“The Presidential Order of 1950: A Fraud on the Constitution.”
Paper
submitted by Mr Mushtaq Ahmad, Advocate-on-Record, Supreme Court of India, New
Delhi; Two-Day National Conference on Caste, Religion and Reservation with
Special Focus on Dalit Muslims and Dalit Christians.
Dr K.R.
Narayanan Centre for Dalit and Minorities Studies, Jamia Millia Islamia, New
Delhi.
Greetings!
The third paragraph of the
Constitution (Scheduled Caste) Order 1950, popularly known as Presidential
Order, stipulates that “no person who professes a religion different from
Hinduism, Sikhism and Buddhism shall be deemed to be a member of Scheduled
caste.” Thus the Christians and Muslims of Scheduled Caste Origin are deprived
of Scheduled Caste rights.
To announce the above said paragraph
3 as unconstitutional, (Civil)Writ Petitions were filed in the Supreme Court
against Union of India.
Concerned with the above said cases,
Government of India had taken the following cabinet decision and referred the
matter to the National Commission for Religious and Linguistic Minorities
(NCRLM).
“To give its recommendations
(granting Scheduled Caste status to Dalit Christians) on the issues raised in
various Writ Petitions filed in the Supreme Court and in certain High Courts
relating to Constitutional validity of Para 3 of the Constitution (Scheduled
Caste) order, 1950, in the context of ceiling of 50% on reservation as also the
modalities of inclusion in the list of scheduled castes”.
On 28-11-2005 hearing, The Supreme
Court Order is as follows:
“The challenge in this matter is the
constitutional validity of paragraph 3 of the Constitution (Scheduled Caste)
order, 1950. In substance, the grievance projected by the petitioners is that
Scheduled Castes, on conversion of their religion to Christianity, lose all
their benefits as Scheduled castes on account of the operation of paragraph (3)
of the aforesaid order and, thus, the order is Constitutionally invalid. We may
examine, if necessary, this question after we are informed as to the progress
made in the proceedings before the National Commission for Religious and Linguistic
Minorities. It has been pointed out that on 28th September 2005, terms of
reference of the Commission have been amended and the commission has been asked
to give its recommendation on the issues raised herein as also in the context
of the ceiling of fifty per cent on reservation in terms of the decision of
this court in Indra Sawhney Vs. Union of India and others (1992 Suppl. (3)
S.C.C. 217). On the issues involved, at this stage, we express no opinion. We
may have to hear the matter in detail after information is supplied, as afore
noted. We are not linking the examination of the issue by this court only on
the recommendation by the Commission and have directed for the afore said information
because that may facilitate the examination, by this court”.
As per the cabinet decision of the Union of
India and the order of the Supreme Court of India, the National Commission for
Religious and Linguistic Minorities (NCRLM) Report volume I, page 154, part
16.3.5 declares as follows:
NCRLM Report volume I, page 141, Sub
division ‘a’
“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 Para 3 of the
presidential order is anathema which disfigures
the beauty of the written
Constitution of India.”
(Note: The NCRLM report was tabled in
the Parliament without Action Taken
Report in December 2009).
The Supreme Court of India Order on
23-01-2008
“Learned Additional Solicitor General
seeks eight weeks time to take a
decision in the matter, time sought
is granted”.
As per the following letters the
Secretary and the Director of Ministry of Social
Justice and Empowerment had requested
the Central Agency Section, Ministry
of Law and Justice, Department of
Legal Affairs, Supreme Court Building,
New Delhi to give them time to file a
reply by the Indian Government.
i. D.O.No.12018/4/2005-SCD (R.L.Cell)
July 13, 2009-Supreme Court may
be requested to give four months time
to file the stand of Union of India.
ii. D.O.No.12018/4/2005-SCD
(R.L.Cell) August 3, 2009 seek another four
months time for finalizing the stand
of the Union of India.
iii. D.O.NO.12018/4/2005-SCD
(R.L.Cell) October 5, 2009 seek another six
months time, for finalizing the stand
of the Union of India.
iv. D.O.NO.12018/4/2005-SCD(R.L.Cell)
December 7,2009 seek another
four months time for finalizing the
stand of the Union of India.
v. D.O.NO.12018/4/2005-SCD (R.L.Cell)
January 7, 2009 seek another
three months time, for finalizing the
stand of the Union of India.
vi. D.O.NO.12018/4/2005-SCD
(R.L.Cell) April 2, 2010 seek another three
months time, for finalizing the stand
of the Union of India.
vii. D.O.NO.12018/4/2005-SCD
(R.L.Cell) January 8, 2010 seek three
months time, for finalizing the stand
of the Union of India.
As on date,
response of the Union of India is not filed in the Supreme Court of India.
