Caste
and the Court
Heartbreak
for Dalit Christians; fillip for ‘Ghar Wapsi’
JOHN
DAYAL
Twice last February, the Supreme Court
of India gave two rulings that have a grave import for the Christian community
– and for that matter, the Muslims. And, as directly, for the social discourse
of political Hindutva and the sometimes very violent organisations that enforce
its diktat in the country.
On 6th February 2015, the Supreme Court referred
the Dalit Christians and Dalit Muslims Scheduled Caste status issue case (Civil
Writ Petition 180/2004) to a Constitution Bench of the court. This marked a
period of further heartbreak for the perhaps 15 million [1.5 crore] if not more
Christians who have converted from what were once the untouchable castes of
Hinduism, later called the politically-incorrect Harijans by Mahatma Gandhi,
and known under law as the Scheduled Castes. Their numbers remain indeterminate
for many are loth to register themselves in the Census by their practiced faith
for fear of legal repercussions or social wrath. They had been fighting in the
court for the restoration of their rights of reservations in elective posts,
government jobs and education, since 2005, which had been taken away by the
infamous Presidential Order of 1950, enacted as Article 341 [iii] later through
a Constitutional amendment. They will now have to wait many more years for
justice. The Chief Justice of India is
yet to name the Constitutional bench to hear the important case. When it is set
up, it will have to consider the two issues together.
In the second judgment on 26th February,
in a case known as the K. P. Manu vs. Chairman, Scrutiny Committee for
Verification of Community Certificate, [CIVIL APPEAL No. 7065 OF 2008], the
court ruled that a Dalit Hindu who had embraced Christianity and then
re-converted to Hinduism would be eligible for reservation benefits for Scheduled
Castes and Scheduled Tribes if the re-conversion was genuine. The bench held that a
person shall not be deprived of quota benefits if he or she decides to
“reconvert” to Hinduism and adopts the caste of his forefathers just because he
has a Christian spouse or was born to Christian parents. It further held that
“There has been detailed study to indicate that the Scheduled Caste persons
belonging to Hindu religion, who had embraced Christianity with some kind of
hope or aspiration, have remained socially, educationally and economically
backward.”
The Supreme Court bench laid down three
main parameters for deciding whether a person who had reconverted to Hinduism
from another religion embraced earlier was eligible to get the government
benefits Dalit and tribal Hindus are entitled to. There must be
"absolutely clear-cut proof that he belongs to the caste that has been
recognised by the Constitution (Scheduled Castes) Order, 1950". Second, it
has to be established that there has been "re-conversion to the original
religion to which the (person's) parents and earlier generations had belonged".
And, third, there has to be "evidence establishing the acceptance by the
community".
The second judgment has been widely
panned, by social activists as much as by jurists. “I am taken aback by the
verdict as it has opened the door for a particular ideology to impose its
agenda,” Supreme Court lawyer Rebecca Mammen John was quoted in
Firstpost. Suggesting the judiciary to be more careful while pronouncing
judgement on controversial issues, she said, "Given the kind of politics
being practiced these days in the country, the judiciary should be circumspect
before such rulings." Nitya Ramachandran, another senior lawyer said,
"The SC verdict has certified the fact that class and caste bias persist
even after the conversion. All religious communities should seriously think
over it to make the society free from all kind of discrimination."
Describing the SC verdict “unfortunate” in the sense that it “gives reservation
benefits to only those who re-convert, not those who converted because of
atrocities in Hinduism”, Samar Anarya of Asian Human Rights Commission said,
“We demand reservation benefits to all Dalits irrespective of relgion.”
Quite expectedly, the Sangh Parivar has enthusiastically
welcomed it. The
Vishwa Hindu Parishad describes the ruling as an “approval” for its
controversial Ghar Wapsi programme According to VHP national joint secretary
Surendra Jain, quoted in Firstpost, "Pseudo secularists who were objecting
to our campaign should now change their minds and start supporting us if they
have faith in the judicial system of the country. If there is a problem in the
Hindu community, its solution lies also within the community. Those who
converted to Christianity are facing worst discrimination. Dalit Christians are
not free to offer prayers in any church they want. They have separate churches
and graveyards. They are fed up and want to return the Hindu fold. If we are
facilitating their homecoming, what is wrong in this.
The judgement does indeed
seem to legitimize ‘Ghar Wapsi’, while making it prohibitive and punitive for
any Dalit to exercise his or her freedom of faith and convert to Islam or
Christianity. Conversions to Buddhism and Sikhism do not invite this punishment.
