ACT:
Constitution of India 1950, Articles 14 to 17 and 341 &
Constitution (Scheduled Castes) Order 1950, Para 3.
Persons belonging to Schedule Caste - Conversion to
Christianity Disentitlement to benefit of constitutional
provisions relating to Schedule Castes - Whether legal,
valid and constitutional.
HEADNOTE:
The Government of India set up a special Central
Assistance Scheme for the welfare of Scheduled Castes.
Consequent to a proposal under this Scheme, allotment of
bunk free of Cost were to be made to cobblers by profession
who worked on the roadside, by the State Government of Tamil
Nadu in pursuance to G.O. No. 580 Social Welfare Department
dated February 13, 1982. This Order specifically stated that
persons belonging to the Scheduled Castes and converted to
Christianity were not eligible for assistance under the
scheme.
The petitioner, who was a Hindu belonging to the Adi-
Dravida caste and on conversion to Christianity continued as
a member of that caste,-contended in his writ petition to
this court that he had been denied the benefit of the
welfare assistance intended for Scheduled Castes on the
ground that he professes the Christian religion, and that
such discrimination had been affected pursuant to the
provision contained in paragraph 3 of the Constitution
(Scheduled Castes) Order, 1950 and that the provision was
constitutionally invalid as being violative of Articles 14
to 17.
In the connected writ petition, relief was sought
against the Circular letter dated August 16/25, 1983 issued
by the State Government of Tamilnadu to the State Public
Service Commission stating that "Scheduled Caste" Christians
who revert to Hinduism and on that basis obtain appointments
to reserved seats in Government services and having done so
change their religion once
243
again after their entry into Government service were liable
to have their selection cancelled, as being constitutionally
invalid and violative of Articles 14 to 17.
On the question: whether the Constitution (Scheduled
Castes) Order, 1950 is constitutionally invalid on the
ground that only Hindu or Sikh members of the castes
enumerated in the Schedule to that Order are deemed to be
Scheduled Castes for the purpose of the Constitution of
India.
Dismissing the writ petitions,
^
HELD: 1. It is not possible to say that the President
acted arbitrarily in the exercise of his judgment in
enacting paragraph 3 of the Constitution (Scheduled Castes)
Order, 1950. [250 F]
2.Dr. J.H. Hutton, a Census Commissioner of India,
framed a list of the depressed classes and that list was
made the basis of an order promulgated by the British
Government in India called the Government of India
(Scheduled Castes) Order, 1936. The Constitution (Scheduled
Castes) Order, 1950 was substantially modelled on the Order
of 1936. The Order of 1936 enumerated several castes races
or tribes in an attached schedule and they were, by
paragraph 2 of the Order, deemed to be Scheduled Castes.
Paragraph 3 of the same Order declared that the Indian
Christians would not be deemed to be members of the
Scheduled Castes. [249 C-D]
3. The President had before him material indicating
that the depressed classes of the Hindu and the Sikh
Communities suffered from economic and social disabilities
and cultural and educational backwardness so gross in
character and degree that the members of these Castes in the
two communities called for the protection of the
Constitutional provisions relating to the Scheduled Castes,
and that in order to provide for their amelioration and
advancement it was necessary to conceive of intervention by
the State through its legislative and executive powers. [249
H; 250 B]
4.(i) In discharge of the obligation imposed by clause
(1) of Article 341 the President issued the Constitution
(Scheduled Castes) Order, 1950. In its original form,
paragraph 3 declared that (1) no person who professes a
religion different from Hinduism would be deemed to be a
member of a Scheduled Caste. There was a proviso to
paragraph 3 which declared that every member of the
Ramdasi, Kabirpanthi, Mazhabi or Sikligar caste
244
resident in Punjab or the Patiala and East Punjab States
Union would in relation to that State be deemed to be a
member of the Scheduled Castes whether he professed the
Hindu religion or the Sikh religion. Subsequently,
Parliament enacted the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1956 which substituted for the
original paragraph 3 the present paragraph 3, which declared
:-
"3. Notwithstanding anything contained in
paragraph 2,no person who professes a religion
different from the Hindu or the Sikh religion
shall be deemed to be a member of a Scheduled
Caste." [247 F; 248A]
(ii) For the purposes of the Constitution the
constitutional provisions relating to Scheduled Castes
are intended to be applied to only those members of the
castes enumerated in the Constitution (Scheduled Castes)
Order, 1950 who profess the Hindu or the Sikh religion. If a
Christian belongs to one of those castes, he is barred by
reason of paragraph 3, from being regarded as a member of a
Scheduled Caste and is, therefore, not entitled to the
benefit of the constitutional provisions relating to
Scheduled Castes. [248 B-Cl
5. The declaration incorporated in paragraph 3 was a
declaration made for the purposes of the Constitution. It
was a declaration enjoined by clause (1) of Article 341 of
the Constitution. 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 provisions of the Constitution. It is not sufficient
to show that the same caste continues after conversion. It
is necessary to establish further that the disabilities and
handicaps suffered from such caste membership in the social
order of its origin - Hinduism continue in their oppressive
severity in the new environment of a different religious
community. No authoritative or detailed study dealing with
the present conditions of Christian society have been placed
on the record in this case. [250 B-E]
PETITIONER:
SOOSAI ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT30/09/1985
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
BHAGWATI, P.N. (CJ)
SEN, AMARENDRA NATH (J)
CITATION:
1986 AIR 733 1985 SCR Supl. (3) 242
1985 SCC Supl. 590 1985 SCALE (2)773
ACT:
Constitution of India 1950, Articles 14 to 17 and 341 &
Constitution (Scheduled Castes) Order 1950, Para 3.
Persons belonging to Schedule Caste - Conversion to
Christianity Disentitlement to benefit of constitutional
provisions relating to Schedule Castes - Whether legal,
valid and constitutional.
HEADNOTE:
The Government of India set up a special Central
Assistance Scheme for the welfare of Scheduled Castes.
