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DALIT CHRISTIANS AND MUSLIMS – POLICY AND LAW: HARDIK BAID

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DALIT CHRISTIANS AND MUSLIMS – POLICY AND LAW

Author: Hardik Baid

NLU Delhi

ISSN: 2581-8465


ABSTRACT

I search for God, whom should I hear?

I made stone temples, carved God out of stone

But priests are like stone,

They imprison God.

Whom shall I hear?

We were born Untouchables

Because of our deeds.

– Dalit devotional song (Franco, Macwan, and Ramanathan, 2000)

First observed in 2009, Black Day is organized by the Catholic Bishops’ Conference of India (CBCI), the National Council of Churches in India and the National Council of Dalit Christians to protest against the discrimination that low-caste Christians and Muslims continue to face in the country due to the Presidential (Scheduled Caste) Order, 1950. Through this Order[1] reservation was provided to Scheduled Caste [‘SC’] category. Paragraph 3[2] of this order stated that the benefits of the reservations were to be extended only to the Dalit Hindus. Later Sikhs (1956)[3] and Buddhists (1990) were also included within the ambit of the Order whereas Christians and Muslims were excluded.

Ever since these two communities have been fighting for their rights and have demanded to extend the SC category to include Dalit Christians and Muslims as well. The objective of the paper is to address the question of why caste-based reservation under the SC category be extended to Dalit Christians and Muslims by including them in the SC list of the 1950 Order and also tries to examine the position of the supreme court for denying the SC status to these communities in the light of the present social realities.

It is argued through the paper that Dalit Christians and Muslims should be included in the Scheduled Castes category and be given the reservations taking into account the pernicious condition evident by the empirical data provided. The paper is structured in a way to provide the readers with an understanding of the current conditions of the groups by presenting the instances of the oppression against them and a comparative study to bring out the fact that their condition is analogous to their counterparts. It proceeds with various laws, policies, and judicial perceptions that instead of providing them the protection they have proved to be detrimental to them. Each part of the paper begins with a question for the readers to ponder upon and answer after reading the part, establishing a rational enterprise of arguments.

CASTE SYSTEM IN INDIA – FROM ANCIENT PERIOD TILL PRESENT

Ø  Has the condition of Dalits after converting to Christian and Muslim communities, on ground reality, changed, or do they continue to be discriminated?

Indian society in the ancient period was divided into sections (known as ‘Varna’) based on the occupation of family practices. This Verna system included four major sections – Kshatriyas, Brahmans, Vaishayas and Shudras – but excluded one sect of the population, Adishudras also called as Untouchables. The upper caste dominated over the lower castes- Dalits- and continues to do so, violating human rights by looking down at them and considering them as ‘polluted’. The term ‘dalits’ was in use as a translation for the British Raj census classification of Depressed Classes prior to 1935[4]. It was popularized by B.R. Ambedkar, himself a Dalit.

Pre- constitution period saw Dalits being denied equal rights and access to resources enjoyed by other sections of the society. This led to social and political reforms by social activists like the Dalit Panthers. The colonial regime tried to address the issue of this discrimination by recommending separate electorates for selecting Dalit leaders in the Communal Award in 1932. Reserving seats in the political arena for the SC was a major step influenced by the Government of India Act, 1935. But even after years of struggle and resistance against the discrimination and a quest to make the state realize their problem that apparently has turned a deaf ear to their pleas, Dalits find themselves stuck on a ship in the middle of a vast ocean without a rudder.

The advent of Christianity and Islam are traditionally known as caste-less religions, their growing popularity in India and all the discrimination faced by the Dalits in Hinduism influenced many of them to convert themselves, to earn self-respect and dignity, to these homogenous communities. The conversion has only changed their religious beliefs and not the practices against them.

After independence, upper caste members assumed the charge of the church and thus Dalits had to face discrimination there also as a result of caste prejudices. The statistics showcase that around 65% of Dalit Christians are in Catholic Church but only a meager 3.8% of the priests and nuns are Dalits. Out of 158 archbishops in India, only seven are from the Backward Communities. The seemingly homogenous communities like Christianity and Muslims are divided into a number of castes- Brahmin Christian, Kamma or Reddy Christian, Syrian Christian, caste Christian or Dalit Christian- and – Ashraf Muslims and Pasmanda or Arzal Muslims. As per the latest census, they comprise 16% of India’s population (200 million people), including Hindu Dalits and Christian Dalits[5].

