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CHAPTER 9
DEMANDS FOR AMENDING CONSITUTION (SCHEDULED CASTES) ORDER 1950
Constitutional Provisions
The Constitution of India does not restrict the Scheduled Castes class to any select religions. The term “Scheduled Castes” has been defined in Article 366(24) read with Article 341(1) as:
“Scheduled Castes” means 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 purpose of this Constitution.
(a) 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 which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation that State or Union territory, as the case may be.
(b) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
Under these provisions a Constitution (Scheduled Castes) Order was issued in 1950. Para 3 in the Order said that any non-Hindu could not be regarded as a Scheduled Caste. Since this Order was amended in 1956 to include Sikhs, and in 1990 the Buddhists, among the Scheduled Castes, since the latter amendment this para says that nobody who is not a Hindu, Sikh or Buddhists can be a Scheduled Caste. The text of the Order is reproduced below.
The Constitution (Scheduled Castes) Order, 1950
In exercise of the powers conferred by clause (1) of article 341 of the Constitution of India, the President, after consultation with the Governors and Rajpramukhs of the States concerned, is pleased to make the following Order namely:
1. This order may be called the Constitution (Scheduled Castes) Order, 1950.
2. Subject to the provisions of this Order, the castes, races or tribes or parts, or groups within, castes or tribes specified in (Parts to (XXII) of the Scheduled to this Order shall, in relation to the States to which those Parts respectively related, be deemed to be Scheduled Castes so far as regards member thereof resident in localities specified in relation to them in those Parts of what Schedule.
3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhists religion shall be deemed to be a member of a Scheduled Caste.
4. Any reference in this Order to a State or to a district or other territorial division thereof shall be construed as a reference to the State, district or other territorial division as constituted on the 1st day of May, 1976.
Moves to Change by Legislation
Efforts have been made in the past to get the Constitution (Scheduled Caste) Order 1950 amended by legislation so as to make it religion-neutral. A number of Private Members’ Bills have been moved in Parliament, but to no avail. An official Bill called the Constitution (Scheduled Caste) Orders (Amendment) Bill was at last drafted in 1996. The opinions expressed by the State/UT governments on the Bill, obtained by the central government, were divided. The government also took note of the recommendations of the 1983 Gopal Singh Panel and the Central Minorities Commission which were strongly in favour of deleting para 3 of the SC Order of 1950, and of the Scheduled Castes and Scheduled Tribes Commission which was against the same. In view of all this divergence of opinion the Bill was not introduced in the Parliament.
Recent Court Cases
In three different pending petitions before the Supreme Court of India the petitions have challenged paragraph 3 of Constitution (Scheduled Caste) Order 1950 saying that a person not professing the Hindu, Sikh or Buddhist faith cannot be included in the lists Scheduled Castes. They have relied upon the following grounds:
(a) Secularism is a basic feature of the Constitution of India. The denial of equal privileges to persons of Scheduled Caste origin converted to Christianity is in violation of both the basic features enshrined in Article 25 and the preamble of the Constitution.
(b) The Constitution has provided for equality of opportunity to all those who are similarly situated.
(c) Even after conversion, the caste label continues and it is difficult for a person in Indian society to get out of the vice of caste system.
(d) Caste is more a social combination than a religious group and that even though the tenets of Christianity do not recognize caste, it is in fact a reality.
(e) The only available judgment on this issue….Soosai vs. UOI 1985 (Supp) S.C.C. 590. In the Judgment, the Supreme Court had accepted that the caste continued even after conversion. It had, however, sought for more material to show tha the handicap of persons of Scheduled Castes had remained the same even after conversion to Christianity. In the said case, the Court was not satisfied with the material placed before it.
(f) The position of persons of Scheduled Caste origin converted to Christianity remains the same as before. They continue to be forced into the most demeaning occupations…. They continue to be both poor and socially and educationally backward.
(g) The atrocities committed on the Dalits are uniform irrespective of the religions they belong to.
Seven Writ Petitions making the same demand are pending in different High Courts, based mainly on the following pleas:
(a) The Presidential Order of 1950 was issued by the President of India under Article 341 of the Constitution. The power conferred on the President by Public notification is a delegated power which cannot run contrary to Article 13(2) of the Indian Constitution which states as follows: “The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void. … 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.
(b) Even under Article 341 the President is not given a power to proclaim to prohibit any citizen from professing any religion of his choice. But the President under Article 341 prescribes indirectly people particularly (Scheduled Caste) not to profess any religion different from Hindu or Sikh religion. In other words to get a benefit under Scheduled Caste Order 1950 a citizen should profess only Hindu or Sikh religion. … Under Article 341 the power given to the President is to specify the Caste and not to specify religion or to identify the Caste by the symbol of religion and hence it is a coloured legislation under guise of Presidential Order.
(c) Para 3 of Scheduled Caste Order of 1950 suffers as it discriminates the citizens of the ground of religion only.
(d) The Apex Court in the said judgment [Indira Sawhney Vs. Union of India Suppl. (3) Supreme Court Case 217] delivered by B. P. Jeevan Reddy (on behalf of Kania C.J., Veykantchalia, Ahmadi, and for himself) in majority view came to the conclusion that the concept of Castes is not confined to Hindu religion only but it extends irrespective of the religious sanction.
(e) That the action of the Government is arbitrary and discriminatory on the ground that on one hand the Muslims have been excluded for the purposes of treating their Caste as Scheduled Caste, but on the other hand the Muslims are included in the list of backwards meaning thereby that the person belonging to a Caste which has been included in the list of Scheduled Caste shall stand excluded from being treated as Scheduled Caste on the simple ground that he is a Muslim.
Conclusion
By all available evidence we do find the caste system to be all-pervading social phenomenon of India shared by almost all Indian communities irrespective of religious persuasions.
It is claimed and agreed to by almost all sections of the society in India, in various context and especially in respect of the issue of reservations, that no special benefits can be given to any community or group on the basis of religion. At the same time, however it is generally insisted upon that the class of Scheduled Castes must remain religion-based. This seems to be illogical and unreasonable.