Consequent to a proposal under this Scheme, allotment of
bunk free of Cost were to be made to cobblers by profession
who worked on the roadside, by the State Government of Tamil
Nadu in pursuance to G.O. No. 580 Social Welfare Department
dated February 13, 1982. This Order specifically stated that
persons belonging to the Scheduled Castes and converted to
Christianity were not eligible for assistance under the
scheme.
The petitioner, who was a Hindu belonging to the Adi-
Dravida caste and on conversion to Christianity continued as
a member of that caste,-contended in his writ petition to
this court that he had been denied the benefit of the
welfare assistance intended for Scheduled Castes on the
ground that he professes the Christian religion, and that
such discrimination had been affected pursuant to the
provision contained in paragraph 3 of the Constitution
(Scheduled Castes) Order, 1950 and that the provision was
constitutionally invalid as being violative of Articles 14
to 17.
In the connected writ petition, relief was sought
against the Circular letter dated August 16/25, 1983 issued
by the State Government of Tamilnadu to the State Public
Service Commission stating that "Scheduled Caste" Christians
who revert to Hinduism and on that basis obtain appointments
to reserved seats in Government services and having done so
change their religion once
243
again after their entry into Government service were liable
to have their selection cancelled, as being constitutionally
invalid and violative of Articles 14 to 17.
On the question: whether the Constitution (Scheduled
Castes) Order, 1950 is constitutionally invalid on the
ground that only Hindu or Sikh members of the castes
enumerated in the Schedule to that Order are deemed to be
Scheduled Castes for the purpose of the Constitution of
India.
Dismissing the writ petitions,
^
HELD: 1. It is not possible to say that the President
acted arbitrarily in the exercise of his judgment in
enacting paragraph 3 of the Constitution (Scheduled Castes)
Order, 1950. [250 F]
2.Dr. J.H. Hutton, a Census Commissioner of India,
framed a list of the depressed classes and that list was
made the basis of an order promulgated by the British
Government in India called the Government of India
(Scheduled Castes) Order, 1936. The Constitution (Scheduled
Castes) Order, 1950 was substantially modelled on the Order
of 1936. The Order of 1936 enumerated several castes races
or tribes in an attached schedule and they were, by
paragraph 2 of the Order, deemed to be Scheduled Castes.
Paragraph 3 of the same Order declared that the Indian
Christians would not be deemed to be members of the
Scheduled Castes. [249 C-D]
3. The President had before him material indicating
that the depressed classes of the Hindu and the Sikh
Communities suffered from economic and social disabilities
and cultural and educational backwardness so gross in
character and degree that the members of these Castes in the
two communities called for the protection of the
Constitutional provisions relating to the Scheduled Castes,
and that in order to provide for their amelioration and
advancement it was necessary to conceive of intervention by
the State through its legislative and executive powers. [249
H; 250 B]
4.(i) In discharge of the obligation imposed by clause
(1) of Article 341 the President issued the Constitution
(Scheduled Castes) Order, 1950. In its original form,
paragraph 3 declared that (1) no person who professes a
religion different from Hinduism would be deemed to be a
member of a Scheduled Caste. There was a proviso to
paragraph 3 which declared that every member of the
Ramdasi, Kabirpanthi, Mazhabi or Sikligar caste
244
resident in Punjab or the Patiala and East Punjab States
Union would in relation to that State be deemed to be a
member of the Scheduled Castes whether he professed the
Hindu religion or the Sikh religion. Subsequently,
Parliament enacted the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1956 which substituted for the
original paragraph 3 the present paragraph 3, which declared
:-
"3. Notwithstanding anything contained in
paragraph 2,no person who professes a religion
different from the Hindu or the Sikh religion
shall be deemed to be a member of a Scheduled
Caste." [247 F; 248A]
(ii) For the purposes of the Constitution the
constitutional provisions relating to Scheduled Castes
are intended to be applied to only those members of the
castes enumerated in the Constitution (Scheduled Castes)
Order, 1950 who profess the Hindu or the Sikh religion. If a
Christian belongs to one of those castes, he is barred by
reason of paragraph 3, from being regarded as a member of a
Scheduled Caste and is, therefore, not entitled to the
benefit of the constitutional provisions relating to
Scheduled Castes. [248 B-Cl
5. The declaration incorporated in paragraph 3 was a
declaration made for the purposes of the Constitution. It
was a declaration enjoined by clause (1) of Article 341 of
the Constitution. 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 provisions of the Constitution. It is not sufficient
to show that the same caste continues after conversion. It
is necessary to establish further that the disabilities and
handicaps suffered from such caste membership in the social
order of its origin - Hinduism continue in their oppressive
severity in the new environment of a different religious
community. No authoritative or detailed study dealing with
the present conditions of Christian society have been placed
on the record in this case. [250 B-E]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 9596 of 1983 &
1017 of 1984.
(Under Article 32 of the Constitution of India.)
245
F.S. Nariman, U.S. Prasad, Jose Verghese, N.P. Midha,
V.A. A Bobde and L.R. Singh for the Petitioners.
Govind Das, M.M. Abdul Khadar, R. Thiyagarajan, Ms. A.
Subhashini and A.V. Rangam for the Respondents.
The Judgment of the Court was delivered by B
PATHAK, J. This and the connected writ petitions raise
the important question whether the Constitution (Scheduled
Castes) Order, 1950 is constitutionally invalid on the
ground that only Hindu or Sikh members of the castes
enumerated in the Schedule to that Order are deemed to be
Scheduled Castes for the purposes of the Constitution of
India.