The conversion to Christianity does not change social condition of the Dalits. “Those who commit atrocities against Dalits do not differentiate between Christian Dalits and non-Christian Dalits. For an Indian, a Dalit is a Dalit, whether Christian or not”[6]. Dalit Muslims also face similar discrimination. Existing conditions and hardships faced by low-caste Muslim communities such as julaha (weavers), halalkhor, lalbegi (scavenger), gorkan (grave diggers), mirshikar, Chik (butcher), rangrez, darzi and nat are a feature of discrimination against the lower castes. In Tamil Nadu, they are residentially segregated from the higher castes. In Kerala, they are largely landless laborers, and work for Syrian Christians and other landed upper castes. There is no question of inter-dining or inter-marriage between the Dalits and the Syrian Christians[7].

Dalits have been subject to all kinds of discrimination in Hinduism and in order to escape it they converted to Christianity and Islam but much to their dismay couldn’t find themselves equal to the upper caste members. Thus the oppression and seclusion have continued even after the conversion and their condition hasn’t changed much which shaped the occupational structure and educational levels of these Dalits.

CURRENT STATUS OF DALIT CHRISTIANS AND MUSLIMS

Ø  ­What is the current position of Dalit Christians and Muslims in comparison to Dalits in other religions? 

The diversity in religion and caste in India has certain implications to the status of Dalit Christians and Muslims. About 80% of the population practice Hinduism which makes all the other religions minorities. The Dalits constitute about 70% of all the Christians and 75% of Muslims. The caste system in these communities overshadows their majority and hence they are subject to two tiers of discrimination. One – the religions being minorities are subject to hegemonic discourse and two – within them Dalit community face discrimination.

Dalits are trapped by their own economic activities. They engage themselves in the kinds of work such as cleaning out waste, skinning cattle, working in leather, butchery, fishing, and supervising cremations. John Webster writes in his book ‘Religion and Dalit Liberation’: “Although they form a majority of the Christian Community, they have been an oppressed majority.” Farther onward he adds: “Like other Dalits, Christian Dalits live in a caste-based society and their conversion has not been able to change that fact.”

Studies reveal that the lifestyle pattern of these communities is not in a better position than their counterparts embracing Hinduism and other religions and in some areas even worse. Data analysis[8] has reaped out the following findings regarding the status of Dalit Christians and Muslims:

Poverty proportions of the population – With respect to poverty, though all lay on the same footing but amongst them, the Dalit Muslims are the worst with a considerable difference with Christian and Sikh counterparts. The affluence is another measure that brings out a clearer picture with Dalit Muslims having no stake in an affluent society. The Christians are second in this respect.

Occupational structure – In rural parts of the country, there seem to the blurred lines of distinction between the various communities within different religions as they have an almost similar structure. But in urban areas there is a certain contrast, with Dalit Christians, are the worst in terms of ‘casual labor’ and ‘regular wage’ category. Dalit Christian and Sikhs share equal proportionate in ‘regular wage’ in urban areas. Dalit Sikhs in this category are the best performing group.

Educational levels – Dalit Muslims and Hindus are comparable in terms of illiteracy rates in rural areas. Dalit Christians are second only to Buddhists, who are best amongst all the Dalits, in urban areas. Taking into consideration the educational spectrum as a whole it can be well concluded that non-Dalits in the religion are better off than the Dalit ones.

The report titled “Dalits in the Muslim and Christian Communities: A Status Report on Current Social Scientific Knowledge” by National Commission for Minorities (NCM) reveals that economically and educationally, the condition of Dalit Muslims is generally poorer than other Dalits, and Dalit Christians to lag behind upper-caste Christians on that front.

