fact, one does not choose the religion one is born into. As an adult, one’s faith, like one’s politics or one’s other beliefs, is a conscious choice. ‘Freedom of Religion’ guaranteed under Article 25 of the Indian Constitution gives every individual the right not only to profess any religion of his choice but also gives right to propagate his chosen religion or faith. Indian Constitution also guarantees a Secular State to its citizens i.e. the State has no religion of its own. At the same time when it is religion-neutral it is also the duty of State to protect all religions and allow "peaceful co-existence of all" in the Indian society. This scheme of Secularism was adopted from the West during the making of Indian Constitution to suit the unique characteristics of Indian society and essential circumstances of Indian State. Even though Indian Constitution left no scope for exploitation of the weaker sections or the minority groups living in India providing them the necessary safeguards, communal instances take place in the Country, however, not always in the form of physical clashes but most of the times in the form of ideological clashes. The instances of religious conversions may also lead to such clashes invoking fear in the mind of those religious groups whose member leaves it to adopt the membership of another religious group. A fear appeared in the mind of Hindu leaders too because of many instances of conversions of Hindus to other religions. As most of convertees were from the Dalit groups of Hindu religion, the Indian Parliament passed the Presidential (Scheduled Castes) Order of 1950 which limited the list of Scheduled Castes only to those Dalits who were professing the Hindu religion and thus excluded those who have converted to other religions. By doing this they put an impediment on the Dalits that they have to lose their caste based reservation benefits if they opted to leave Hinduism and adopt any other religion. Therefore, on one hand the reservation was provided for the upliftment of Dalits but on the other they were confined to live within the fold of Hinduism in which the upper caste social groups were responsible for poor and miserable conditions of the Dalits for many centuries. Many Dalit leaders also propounded the idea of leaving Hinduism Feared from such conversions the upper caste Hindu political leaders backed much anti-conversion legislation to pass which were designed as laws regarding 'Freedom of Religion'. The multidimensionality of the caste analogues and the benefits of caste reservation and access to developmental resources transformed the process of religious conversion into a controversial issue which directly confronted "Liberty of thought, expression, belief and worship” (Article 25,26) and “Equality of Status and Opportunity” (Article 15,16). Denial of extension of reservation benefits after conversion to other religions perpetuates the socio- economic discrepancies if the review of the changing socio-religious terrain is not taken into account. Thus it is imperative to realise that a vexatious relationship exists between caste and the issues of religious freedom, identity and perception of ‘Dalits/Schedule Castes’ as a reserved category in India. The real units of social stratification are the caste-analogues, and the day- to-day relationships between different individuals in any local community are determined by their membership of the caste-analogue rather than by the broad categories. Thus, role of the state in formulating policies here becomes extremely problematic when the sociological reality hides multi-dimensional factors based on religious identity and the question of conversion further reiterates this in the context of 'caste' and reservation policies. The highest court of Justice and the guardian of the constitutional values of a sovereign State thereby must ensure to remove every impediment that hinders equality and actively come forward to rescue its citizens who are discriminated by the State itself.

Bibliography

Books:

Ahmad, Imtiyaz (1978), Caste and Social Stratification Among Muslims in India (ed.) New Delhi: Manohar Publication.

Aggarwal, S.P., (1991), Educational and social uplift of backward classes: At what cost and how? Mandal commission and after, New Delhi: Concept publishing company.

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Sikand, Yogender Singh (2004), Caste and Dalit Muslim Relations in India. New Delhi: Global Media Publication. Srinivas, M.N., (1964), Caste in modern India and other essays, New Delhi, New York: Asia publishing house.

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Case Laws:

Administrator General of Madras v. Anandachari ILR 9 Mad. 466

C.M. Arumugam v. S. Rajgopal and others AIR 1976 SC (1) 863

Chitralekha v. State of Mysore and Others 1964 AIR 1823, 1964 SCR (6) 368 Indira Sawhney Vs Union of India AIR 1993 SC 477

Jiwajiraja Sindhia Bahadur Madhava Rao vs Union of India” AIR 1971 SC 530

K.P. Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate 2015 SCC online SC 161 Kailash sonkar v. Smt. Maya devi 1984 AIR 600

M R Balaji v. State of Mysore 1963 AIR 649, 1962 SCR Supl. (1) 439

Principal Guntur Medical College, Guntur & Ors. vs. Y. Mohan Rao AIR 1976 SCC (3) 411

S. Anbalagan vs. Devarajan AIR 1984 SC 411 Stainislaus v. State of Madhya Pradesh 1977 SCR (2) 61

T Muralidhar Rao v. State of Andhra Pradesh 2004 (6) ALD 1, 2004 (5) ALT 634

Government Reports:

Annual Report 2016-17 by Government of India, Ministry of Minority Affairs. Census Reports of India from 1931 till 2011.