The petitioner Soosai (in Writ Petition No. 9596 of
1983) states that he belongs to the Adi-Dravida Community
and is a convert to Christianity. He is a cobbler by
profession and works on the roadside at one of the cross-
roads in Madras. In May, 1982, the officers of the Tamil
Nadu Khadi and Village Industries Board surveyed the sites
on which cobblers were working, including the place occupied
by the petitioner, and subsequently on July 27, 1982 several
cobblers were allotted bunks free of cost by the Regional
Deputy Director, Khadi and Village Industries Board. The
petitioner was not. On enquiry the E petitioner came to know
that the allotment of bunks free of cost was consequent to a
proposal under the Special Central Assistance Scheme of the
Government of India for the welfare of Scheduled Castes. The
funds for the purpose were provided from the Special Central
Assistance of the Government of India set up for giving
effect to schemes exclusively intended for Scheduled Castes
under G.O.Ms. No. 580 Social Welfare Department dated
February 13, 1982. It is pointed out that this Order
specifically states that persons belonging to the Scheduled
Castes and converted to Christianity are not eligible for
assistance under the scheme. The petitioner points out that
the said Order has been made in consonance with the
Constitution (Scheduled Castes) Order, 1950, which
specifically declares that no person who professes a
religion different from the Hindu or the Sikh religion shall
be deemed to be a member of a Scheduled Caste. The
petitioner assails the validity of that Order on the ground
that it violates Articles 14, 15 and 25 of the Constitution.
The essence of the petitioner's case is that he was a
Hindu belonging to the Adi-Dravida caste and on conversion
to Christianity he continues as a member of that caste. The
246
Adi-Dravida caste is one of the castes enumerated in the
Schedule to the Constitution (Scheduled Castes) Order, 1950.
The petitioner alleges that he has been denied the benefit
of welfare assistance intended for Scheduled Castes on the
ground only that he professes the Christian religion, and he
contends that inasmuch as such discrimination has been
effected pursuant to the provision contained in paragraph 3
of the Constitution (Scheduled Castes) Order, 1950, that
provision is constitutionally invalid. The petitioner
invokes Article 14, which is the central provision in the
Constitution guaranteeing the right to equality before the
law and the equal protection of the laws, and clause (1) of
Article 15, which prohibits the State from discriminating
against any citizen on the ground only, among others, of
religion. It is
pointed out that when clause (4) of Article 15 permits the
State, notwithstanding the prohibition contained in clause
(1) of Article 15 to make special provision for the
advancement of socially and educationally backward classes
of citizens and for the Scheduled Castes and Scheduled
Tribes, it envisages such special provision for the
advancement of all members of such backward classes of
citizens, Scheduled Castes and Scheduled Tribes. If any
discrimination is exercised between the members of a
Scheduled Caste on the ground of religion only so as to
promote the welfare of one group of members and deny it to
the others the denial will be invalid. Reference has also
been made to Article
25 on the ground that a Christian convert will be tempted
to re-convert to Hinduism or Sikhism in order to benefit
from the constitutional provisions relating to Scheduled
Castes and therefore paragraph 3 in its operation denies him
freedom of conscience and the right freely to profess,
practice and propagate his religion.
The framers of the Constitution have taken great care
to ensure that sufficient provision is made for ameliorating
the conditions of certain backward classes found in India
who suffer from social and economic disabilities. Article 46
enjoins upon the State, as a Directive Principle of State
policy, to promote with special care the educational and
economic interests of the weaker sections of the people, and
in particular of the Scheduled Castes and Scheduled Tribes,
and to protect them from social injustice and all forms of
exploitation. In consonance with this objective they enacted
a number of provisions in the Constitution, of which clause
(4) of Article 15 is one. Besides, although clause (1) of
Article 16 guarantees equality of opportunity to all
citizens in matters relating to employment or appointment to
any office under the State, there is clause (4) of
247
Article 16 which lays down that nothing in Article 16 will A
prevent the State from making any provision for the
reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under
the State. Article 17 abolishes "Untouchability" and forbids
its practice in any form, and declares that the enforcement
of any disability arising out Of "Untouchability" will be an
offence punishable in accordance with law. There are other
provisions, such as Article 330 which provides for the
reservation of seats in the House of the People for
Scheduled Castes and Scheduled Tribes and Article 332 which
makes similar provision for the reservation of seats for
them in the State Legislative Assemblies We are concerned
here with the advantages and benefits envisaged by the
Constitution in respect of members of the Scheduled Castes.
The expression Scheduled Castes is defined in clause 24
of Article 366 to mean 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
purpose of this Constitution . Clause (1) of Article 341
enjoins upon the President to specify by public notification
the castes, races or tribes or parts of or groups within
castes, races or tribes, which for the purposes of the
Constitution are deemed to be Scheduled Castes in relation
to a State or Union territory. Once such notification is
issued by the President it cannot be varied by any
subsequent notification except that, by virtue of clause (2)
of Article 341, Parliament may by law include in or exclude
from the list of Scheduled Castes specified in the
notification issued under clause (1) any caste, race or
tribe or part of or group within any caste, race or tribe.
In discharge of the obligation imposed by clause (1) of
Article 341 the President issued the Constitution (Scheduled
Castes) Order, 1950. In its original form, paragraph 3
declared that ....no person who professes a religion
different from Hinduism- would be deemed to be 2 member of z
Scheduled Caste. There was a proviso to paragraph 3 which
declared that every member of the Ramdasi, Kabirpanthi,
Mazhabi or Sikligar caste resident in Punjab or the Patiala
and East Punjab States Union would in relation to that State
be deemed to be member of the Scheduled Castes whether the
professed the Hindu religion or the Sikh religion.
Subsequently Parliament enacted the Scheduled Castes and
Scheduled tribes orders (Amendment) Act, 1956 which
substituted for the original paragraph 3 that present
paragraph, which declares:-
248
"3. Notwithstanding anything contained in
paragraph 2, no person who professes a religion
different from the Hindu or the Sikh religion
shall be deemed to be a member of a Scheduled
Caste.
It is apparent that for the purpose of the Constitution the
constitutional provisions relating to Scheduled Castes are
intended to be applied to only those members of the castes
enumerated in the Constitution (Scheduled Castes) Order,
1950 who profess the Hindu or the Sikh religion. Clearly, if
it can be contemplated that a Christian belongs to one of
those castes, he is barred by reason of paragraph 3, from
being regarded as a member of a Scheduled Caste and is,
therefore, not entitled to the benefit of the constitutional
provisions relating to Scheduled Castes.