On the basis of the data provided by the NSSO 61st Round Data it can be concluded that Dalits in the community are much worse-off in terms of education than the non-Dalits in intra-community comparison. The non-Dalit Christians, and especially the upper caste Christians, tend to be much better off. There exists more inequality and thus discrimination. The least caste inequality is found with the Muslim Dalits. This does not mean, however, that their standard of living is any better. Surprisingly, in terms of proportions of the population in poverty or affluence, the Christian Dalits are relatively better off than most of the other Dalit communities, except for Sikh Dalits, who are even better off[9]. Also, the reader may notice that the inter-Dalit community differences are not clearly laid down and all are equally worse for a major part of the population. Dalit Muslims are the most disadvantageous group while the top layer of Dalit Christians is significantly well-off. The occupational structure is almost similar in every group. 

The following data[10] has been collected by various studies which indicate the atrocities and oppression these communities are subjected to in their routine life:

They are made to sit separately in 37.8% of villages’ government schools, in 25.7% villages refrained from entering ration shops, Public Health Workers refuse to visit their homes in 33% villages, denied access to water sources in 48.4% of villages, in 25% villages Dalits are paid lower wages than non-Dalits and prevented from entering non-Dalit homes in 73% villages.

After analyzing the data and drawing the conclusions might raise a question in the minds of the readers that if every Dalit group is almost equal, then why Sikhs (who are the best amongst all the other group) and Buddhists were included in the category of SC while Christians and Muslims are still excluded on the basis of religion and other “justificatory” and “reasonable” reasons given by the state. To address this question we need to look at the law, its interpretation by the courts, and policy evolution which is discussed in the following section.

POLICY AND LAW

Ø  What are the policies and laws made by the state for them and why they are still excluded for getting Schedule Caste Status?

The constitution of India is the guarantor of the rights of the citizens of the country and provides for the protection of minorities. Under the various articles of the constitution, we find provisions of formulating laws in the interest of minorities. The government in this regard has to endeavor to make provisions for reservations in the public sector for the backward classes to provide them with equal opportunities[11]. The Constitution empowers the President[12] to include a backward race or tribe in the Scheduled Caste for their positive discrimination. The President exercises this power brought a Presidential Order (SC), 1950[13] which contained the lists of tribes, communities, and races w.r.t. the location and their condition giving them the reservations. Paragraph 3 of the Constitution (Scheduled Caste) Order, 1950 says no person who professes a religion different from Hindus, Sikhs, or Buddhists shall be deemed to be a member of a Scheduled Caste, later amended to include Sikhs in 1956 and Buddhists in 1990 under the SC category. The SC and ST communities enjoy reservation in jobs, education as well as legislatures. Of 543 seats in Lok Sabha, 84 are reserved for the SCs, while 47 for the STs. Of 4,120 seats in legislative assembly segments in the country, 614 are reserved for the SCs, while 554 for the STs.

Since then there has been an upsurge of demands from Dalit Christians and Muslims to be included in the list of SC of the Order of 1950. But the state has rejected their demands by stating that religions other than Hinduism do not recognize any casteism within their religion and hence non-Hindu untouchables cannot be included in the list. Untouchability is regarded as an element characteristic of Hinduism[14].

Soosai v. Union of India and others, [1985] SCC 590

The resistance of these communities came to the court when a petition was filed against the Paragraph 3 of the 1950 Order as a violative of fundamental rights such as the right to equality (Article 14), the prohibition of discrimination of the grounds of religion, caste, sex, race or place of birth (Article 15) and right to religion (Article 25). By denying the Muslim and Christian Dalits those benefits, the state is violating its own laws that are meant to safeguard the equality of all people, irrespective of caste and creed distinctions[15].

 The famous Soosai Case was decided against the petitioners as the evidence provided for sketchy and the court couldn’t hold that the condition of Dalit Christians and Muslims was worse enough to include them in the List. It held that to establish that paragraph 3 of the Constitution (Scheduled Castes) Order, 1950 discriminates against Christian members of the enumerated castes it must be shown that they suffer from a comparable depth of social and economic disabilities and cultural and educational backwardness and similar levels of degradation within the Christian community necessitating intervention by the State under the provisions of the Constitution. Thus it laid down two pre-requisites in order to prove a community disabled[16]. These are: (i) that they are at a disadvantage as compared to their Non-Dalit co-religionists due to their caste status and (ii) that their status is comparable to the groups included under the SC category i.e. Hindus, Sikhs and Buddhists.

