The Supreme Court on Wednesday orally observed that social stigma and religious stigma are two different things, and social stigma may continue after conversion while hearing a batch of petitions seeking extending of benefits of reservation to Dalits who converted to Christianity and Islam.
Additional Solicitor General K.M. Nataraj, representing the Centre, submitted before a bench headed by Justice Sanjay Kishan Kaul and comprising Justices Ahsanuddin Amanullah and Aravind Kumar that Justice Ranganath Misra Commission report of 2007, which recommended for recognising Dalits in Christianity and Islam, had not gone into all aspects: it did not conduct field study, did not do comparative analysis etc., while defending Centre’s decision to not accept the report.
The Centre had maintained that it had appointed former Chief Justice of India K.G. Balakrishnan to head a commission to examine the claims and the court should wait for its report.
During the hearing, the bench orally observed how many commissions of inquiry may sit on the matter, and if tomorrow there is a different political dispensation, they will say that “we do not accept that inquiry commissions” report, “therefore there is some kind of a colour to this dispute”.
On the Centre’s criticism of Justice Ranganath Misra Commission report, the bench queried Nataraj: “Are you sure, you should probably recheck the report, it is not that perfunctory and it is a too generalised statement… It is a generalised comment on the report.”
The bench said it is flagging the issue, whether it will be in the domain of the court to look into the material of the report, and also whether there can be a writ issued to include in the Presidential order any community for reservation.
As advocate Prashant Bhushan, representing one of the petitioners, said the exclusion of the communities in the presidential order is discriminatory and unconstitutional, Justice Kaul observed that the petitioners are saying that person carries a tag, even if they move to Islam or Christianity.
Justice Amanullah orally observed that they wanted to lose their caste identity is not correct, the court has not gone into the heart of why they have converted.
He added that why there is need for protection under reservation, there is an untouchability act, and one can protect himself.
Justice Amanullah observed: “That means social stigmas are carried across, and religious stigma and social stigma are two different things. I may convert for religion for different purposes but social stigma continues that is why reservation for Scheduled Caste, otherwise today the Constitution does not recognise any untouchability…”
He stressed why court cannot test that whether under the constitutional provision or constitutional framework, “whether such type of compartmentalisation is permissible or not… 19 years, it (the petition seeking reservation for Dalit converts) had been kept pending. It is not so simple (that they have left one religion and gone to other)”.
The bench said that “why there is need for reservation today, under the Constitution there is no untouchability… every citizen is citizen of India. Now, things are not that at the ground level or society level, we cannot shut our eyes… when we are considering all these constitutional matters.”
Nataraj submitted that the exercise based on empirical data is in progress by the Balakrishnan commission and the court should await its response.
The bench noted that the petitioners have sought to canvas that this will be an unending exercise, as there have been commissions and reports, and they may not see light at the end of the tunnel, if the whole exercise is undertaken again. It also queried, what is the effect of the report of commission of inquiry which has not been accepted by the government.
After hearing arguments, the bench said it will begin hearing submissions in the matter in July.
In December last year, Solicitor General Tushar Mehta, representing the Centre, had told the apex court that the Centre did not accept Justice Ranganath Misra Commission report of 2007, as it was “flawed”.
Bhushan, representing one of the petitioners, had then submitted that discrimination on the basis of religion is entirely unconstitutional and the Dalits in Hinduism, Sikhism, and Buddhism were included for reservation but others not. He said Justice Ranganath Mishra Commission has already said this is discriminatory.
The Commission, headed by former CJI Balakrishnan, also comprises retired IAS officer Dr Ravinder Kumar Jain and Prof Sushma Yadav (Member, UGC), as members. According to a government notification, the commission will examine the matter of according Scheduled Caste (SC) status to new persons, who claim to historically have belonged to the Scheduled Castes, but have converted to religion other than those mentioned in the presidential orders issued from time to time under Article 341 of the Constitution.