The main question debated before us is whether a Hindu
belonging to a Scheduled Caste retains his caste on
conversion to Christianity. Cases decided by this Court and
by the High Courts bearing on the point have been cited on
both sides of the line, and our attention has been invited
to text books, commentaries and Commission Reports, some of
which contain the observation that depressed groups and
castes are to be found not only among Hindus and Sikhs but
also among Muslims and Christians. It appears to us
unnecessary in this case to enter upon that question and to
decide whether a Hindu belonging to the Adi-Dravida caste
continues to be a member of that caste on his conversion to
the Christian religion. We shall assume, for the purposes of
this case, that the caste is retained on conversion from one
religion to the. Other. The real question is whether on the
material before us it can be said that in confining the
declaration to members of the Hindus and the Sikh religions,
paragraph 3 of the Constitution (Scheduled Castes) Order,
1950 discriminates against members of the Christian
religion.
Now it cannot be disputed that the caste system is a
feature of the Hindu social structure. It is a social
phenomenon peculiar to Hindu society. The division of the
Hindu social order by reference at one time to professional
or vocational occupation was moulded into a structural
hierarchy which over the centuries crystallized into a
stratification where the place of the individual was
determined by birth. Those who occupied the lowest rung of
the social ladder were treated as existing beyond the
periphery of civilised society, and were indeed not even
"touchable". This social attitude committed those castes to
249
severe social and economic disabilities and cultural and A
educational backwardness. And through most of Indian history
the oppressive nature of the caste structure has denied to
those disadvantaged castes the fundamentals of human
dignity, human self respect and even some of the attributes
of the human personality. Both history and latter day
practice in Hindu society are heavy with evidence of this
oppressive tyranny, and B despite the efforts of several
noted social reformers, specially during the last two
centuries, there has been a crying need for the emancipation
of the depressed classes from the degrading conditions of
their social and economic servitude. Dr. J.H. Hutton, a
Census Commissioner of India, framed a list of the depressed
classes systematically, and that list was made the basis of
an order promulgated by the British Government in India
called the Government of India (Scheduled Castes) Order,
1936. The Constitution (Scheduled Castes) Order, 1950 is
substantially modelled on the Order of 1936. The Order of
1936 enumerated several castes, races or tribes in an
attached Schedule and they were, by paragraph 2 of the
Order, deemed to be Scheduled Castes. Paragraph 3 of the
same order declared that the Indian Christians would not be
deemed to be members of the Scheduled Castes. During the
framing of the Constitution, the Constituent Assembly
recognised that the Scheduled Castes were a backward section
of the Hindu community who were handicapped by the practice
of untouchability , and that this evil practice of
untouchability was not recognised by any other religion and
the question of any Scheduled Caste belonging to a religion
other than Hinduism did not therefore arise B. Shiva Rao:
The Framing of India's Constitution: A Study p. 771). The
Sikhs however, demanded that some of their backward
sections, the Mazhabis, Ramdasias, Kabirpanthis and
Sikligars, should be included in the list of Scheduled
Castes. The demand was accepted on the basis that these
sects were originally Scheduled Caste Hindus who had only
recently been converted to the Sikh faith and "had the same
disabilities as the Hindu Scheduled Castes (Supra p. 771).
The depressed classes within the fold of Hindu society and
the four classes of the Sikh community were therefore made
the subject of the original Constitution (Scheduled Castes)
Order, 1950. Subsequently in 1956 the Constitution
(Scheduled Castes ) Order, 1950 was amended and it was
broadened to include all Sikh untouchables.
It is quite evident that the President had before him
all this material indicating that the depressed classes of
the Hindu and the Sikh communities suffered from economic
and social H
250
disabilities and cultural and educational backwardness so
gross A in character and degree that the members of those
castes in the two communities called for the protection of
the Constitutional provisions relating to the Scheduled
Castes. It was evident that in order to provide for their
amelioration and advancement it was necessary to conceive of
intervention by the State through its legislative and
executive powers. It must be remembered that the declaration
incorporated in paragraph 3 deeming them to be members of
the Scheduled Castes was a declaration made for the purposes
of the Constitution. It was a declaration enjoined by clause
(1) of Article 341 of the Constitution. 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. It is not sufficient to show that the same
caste continues after conversion. It is necessary to
establish further that the disabilities and handicaps
suffered from such caste membership in the social order of
its origin Hinduism - continue in their oppressive severity
in the new environment of a different religions community.
References have been made in the material before us in the
most cursory manner to the character and incidents of the
castes within the Christian fold, but no authoritative and
detailed study dealing with the present conditions of
Christian society have been placed on the record in this
case. It is, therefore, not possible to say that the
president acted arbitrarily in the exercise of his judgment
in enacting paragraph 3 of the Constitution (Scheduled
Castes) order, 1950. It is now well established that when a
violation of Article 14 or any of its related provisions is
alleged, the burden rests on the petitioner to establish by
clear and congent evidence that the State has been guilty of
arbitrary discrimination. Having regard to the State of the
record before us, we are unable to hold that the petitioner
has established his case. The challenge must, therefore,
fail.
In the connected writ petition No. 1017 of 1984 the
submissions have proceeded substantially on the same
grounds, and relief has been sought additionally against a
Circular Letter No. 21711/ADWII/80-26 dated August 16/25,
1983 issued by the Government of Tamil Nadu to the Tamil
Nadu Public Service Commission stating that "Scheduled Caste
Christians who revert to Hinduism and on that basis obtain
appointments to reserved
251
seats in Government services, and having done 80 change
their religion once again after their entry into Government
service are liable to have their selection cancelled. On the
considerations which have prevailed with us in dismissing
the earlier writ petition, this writ petition must also be
dismissed.
The writ petitions are dismissed but without any order
as to costs.
N.V.K. Petitions dismissed.
