As promised We find a great pleasure to publish this series of post on petition lodged in Supreme Court by Akhil Maharastra Khatik Samaj for the inclusion of Dalit Muslims into SC/ST category which is denied under the presidential order of 1950. The hearing in Supreme Court is due on 31st July 2009. This petition will be posted in many parts due to the length and depth of the issue, for the convenience of our readers.
~Mohammad Shahanshah Ansari
WRIT PETITION NO 13 OF 2008
Ministry of Social Justice and
(through its Secretary)
PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
The Hon’ble Chief Justice of India
And his companion Justices of the
Supreme Court of India
The petitioners above named
1. That this is a petition lodged under Article 32 of the Constitution of India for enforcement of the fundamental rights of the petitioners community enshrined under Article 14,15,16,21,26 and their constitutional rights enshrined under Article 341 of the Constitution of India by challenging the vires and constitutionalism of the para 3 of the Constitution (Scheduled caste ) Order, 1950. This order, issued under Article 341 of the Constitution is discriminatory on the ground of religion in that certain Hindu castes have been declared as the Scheduled Castes whereas their Muslim counterparts have been discriminated and denied the status of Scheduled Casts.
2. That Writ Petition(Civil) No.180/2004 captioned Centre Public Interest Litigation vs. Union of India & Ors, W.P(Civil) no.94/2005 captioned D.David vs. Union of India, WP (C ) NO.625/2005 TITLED A.I.United Christion Movement for Equal Rights and Anr. Vs. Union of India and W.P.(C ) NO.47/2006 Captioned Mohd. Sadiq (formerly Dr.Mukesh Kumar) and Anr. Vs, Uinion of India are already pending adjudication in this Hon’ble Court. The instant Writ Petition is somewhat different from those writ petitions in that the former relate to the rights of the Scheduled Castes converted to the religion of Christianity or Inslam whereas the instant writ petition seeks parity based constitutional relief for the Muslim counterparts of the Hindu Scheduled Castes.
3. That the petitioners state at the outset that they have not filed such or similar petitions seeking similar relief in this Hon’ble Court or in any other court.
4. That the substantial questions of law of great and far reaching public importance for authoritative elucidation and pronouncement by this Hon’ble Court, laconically put, are as follows:
A. Is it not discriminatory on the ground of religion( prohibited by Article 15 (1),(2) and 16 (1), (2) of the Constitution of India) that some Hindu castes have been included in the Constitution (Schedule Caste) Order, 1950 as Scheduled Castes whereas their Muslim counterparts have been excluded ?
B. Is not the Presidential Order viz, the Constitution (Scheduled Castes) Order 1950, discriminatory as some Hindu castes have been given the benefit of Scheduled Castes to the denial of their Muslim counterparts whereas both sets of people have been performing the same so called dirty job and have been suffering in terms of social indignation and facing social ghettoisation and ostracism?
C. Is not the said Presidential Order discriminatory and hit by Article 15 (1),16(1) of the Constitution in that the dalit Muslims have been deprived of the status of Scheduled Castes on the ground that there is no caste system in egalitarian Islam whereas the uncomfortable reality is that the Indian Muslim social milieu is caste based not scripturally but practically?
D. Is it not against the concept of prembular secularism and against the working philosophy of secularism as adumberated by this Hon’ble Court in various judgments that one class of depressed, humiliated, looked down upon and ostracized peoples are given special protection and privileges to raise their social and economic status by declaring them as the Scheduled Castes whereas a similar other class of people are deprived of the same only in the name of religion ? Is it not hit by the Constitutional Articles 25,26, and 29 (2)?
E. Whether the said Presidential Order of 1950 is not hit by Article 341 in that the Presidential Order speaks about Hindu Scheduled Castes only whereas there is nothing like this in Article 341?
F. Is not the Presidential Order of 1950 a direct onslaught on the caste autonomy as provided under the Caste Disabilities Removal Act, 1850 which provides that there should be no forfeiture of civil or property rights by reason of renouncing or having been excluded from the communion of any religion or being deprived of caste?
5. That the petitioners are the societies of community which is known by various Hindu Surnames like Khatik, Gholap, Wagh, Suryavanshi, Mashal, Mashalkar, Kamble, Bijapure, Tade, Rathore, Ghodke, Ghone and Nhavkar. The petitioner societies represent this community in Maharashtra.
6. That the Hindu Khatiks in Maharashtra have been declared as the Scheduled Castes but the Muslim Khatiks doing the same job of slaughtering in the same business place have been denied the same arbitrarily and without legal or constitutional basis.
7. That, historically speaking, there was only one caste of Khatiks. Later on, some of them converted to Islam and became Muslim Khatiks. Even their names carry the surname of Khatik. Sometimes, the names are such that it is difficult to distinguish between a Hindu Khatik and a Muslim Khatik. Muslims Khatiks etc are as educationally, socially and economically backward as the Hindu Khatiks but they have not been declared as the khatik Scheduled Casts. Likewise, Muslim Mehtars/ HalalKhor/ Lal Begi/ Bhangi/ Muslim /Dhobi, Mukri, Garudi and Mochi etc. have been denied the status of scheduled castes whereas their Hindu counterparts have been enjoying the benefits and privileges granted to the Scheduled Castes.
8. That, historically speaking, there was only one caste of Khatiks. Later on, some of them converted to Islam and became Muslim Khatiks (For example the conversion proof of this community The Gazetteer of the Bombay Presidency volume xx originally printed in 1884 the Govt. Gazette of SHOLAPUR, SATARA, JALGAON, AHEMADNAGAR AND PUNE OF MAHARASHTRA in which it is clearly mentioned that BAKAR KASB MUSLIM KHATIKS are converted locally and it is also mentioned that previously they keep all Hindu Fasts and feasts and their Names are also the same as Hindu Names. A list of the names of the Muslim Khatik community with similar names to their Hindu counterparts (undated) is filled as Annexure P-1. A true copy of the Gazette of the Bombay Presidency, Sholapur District, Volume XX originally printed in 1884 is filed as Annexure P-2. A true copy of the Gazetteer of the Bombay Presidency Ahmadnagar District volume XVII originally printed in 1884 is filed as Annexure P-3. A true copy of the Gazetteer of the Bombay Presidency, Satara District, Volume xix, originally printed in 1885 is filed as Annexure P-4. A true copy of the Gazette of Bombay Presidency, Poona District, Volume XVIII, Part- I, originally printed in 1885 is filed as Annexure P-5.
9. That the position of Dalit Muslims is no better than the Dalit Hindus. Except at congregational prayers, they remain ostracized and isolated. They are economically very poor. Educationally they are nil. Socially, they are despised, humiliated and looked down upon . The general Muslims hesitate to share food at festival like Eid.
10. That the categorization of Dalits as Hindu Dalits Christian Dalits , Muslim Dalits , Sikh Dalits or Buddist Dalit is a recent phenomenon. It is respectfully submitted that the so called ‘Untouchables’ in India were not a homogenous group of people. They belonged to different ethnic and regional groups and were spread and oppressed throughout the country. During the first half of this century the term “depressed classes” was widely used to opposition from leaders like B.R.Ambedkar. To the use of this term, the Government of India Act of 1935 introduced a new phrase ‘the Scheduled Castes’ to refer to the ‘untouchable communities in schedule-1 of the Act. A copy of the said Act where the term ‘scheduled caste’ was used for the first time is attached herewith as Annexure P-6.