11. That as a policy the framers of the Constitution of India had first envisaged giving representation to all minorities. However, after the soul shaking experience of the Hindu Muslim riots all reservations for minorities were abolished. During the Constituent Assembly debates, 1947-49 the leaders representing the Christian Community Dr.H.C.Mookerjee and Rajkurnari Amrit Kaur who were basically converts but not from Scheduled Caste communities were foremost in advocating the view of abolishment of reservation only in reference to political representation. However, at that stage the Hindu leaders who belonged to Scheduled Caste pleaded for continuation of reservation for them. The Anglo Indians too being a tiny community requested for some sort of reservation for themselves. The Sikhs too demanded that reservation be extended to them as a community since they felt their number was being depleted. But
once they realized that this was not going to be granted ,they demanded that at least the converts to Sikhism from the scheduled caste communities be recognised as Scheduled Castes. Finally, the Advisory Committee on Minorities accepted the demand of the Sikh community. Copies of the relevant parts of the Constitution Assembly Debates (Report on Minority Rights held during 1947-49) on this issue are attached herewith as Annexure P-7.
12. Thus, till the Government of India Act, 1935 came into force, all the Dalits belonging to any religion were getting reservation under their religious minority status.
13. The present constitution of India was adopted on 26.11.1949 which contained article 341 which as amended upto date is as follows:
“SCHEDULED CASTES 341(1) The President may with respect to any state or union territory and where it is a state after consultation with the Governor thereof, by public notification, specify the castes races or tribes or parts of or groups within castes areas or tribes which shall for the purpose of this Constitution be deemed to be Scheduled Castes in relation to that state or Union territory as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste race or tribe but save as aforesaid, a notification issued under the said clause shall not be varied by any subsequent notification.”
It is respectfully submitted here that this Article speaks about Scheduled Caste only and makes no reference to religion. Its tenor, colour, language and
context are purely secular. But this secular article of the lofty Constitution was religiously communalized when the Presidential Order of 1950 was promulgated under this Article and religion, prohibited at many places in the Constitution, was made the basis of identifying and declaring Scheduled Castes.
14. Thus Article 341 of the Constitution lays down the procedure for specification of Scheduled Castes in relation to different States and Union Territories. Under Articles 341 (1), the first list of Schedules Castes in respect of different State and Union territories is specified by the notification, through an executive order of the President of India. Any subsequent modification, namely, addition or subtraction in these notifications can be effected only by an Act of the Parliament under Article 341 (2). Many such Presidential Orders specifying Scheduled Castes are at present in operation. These Orders, as amended to date, stipulated that No person who professes a religion different from the Hindu the Sikh or the Budhist religion shall be deemed to be member of a Schedules Caste. A true copy of the Certificate (Scheduled Castes) ordered 18.10.1950 with the list of Maharashtra SCS and OBCs is filed as Annexure P-8.
15. That although it was recognized much earlier that the Muslim Khatiks are to converts, it was again recognized in view of the 1951 Census. A true copy of the Jalgaon District Gazette issued in or about 1952 showing that Muslim Khatiks are local converts is filed as Annexure P-9.
16. That in KOLHAPUR (MAHARASHTRA) same meat market is shared by both Hindu and Muslim khatiks for their business and they jointly formed one trust named ‘KSHATRIYA MARATHA AND MUSALMAN (KHATAIK) SAMAJ KOLHAPUR” vide reg. No. kop. E-27. A true copy translated copy of the document dated 27.9.1955 showing this name is filed as Annexure P-10.
17. That the first list of Scheduled Castes under Article 341 (1) was notified through the Constitution (Scheduled Castes) Order, 1950. The test applied for the inclusion in the list, it seems was extreme social educational and economic backwardness arising out of practice of the untouchability. Initially the constitution (scheduled castes) order 1950 had the word ‘Hindu only” No person who professes a religion different from Hindus shall be deemed to be a member
of a scheduled caste.” However, it originally contained the following provision:
“Provided that every member of Ramdasi, Kabirpanthi, Mazhabi of Sikligar caste resident in Punjab or Patiala or East Punjab States Union shall, be deemed to be a member of the Scheduled Castes whether he professes the Hindu or the Sikh religion.”