Dalits in Muslim and Christian Communities: A Status Report on Current Social Scientific Knowledge, prepared for The National Commission for Minorities, Government of India, 2008.

Equal Opportunities Commission: What, Why and How? Report by Expert Group headed by Prof. Madhav Menon Government of India, Ministry of Minority Affairs, 2008.

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Prime Minister’s High Level Committee, Cabinet Secretariat, Government of India, “A Report: SC status for Muslim groups” in Educational Status of the Muslim Community of India, November, 2006.

Ranganath Mishra Commission Report 2007.

Report of the Committee on Untouchability, Economic, Educational development of the Scheduled Castes and Connected Documents (1969) Government of India, Department of Social Welfare - Ministry of Social Justice and Empowerment.

Legislations:

Arunachal Pradesh Freedom of Indigenous Faith Act 1978 Chhatisgarh ‘Freedom of Religion Act’ 2003

Dharma Swatantra Adhiniyam 1968 Gujarat Freedom of Religion Act 2003

Himachal Pradesh Freedom of Religion Act 2006 International Covenant on Civil and Political Rights, 1966 Orissa Freedom of Religion Act in 1967

Raigarh State Conversion Act 1936 Rajasthan ‘Freedom of Religion Act’ 2005 Sarguja State Apostasy Act 1942

The Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956

The Constitution (Scheduled Castes) Order 1950 Udaipur State Anti-Conversion Act 1946 Universal Declaration of Human Rights 1948

Websites Accessed:

http://www.thehindu.com/news/cities/Delhi/dalit-muslims-christians-demand-scheduled-caste-status/article4101026.ece http://www.academia.edu/7827406/THE_HISTORY_OF_RESERVATIONS_IN_INDIA_FROM_THE_1800s_TO_THE_1950s http://www.jstor.org/stable/3516200 Habib, Irfan, Iqtadar Alam Khan and K P Singh (1976). Problems of the Muslim Minority in India. Social Scientist, vol. 4, No. 11, june 1996.

http://www.business-standard.com/article/opinion/ caste-in-confusion-110051100009_1.html https://www.dennisfox.net/papers/psychjuris.htmlDennis R. Fox, Psychological Jurisprudence and Radical Social Change 1993 American Psychologist, 48, 234-241

Annexure ‘A’

 Interview Schedule

Basic Details:

1. Name                           2. Gender                 3. Age           

4. Occupation                            5. Qualification                            

6. Religion                             7. Caste                                                   

Q.1  Do you know that there is Scheduled Caste (SC) reservation for Dalits in India?

1. Yes                     2. No                  3. Can’t say

Q.2  Do you know that SC reservation is available only to those Dalits who profess Hinduism, Buddhism or Sikhism?

1. Yes                     2. No                  3. Can’t Say

Q.3  Do you know that conversion to any other religion (for e.g. Islam or Christianity) leads to loss of SC reservation?

1. Yes                     2. No                  3. Can’t Say

Q.4  Do you feel that many people (Dalits) avoid converting because of the fear of losing SC reservation?

1. Yes                     2. No                   3. Can’t Say

Q.5  Do you feel that if SC reservation is made religion-neutral it will remove a reason for many people (Dalits) to remain within the fold of Hinduism, Buddhism or Sikhism?

1. Yes                     2. No                    3. Can’t Say

Q.6  Do you feel that people (Dalits) can convert irrespective of the fact that it will lead to loss of SC reservation?

1. Yes                     2. No                     3. Can’t Say

Q.7  Do you feel that even after conversion people belonging to Dalit communities deserve SC reservation?

1. Yes                  2. No                   3. Can’t Say

Q.8  Do you feel that SC reservation should be extended to all Dalits irrespective of their religious faith or belief?

1. Yes                  2. No                   3. Can’t Say

Endnotes

1 M.N. Srinivas, Caste in modern India and other essays, New Delhi, New York: Asia publishing house, 1964, p.3.

2 S.P.Aggarwal, Educational and social uplift of backward classes: At what cost and how? Mandal commission and after, Concept publishing company, New delhi, 1991, p.62.

3 Constituent Assembly Debates (Proceedings)    9th December,1946 to 24th January ,1950 see http://parliamentofindia.nic.in/ls/debates/debates.htm retrieved on 03/12/2020.

