Indian Supreme Court Hearings on Dalit Christians. CSW Report


The Supreme Court of India has issued an order, calling on the Government of India to reconsider the denial to Dalit (formerly ‘untouchable’) Christians of fundamental rights enjoyed by Dalits professing Hindu, Sikh and Buddhist faiths.

This matter will be brought before the Supreme Court on 25 August 2005. A series of civil society public hearings are due to take place in Kerala, Andhra Pradesh and Tamil Nadu to document discrimination faced by Christian converts drawn from the Dalit population, and their continued victimisation in society. The Dalit Christian community in India has launched a vigorous political advocacy campaign to secure a just outcome, and has asked for the support of the international community towards this end. Background The Christian population in India is drawn largely from the lower echelons of society. Dalit Christians constitute 60% of the Christian community, which in the 2001 census numbered 25 million, around 2.3% of India's total population. A further 15-20% of India's Christians belong to the 'backward castes', or to ethnic groups, including North-eastern and central tribal peoples. A recent study undertaken by Jesuits in Tamil Nadu revealed that 79.6% of the Dalit Christians are landless, that their illiteracy rate is 65%, and that their average annual income is no more than Rs. 1000 (under £13). Although Christianity, along with Islam, Sikhism and Buddhism, has no place for the concept of untouchability, the fact of the caste structure of Indian society crosses religious boundaries. Dalits converting to Christianity, Islam, Sikhism or Buddhism, continue to live and behave as a composite social unit, shunned by Hindu caste society. However, Dalits belonging to the Christian and Muslim religions are denied the same rights as are available to Dalits of the Hindu, Sikh and Buddhist religions. The legal standing of Dalit Christians has now been brought for consideration before the Supreme Court. The Dalit Muslim community is not currently party to this suit, but may request to present its case in August. Supreme Court Order The Centre for Public Interest Litigation, a New Delhi civil rights organisation, has filed a writ petition (No. 180 of 2004), challenging the legality of the 1950 Constitution (Scheduled Castes) Order by President Rajendra Prasad, which created government 'reservations', or preferences, for 'Scheduled Castes' in government, education, employment and ownership. Article 341 (1) of the Indian Constitution empowers the President of India to specify the particular castes, tribes and other groups which may be defined as Scheduled Castes. Paragraph 3 of the 1950 Order restricted the Scheduled Castes to Dalits belonging only to the Hindu religion: 'Notwithstanding anything contained in paragraph 2, no person who professes a religion different from Hindu shall be deemed a member of a Scheduled Caste'. This Order was subsequently regularised as an Act of Parliament. The legislation has twice been amended: in 1956, to include Mazhbi Sikhs among the Scheduled Castes, and in 1990 to include Neo Buddhists. Dalits professing Christian faith continue to be denied Scheduled Caste status and with it, the entitlements enjoyed by Dalits belonging to the Hindu, Sikh and Buddhist religions. After consideration of the case, Chief Justice of India, Mr Justice Lakhoti, and Mr Justice G.P. Mathur, declared on 25 October 2004, 'In our opinion, it would be appropriate to have the opinion of the learned Attorney General for India, who is present in court'. The matter has been adjourned for hearing on 25 August 2005. The Attorney General will reflect the view of the Government of India, and thus the onus has shifted to the government to address this issue, and to restore to Dalit Christians the same legal rights held by Hindu, Sikh and Buddhist Dalits. These prospective benefits and protections for Dalit Christians are outlined in further detail below (p. 4). In order for a change to take place, the Presidential Order of 1950 would need to be amended, to include Dalit Christians among the Scheduled Castes. This would require a Presidential decree, under Article 341 (1) of the Indian Constitution, and would further require the Indian Parliament to enumerate Christians of Dalit origin among the Scheduled Castes in all relevant legislation. This would afford to Dalit Christians the protections enshrined in such key legislation as the Untouchability (Prevention of Atrocities) Act, 1979. This issue is not a new one: the National Minorities Commission recommended in its 1997-98 Annual Report that 'the Constitution (Scheduled Castes) Order 1950 should be amended so as to omit altogether the proviso that a person belonging to a particular religion cannot be regarded as a member of a Scheduled Caste, so that the unconstitutional nexus between caste and religion is eliminated'. On 11 March 1996, the then Social Welfare Minister Sitaram Kesri submitted to the Lok Sabha , the Constitution (Scheduled Castes) Order Amendment Bill 1996. Its Statement of Objects and Reasons stated that: 'Converts to the Christian religion who are of Scheduled Caste origin are precluded from the statutory benefits and safeguards accruing to the members of the Scheduled Castes. Demands have been made from time to time for extending these be safeguards to Christians of Scheduled Caste origin by granting them recognition as Scheduled Castes, on the ground that the change of religion has not altered their social and economic condition. Upon