252
Constitution of India 1950, Articles 14 to 17 and 341 &
Constitution (Scheduled Castes) Order 1950, Para 3.
Persons belonging to Schedule Caste - Conversion to
Christianity Disentitlement to benefit of constitutional
provisions relating to Schedule Castes - Whether legal,
valid and constitutional.
HEADNOTE:
The Government of India set up a special Central
Assistance Scheme for the welfare of Scheduled Castes.
Consequent to a proposal under this Scheme, allotment of
bunk free of Cost were to be made to cobblers by profession
who worked on the roadside, by the State Government of Tamil
Nadu in pursuance to G.O. No. 580 Social Welfare Department
dated February 13, 1982. This Order specifically stated that
persons belonging to the Scheduled Castes and converted to
Christianity were not eligible for assistance under the
scheme.
The petitioner, who was a Hindu belonging to the Adi-
Dravida caste and on conversion to Christianity continued as
a member of that caste,-contended in his writ petition to
this court that he had been denied the benefit of the
welfare assistance intended for Scheduled Castes on the
ground that he professes the Christian religion, and that
such discrimination had been affected pursuant to the
provision contained in paragraph 3 of the Constitution
(Scheduled Castes) Order, 1950 and that the provision was
constitutionally invalid as being violative of Articles 14
to 17.
In the connected writ petition, relief was sought
against the Circular letter dated August 16/25, 1983 issued
by the State Government of Tamilnadu to the State Public
Service Commission stating that "Scheduled Caste" Christians
who revert to Hinduism and on that basis obtain appointments
to reserved seats in Government services and having done so
change their religion once
243
again after their entry into Government service were liable
to have their selection cancelled, as being constitutionally
invalid and violative of Articles 14 to 17.
On the question: whether the Constitution (Scheduled
Castes) Order, 1950 is constitutionally invalid on the
ground that only Hindu or Sikh members of the castes
enumerated in the Schedule to that Order are deemed to be
Scheduled Castes for the purpose of the Constitution of
India.
Dismissing the writ petitions,
^
HELD: 1. It is not possible to say that the President
acted arbitrarily in the exercise of his judgment in
enacting paragraph 3 of the Constitution (Scheduled Castes)
Order, 1950. [250 F]
2.Dr. J.H. Hutton, a Census Commissioner of India,
framed a list of the depressed classes and that list was
made the basis of an order promulgated by the British
Government in India called the Government of India
(Scheduled Castes) Order, 1936. The Constitution (Scheduled
Castes) Order, 1950 was substantially modelled on the Order
of 1936. The Order of 1936 enumerated several castes races
or tribes in an attached schedule and they were, by
paragraph 2 of the Order, deemed to be Scheduled Castes.
Paragraph 3 of the same Order declared that the Indian
Christians would not be deemed to be members of the
Scheduled Castes. [249 C-D]
3. The President had before him material indicating
that the depressed classes of the Hindu and the Sikh
Communities suffered from economic and social disabilities
and cultural and educational backwardness so gross in
character and degree that the members of these Castes in the
two communities called for the protection of the
Constitutional provisions relating to the Scheduled Castes,
and that in order to provide for their amelioration and
advancement it was necessary to conceive of intervention by
the State through its legislative and executive powers. [249
H; 250 B]
4.(i) In discharge of the obligation imposed by clause
(1) of Article 341 the President issued the Constitution
(Scheduled Castes) Order, 1950. In its original form,
paragraph 3 declared that (1) no person who professes a
religion different from Hinduism would be deemed to be a
member of a Scheduled Caste. There was a proviso to
paragraph 3 which declared that every member of the
Ramdasi, Kabirpanthi, Mazhabi or Sikligar caste
244
resident in Punjab or the Patiala and East Punjab States
Union would in relation to that State be deemed to be a
member of the Scheduled Castes whether he professed the
Hindu religion or the Sikh religion. Subsequently,
Parliament enacted the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1956 which substituted for the
original paragraph 3 the present paragraph 3, which declared
:-
"3. Notwithstanding anything contained in
paragraph 2,no person who professes a religion
different from the Hindu or the Sikh religion
shall be deemed to be a member of a Scheduled
Caste." [247 F; 248A]
(ii) For the purposes of the Constitution the
constitutional provisions relating to Scheduled Castes
are intended to be applied to only those members of the
castes enumerated in the Constitution (Scheduled Castes)
Order, 1950 who profess the Hindu or the Sikh religion. If a
Christian belongs to one of those castes, he is barred by
reason of paragraph 3, from being regarded as a member of a
Scheduled Caste and is, therefore, not entitled to the
benefit of the constitutional provisions relating to
Scheduled Castes. [248 B-Cl
5. The declaration incorporated in paragraph 3 was a
declaration made for the purposes of the Constitution. It
was a declaration enjoined by clause (1) of Article 341 of
the Constitution. 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 provisions of the Constitution. It is not sufficient
to show that the same caste continues after conversion. It
is necessary to establish further that the disabilities and
handicaps suffered from such caste membership in the social
order of its origin - Hinduism continue in their oppressive
severity in the new environment of a different religious
community. No authoritative or detailed study dealing with
the present conditions of Christian society have been placed
on the record in this case. [250 B-E]
PETITIONER:
SOOSAI ETC.
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT30/09/1985
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
BHAGWATI, P.N. (CJ)
SEN, AMARENDRA NATH (J)
CITATION:
1986 AIR 733 1985 SCR Supl. (3) 242
1985 SCC Supl. 590 1985 SCALE (2)773
ACT:
Constitution of India 1950, Articles 14 to 17 and 341 &
Constitution (Scheduled Castes) Order 1950, Para 3.
Persons belonging to Schedule Caste - Conversion to
Christianity Disentitlement to benefit of constitutional
provisions relating to Schedule Castes - Whether legal,
valid and constitutional.
HEADNOTE:
The Government of India set up a special Central
Assistance Scheme for the welfare of Scheduled Castes.
