Reservation on Religious Base !

Indian Constitution does not allow reservation on religious grounds – A myth or reality

June 6, 2012 : Catholic Christians Secular Forum

India, June 2, 2012: Our polity allowed religious based reservation by using Constitutional provision i.e. article 341 which permits to specify castes to be added in a LIST by the president, by just issuing a notification. One will be surprised to know that when this notification was issued in 1950 it allowed religious based reservation in total violation of Constitutional provisions namely article 15.

The notification called THE CONSTITUTIONAL (SCHEDULED CASTES) ORDER, 1950 says in para 3 regarding allowing reservation to only Hindus and no one, in the following words;
“4 (3). Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu 5 [the Sikh or the Buddhist] religion shall be deemed to be a member of a Scheduled Caste]”.

-          The presidential Order 1950 renders the Dalit Christians and Dalit Muslims ineligible for enjoying the benefits of affirmative action of Government. Before Proceeding it is appropriate to place article 15 of Constitution of India here in below:

-          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 ground 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 whole or partly out of State funds or dedicated to the use of general public.
3. Nothing in this article shall prevent the State from making any special provision for women and children.
4. Nothing in this article or in clause (2) or 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.

-          Although Article 15 of the Constitution says that there shall be prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, except from making some provision for advancement of any educationally and socially backward classes of citizen as well for SC and ST so far that provision relates to their admission in educational institutions.

-          The Presidential Order 1950 states that the criterion to define the Scheduled Caste, which reads: Not withstanding anything contained in paragraph 2, no person who professes a religion different from Hindu, shall be deemed to be a member of a Scheduled Caste. So the religion was used as a criterion to define, who shall be Scheduled Caste. On the basis of that criterion all other people professing Islam, Christianity and other were left out. Although in 1956 and 1990 the third paragraph of the Presidential Order 1950 was amended by the Parliament to extend the benefits to the Dalit Sikhs and the Dalits Buddhists along with the Dalit Hindus.

-          The serious question arises here is that whether this presidential Order of 1950 is in conflict of Part III of Constitution of India which envisages equality to all citizens of India in article 14 and 16 in all spheres of life or not?

-          Article 14 of Constitution of India says,’ the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ Article 16 of Constitution of India says that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Although article 15 of Constitution of India provides for 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.

-          Numerous studies most prominently and recently the Sachar Committee report, have pointed out, Muslims are among the most economically, educationally and socially backward sections of Indian society. Undoubtedly, the report is immensely useful for understanding the magnitude of this problem, as are many of the suggestions that it provides for ameliorating it.

-          The Govt. of India had also constituted National Commission for Religious and Linguistic Minorities which was also called as Ranganath Misra Commission constituted on 29 October 2004 to look into various issues related to Linguistic and Religious minorities in India. It was chaired by former Chief Justice of India Justice Ranganath Misra. The commission submitted its report to the Government on 21 May 2007.

-          Initially, the commission was entrusted with the following terms of reference.

-          (a) To suggest criteria for identification of socially and economically backward sections among religious and linguistic minorities; (b) To recommend measures for welfare of socially and economically backward sections among religious and linguistic minorities, including reservation in education and government employment; and (c) To suggest the necessary constitutional, legal and administrative modalities required for the implementation of its recommendations.

-          After nearly five months of its work the Commission’s Terms of Reference were modified so as to add the following to its original Terms of Reference.

-          (d) To give its recommendations on the issues raised in WPs filed in the Supreme Court of India and in certain High Courts relating to Para 3 of the Constitution (Scheduled Castes) Order 1950 in the context of ceiling of 50 percent on reservations as also the modalities of inclusion in the list of Scheduled Castes.

-          Following are the salient features of recommendations of Ranganath Misra Commission:
• 15% of jobs in government services and seats in educational institutions for minorities
• reserves 8.4% out of existing OBC quota of 27% for minorities
• SC reservation to Dalit converts.
• Para 3 of the Constitution (Scheduled Castes) Order 1950 – which originally restricted the Scheduled Caste only 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 de-link Scheduled Caste status from religion and make the Scheduled Castes net fully religion-neutral like that of the Scheduled Tribes.

-          Although an entire religious group had still not been granted reservation by the 1950 order but backwardness was considered a qualification for granting reservation to a religious group by this order. Applying the same analogy other religious groups can be identified and granted reservation on the basis of their backwardness. As mentioned above Muslims backwardness had already been identified and it was found that a substantial chunk of Muslims is living below poverty lines. Then where is the impediment to provide adequate representation to them in public employment in view of article 15 (4) of Constitution. By not doing so discrimination is extended to the left out religious groups.

-          Till today twelve States Government and Union Territories have recommended to Union of India for granting the SC status to these people. In the year 2000, Bihar State Assembly passed resolution for granting SC status to Dalit Christians and Dalit Muslims; in the year 2006 Uttar Pradesh State Assembly passed resolution for the same; in the year 2009 Andhra Pradesh State Government had passed resolution in its assembly for granting the SC status to Dailt Christians and Dalit Muslims. Andhra Govt. granting 4 percent reservation to Muslims was negated by its High Court on technical grounds. Against it, the A.P. Govt. approached Supreme Court where the order of High Court was stayed and matter was referred to a constitution Bench of Seven Judges and the reservation of Muslims in A.P. was allowed to be continued during the matter is pending there.

