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Legal Article: Examining the Constitutionality of the Constitution (Schedule Caste) order, 1950

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Dr.B.R.Ambedkar in his last speech in the Constituent assembly said “In politics we will have equality and in social and economic life we will have inequality” he advised the successive governments to quickly take measures for social quality among the people of India. To this effect, the President of India passed “The Constitution (Scheduled Caste) order of 1950” in exercise of the powers vested in him under article 341 of the Constitution. The aim was to protect fundamental rights and freedoms of Dalits, but unfortunately it restricted fundamental rights of a section of Dalits (the converted Dalits).

This order provides the Scheduled Caste community with many benefits Including reservation in government jobs and educational institutions. But paragraph 3 of the order limits it only to Hindu Dalits. The order was subsequently amended to include Sikh Dalits in 1956 after the recommendation of Kaka Kalekar panel in 1955. The order was further amended in 1990 to include Buddhist Dalits after the recommendation of high powered panel in 1983. But the order was never amended to include Dalits from Muslim and Christian faith.

The reason given by the Central Government was that the basis of the order is to prohibit Untouchability, which is a concept prevalent only in Hindu society. However the government has not presented any numerical or empirical data of any committee or commission to support it’s argument. The Presidential order of 1951 and Central government’s argument presumes that the suffering of a Dalit ends after they convert to Islam or Christianity.

Violative of Fundamental rights guaranteed under the Constitution

The Constitution (Scheduled Caste) order, 1950 is violative of the below Constitutional provisions

• Article 25(1) provides freedom of conscience and right to profess, practice and propagate any religion. This order forces a section of Indian society to choose between religious rights on one hand and protection benefits under the law on the other hand. This clearly has chilling effect on Article 25 (1), as It discourages the Hindu Dalits to convert to Muslim or Christian faith.

• Article 17 abolishes Untouchability, to enforce this right the government passed the Presidential order of 1950 and SC/ST Act,1989. But it ignores the fact that Untouchability is still practiced against the converted Dalits. This violates the mandate of article 17 to completely abolish Untouchability.

• Article 14 provides for equality before law and equal protection of law to every person. Reasonable classification is permissible with the sole objective of making unequal’s at par with equals. This order discriminates on religious basis by not providing SC benefits and protection to Dalits converted to Christianity or Islam faith.

  • Article 15 (1) prohibits discrimination on the religious basis among others, the ground on which this order discriminates is religious. The defence that the Untouchability is practiced only Hindus, Sikhs, Buddhists is flawed as it is not based on any research or numerical data or findings of a Commission or a Committee.

Recommendations of Committees and Commission

There are evidences of “Untouchability” practiced against Dalits converted to Christianity or Muslim faith. According to a data published in 2004-2005, 47% of Dalit Muslims are below BPL(Below poverty line) In Urban areas. Moreover 40% of Muslims Dalits are below BPL as against 30% Hindu Dalits In rural areas.

The National Commission setup to review the working of the constitution In 2002 remarked “ In view of the fact that in some parts of the country, particularly In Southern India, converts to Christianity from specific Sc’s are subjected to crimes and atrocities as their exact Hindu counterparts are(thus difference of religious makes no difference).

The Commission recommend that the SC/ST Act of 1989 be amended to include “converts to Christianity and Muslim faith from S.C” to protect them from the atrocities. But the act was never amended. National Commission for religious and linguistic minorities, also called Ranganath Mishra Commission constituted in 2007 to look into their issues “to delink SC/ST status from religion” and make it religiously neutral. Mandal Commission too recommended to make the Presidential order of 1950 and SC/ST Act, 1989 religiously neutral.

Since, olden days Dalits were suppressed and not allowed to exercise, their discretions. The Constitution of India gave them the rights under part 3, but it was unfortunately undermined by the Presidential order of 1950 and SC/ST Act of 1989. This order puts Dalits in dilemma to pay a heavy price if they choose to exercise the most basic “freedom of conscience”. The state should never force any person to compromise with their religious beliefs.

It is unjust, unfair, unreasonable to make the vulnerable community (Dalits) choose between their fundamental rights and the protectoral benefits under SC/ST Act,1989. SC status linked to practice of “Untouchability” is not supported by facts, empirical data or any Commission’s report, thus to say that the practice is limited only to Hindus is a wrong narrative.

Supreme court as the custodian of fundamental rights and the highest court to Interpret the Constitution, must Intervene and examine the Constitutional validity of paragraph 3 of Presidential order of 1950 and SC/ST Act, 1989 in general interest of Dalits. Paragraph 3 of the order must be struck down by the Supreme court as unconstitutional and violative of fundamental rights. The benefits of the SC status must be religiously neutral to protect the fundamental rights of every Dalit.

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