Reservation

Flawed reading

Print edition : April 17, 2015

Congress president Sonia Gandhi with a delegation of Jats and party workers from Haryana at her residence in New Delhi on December 22, 2013. Photo: Shanker Chakravarty

The Supreme Court building in New Delhi. Photo: V. Sudershan

The Supreme Court misinterprets “historic injustice” while denying the benefits of reservation to some communities.

THE Indian Constitution extends the benefit of reservation to the Scheduled Castes (S.Cs), the Scheduled Tribes and the Socially and Educationally Backward Classes (SEBCs), known as the Other Backward Classes (OBCs), in view of the continued social discrimination suffered by them for generations, apart from other factors. Therefore, when two recent Supreme Court judgments questioned this concept of “historic injustice” while denying the benefits of reservation to some castes and communities, it led to dismay and demands for corrective steps by the political class.

Jats not OBCs

In Ram Singh & Ors vs Union of India, the Supreme Court Bench comprising Justices Ranjan Gogoi and Rohinton Fali Nariman (in a judgment written by Justice Gogoi) on March 17 quashed the notification issued by the Central government on March 4, 2014, to include Jats in the Central List of OBCs for the States of Bihar, Gujarat, Haryana, Himachal Pradesh, Madhya Pradesh, the National Capital Territory of Delhi, Bharatpur and Dholpur districts of Rajasthan, Uttar Pradesh and Uttarakhand.

The previous United Progressive Alliance (UPA) government had issued this notification, on the eve of the last Lok Sabha elections, overruling the binding recommendation of the National Commission for Backward Classes (NCBC) against it. The government claimed that the NCBC had ignored the “ground realities” that justified the inclusion of Jats. The National Democratic Alliance (NDA) government, which came to power last May, also defended this stand of its predecessor before the Supreme Court, which heard challenges to the validity of the notification.

The court quashed the notification on the grounds that the reports and the literature relied on by the government to justify the inclusion of Jats in the list of OBCs were at least a decade old. “Outdated statistics cannot provide accurate parameters for measuring backwardness for the purpose of inclusion in the list of OBCs. This is because one may legitimately presume progressive advancement of all citizens on every front, i.e., social, economic and education. Any other view would amount to retrograde governance,” the court concluded. In the case of Haryana, where the Centre had relied on a 2012 report, the court agreed with the NCBC that it suffered from some inherent flaws.

Observers found this part of the judgment perfectly reasonable. However, the court’s obiter in Paragraph 53 led to considerable unease.

To quote the Bench: “We may, therefore, understand a social class as an identifiable section of society which may be internally homogeneous (based on caste or occupation). Backwardness is a manifestation caused by the presence of several independent circumstances which may be social, cultural, economic, educational or even political.... New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness.... An affirmative action policy that keeps in mind only historical injustice would certainly result in under-protection of the most deserving backward class of citizens, which is constitutionally mandated.”

The court observed that the state must discover such groups rather than enable others to recover “lost ground” in claiming preference and benefits on the basis of historical prejudice. While elaborating on who constituted this new group of backward citizens, the court referred to the transgender community, who were recognised as an SEBC in National Legal Services Authority vs Union of India, decided last year.

The eminent jurist Professor Mohan Gopal said the court had mixed up the cases of horizontal and vertical kinds of reservation. While historical discrimination of castes pertains to the vertical kind, reservation for transgender and disabled persons belongs to the horizontal kind. The Constitution justifies reservation for both kinds under different provisions. The court had erred in assuming that both kinds of reservation flow from Articles 15(4) and 16(4), he said.

P.S. Krishnan, an expert on social justice matters, echoed the view: reservation for transgender and disabled persons must be traced to Articles 15(1) and 16(1). Articles 15(4) and 16(4) pertain to what has continued for “generations”, as a result of the traditional social system. Transgender and disabled persons were not consequences of the caste system, and therefore they could not claim benefits from the kitty meant for OBCs, he explained.

Dalit Christians

On February 6, a Supreme Court Bench comprising Justices Madan B. Lokur and Uday Umesh Lalit referred to a larger Bench of the court, without stating any reasons, a decade-old case involving the plea of Dalit Christians and Dalit Muslims not to deprive them of their S.C. status on the grounds of their conversion from Hinduism to their current faiths.

The petition (Writ Petition (Civil) No.180/2004), first filed by the Centre for Public Interest Litigation, a non-governmental organisation (NGO) run by Prashant Bhushan, an eminent advocate of the Supreme Court, was later clubbed with 12 other similar petitions and appeals. It took the court 23 hearings and much time and paperwork on the part of litigants to decide that the case merits consideration by a Bench that includes more than two judges, and that the Chief Justice of India may be requested to constitute one to hear the case further.

The Union government is the respondent in the case. The NDA government and the UPA government before it have refrained from revealing their stand on the petitioners’ plea.

Benefits on reconversion

However, this did not deter another Bench, comprising two judges, to decide a case that has a bearing on the outcome of this one.

In K.P. Manu vs Chairman, Scrutiny Committee for Verification of Community Certificate, the Supreme Court Bench comprising Justices Dipak Misra and V. Gopala Gowda held on February 26 that a person born to Christian parents who initially belonged to the S.C. came within the S.C. fold after reconverting to Hinduism because the “community” had accepted his return by granting him a certificate through an association recognised by the government.

The judgment has given a sort of legitimacy to caste associations by holding that the community has the final say as far as acceptance (of reconversion) is concerned. “Had the community expelled him (the appellant in this case), the matter would have been different,” it said, finding unsustainable the Kerala High Court’s refusal to accept his reconversion to Hinduism on the grounds that he had subsequently married a Christian woman.