-          Now the focus has shifted from political space to economic and educational entitlement, but at the core remains the grievance of injustice. If reservations are good for virtually everyone else, why do they become such a terrible idea when it comes to Muslims? True or false, the Constitution does not permit reservations for religious groups; but this is fact that article 15 envisages reservations for women and reservation to women is provided taking advantage of the said constitutional provision. If State can take advantage of the Constitution to accommodate women, Dalit Hindus, Buddhists and Sikhs, why not educationally and socially backward Muslims taking advantage of article 15 (4) of Constitution of India?

-          On the other hand if the argument is that religious reservation is not permissible then how to reconcile with 1950 Presidential order which provides reservation to the persons who professes Hindu, Sikh or the Buddhist religion? We can hide the truth behind millions of words loaded with heavy reasons, but the simple truth is that reservation on religious grounds was allowed indirectly taking cue from the words of Article 341 of Constitution of India.

Dalit Rights : Pope Jon Paul II

Pope John Paul II Defender of Dalit Rights

BISHOPS’ CONFERENCE OF INDIA – 6  (on 17 Nov. 2003)

Pope John Paul II

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Continue to promote solidarity in the Church and in society

On Monday, 17 November, 2003 the Holy Father met in his Private Library with a final group of Bishops from India who were in Rome for their ad limina visit. In his Address, the Pope placed his reflections in the context of the fundamental principle of human and Christian relations. Speaking of the caste system in India, he reminded the Bishops that "any semblance of a caste-based prejudice in relations between Christians is a countersign to authentic human solidarity, a threat to genuine spirituality and a serious hindrance to the Church's mission of evangelization". He also said that it is the "evangelical spirit which encourages even those of different traditions to work together towards the common goal of spreading the Gospel". The following is the text of the Holy Father's Address.

My Dear Brother Bishops,

1. "Give thanks to the Lord for he is good, for his love endures forever" (Ps 118:1). It is fitting that I use these words from the Psalms as I welcome you, the Pastors of the Ecclesiastical Provinces of Madras-Mylapore, Madurai and Pondicherry-Cuddalore, at the conclusion of this series of Ad Limina visits of the Bishops of India. In particular, I wish to greet Archbishop Arul Das and thank him for the sentiments he has conveyed on behalf of you all.

-          My previous Addresses to your brother Bishops have frequently examined the importance of promoting a true spirit of solidarity in the Church and in society. It is not enough that the Christian community hold the principle of solidarity as a lofty ideal; rather, it must be seen as the norm for human interaction which, in the words of my venerable predecessor Pope Pius XII, has been "sealed by the sacrifice of redemption offered by Jesus Christ on the altar of the Cross to his Heavenly Father, on behalf of sinful humanity" (Summi Pontificatus). Being successors of Christ's Apostles, we have a primary duty to encourage all men and women to develop this solidarity into a "spirituality of communion" for the good of the Church and humanity (cf. Pastores Gregis, n. 22). As I share these thoughts with you today, I wish to place my reflections in the context of this fundamental principle of human and Christian relations.

Caste division denies the dignity of men and women, impedes unity

2. We cannot hope to spread this spirit of unity among our brothers and sisters without genuine solidarity among peoples. Like so many places in the world, India is beset by numerous social problems. In some ways, these challenges are exacerbated because of the unjust system of caste division which denies the human dignity of entire groups of people. In this regard, I repeat what I said during my first pastoral visit to your country: "Ignorance and prejudice must be replaced by tolerance and understanding. Indifference and class struggle must be turned into brotherhood and committed service. Discrimination based on race, colour, creed, sex or ethnic origin must be rejected as totally incompatible with human dignity" (Homily at the Mass in Indira Gandhi Stadium, New Delhi, 2 February 1986; L'Osservatore Romano English Edition [ORE], 10 February, p. 4).

I commend the many initiatives that have been implemented by the Bishops' Conference and individual Churches to fight this injustice. The brave steps you have taken to remedy this problem, such as those of the Tamil Nadu Bishops' Council in 1992, stand out as examples for others to follow. At all times, you must continue to make certain that special attention is given to those belonging to the lowest castes, especially the Dalits. They should never be segregated from other members of society. Any semblance of a caste-based prejudice in relations between Christians is a countersign to authentic human solidarity, a threat to genuine spirituality and a serious hindrance to the Church's mission of evangelization. Therefore, customs or traditions that perpetuate or reinforce caste division should be sensitively reformed so that they may become an expression of the solidarity of the whole Christian community. As the Apostle Paul teaches us, "If one member suffers, all suffer together" (I Cor 12:26). It is the Church's obligation to work unceasingly to change hearts, helping all people to see every human being as a child of God, a brother or sister of Christ, and therefore a member of our own family.