The Supreme Court had passed the
following Order on 21st January, 2011
(headed by the Chief Justice Honourable
Kapadia, Honorable Justice Swantrakumar and Honorable Justice Panikkar
Radhakrishnan). On oral application made by learned counsel for the petitioners,
National Commission for Minorities and National Commission for Scheduled Castes
are to be added as party respondents since for the following constitutional
issues are arising:
[1] Whether Paragraph (3) of the
Constitution (Scheduled Caste) Order,
1950 issued in exercise of Article
341(1) of the Constitution of India,
which says that, “Notwithstanding
anything contained in paragraph 2, no
person who professes a religion
different from Hinduism, Sikhism and
Buddhism shall be deemed to be a
member of a Scheduled Caste” is
unconstitutional and void, being
violative of Articles 14, 15, 16 and 25 of
the Constitution of India?
[2] Whether a Scheduled Caste person
professing a religion different from
Hinduism, Sikhism and Buddhism can be
deprived of the benefit of
Paragraph 3 of the Constitution (Scheduled
Castes) Order, 1950, in
violation of Articles 14, 15, 16 and
25 of the Constitution of India?
[3] Whether non-inclusion of
“Christians” and “Muslims’ in Paragraph (3) of
the Constitution (Scheduled Castes)
Order, 1950, along with Hinduism,
Sikhism and Buddhism, is
discriminatory and violative of Articles 14,
15, 16 and 25 of the Constitution of
India?
Both
National Commission for Minorities and the National Commission for Scheduled
Castes had filed very good written statement in favour of Dalit Christians and
Dalit Muslims for granting them the Scheduled Castes status.
Constitutional
validity of Paragraph 3 of the Constitution (Scheduled Castes) Order 1950.
Article
341(1) of the Constitution of India:
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 or parts of or groups within castes, races
or tribes which shall for the purposes of this Constitution be deemed to be
Scheduled Castes in relation to that State or Union territory, as the case may
be.
But in the
Constitution (Scheduled Caste) order 1950, President of India had brought
religious restriction arbitrarily, it is nothing but a Constitutional fraud.
The term “Scheduled Castes” is
defined in article 366(24) of the Constitution of India as follows:-“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 purposes of the Constitution.”
Explanation:
14. Equality before law:
The State shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India.
15. Prohibition of discrimination on grounds
of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them.
(2) No citizen shall, on grounds only
of religion, race, caste, sex, place of birth or any of them, be subject to any
disability, liability, restriction or condition with regard to-
(a) Access to shops, public
restaurants, hotels and places of public entertainment; or
(b) The use of wells, tanks, bathing
ghats, roads and places of public resort maintained wholly or partly out of
State funds or dedicated to the use of the general public.
(3) Nothing in this article shall
prevent the State from making any special provision for women and children.
10[(4) Nothing in this article or in
clause (2) of article 29 shall prevent the State from making any special
provision for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
16. Equality of opportunity in
matters of public employment.-
(1) There shall be equality of
opportunity for all citizens in matters relating to employment or appointment
to any office under the State.
(2) No citizen shall, on grounds only
of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any employment
or office under the State.
(3) Nothing in this article shall
prevent Parliament from making any law prescribing, in regard to a class or
classes of employment or appointment to an office under the Government of, or
any local or other authority within, a State or Union territory, any
requirement as to residence within that State or Union territory prior to such
employment or appointment.
12 (4A) Nothing in this article shall prevent the
State from making any provision for reservation in matters of promotion to any
class or classes of posts in the services under the State in favour of the
Scheduled Castes and the Scheduled Tribes which, in the opinion of the State,
are not adequately represented in the services under the State.
12A (4B) Nothing in this article
shall prevent the State from considering any unfilled vacancies of a year which
are reserved for being filled up in that year in accordance with any provision
for reservation made under clause (4) or clause (4A) as a separate class of
vacancies to be filled up in any succeeding year or years and such class of
vacancies shall not be considered together with the vacancies of the year in
which they are being filled up for determining the ceiling of fifty per cent.
reservation on total number of vacancies of that year.
(5) Nothing in this article shall
affect the operation of any law which provides that the incumbent of an office
in connection with the affairs of any religious or denominational institution
or any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination.
25. Freedom of conscience and free
profession, practice and propagation of religion.
(1) Subject to public order, morality
and health and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess, practise and
propagate religion.
(2) Nothing in this article shall
affect the operation of any existing law or prevent the State from making any
law
(a) Regulating or restricting any
economic, financial, political or other secular activity which may be
associated with religious practice;
(b) Providing for social welfare and
reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus.
Explanation I. The wearing and
carrying of kirpans shall be deemed to be included in the profession of the
Sikh religion.
Explanation II.- In sub-clause (b) of
clause (2), the reference to Hindus shall be construed as including a reference
to persons professing the Sikh, Jaina or Buddhist religion, and the reference
to Hindu religious institutions shall be construed accordingly.
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