4 M.P. Jain, Indian Constitutional Law, 7th edition, Chennai: LexisNexis, 2014.

5 D.D. Basu, Introduction to the Constitution of India 22nd edition, Nagpur, India, Lexis Nexis, 2008, pp. 291-327.

6 Ibid.

7 Government of India, Department of Social Welfare - Present Ministry of Social Justice and Empowerment, Report of the Committee on Untouchability, Economic, Educational development of the Scheduled Castes and Connected Documents Year 1969 (L. Elayaperumal Commission Report), headed by Mr. L. Elayaperumal. P.32.

8 Ministry of Social Justice and Empowerment via letter no. 14/06/2005-MC dated 28/09/2005.

9 Government of India, National Commission for Religious and Linguistic Minorities (NCRLM) Report volume I, part 16, p.154.

10 Ibid.

11 Prime Minister’s High Level Committee, Cabinet Secretariat, Government of India, “A Report: SC status for Muslim groups” in Educational Status of the Muslim Community of India, November, 2006, Pages: 201, 202. (Retrieved as Franklin Caesar Thomas, in a comment to a news report article of The Hindu on November 16, 2012, from         http://www.thehindu.com/news/cities/Delhi/dalit-muslims-christians-demand-scheduled-caste- status/article4101026.ece retrieved on 19-07-2021).

12 Ibid.

13 Government of India, Cabinet Secretariat, Prime Minister’s High Level Committee, Report on Social, Economic and Educational Status of Muslims in India prepared under the chairmanship of Justice Rajender Sachar, March, 2006. And another important one was the Report by the Expert Group to examine and determine the structure and functions of an Equal Opportunity Commission set up by the Ministry of Minority Affairs, Government of India February, 2008 whose chairman was Prof. Madhav Menon, after consulting with various renowned academicians and members of Law Commission and Other University Professors, also affirmed the findings of Sachar Committee Report suggesting various other valuable guidelines to be followed by the government in order to ameliorate the condition of the minorities in India.

14 M.K. Bhasin and Shampa Nag, “A Demographic Profile of the People of Jammu and Kashmir,” Journal of Human Ecology 13, (1-2): 1-55 (2002)

15 Ibid.

16 1984 AIR 411, 1984 SCR (1) 973

17 Enough commissions before Misra commission whether it be Elayaperumal commission or the Mandal commission or some other, all suggested that the Dalits who converted to Christianity or Islam should be treated as Scheduled Castes even after the conversion.

18 1971 AIR 530, 1971 SCR (3) 9

19 1973 (4 SCC 225)

20 1976 AIR 1904, 1976 SCR (3)1046

21 1976 AIR 939, 1976 SCR (3) 82

22 ILR 9 Mad. 466

23 Paragraphs 2 and 3 of the Constitution (Scheduled Castes) order read together also recognize that there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion. In such cases, conversion of a person from Hinduism cannot have the effect of putting him out of the caste, though by reason of Para 37 he would be deemed not to be a member of the Scheduled Caste. Therefore, the Court held that it is clear from the circumstances of the case that after his re-conversion to Hinduism, the respondent was recognized and accepted as a member of the Adi Dravida caste by the other members of that community. The High Court was, therefore, right to conclude that at the material time the respondent belonged to Adi Dravida caste so as to fall within the category of Scheduled Castes under Paragraph 2 of the Constitution (Scheduled Castes) Order, 1950. The appeal was thus dismissed.

24 1984 AIR 600, 1984 SCR (2) 176

25 2004 (6) ALD 1, 2004 (5) ALT 634

26Case  no.   201  of   2014,  Decided   by  Bombay  High   Court  on   14-11-2014     see http://document.manupatra.com/MH/2001-2003/mh2014/M142040.htm retrieved on 02/12/2020.

27Decided by Supreme Court on Feb. 26, 2015, LAWS(SC)-2015-2-76,  see                   http://www.the- laws.com/Encyclopedia/Browse/Case?CaseId=005102281000 retrieved on 02/12/2020.

28 AIR 1993 SC 477, 1992 Supp 2 SCR 454

29 National Council of Dalit Christians vs. Union of India, W.P.(C)No. 001454 -/2019. Registered on 11-12-2019. See https://factly.in/explainer-are-the-scheduled-caste-converts-eligible-for-any-reservation/. Retrieved on 09-08- 2021.

30 Working population includes people who work in central and state government offices and private sector. Few Dalit students were also interviewed.

31 See Annexure “A”