due consideration of these demands, it is proposed to amend the relevant Constitution (Scheduled Castes) Order to include the Christian converts of Scheduled Castes among the Scheduled Castes therein.' This Bill was never introduced in Parliament due to the dissolution of the Lok Sabha. Senior figures in the Christian community of India have called for legislation to redress the discrimination against Dalit Christians. They have issued a memorandum to the Prime Minister, Dr Manmohan Singh, and leader of the ruling coalition, Mrs Sonia Gandhi, calling in particular for the reintroduction of the 1996 Bill, and that the Attorney General convey this intention to the Supreme Court (see Appendix 1). Constitutional Protections This discrimination against Dalit Christians is considered by the Christian community to be in violation of the protections in the Indian Constitution against discrimination on grounds of religion. Article 15 (1) provides that, 'The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them'. Article 15 (4) states that, '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 or educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes'. Where, as paragraph 3 of the 1950 Constitution (Scheduled Castes) Order explicitly states, Dalit Christians are denied Scheduled Caste status on the ground of religion, Article 15 (1) is being contravened. This denial of Scheduled Caste status is obstructing the guarantee given by Article 15 (4) of 'special provision for [Dalit Christian] advancement'. This is in direct contravention of the assurance given in Article 15 (4), that nothing in Article 15 would prevent such provisions. The current legal position of Dalit Christians is therefore constitutionally insupportable. Prospective Protections and Benefits If the Supreme Court finds in favour of Dalit Christians being entitled to the same status as Hindu, Sikh and Buddhist Dalits, the following general benefits would be made available to them: 1. Reservations in the central and state government, in employment and in educational institutions; 2. Scholarships in all levels of education; 3. Preferential treatment in the allotment of low-income housing, agricultural land distribution and electricity and water; The alteration in the status of Dalit Christians would therefore guarantee their freedom of faith. Where they are not party to the same rights and reservations as Hindu, Sikh and Buddhist Dalits, they are effectively not free to profess Christian faith, as to do so would entail surrendering the benefits which they obtained on account of being Dalit. An amendment in the law would also guarantee the political right of Dalit Christians to contest constituencies, using the places reserved for Scheduled Castes under the Representation of the People's Act 1951 and Panchayati Raj legislation. In the Lok Sabha, legislative state assemblies, municipal councils and all other elected bodies, 15% of seats are reserved for the Scheduled Castes, to allow their participation in the political process. Because Dalit Christians do not belong to the Scheduled Castes, they are excluded from contesting these seats, and must instead compete with the upper castes, who retain a stranglehold on the wider political apparatus. At present, therefore, Dalit Christians are effectively denied participation in the legislative process. The ostracism of Dalit Christians extends to their lack of protection against persecution and harassment: they are frequently the victims of violence, which is often perpetrated with impunity. Compensation for Dalits victimised by caste violence is generally restricted to the Scheduled Castes. The benefit of Scheduled Caste status would therefore contribute towards guaranteeing justice for Dalit Christians, in terms of both reparation and punitive action against persecutors. Conclusions and Recommendations With the issue of the Scheduled Caste nomenclature for Dalit Christians being brought before the Supreme Court, much is at stake for a substantial proportion of India's Christian population. Theirs is a modest plea for equality with other Dalits, who comprise the lowest stratum of Indian society, and who, despite government protections, continue to suffer massive social and economic disadvantages. Regardless of reservations in central and state governments, Dalits continue to face extreme difficulties in contesting with the upper castes in the political arena. Pursuant to consultation with the Christian community in India, CSW is requesting senior legal figures in the UK to sign a joint statement addressed to the Prime Minister of India, asking for an alteration of the Indian law in favour of Dalit Christians, in order that this group may be included among the Scheduled Castes and may benefit from the concomitant entitlements. Such contributions to the public debate have been requested by senior Christian leaders, who consider that they would be a particularly effective way of conveying international concern about this highly significant issue, and of encouraging a positive outcome to the Supreme Court deliberations. In particular, we are requesting that the Government of India is called upon to seize this opportunity to reintroduce the Bill brought to the Lok Sabha in 1996, and to instruct the Attorney General to deliver this assurance to the Supreme Court in August. Furthermore, we are concerned that the government takes positive steps towards the economic empowerment of Christian communities of Dalit and tribal origin.

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