K.P. Manu is an interesting case, as both he and his parents were born as Christians. Yet, he traced his S.C. (Pulayan) status from generations back despite the fact that his ancestors had opted to renounce the Pulayan caste status and Hindu religious status by converting to Christianity. Ten years after his “reconversion” to Hinduism, he married a Christian woman under the Special Marriage Act. Even at the time of his “reconversion” (he was 23 years old at that time), his parents continued to profess Christianity. Yet, he claimed to have embraced Hinduism as he had become a major.

The Scrutiny Committee, on the basis of a complaint, rejected his claim. Following this, the Kerala government directed his dismissal from service and ordered that Rs.15 lakh paid to him as salary be recovered. Manu’s appeal in the High Court was dismissed. The Supreme Court allowed his appeal and set aside the Scrutiny Committee’s findings and the High Court’s order, besides directing his reinstatement in service with all the benefits relating to his seniority and his caste, and payment of back wages up to 75 per cent.

The court explained that the principle of “definitive traceability” may be applied to test the claim of conversion to Hinduism of a person whose forefathers had abandoned Hinduism and embraced another religion, and the onus shall be on the person who claimed the benefit after reconversion. The claimant, the court held, had to establish beyond a shadow of a doubt that his forefathers belonged to the Scheduled Caste that came within the Constitution (Scheduled Castes) Order, 1950; that he had been reconverted; and that his community had accepted him and taken him within its fold.

The Akhila Bharata Ayyappa Seva Sangham, recognised by the Kerala government as one of the agencies competent to issue community certificates, gave a certificate in 1984 stating that Manu had converted from the Christian Pulayan community to the Hindu Pulayan community after performing a Sudhi Karma (expiatory) ceremony according to Hindu rites and customs, and also changed his name, from K.P. John to K.P. Manu.

The civil rights activist John Dayal noted in his blog that the judgment in K.P. Manu legitimised “Ghar Wapsi” while making it prohibitive and punitive for any Dalit to exercise his or her freedom of faith and convert to Islam or Christianity. Conversions to Buddhism and Sikhism do not invite this “punishment”. He expressed his concern that the Vishwa Hindu Parishad (VHP), which was spearheading the ongoing campaign to reconvert Dalits to Hinduism under the banner of “Ghar Wapsi”, had reportedly hailed this judgment.

The Constitution (Scheduled Castes) Order, 1950, issued by the President under Article 341, specifies which of the castes are S.Cs. The order includes the lists of S.Cs for each State. In its third paragraph, it says that no person who professes a religion different from the Hindu or Sikh religion shall be deemed to be a member of an S.C. This order was amended in 1990 to include Buddhism as the third religion to which an S.C. person could belong. Similar amendments to the order with respect to Dalit Christians and Dalit Muslims are required to render justice to them.

John Dayal said: “How can one religion be called a ‘way of life’ , as in late Justice J.S. Verma’s ruling [ Dr. Ramesh Prabhoo vs Prabhakar K. Kunte (1996)1 Supreme Court Cases 130] and yet conversions to or from it invite such contradictory results? Leaving Hinduism means losing all rights, including reserved seats to [State] legislatures and Parliament apart from quotas in jobs and education.”

John Dayal notes that in the case referred by the Supreme Court for consideration by a bigger Bench, the Bharatiya Janata Party (BJP) had categorically rejected Dalit Christians’ demand for recognition as S.Cs, and members of the BJP intervened during the proceedings to oppose the petitioners’ pleas. Only an authoritative ruling by a Constitution Bench of the court can settle the issue once and for all, he suggests.

The Congress government under Prime Minister P.V. Narasimha Rao had introduced a Bill in Parliament to confer S.C. status on Dalit Christians in 1996, by amending the Constitution (SC) Order, 1950, but it was abandoned on technical grounds as it was introduced without giving the statutory notice period. The BJP opposed the Bill, arguing that it would cut into the benefits enjoyed by other S.Cs. The Congress then came under criticism that it ignored the requirement for the Bill’s introduction because it was not sincere about bringing about the necessary change in the legal regime and that its leaders were not clear about the political fallout of the Bill’s passage. Expectedly, the UPA, during its reign from 2004 to 2014, showed no interest in reviving the Bill.

Ram Vilas Paswan, currently an ally of the BJP and a Union Minister, however supported the demand that Dalits who had converted to religions other than Sikkhism and Buddhism should be classified as belonging to the S.Cs. With the case in the Supreme Court being consigned to cold storage, the fissures within the ruling coalition on this issue may not yet come to the surface.

In the K.P. Manu case, the Supreme Court concedes in Paragraph 32 that members of the S.Cs who had embraced Christianity with some kind of hope or aspiration have remained socially, educationally and economically backward. In Paragraph 33, the court endorses the view that members of the S.Cs who had embraced another religion in their quest for liberation return to their old religion on finding that their disabilities have clung to them with great tenacity. One is tempted to see a link between these two observations even though the court was reluctant to openly admit it: recognition as S.Cs could perhaps liberate those Dalits who had converted from Hinduism to other religions but are unwilling to return to Hinduism in view of the continuing discrimination against them.

P.S. Krishnan calls the condition of “acceptance by the community” for readmission of a converted person into Hinduism a “legal fiction” created by the judiciary, just as the 1950 order created a legal fiction stating that only those Dalits converted as Buddhists and Sikhs from Hinduism continued to suffer from caste discrimination and therefore merited recognition as belonging to the S.Cs. Pointing to Madiga Hindus and Madiga Christians, who live in the same locality, he said both suffered from caste discrimination and therefore deserved S.C. status.

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