Further Developments by Courts

A series of cases in the Indian courts has led to the development of a legal-rational behind the inclusion of any group or community for the special treatment:

The state may endeavor to provide special treatment to the socially and educationally backward classes i.e. the SCs and the STs to protect them from social injustice and exploitation[17]. The basis of this special treatment is that they should suffer from social, economic, and educational backwardness as a result of the Untouchability.

The courts have denied the SC status to these groups on the basis that Untouchability is a feature of Hinduism and provisions can be extended only to castes proximate to Hindu society. Also, the evidence provided cannot be held as authoritative enough to extend the affirmative actions to these communities. But since the Soosai Case, a lot of ethnographic data has been collected which provides strong arguments in the inclusion of these cases under the SC category as discussed in the previous part discussing the status of Dalits.

Commission and Committee Reports

The government instituted various committees starting from the Kelkar committee in 1955, Mandal commission in 1980 to Ranganathan commission recently to address this issue and bring about a clearer picture of Dalits.

Even after the recommendations of these commissions, the state hasn’t really progressed much in drafting policies. Both the government and the judiciary have declined to decide an affirmative action based on religion as a criterion. Apart from lack of evidence that has led to the evolution of the jurisprudence that Dalit Christians and Muslims are not to be included in the SC category there are certain sociological and political barriers obstructing the way of these communities.

The Hindu upper caste is the strongest opponent to their inclusion as they believe that it would impede the process of re-conversion of Dalits who have converted to Christianity and if the benefits of reservations are given to Dalit Christians then they wouldn’t re-convert to Hinduism. There has been the resistance of the upper castes from within the religion to accept the existence of caste discrimination. Also the Hindu, Sikh, and Buddhist Dalits are reluctant to accept this policy as then they would have to share reservations with these groups.

Time and again the government tried to table Bills in the interest of these groups to provide reservations but none were passed and converted to laws. These include, a private member bill to bring Christians under the purview of the Order of 1950 introduced by Narayan Swamy between 1991 and 1994, the Constitution (Scheduled Castes) Orders (Amendment) Bill 1996 was listed for introduction in Lok Sabha on 12 March 1996 but wasn’t introduced. The government then sought to bring an ordinance in pursuance for the issue but it couldn’t be promulgated[18].

The Changing Perception

Amidst all this bleakness, there is a silver lining – a ray of hope for the Dalits – that the perception of the courts may be revolutionizing after the judgment in Mohammad Sadique v. Darbara Singh Guru (In the Supreme court of India civil appeal no. 4870 of 2015) in which the court laid that a Dalit Christian or Muslim is entitled to benefit from the reservations under SC category if he is able to prove that his/her ancestors were once Hindu Dalit and got converted.

Up to this time, twelve state Governments and Union Territories had recommended to Union of India for granting the SC status to these people: in the year 2000, Bihar State Assembly had passed a resolution for granting SC status to Dalit Christians and Dalit Muslims; in the year 2006 Uttar Pradesh State Assembly had passed a resolution in the state assembly for granting the SC status to Dalit Christians and Dalit Muslims, in the year 2009, Andra Pradesh state Government had passed a resolution in its assembly for granting the SC status to Dalit Christians and Dalit Muslims.

Also, international intervention may pressurize the government to formulate policies in favor of the Dalits. The UN Committee on the Elimination of Racial Discrimination 17th session[19]  recommends that the State restores the eligibility for affirmative action benefits of all members of scheduled Castes and scheduled tribes having converted to another religion. Signing and ratification of a number of treaties including the Convention on Elimination of All Forms of Racial Discrimination (CERD) creates an obligation on the Indian government to take affirmative actions to tackle this problem. But the goals to be achieved amidst all the politics and social constraints seem to be a chimera right now. The hegemonic discourse adopted by the upper castes, sketchy evidence, judicial interpretations, and no affirmative action by the state has led to the denial of justice and protection to these vulnerable groups who are striking their arms against a door closed by the forces of aforementioned factors.