Appeal of fundamentalist sects and need for 're-evangelization'

3. Genuine communion with God and others leads all Christians to proclaim the Good

News to those who have neither seen nor heard (cf. I Jn 1:1). The Church has been given the unique mission to serve "the Kingdom by spreading throughout the world the 'Gospel values' which are an expression of the Kingdom and which help people to accept God's plan" (Redemptoris Missio, n. 20). Indeed, it is this evangelical spirit which encourages even those of different traditions to work together towards the common goal of spreading the Gospel (cf. Address to the Syro-Malabar Bishops of India, 13 May 2003; ORE, 14 May, p. 3).

Many of you have expressed the hope that the Church in India will continue her efforts to remain actively engaged in the "new evangelization". This is of special importance in modern societies, in which large portions of the population find themselves in desperate situations often leading them to seek quick and easy solutions to complicated problems. This sense of hopelessness may explain, in part, why so many people, young and old alike, are attracted to fundamentalist sects offering short-lived emotional fervour and an assurance of wealth and worldly achievement. Our response to this must be one of "re-evangelization", and the success of this depends on our ability to show people the emptiness of such promises, while convincing them that Christ and his Body share their sufferings, and reminding them to "seek first his kingdom and his righteousness" (Mt 6:33).

Building greater unity, solidarity between Bishops and clergy

4. In my recent Post-Synodal Apostolic Exhortation, Pastores Gregis, I noted that the Bishop is the "minister of grace of the high priesthood", exercising his office through his preaching, spiritual guidance and celebration of the sacraments (cf. n. 32). As Pastors of the Lord's flock, you are keenly aware that you cannot effectively discharge your duties without dedicated co-workers to assist you in your office. For this reason, it is essential that you continue to promote solidarity among the clergy and greater unity between bishops and their presbyterates. I remain confident that the priests in your country "will live and work in a spirit of communion and cooperation with the Bishops and all the faithful, bearing witness to the love which Jesus declared to be the true mark of his disciples" (Ecclesia in Asia, n. 43).
Unfortunately, even those who have been ordained to service can at times fall victim to unhealthy cultural or societal trends which undermine their credibility and seriously hamper their mission. As men of faith, priests must not let the temptation of power or material gain distract them from their vocations, nor can they permit ethnic or caste difference to detract from their fundamental charge to spread the Gospel. As fathers and brothers, Bishops are to love and respect their priests. Likewise, priests should love and honour their Bishops. You and your priests are heralds of the Gospel and builders of unity in India. Personal differences or accidents of birth must never undermine this essential role (cf. Address to the Priests of India, Goa, 7 February 1986).

Authentic efforts towards a lasting solidarity among religions

5. A firm commitment to mutual support ensures our unity in mission, which is founded on Christ himself and "enables us to approach all cultures, all ideological concepts, all people of good will" (Redemptor Hominis, n. 12). We should ever keep in mind the words of St Paul when he taught that "none of us lives to himself, and none of us dies to himself" (Rom 14:7). The Church also urges the faithful to enter with prudence and charity into discussion and collaboration with members of other religions. Once we have engaged these brothers and sisters of ours, we are able to focus our efforts towards a lasting solidarity among religions. Together we shall strive to acknowledge our duty to foster unity and charity between individuals by reflecting on what we share in common and what can further promote fellowship among us (cf. Nostra Aetate, nn. 1, 2).

Encouraging the truth requires a profound respect for everything that has been brought about in man by the Spirit, which "blows where it wills" (Jn 3:8). The truth which has been revealed to us obliges us to be its guardian and its teacher. In transmitting the truth of God we must always maintain "a deep esteem for man, for his intellect, his will, his conscience and his freedom. Thus, the human person's dignity itself becomes part of the content of the proclamation of the truth, being included not necessarily in words but by an attitude towards it" (cf. Redemptor Hominis, n. 12). The Catholic Church in India has consistently promoted the dignity of every person and fostered the corresponding right of all peoples to religious freedom. Her encouragement of tolerance and respect of other religions is demonstrated by the many programmes of interreligious exchange which you have developed on both national and local levels. I encourage you to continue these frank and helpful discussions with those of other religions. Such discussions will help us to cultivate this mutual search for truth, harmony and peace.

Unity of purpose and understanding for new millennium

6. My dear Brothers, Shepherds of the People of God, at the beginning of the third

millennium let us rededicate ourselves to the work of bringing men and women together into a unity of purpose and understanding. It is my prayer that your pilgrimage to the tombs of the Apostles Peter and Paul will have renewed the strength you need to develop an authentic spirituality of communion, which teaches all people how to "make room" for their brothers and sisters while "bearing each other's burdens" (cf. Novo Millennia Ineunte, n. 43). I commend you, your priests, Religious and lay faithful to the intercession of Bl. Teresa of Calcutta and to the protection of Mary, Mother of the Church. As a pledge of peace and joy in Christ our Lord, I cordially impart my Apostolic Blessing.