Need to examine if caste can be imputed to religions that don’t recognise it: SC

The bench, also comprising Justices Ahsanuddin Amanullah and Aravind Kumar, said this is one of the issues which will have to be considered in the matter.

The bench fixed the matter for further hearing in July and said it will also have to examine whether the report of a commission of inquiry which has not been accepted by the government or the empirical data in it, can be relied upon to sustain a challenge before a court of law, and whether a presidential order can be amended by way of a writ issued by the court.

The petitioners have contended that “the Constitution (Scheduled Castes) Order, 1950, which was amended to say that only Hindus, Buddhists and Sikhs will be considered as Scheduled Castes is unconstitutional as it discriminates on grounds of religion.

Opposing the petitions, Senior Advocate Guru Krishnakumar appearing for an association of Scheduled Caste Hindus said “the writ seeks to amend the presidential order by way of a judicial writ. The prayer lies in the domain of pure policy of the legislature or the executive as the case may be”, adding converts to Christianity were expressly kept out of SC status even in the first census.

He said the petitioners were trying to challenge a constitutional order on the basis of alleged violation of Article 14 and 15 and added “this is complete over-simplification of the constitutional position. You need to show a violation of the Constitution which is clearly affecting the basic structure because you are dealing with a constitutional provision”.

Krishnakumar pointed out that the SC had considered the question in many election petitions and consistently held that Scheduled Castes is a different basket. “This basket, constitutional framers have consciously confined it to Hindu Scheduled Castes who are enumerated in the Scheduled Caste order and is not applicable to other religions which proclaim to be egalitarian,” he said.

The counsel also submitted there were provisions to address problems of untouchability which members of these other religions can make use of.

Justice Amanullah said it may not be correct to argue that people get converted to lose their caste identity.

“We have not gone into why they have converted. The second point…untouchability act…the same thing applies to the majority community also. That means social stigmas are carried across. Social stigma and religious stigma are two different things. I may convert religion for very different purposes. But if social stigma continues, that is why reservation for SCs. Otherwise today Constitution does not recognise any untouchability…That is why the need for these reservations today. Otherwise now the law under the Constitution, there is no untouchability, nothing. Every citizen is a citizen of India, that’s the only identity. But now things are not that at the ground level and at the society level. And we can’t shut our eyes when we are considering this… Then why can’t the court examine whether under constitutional framework, such kind of compartmentalisation is permissible or not?”

Appearing for some of the petitioners, Advocate Prashant Bhushan said they had filed several reports including the Ranganath Mishra Commission report in support of the demand for extending SC reservation to the other religions as well.

Additional Solicitor General K M Nataraj appearing for the Centre urged the court to wait till the new commission appointed by the Centre under chairmanship of Justice K G Balakrishnan comes out with its report. “What is the data made available to the government to make a conscious decision, that is the crucial aspect, that has to be considered…The Justice Balakrishnan Commission is constituted for a specific purpose, with a specific reference, with a statutory backing. It will have a larger value,” he said.

Bhushan, however, said the government accepting a report or not is irrelevant to the question whether there is material to back the petitioner’s prayers.

He contended that “the only ground on which the discrimination could be justified would be that by conversion… your social status changes completely and therefore there is adequate ground for discriminating on the ground of that religion. So that’s the test. Whether the government accepts or not is irrelevant to that question”.

Justice Kaul added that “linked with that will also be this question, what is the structure of the three religions. Do they recognise the caste system or not? And what is the effect?”

The judge added that some of the material are points of view and don’t have a statutory flavour. “The only thing which has a flavour of recognition is the Ranganath Mishra Commission report …,” he said, adding “what is the status of these commissions of inquiry? If they…are not accepted, to what extent can they be relied upon?”.

Justice Amanullah told the petitioners that “the only point which you can delve into and assist the court is the original empirical data, maybe in the report or whatever. Not the report per se or the comment…. empirical data which is reasonable, which is reliable, has a persuasive value, you can assist the court with that”.

However Justice Kaul wondered if even the empirical data in a report which is not accepted by the government can be relied upon. “If a report is not accepted, what is the status of the finding of the report or any empirical data? Can we imbibe the empirical data from a report which is not accepted to incorporate as a ground for sustaining a challenge?… They say we don’t accept the report, which means they do not accept the authenticity of the empirical data also. That’s the problem. This is not a judgement of a court but only a report of a commission of inquiry. So, we will not be able to wish it away”.