The Supreme Court on Wednesday said it will decide whether to wait for the report of the commission appointed by the Centre under former Chief Justice of India K G Balakrishnan before venturing to examine petitions seeking Scheduled Caste (SC) status for converts to Christianity and Islam.
“The Union of India seeks to submit…that it has recently appointed a fresh commission…headed by Justice (retired) K G Balakrishnan…. The first aspect which will have to be dealt with is whether this court should stay its hands till the report of this commission comes or whether it should proceed on the basis of the material on record,” a three-judge bench presided by Justices S K Kaul said.
The court fixed the matter for hearing next in January 2023.
Appearing for Centre for Public Interest Litigation, one the petitioners, advocate Prashant Bhushan said a report has already been submitted by the Justice Ranganath Mishra (retired) Commission. But Solicitor General Tushar Mehta pointed out that the government had decided not to accept that for various reasons.
“It was an exercise within the four walls of the room..There was no quantifiable data, etc, given that there was no consultation…. There are several reasons why it was not accepted,” Mehta submitted.
Referring to the government affidavit in the matter, he said members of existing Scheduled Caste (SC) communities have objected to such moves to grant SC status to new people.
Explaining why the new commission was appointed, Mehta said the issue is seminal and historically complex, raises sociological and constitutional questions, and is a matter of public importance. “Given its importance, sensitivity and potential impact, any change in definition in this regard should be on the basis of a detailed study and extensive consultation with all stakeholders,” he argued.
Mehta said: “The question is this: I belong to SC..I would be having some social disadvantages, etc. Now I convert myself into another religion…suppose I become a Christian. Then, would I be more acceptable to the people if my name, my surname changes, etc? All this will be gone into.”
Bhushan said the top court had earlier ruled that a person from SC community whose forefathers converted to Christianity or Islam, who then returns to Hindusim, will automatically be entitled to SC status because he continued to suffer disabilities despite conversion undertaken by his forefathers.
He pointed out that originally the SC Order said no one professing the religion other than Hindus will be entitled to be considered as SC for the purpose of reservation. Thereafter, it was amended in 1956 to include Sikhs, and then again in 1990 to include Buddhists. “So if you say three religions and not other religions which are major religions in India…. Therefore Ranganath Mishra Commission says this is discriminatory and totally unconstitutional. You can’t discriminate on the grounds of religion,” he said.
“Now they are saying they have appointed a new commission. It will take two years to submit its report, so adjourn this by another two years,” he said.
Bhushan contended that there is “more than adequate material [available]… Ultimately the decision as to which caste is to be considered Scheduled Caste is done by a government-appointed body. That body will see whether these people suffer from those social disabilities by which they need to be considered SC or not”.
He said the problem is that there is already a constitutional order which says no one professing a religion other than Hinduism, Sikhism or Buddhism will be considered to be SC. “So even if that commission finds that these castes, though they are now professing Christian or Muslim religion, etc, they are suffering from the same disabilities; they deserve to be considered as SC. (But) they can’t put them under that SC [category] because of the Scheduled Caste Order,” he contended.
Justice Kaul said the SC order “must be predicated on the fact that the caste system is attributed to the Hindu religion”.
Meanwhile, in a plea filed in the matter, the Catholic Bishops Conference of India said it is supporting the petitioner “fully”.
The Jamiat Ulama-I-Hind also filed an application recently, seeking intervention in the matter. The organisation said SC benefits were being denied to Muslims, and although Islam is based on the principles of equality, “in our society, the truth of caste system cannot be denied”.