Consequent to a proposal under this Scheme, allotment of
bunk free of Cost were to be made to cobblers by profession
who worked on the roadside, by the State Government of Tamil
Nadu in pursuance to G.O. No. 580 Social Welfare Department
dated February 13, 1982. This Order specifically stated that
persons belonging to the Scheduled Castes and converted to
Christianity were not eligible for assistance under the
scheme.
The petitioner, who was a Hindu belonging to the Adi-
Dravida caste and on conversion to Christianity continued as
a member of that caste,-contended in his writ petition to
this court that he had been denied the benefit of the
welfare assistance intended for Scheduled Castes on the
ground that he professes the Christian religion, and that
such discrimination had been affected pursuant to the
provision contained in paragraph 3 of the Constitution
(Scheduled Castes) Order, 1950 and that the provision was
constitutionally invalid as being violative of Articles 14
to 17.
In the connected writ petition, relief was sought
against the Circular letter dated August 16/25, 1983 issued
by the State Government of Tamilnadu to the State Public
Service Commission stating that "Scheduled Caste" Christians
who revert to Hinduism and on that basis obtain appointments
to reserved seats in Government services and having done so
change their religion once
243
again after their entry into Government service were liable
to have their selection cancelled, as being constitutionally
invalid and violative of Articles 14 to 17.
On the question: whether the Constitution (Scheduled
Castes) Order, 1950 is constitutionally invalid on the
ground that only Hindu or Sikh members of the castes
enumerated in the Schedule to that Order are deemed to be
Scheduled Castes for the purpose of the Constitution of
India.
Dismissing the writ petitions,
^
HELD: 1. It is not possible to say that the President
acted arbitrarily in the exercise of his judgment in
enacting paragraph 3 of the Constitution (Scheduled Castes)
Order, 1950. [250 F]
2.Dr. J.H. Hutton, a Census Commissioner of India,
framed a list of the depressed classes and that list was
made the basis of an order promulgated by the British
Government in India called the Government of India
(Scheduled Castes) Order, 1936. The Constitution (Scheduled
Castes) Order, 1950 was substantially modelled on the Order
of 1936. The Order of 1936 enumerated several castes races
or tribes in an attached schedule and they were, by
paragraph 2 of the Order, deemed to be Scheduled Castes.
Paragraph 3 of the same Order declared that the Indian
Christians would not be deemed to be members of the
Scheduled Castes. [249 C-D]
3. The President had before him material indicating
that the depressed classes of the Hindu and the Sikh
Communities suffered from economic and social disabilities
and cultural and educational backwardness so gross in
character and degree that the members of these Castes in the
two communities called for the protection of the
Constitutional provisions relating to the Scheduled Castes,
and that in order to provide for their amelioration and
advancement it was necessary to conceive of intervention by
the State through its legislative and executive powers. [249
H; 250 B]
4.(i) In discharge of the obligation imposed by clause
(1) of Article 341 the President issued the Constitution
(Scheduled Castes) Order, 1950. In its original form,
paragraph 3 declared that (1) no person who professes a
religion different from Hinduism would be deemed to be a
member of a Scheduled Caste. There was a proviso to
paragraph 3 which declared that every member of the
Ramdasi, Kabirpanthi, Mazhabi or Sikligar caste
244
resident in Punjab or the Patiala and East Punjab States
Union would in relation to that State be deemed to be a
member of the Scheduled Castes whether he professed the
Hindu religion or the Sikh religion. Subsequently,
Parliament enacted the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1956 which substituted for the
original paragraph 3 the present paragraph 3, which declared
:-
"3. Notwithstanding anything contained in
paragraph 2,no person who professes a religion
different from the Hindu or the Sikh religion
shall be deemed to be a member of a Scheduled
Caste." [247 F; 248A]
(ii) For the purposes of the Constitution the
constitutional provisions relating to Scheduled Castes
are intended to be applied to only those members of the
castes enumerated in the Constitution (Scheduled Castes)
Order, 1950 who profess the Hindu or the Sikh religion. If a
Christian belongs to one of those castes, he is barred by
reason of paragraph 3, from being regarded as a member of a
Scheduled Caste and is, therefore, not entitled to the
benefit of the constitutional provisions relating to
Scheduled Castes. [248 B-Cl
5. The declaration incorporated in paragraph 3 was a
declaration made for the purposes of the Constitution. It
was a declaration enjoined by clause (1) of Article 341 of
the Constitution. 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 provisions of the Constitution. It is not sufficient
to show that the same caste continues after conversion. It
is necessary to establish further that the disabilities and
handicaps suffered from such caste membership in the social
order of its origin - Hinduism continue in their oppressive
severity in the new environment of a different religious
community. No authoritative or detailed study dealing with
the present conditions of Christian society have been placed
on the record in this case. [250 B-E]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 9596 of 1983 &
1017 of 1984.
(Under Article 32 of the Constitution of India.)
245
F.S. Nariman, U.S. Prasad, Jose Verghese, N.P. Midha,
V.A. A Bobde and L.R. Singh for the Petitioners.
Govind Das, M.M. Abdul Khadar, R. Thiyagarajan, Ms. A.
Subhashini and A.V. Rangam for the Respondents.
The Judgment of the Court was delivered by B
PATHAK, J. This and the connected writ petitions raise
the important question whether the Constitution (Scheduled
Castes) Order, 1950 is constitutionally invalid on the
ground that only Hindu or Sikh members of the castes
enumerated in the Schedule to that Order are deemed to be
Scheduled Castes for the purposes of the Constitution of
India.