The entire question of caste
and religion needs to be decided by a constitutional bench of the Supreme Court
once and for all. How can one religion be called a ‘Way of Life’ and not a
religion, as in the well known Justice J. S. Verma ruling, and yet conversions
to or from it invite such contradictory results? Leaving Hinduism means losing
all rights, including reserved seats to legislatures and parliamentarians apart
from quotas in jobs and education. Dalit Christians and Muslims had challenged
this dichotomy in a PIL before the court.
This is not the first time a
Supreme Court Judge has interpreted religious "scripture". One did so
in his last judgment (on the Babri Masjid Case) on the eve of his retirement. It is harder in India to separate church from state because
religion plays dominates so many social rituals. Still, it needs to be
done.
The court has acknowledged
there has been detailed study to indicate the Scheduled Caste persons belonging
to Hindu religion, who had embraced Christianity with some kind of hope or
aspiration, have remained socially, educationally and economically backward. But
the implication seems to be that this is a failure of the church to lift the
status of such people, and not what several national commissions have found
that it is inherent in the Indian social milieu. [A sad aside to this is that
Rev Dr. James Massey, who the court cited as confirming disempowerment of the
community, died a few days ago, as did Dr. Ninan Koshy whose indictment of caste
divisions in the Christian community of Kerala first brought the issue in the
open. Both were also pioneers of the Dalit Christian movement.]
The government also tacitly
accepted that these castes were not merely confined to Hinduism too, which soon
extended these rights to Dalits who converted to Sikhism and to Buddhism,
religions which had challenged the Vedic stranglehold. While conversions
to Sikhism has been a continuous process since the religion was founded by Guru
Nanak, there have been a series of mass conversions of Dalits to Buddhism after
1956 when the constitution writer Dr. B R Ambedkar, changed his faith to
Buddhism along with 5,00,000 of his Dalit followers in Nagpur. But the
Congress government under Dr. Manmohan Singh refused to give the affidavit that
the Supreme Court asked for in the tortuous course of the PIL hearings between
2005 and 2014, apparently for fear it would politically antagonize powerful
Hindu upper caste groups. The Bharatiya Janata Party had categorically rejected the Christian
demand, and its members had impleaded themselves in the hearings to argue
against the PIL.
The National Commission for
Religious and Linguistic Minorities, headed by former chief Justice Misra, and
a committee report by academics had also recorded that castes and its
infirmities followed Dalits in whichever religion they went. Justice Misra, found, and ruled, that
caste in India transcends religion, and exists and is practiced in this day and
age in Hinduism, of course, Buddhism, Sikhism, Islam and Christianity. This was
also the conclusion of research studies by universities which found
considerable evidence of caste-based discrimination exists in Kerala, but also in
Tamil Nadu, Karnataka, Andhra, Telengana, Punjab, Madhya Pradesh, Maharashtra,
Gujarat, Bihar, Bengal, Punjab, Jammu, Haryana and Rajasthan. It has led to
caste violence within the church in several areas.
Theologian John C. B Webster, Dr. James
Massey and others have also worked on aspects of Dalit Christians. This is now a
matter of deep study by theologians, sociologists and activists at par with the
study of Race in the Western church.
Other than material issues, there
remains the more complex issue of political empowerment. There are seats for
SCs in state legislatures as well as in the Lok Sabha, in Panchayats and other
forums. Dalits professing Christianity, and Islam for
that matter, do not qualify under the Representation
of People’s Act and the Panchayati Raj legislation. There is also the matter of caste persecution
and the protection of the law. Discrimination continues to exist in the larger
society. The struggle for Dalit Christians for this political empowerment
continues even if the Church were to find resources -- keeping future changes
in the FCRA also in mind -- to ensure economic uplift as also universal education
for the community. [See accompanying article on the debate in Cyberspace]
Not that Hinduism escapes
scrutiny. Another fallout of this judgement will be for the reformists in the
Hindu faith because of its implications that caste prejudice is alive and
active in the religion. Or
is the Indian government's point of view that untouchability and discrimination
is still a hallmark of Hinduism despite being outlawed in 1950?
For human rights activists
stressing citizenship, this focuses on the wider issue of whether Freedom of Faith, a Constitutional
guarantee, be just for People Like
Us? Why should a Dalit lose all his little hard earned perks if
choses Christ, or Allah? And is affirmative
action only for Dalits who remain within
Hinduism, and by extension, Buddhism and Sikhism. Article 341 [iii] therefore is
not a sociological fence. It is a legal barrier constructed to prevent Dalits
leaving the Hindu fold. This, in fact, was the first anti Conversion law. And
it covers the entire country.
It needs be remembered that among the
many assertions in their agenda of religious and caste supremacy that the Bharatiya
Janata Party_ and Rashtriya Swayamsewak Sangh tandem wants to impose in the
Hindu Rashtra of their dreams, a national Anti-Conversion Act is at the top of
the list.
