Religion based barriers to affirmative action in India: A case study of the Scheduled Caste category

Conventional scholarship on caste perpetuates the view of caste structures being found only in Hindu society. Therefore, it is asserted that caste structures are completely broken when they are removed from the environment of Hindu society. Caste structures might be considered an innate characteristic of the conventional Hindu social system, however, the lived experiences of communities outside Hinduism and affiliated traditions still facing social discrimination, restrictions and oppression on account of their “caste” cannot be invalidated. Here it makes sense to invoke the generally accepted narrative of the characteristics of caste structures – being hierarchies that divide society into graded segments which in turn lead to the imposition of restrictions on various forms of social intermingling, that cause socio-economic disabilities to particular groups while enabling others to enjoy benefits as birthrights. The key factor in caste structures is the imposition of occupations on individuals on the basis of their birth and discrimination based on these occupations defied by caste.

These aforementioned peculiarities of caste structures have been found to be prevalent among the followers of non-Indic, Abrahamic religions in India. It has been pointed out by several scholars that even though these religions were scripturally not compatible with caste-based hierarchies and discrimination, these have been incorporated into the local practices of various Muslim and Christian communities in India. Research has opened up the discourse on the status and situation of “Dalit” groups belonging to these religions. The question this essay seeks to raise revolves around the denial of affirmative action benefits under the Scheduled Caste category to groups of Christians and Muslims who exhibit the traits of subjugation and discrimination on the basis of birth, as faced by Dalits in India. 

When it came to defining the Scheduled Caste category, the state chose religion as the primary determining factor. Caste based discrimination and subjugation came into consideration after religion. One cannot find any direct provision in the Constitution regarding this but this is the clear conclusion that one can draw from Constitution Order No.19, 1950. This order listed the caste groups that were to be included in the Scheduled Caste category. The important part of the constitutional order for the purpose of this essay is its Part 3. This part asserts that no individual practicing “a religion different from the Hindu religion” shall be considered for affirmative action benefits under the Scheduled Caste category. This 1950 order has since been amended twice – the 1956 amendment saw the inclusion of Sikhism and then Buddhism was included in 1990. Therefore, adherents of each major religion in India – barring the two Abrahamic faiths – have been allowed to claim benefits under the Scheduled Caste category, provided they prove discrimination, subjugation and socio-economic disadvantages faced on account of the caste status ascribed to them. 

This essay attempts to understand the reasons for the hurdles based on religion that continue to define the Scheduled Caste category. The discourse on reservations was started with the British colonial idea of having reserved positions for particular religious and social groups, and in independent India reservations have been only granted to groups that were deemed to be in need of upliftment. This essay highlights the various lacunae that exist in the constitutional understanding of caste vis-à-vis religion, and attempts to propose policy solutions and remedies. 

Historical overview

The modern concept of reservations for backward sections of society has been conclusively traced back to the British decision of making the “Communal Award” of 1932 in response to the Ambedkar led depressed classes’ strong demands for representation and agency. This Award was designed to provide separate electorates to the depressed classes. Believing that this would cause the breakup of the Hindu community, Gandhi undertook a hunger strike in response. This forced Ambedkar into having negotiations with the Congress, and the conclusion – i.e., the Poona Pact – was the dropping of separate electorates in favour of reserved seats. The result of this agreement was a fundamental shift in the discourse where reservations came to be a mechanism of upliftment, instead of group representation. The broad outcome of this change in discourse was that the agenda changed from being centered on representation for an underrepresented and distinct group to revolving around the betterment of a backward and underprivileged group within Hinduism. Here, it must be noted here that, Gandhi advocated unity within Hinduism and believed that religious integration was the means for uplifting the untouchables. The Poona Pact compelled the constitution makers to continue with this framework that Gandhi had advocated.

The Constitutional understanding

Several scholars, after going through the Constituent Assembly debates, have concluded that the makers of the constitution perceived caste as a something that was solely Hindu and therefore affected only those practicing Hinduism. The idea of limiting the Scheduled Caste category to the “depressed classes” within Hinduism and its associated practices has its roots in the colonial era Government of India (Scheduled Castes) Order, 1936. Through this legislation, while classifying the depressed classes in different regions, the colonial state accepted the fact that there were indeed “depressed classes” adhering to Islam and Christianity. However, these groups were consciously excluded based on the argument that depressed class adherents of these two religions had access to benefits like separate electorates and reserved seats. This led to an understanding where only the Hindu “depressed classes” were recognized for affirmative action and this followed through into the Constituent Assembly and independent India. 