The petitioner Soosai (in Writ Petition No. 9596 of
1983) states that he belongs to the Adi-Dravida Community
and is a convert to Christianity. He is a cobbler by
profession and works on the roadside at one of the cross-
roads in Madras. In May, 1982, the officers of the Tamil
Nadu Khadi and Village Industries Board surveyed the sites
on which cobblers were working, including the place occupied
by the petitioner, and subsequently on July 27, 1982 several
cobblers were allotted bunks free of cost by the Regional
Deputy Director, Khadi and Village Industries Board. The
petitioner was not. On enquiry the E petitioner came to know
that the allotment of bunks free of cost was consequent to a
proposal under the Special Central Assistance Scheme of the
Government of India for the welfare of Scheduled Castes. The
funds for the purpose were provided from the Special Central
Assistance of the Government of India set up for giving
effect to schemes exclusively intended for Scheduled Castes
under G.O.Ms. No. 580 Social Welfare Department dated
February 13, 1982. It is pointed out that this Order
specifically states that persons belonging to the Scheduled
Castes and converted to Christianity are not eligible for
assistance under the scheme. The petitioner points out that
the said Order has been made in consonance with the
Constitution (Scheduled Castes) Order, 1950, which
specifically declares that no person who professes a
religion different from the Hindu or the Sikh religion shall
be deemed to be a member of a Scheduled Caste. The
petitioner assails the validity of that Order on the ground
that it violates Articles 14, 15 and 25 of the Constitution.
The essence of the petitioner's case is that he was a
Hindu belonging to the Adi-Dravida caste and on conversion
to Christianity he continues as a member of that caste. The
246
Adi-Dravida caste is one of the castes enumerated in the
Schedule to the Constitution (Scheduled Castes) Order, 1950.
The petitioner alleges that he has been denied the benefit
of welfare assistance intended for Scheduled Castes on the
ground only that he professes the Christian religion, and he
contends that inasmuch as such discrimination has been
effected pursuant to the provision contained in paragraph 3
of the Constitution (Scheduled Castes) Order, 1950, that
provision is constitutionally invalid. The petitioner
invokes Article 14, which is the central provision in the
Constitution guaranteeing the right to equality before the
law and the equal protection of the laws, and clause (1) of
Article 15, which prohibits the State from discriminating
against any citizen on the ground only, among others, of
religion. It is
pointed out that when clause (4) of Article 15 permits the
State, notwithstanding the prohibition contained in clause
(1) of Article 15 to make special provision for the
advancement of socially and educationally backward classes
of citizens and for the Scheduled Castes and Scheduled
Tribes, it envisages such special provision for the
advancement of all members of such backward classes of
citizens, Scheduled Castes and Scheduled Tribes. If any
discrimination is exercised between the members of a
Scheduled Caste on the ground of religion only so as to
promote the welfare of one group of members and deny it to
the others the denial will be invalid. Reference has also
been made to Article
25 on the ground that a Christian convert will be tempted
to re-convert to Hinduism or Sikhism in order to benefit
from the constitutional provisions relating to Scheduled
Castes and therefore paragraph 3 in its operation denies him
freedom of conscience and the right freely to profess,
practice and propagate his religion.
The framers of the Constitution have taken great care
to ensure that sufficient provision is made for ameliorating
the conditions of certain backward classes found in India
who suffer from social and economic disabilities. Article 46
enjoins upon the State, as a Directive Principle of State
policy, to promote with special care the educational and
economic interests of the weaker sections of the people, and
in particular of the Scheduled Castes and Scheduled Tribes,
and to protect them from social injustice and all forms of
exploitation. In consonance with this objective they enacted
a number of provisions in the Constitution, of which clause
(4) of Article 15 is one. Besides, although clause (1) of
Article 16 guarantees equality of opportunity to all
citizens in matters relating to employment or appointment to
any office under the State, there is clause (4) of
247
Article 16 which lays down that nothing in Article 16 will A
prevent the State from making any provision for the
reservation of appointments or posts in favour of any
backward class of citizens which, in the opinion of the
State, is not adequately represented in the services under
the State. Article 17 abolishes "Untouchability" and forbids
its practice in any form, and declares that the enforcement
of any disability arising out Of "Untouchability" will be an
offence punishable in accordance with law. There are other
provisions, such as Article 330 which provides for the
reservation of seats in the House of the People for
Scheduled Castes and Scheduled Tribes and Article 332 which
makes similar provision for the reservation of seats for
them in the State Legislative Assemblies We are concerned
here with the advantages and benefits envisaged by the
Constitution in respect of members of the Scheduled Castes.
The expression Scheduled Castes is defined in clause 24
of Article 366 to mean 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
purpose of this Constitution . Clause (1) of Article 341
enjoins upon the President to specify by public notification
the castes, races or tribes or parts of or groups within
castes, races or tribes, which for the purposes of the
Constitution are deemed to be Scheduled Castes in relation
to a State or Union territory. Once such notification is
issued by the President it cannot be varied by any
subsequent notification except that, by virtue of clause (2)
of Article 341, Parliament may by law include in or exclude
from the list of Scheduled Castes specified in the
notification issued under clause (1) any caste, race or
tribe or part of or group within any caste, race or tribe.
In discharge of the obligation imposed by clause (1) of
Article 341 the President issued the Constitution (Scheduled
Castes) Order, 1950. In its original form, paragraph 3
declared that ....no person who professes a religion
different from Hinduism- would be deemed to be 2 member of z
Scheduled Caste. There was a proviso to paragraph 3 which
declared that every member of the Ramdasi, Kabirpanthi,
Mazhabi or Sikligar caste resident in Punjab or the Patiala
and East Punjab States Union would in relation to that State
be deemed to be member of the Scheduled Castes whether the
professed the Hindu religion or the Sikh religion.
Subsequently Parliament enacted the Scheduled Castes and
Scheduled tribes orders (Amendment) Act, 1956 which
substituted for the original paragraph 3 that present
paragraph, which declares:-
248
"3. Notwithstanding anything contained in
paragraph 2, no person who professes a religion
different from the Hindu or the Sikh religion
shall be deemed to be a member of a Scheduled
Caste.
It is apparent that for the purpose of the Constitution the
constitutional provisions relating to Scheduled Castes are
intended to be applied to only those members of the castes
enumerated in the Constitution (Scheduled Castes) Order,
1950 who profess the Hindu or the Sikh religion. Clearly, if
it can be contemplated that a Christian belongs to one of
those castes, he is barred by reason of paragraph 3, from
being regarded as a member of a Scheduled Caste and is,
therefore, not entitled to the benefit of the constitutional
provisions relating to Scheduled Castes.
