Monday, February 2, 2015

Strong case for deleting Presidential Order of 1950

In response to Social Justice Minister Gehlot
Written By 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. He said this 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 SC quota 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 institutions by 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 Muslims should 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 and Buddhists. 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.

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