Strong case for deleting para 3 in Presidential
Order of 1950:
A response to Social Justice Minister Gehlot
Social Justice
Minister Gehlot needs to tune with Modi & saner national sentiment
Supreme Court must
kindly delete para 3 from scheduled caste definition & make it
religion-neutral
Dr Syed Zafar Mahmood
Plato has once again been proved right: politics is the art of gaining
power and the craft of retaining it. Media has reported the current
central government saying that opening up the list of Scheduled Castes
beyond Hinduism, Sikhism and Buddhism - would encourage religious
conversions. It said so in the context of the demand of Muslims &
Christians that the definition of 'scheduled caste' should be made
religion-neutral by deleting para 3 from the presidential order of 1950.
That's what has been stated a couple of days ago by the union social
justice minister Thavar Chand Gehlot, "Allowing SC status (to converts
to Christianity & Islam) would provide a fillip to religious
conversions. The demand is not constitutional and we want to work within
the parameters of the statute for the welfare of 'these communities'
(read Hindus, Sikhs and Buddhists)."
The statement indicates that the Centre may oppose the demand of
Christians& Muslims - in ten writ petitions pending for long in the
Supreme Court. For years the UPA government was dragging its feet in the
apex court and did not file its counter affidavit. This was despite the
National Commission for Scheduled Castes having given its nod for the
inclusion of Dalit Christians and Dalit Muslims in the SC list though
with the rider that the existing SCquota should not be affected and the
government should increase the overall quota of SC if it goes ahead with
the move. Nonetheless, the statutory body did concur with the essence of
the proposal.
The National Commission for Religious & Linguistic Minorities, later
popularly known as Justice Ranganath Mishra Commission, strongly
recommended in 2007 as follows: "Para 3 of the Constitution (Scheduled
Caste) Order 1950 - which originally restricted the Scheduled Caste net
to 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
delink the Scheduled Caste status from religion and make the Scheduled
Castes net fully religion-neutral like that of the Scheduled Tribes."
Before making this recommendation the Commission dug deep into the
historical & constitutional aspects of the matter. It noted that in 1927
the Madras Presidency had reserved 5 of every 12 Government jobs for
non-Brahmin Hindus, 2 each for Brahmins, Christians and Muslims and one
for others. In Bombay, seats were reserved for all except Brahmins,
Marwaris, Banias, Parsis and Christians. Around these two models a few
princely states like Baroda, Travancore and Kolhapor also introduced
similar provisions.
The Justice Mishra Commission also recapitulated that Article 14, 15 and
16 provide, respectively, for Right to Equality, Prohibition against
Discrimination based on Religion and Equality of Opportunity in Public
Employment. However, it allowed reservation of seats for backward
'classes' of citizens. Also, Article 46 obliges the State to promote
with special care the educational and economic interests of the 'weaker
sections of the people' and protect them from social injustice and all
types of exploitation. Accordingly, reservation for minorities has been
provided in government employment and for admission in educational
institutionsby the state governments of Kerala (Muslims 10%, Christians
2%) and Karnataka (Muslims 4%).
In Jiwajiraja Sindhia Bahadur Madhava Rao vs Union of India (1971) 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. In the famous case of Kesavanand Bharati 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. Even under Article 341 the President is
not given power to discourage any citizen from professing any religion
of his choice. But 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 favored trinity: Hindu, Sikh
and Buddhist religions. Under Article 341 the power given to the
President is to specify the caste and not to specify religion. Hence the
Order of 1950 is a 'colored legislation under the guise of the
presidential order'.
It is important to note that the Explanation given under Article 25
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
misconstrued the impugned Explanation below Article 25. Also, in view of
SC Bench decision in Indira Sawhney Vs Union of India, 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. Also, the basic tenets
of Sikhism & Buddhism do not recognize the caste system like
Christianity and Islam. But Sikhs & Buddhists have been favored while
Muslims & Christians have been discriminated against by the President.
This is patently illogical, unreasonable and unjust.
Thus, Mishra Commission has recommended deletion of para 3 of the
Constitution (Scheduled Castes) Order 1950. Also, it further recommended
that all those groups & classes among Muslims & Christians etc whose
counterparts among the Hindus, Sikhs and Buddhists are included in the
central or state SC lists should also be covered by the Scheduled Caste
net. The Justice Sachar Committee too has observed that Muslimsshould
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 andBuddhists. The reports of both
Mishra Commission and Sachar Committee were presented seven years ago
and during this long period there has been no cogent and sustainable
opposition to their findings and recommendations in the judicial forums
or elsewhere.
Such is the strong case in favor of deleting para 3 from the
presidential order of 1950. Couple it with the statement of Prime
Minister Narendra Modi in Parliament where he loudly recognized that
Muslims are more backward than any other socio-religious community,
argued that specialized schemes need to be implemented to ameliorate
their plight and declared that he doesn't consider such schemes as
Muslim appeasement but rather a reasonable national social necessity.
Thus, Social Justice Minister Thavar Chand Gehlot would be well advised
to revisit this matter of vital significance and reformat his stance
tuning it with his master's voice, rhyming it with the saner national
sentiment and file the counter affidavit accordingly in the Supreme
Court. The PM too would hopefully guide him suitably and manifest his
qualitative leadership and characteristic equal concern and care for
each of the 1.25 billion Indians.
Read on TwoCircles
نریندر مودی بنام وزیر سماجی انصاف
گہلوت
Narendra Modi banaam wazir samaaji insaaf Gehlot
Rashtriya Sahara 16 Oct 2014
click here
प्रधानमंत्री मोदी बनाम सामाजिक न्याय
मंत्री गहलोत
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Author is President, ZakatIndia.org and former OSD, Sachar Committee.
Reach him at info@zakatindia.org