The main question debated before us is whether a Hindu
belonging to a Scheduled Caste retains his caste on
conversion to Christianity. Cases decided by this Court and
by the High Courts bearing on the point have been cited on
both sides of the line, and our attention has been invited
to text books, commentaries and Commission Reports, some of
which contain the observation that depressed groups and
castes are to be found not only among Hindus and Sikhs but
also among Muslims and Christians. It appears to us
unnecessary in this case to enter upon that question and to
decide whether a Hindu belonging to the Adi-Dravida caste
continues to be a member of that caste on his conversion to
the Christian religion. We shall assume, for the purposes of
this case, that the caste is retained on conversion from one
religion to the. Other. The real question is whether on the
material before us it can be said that in confining the
declaration to members of the Hindus and the Sikh religions,
paragraph 3 of the Constitution (Scheduled Castes) Order,
1950 discriminates against members of the Christian
religion.
Now it cannot be disputed that the caste system is a
feature of the Hindu social structure. It is a social
phenomenon peculiar to Hindu society. The division of the
Hindu social order by reference at one time to professional
or vocational occupation was moulded into a structural
hierarchy which over the centuries crystallized into a
stratification where the place of the individual was
determined by birth. Those who occupied the lowest rung of
the social ladder were treated as existing beyond the
periphery of civilised society, and were indeed not even
"touchable". This social attitude committed those castes to
249
severe social and economic disabilities and cultural and A
educational backwardness. And through most of Indian history
the oppressive nature of the caste structure has denied to
those disadvantaged castes the fundamentals of human
dignity, human self respect and even some of the attributes
of the human personality. Both history and latter day
practice in Hindu society are heavy with evidence of this
oppressive tyranny, and B despite the efforts of several
noted social reformers, specially during the last two
centuries, there has been a crying need for the emancipation
of the depressed classes from the degrading conditions of
their social and economic servitude. Dr. J.H. Hutton, a
Census Commissioner of India, framed a list of the depressed
classes systematically, and that list was made the basis of
an order promulgated by the British Government in India
called the Government of India (Scheduled Castes) Order,
1936. The Constitution (Scheduled Castes) Order, 1950 is
substantially modelled on the Order of 1936. The Order of
1936 enumerated several castes, races or tribes in an
attached Schedule and they were, by paragraph 2 of the
Order, deemed to be Scheduled Castes. Paragraph 3 of the
same order declared that the Indian Christians would not be
deemed to be members of the Scheduled Castes. During the
framing of the Constitution, the Constituent Assembly
recognised that the Scheduled Castes were a backward section
of the Hindu community who were handicapped by the practice
of untouchability , and that this evil practice of
untouchability was not recognised by any other religion and
the question of any Scheduled Caste belonging to a religion
other than Hinduism did not therefore arise B. Shiva Rao:
The Framing of India's Constitution: A Study p. 771). The
Sikhs however, demanded that some of their backward
sections, the Mazhabis, Ramdasias, Kabirpanthis and
Sikligars, should be included in the list of Scheduled
Castes. The demand was accepted on the basis that these
sects were originally Scheduled Caste Hindus who had only
recently been converted to the Sikh faith and "had the same
disabilities as the Hindu Scheduled Castes (Supra p. 771).
The depressed classes within the fold of Hindu society and
the four classes of the Sikh community were therefore made
the subject of the original Constitution (Scheduled Castes)
Order, 1950. Subsequently in 1956 the Constitution
(Scheduled Castes ) Order, 1950 was amended and it was
broadened to include all Sikh untouchables.
It is quite evident that the President had before him
all this material indicating that the depressed classes of
the Hindu and the Sikh communities suffered from economic
and social H
250
disabilities and cultural and educational backwardness so
gross A in character and degree that the members of those
castes in the two communities called for the protection of
the Constitutional provisions relating to the Scheduled
Castes. It was evident that in order to provide for their
amelioration and advancement it was necessary to conceive of
intervention by the State through its legislative and
executive powers. It must be remembered that the declaration
incorporated in paragraph 3 deeming them to be members of
the Scheduled Castes was a declaration made for the purposes
of the Constitution. It was a declaration enjoined by clause
(1) of Article 341 of the Constitution. 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. It is not sufficient to show that the same
caste continues after conversion. It is necessary to
establish further that the disabilities and handicaps
suffered from such caste membership in the social order of
its origin Hinduism - continue in their oppressive severity
in the new environment of a different religions community.
References have been made in the material before us in the
most cursory manner to the character and incidents of the
castes within the Christian fold, but no authoritative and
detailed study dealing with the present conditions of
Christian society have been placed on the record in this
case. It is, therefore, not possible to say that the
president acted arbitrarily in the exercise of his judgment
in enacting paragraph 3 of the Constitution (Scheduled
Castes) order, 1950. It is now well established that when a
violation of Article 14 or any of its related provisions is
alleged, the burden rests on the petitioner to establish by
clear and congent evidence that the State has been guilty of
arbitrary discrimination. Having regard to the State of the
record before us, we are unable to hold that the petitioner
has established his case. The challenge must, therefore,
fail.
In the connected writ petition No. 1017 of 1984 the
submissions have proceeded substantially on the same
grounds, and relief has been sought additionally against a
Circular Letter No. 21711/ADWII/80-26 dated August 16/25,
1983 issued by the Government of Tamil Nadu to the Tamil
Nadu Public Service Commission stating that "Scheduled Caste
Christians who revert to Hinduism and on that basis obtain
appointments to reserved
251
seats in Government services, and having done 80 change
their religion once again after their entry into Government
service are liable to have their selection cancelled. On the
considerations which have prevailed with us in dismissing
the earlier writ petition, this writ petition must also be
dismissed.
The writ petitions are dismissed but without any order
as to costs.
N.V.K. Petitions dismissed.
252
