A note on member-secretary’s Dissent Note
by Tahir Mahmood on 24 Mar 2010 4 Comments
We had a last-minute chance to see the Member-Secretary’s Dissent Note. We are not sure of the propriety of this Dissent Note against the unanimous recommendations of the rest of the Commission [as member-secretaries of commissions are generally not members in their own independent capacity but ex officio members by virtue of their administrative position], but yet we have not raised any objection to it. However, we would like to clarify as follows:


(a) The recommendations made by us under our additional Term of Reference have been guided by its own wording and by the thrust of the pending court cases on this issue which it refers to. We have not been concerned about what any officer of the Commission’s Nodal Ministry may have written in this respect to the Member-Secretary.


(b) We have found no indication whatsoever in the Constitution - either in Article 341 or elsewhere - of an intention that Scheduled Castes must remain confined to any particular   religion or religions. Article 341 only empowers the President (read Central Government) to issue the initial lists of Scheduled Castes and the Parliament to amend such lists later. It does not even remotely create any caste-religion link in respect of Scheduled Castes. Such a link was created - unwarrantedly in our opinion - by executive action while issuing the Constitution (Scheduled Castes) Order 1950. And we have recommended removal of this link by legislative action in terms of Article 341.


(c) We strongly refute the contention that Article 25 of the Constitution supports the view that the Sikh, Buddhist and Jain faiths are to be regarded as off-shoots of the Hindu religion - in our considered opinion this view is clearly based on a misreading of that Article and conflicts with the letter and spirit of the Constitution. Accordingly, we refute the claim that it was because of this intrinsic “support” from the Constitution that the Scheduled Castes Order 1950 could he amended to include Sikhs and Buddhists among the Scheduled Castes.


(d) We cannot understand that if according to any indication in the Constitution Sikh, Buddhist and Jain faiths were akin to Hinduism, why did   the Constitution   (Scheduled   Castes) Order 1950 initially declare that no non-Hindu could be a Scheduled Caste - thus excluding even the Sikhs, Buddhists and Jains? Why it took the Sikhs six long years and the Buddhists another fourteen years (20 years in all since 1950) to get themselves included in the Scheduled Castes net? And why are the Jains even now excluded from it? It seems that the Scheduled Castes net was initially restricted to Hindus for some supra-Constitutional reasons and seeking support from the Constitution for later extending it to the Sikhs and Buddhists was an afterthought - which, however, is wholly repugnant to the letter and spirit of the Constitution.


(e) The statement made in the Dissent Note that “Sikh and Buddhist religions were primarily home-grown sects within Hindu religion rather than being independent religions” is deplorable as it offends the religious sensitivities of the Sikh and Buddhist citizens of India who have always regarded their faiths as “independent religions.”


(f) Equally deplorable is the volatile attempt made in the Dissent Note to place “religions which originated outside India” on a footing different from those born in India. As it introduces an absolutely un-Constitutional distinction between the two self-created categories of religions prevailing in India, we denounce it in the strongest possible terms.


(g) Para 3 of the Constitution (Scheduled Castes) Order 1950 does not at all speak of  Scheduled Castes converting to Christianity or Islam. That a Scheduled Caste Hindu, Sikh or Buddhist on converting to any other religion must lose his Scheduled Caste status is only a secondary effect of the said Para 3. Its main and more serious effect is that those sharing even by birth the same castes as are listed as Scheduled Castes are excluded from the net only because they are not Hindu, Sikh or Buddhist. In our opinion, this effect of Para 3 conflicts with the Constitutional guarantees of equality of status and opportunity and no religion-based discrimination and, therefore, we have recommended its repeal,


(h) The Fundamental Rights of the citizens enshrined in the Constitution are the supreme and overriding part of the Constitution - and this part does insist on complete equality of citizens without any discrimination whatsoever on religious grounds. The origin of the caste system in a particular religion in the distant past, the egalitarianism of some other faith traditions in their original unadulterated form, and other similar things, fondly talked about in the Dissent Note cannot be accepted as factors that can be allowed to prevail over the Constitution’s unconditional emphasis on the equality of citizens and non-discrimination between the followers of various religions among the citizens of India.


For the reasons mentioned above we reject the contentions made in the Dissent Note and firmly stand by every word of the recommendations we have made under this Term of Reference.


[Written by NCRLM Member Dr Tahir Mahmood and fully endorsed by the Chairman Justice RN Misra & Members Dr Anil Wilson and Dr Mohinder Singh]

[Editor's comment - whereas it is common for a Commission Report to have a Dissenting Opinion by one or more members, the official riposte to the Dissent Note is perhaps without parallel in the history of Commissions in India.] 
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