Centre for Public Interest Litigation & Anr. v. Union of India & Ors, 

16 years after it was filed, the Supreme Court has agreed to hear a legal challenge to the Presidential Order of 1950 providing for SC & ST category based reservation on 29 January 2020. The challenge argues that because of the order Christian and Muslim Dalits are denied basic services simply because of their faith. 

National Council for Dalit Christians (NCDC) Petition

On 8th January 2020, the Supreme Court of India Supreme Court agreed to hear the plea filed by the National Council for Dalit Christians (NCDC) seeking inclusion of Dalit Christians in the category of Scheduled Castes. This petition also challenges the paragraph 3 of the Constitution (Scheduled Castes) Order contending that religion should not be a consideration for the SC/ST status. The NCDC has submitted that social exclusion is different from religious practice and caste-based discrimination based on birth is practiced throughout South Asia.

CONCLUSION

It was argued in the article that it is the need of the hour for the state to extend the benefit of reservations to the Dalit Christians and Muslims by including them in the Scheduled Caste list of the 1950 Order.

The economic patter, educational levels, and occupations structure of Dalit Christians and Muslims are alike their counterparts which prove that they are as backward as they are, devoid of any amenities within their religion. Also, the judicial interpretation (SC ruling in Soosai[20] Case) has to be re-visited and re-considered as the amount and authority of evidence available in the present scenario completely outweigh the previous decisions and mindset of people. The Preamble of the Indian Constitution envisages social, economic, and political justice and equality of status and opportunities to the citizens while The Constitution contains various provisions like article 15 and article 16 imposing obligation on the government to uphold the goals it seeks to achieve. It is thus the duty of the government to work and implement policies for the upliftment of the historically oppressed and backward classes. Denying the right to the reservation to Dalit Christians and Dalit Muslims goes against Article 25 of the Constitution, which gives every Indian the freedom to practice any faith. Dalits had been subject to discrimination for such a long period of time that it is high time the government made policies in favor of them.

As Ambedkar rightly stated that India requires a cultural revolution to root out caste discrimination…

[1] Published with the Ministry of Law Notification No. S.R.O. 385, dated the 10th August, 1950, Gazette of India, Extraordinary, 1950, Part II, Section 3, page 163

[2] The Constitution (Schedule Castes) Order, 1950 C.O.19

[3] Subs. by Act 15 of 1990, s. 2, for “or the Sikh”

[4] “Independent labor party: 19th July (1937) in Dalit History – Dr. Ambedkar took oath as the member of Bombay Legislative Council”

[5] https://idsn.org/india-official-dalit-population-exceeds-200-million/

[6] M.R. Arulraja, Jesus the Dalit (Secunderabad: Jeevan Institute of Printing, 1996), VI

[7] S. M. Michael , “Dalit Christians in India” Journal Economic and Political Weekly, Vol. 31, Issue No. 50, [14 Dec, 1996]

[8] NSSO 61st Round Data

[9] Satish Deshpande, Dalits in the Muslim and Christian Communities: a Status Report on Current Social Scientific Knowledge (National Commission for Minorities, Govt. of India)

[10] Elze Sietzema-Riemer, Christian Dalits, a Research on Christian Dalits in India (2009)

[11] Constitution of India, 1950 art. 16(4), (4A)

[12] The Constitution of India 1950, art. 341(1)

[13] The Constitution (Schedule Castes) Order, 1950 C.O.19

[14] Indian People’s Tribunal on Untouchability, Text Editor: Abid Shah, Untouchability on Trial (New Delhi:

Human Rights Law Network (HRLN), 2008), 132

[15] Godwin Shiri, The Plight of Christian Dalits: a South Indian Case Study (Bangalore: Asian Trading Corporation,

1997), 239

[16] Satish Deshpande, Dalits in the Muslim and Christian Communities: a Status Report on Current Social Scientific Knowledge

[17] Article 15, 46 – Constitution of India (1950)

[18] Prakash Louis. “Dalit Christians: Betrayed by State and Church.” Economic and Political Weekly, vol. 42, no. 16, 2007, pp. 1410–1414

[19] Ambrose Pinto. “UN Conference against Racism: Is Caste Race?” Economic and Political Weekly, vol. 36, no. 30, 2001, pp. 2817–2820

[20] Soosai Vs Union of India and others, [1985] SCC 590

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