In the colonial period, one finds that with leaders like Ambedkar demanded affirmative action in the form of electoral reservations based on the premise that the aspirations and desires of the depressed classes could not be fulfilled by others. However, the debates in the Constituent Assembly indicate that the primary justification for affirmative action (extending beyond solely political and electoral realms) for the newly defined Scheduled Caste category was based on the “disabilities arising out of the evil of untouchability within Hinduism and the resultant economic, social and educational backwardness”. One Constituent Assembly member went ahead and explicitly stated that “the Scheduled Castes have been given reservation not on grounds of religion at all; they from part and parcel of the Hindu community, and they have given reservation apparently and clearly on grounds of their economic, social educational backwardness”.

This assessment of the Scheduled Caste category being a “part and parcel of the Hindu community” creates some serious concerns. This is a serious matter not just from the point of view of affirmative action as a means of socio-economic upliftment, but also from the angle of providing Christians and Muslims from Dalit groups legal protection under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act of 1989 in the matter of caste-based crimes committed against them. Another legal angle has been recently opened up on this entire matter. In its adjudication of KP Manu v. Chairman, Scrutiny Committee, 2015 the Supreme Court asserted that individuals following Islam or Christianity and whose caste community is included in the Scheduled Caste list would be eligible for reservations and other social justice schemes if they reconverted to Hinduism. In this particular scenario it has been observed that even though the freedom of religion is a fundamental right under Articles 25-28 of the Constitution, Dalits are penalized for leaving Hinduism in favour of either of the two Abrahamic faiths (through Part 3 – Constitution Order 1950) and they are also given an unfair incentive to abandon their faith in favour of Hinduism (as observed in KP Manu). 

Solutions and remedies

In essence, the inference here is that the reason for the lack of affirmative action benefits for Dalit followers of Islam and Christianity is a byproduct of the manner in which the discourse on reservations and safeguards has unfolded in India. This discourse has for long been oriented around the idea of caste being solely a Hindu issue. Moreover, as was observed from the Poona Pact between Gandhi and Ambedkar, the desire to ensure “Hindu unity” was the inspiration and the motivation behind the negotiations that helped create the Scheduled Caste category. Thus, one can conclude that the state has not attempted to theorize the basis of constructing the Scheduled Caste category on non-religious terms. An ideological policy solution could be shifting the mainstream discourse around caste from being a ‘solely Hindu problem’ to being understood as an ‘Indian problem’, affecting members of nearly every major religious community. This would be a recognition of the fact that even when discrimination ceases to exist in terms of religious scripture it tends to continue on ground. 

Having established the desirability of the removal of religion-based barriers to affirmative action, one must look at the courses of policy action that can help achieve this goal. There are two courses of legislative action available to lawmakers – either dilute the provision by including the Abrahamic religions in its mandate or repeal the provision in its entirety. However, one must keep in mind that policymaking is never detached from politics. Hence, until those affected by these religion-based barriers organize themselves politically and create meaningful political alliances in order to promote their concerns at the highest level, constitutional reform on this front is unlikely to happen. In the present context, where those affected have been unable to mobilize a public or a political outcry, there is unlikely to be any political will to take policy action on this matter. In order to create political will, those affected shall have to vocalize their demands in the language of constitutionalism and in a way that is not antagonistic to other parties. Such a strategy can help them build constructive alliances that can help further their policy goals. 

 

Citations:

  1. Ghurye, Govind Sadashiv. Caste, class, and occupation. Popular Book Depot, 1961.
  2. Ahmad, Imtiaz. Caste and Social Stratification among Muslims in India. New Delhi: Manohar Publications, 1973.
  3. Webster, J.C.B. The Dalit Christians: A History. New Delhi: Indian Society for Promoting Christian Knowledge, 1994.
  4.  Nugent, Helen M. “The communal award: The process of decision‐making.” South Asia: Journal of South Asian Studies 2, no. 1-2 (1979): 112-129.
  5. Basu, Swaraj. ‘The Poona Pact and the Issue of Dalit Representation’. In Proceedings of the Indian History Congress vol 61 (1): 986–998. Indian History Congress, 2000.
  6.  Marc, Galanter. “Changing Legal Conceptions of Caste.” In Structure and Change in Indian Society, pp. 299-336. Routledge, 2017.
  7. Galanter, Marc. Competing Equalities: Law and the Backward Classes in India. Delhi: Oxford University Press, 1984.
  8.  Jensenius, Francesca R. “Mired in reservations: The path-dependent history of electoral quotas in India.” The Journal of Asian Studies 74, no. 1 (2015): 85-105.

About Archit Bhat

Archit is currently pursuing his Master's in Public Policy from National Law School of India University, Bengaluru. He is interested in governance and social justice-related issues. You can reach out to him at architbhat@nls.ac.in

Disclaimer

The views expressed in this article are the author's own.

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