18. That for inclusion of the Sikh in the order there was a great debate in the Constituent Assembly. It was discussed that there is no caste system or untouchability in the sikh religion and that Sardar Vithalbai J. Patel urged upon those Sikhs demanding reservation for Sikh Scheduled Castes “not to lower their religion to such a pitch as to really fall to a level where for a mess of pottage you really give up the substance of religion.”
19. That the issue of the Scheduled Tribes has been delinked from the religion viz. it has been made religion free. It finds a mention in Article 342 of the Constitution with the same language of Article 341. On the same parity and analogy the issue of the Scheduled Castes should be religion free as the Scheduled Castes by whatever name they are known and whatever religion they belong they constitute a class by themselves not by virtue of their religion but by virtue of their being born in that caste. A true copy of the Resolution no.CBC -1058/E,Bombay dated 14.5.1958 issued by the Government of Maharashtra delinking STs from religion is filed as Annexure P-11.
20. That the Muslim Mehtars do the same job as Hindu Mehters. Hindu Mehters have been put in the scheduled caste category whereas the Muslim Mehtars facing the similar situations and social disability have been put in the category of socially and educationally backward classes (SEBC) A true copy of the Resolution dated 10.9.93 issued by the Ministry of Social Welfare is filed as Annexure P-12 where Muslim Mehters have been shown as SEBC at serial no.37.
Similar is the case with Muslim Mukri, Muslim Mochi, Muslim Garudi, Muslim Dhobi, Muslim Jatgar (Matang) and Muslim Banzara etc.
21. That one Sheikh Shabbir s/o Sheikh Kadir was recognised by the Executive Magistrate, Rver Maharashtra. This boy was recognised as Khatik which is recognised as Scheduled Castes under the Constitution (Scheduled Castes) Order, 1950 as appearing in part IX of the Scheduled Castes and Scheduled Tribes (amendment) Act 1978 (No.108 of 1978). A true copy of the Scheduled Caste certificated dated 20.1.1996 issued by the Executive Magistrate, Raver, Maharashtra is filed as Annexure P-13.
22. That by an amendment in the Order in September 1956, the Hindu and sikh religion were placed at the same footing with regard to the specification of the Scheduled Castes and the above proviso was removed. In other words, persons other than Hindus and Sikhs would not be deemed to be Scheduled Castes regardless of their caste of origin.
23. That by another amendment in 1990 Budhists of the Scheduled Caste origin or new Budhists were also given the status of Scheduled Castes by the Constitution (Scheduled Castes) Orders (amendment) Act, 1990. Prior to that, various non-statutory developmental and other benefits had been extended to the new Budhists over a period of time from 1971.
24. That a note dated 6.3.96 prepared for the Cabinet by the Ministry of Welfare Government of India has stated that if reservation is granted to new Dalit Chistians, it will be difficult to refuse a similar demand by the Muslims. The note has referred to 1983 report on Minorities by the High Power Panel on Minorities SC and ST and other weaker sections which said “as Scheduled Castes converted to other religions also continued to suffer from the same social
and educational backwardness we recommend that the Presidential Order of 1950 be suitably amended to include all Schedule caste converts irrespective of the religion of their conversion so as to make eligible for all these concessions.” The National Commission for Minorities has also recently recommended that all benefits available to Scheduled Castes be extended to all converts from the Schedules Castes to Christianity and Islam. In the context of these recommendations which apply not only to Christian converts but also to those scheduled caste persons who have converted to other religions, dispensation in favour of Christians alone may be open to challenge on the ground of discrimination. The note further says,” similar demands from other religion/ communities will intensify. In fact, representations have already been received by the Welfare Ministry for the inclusion of Muslim Khatik and mehtars in the lists of Scheduled Castes. In the context of reported moves to recognise Schedules Castes Christian converts as Scheduled Castes some members of Parliament have also written letters and tabled questions in Parliament recently regarding a similar dispensation for Muslims of Scheduled Castes origin, or to remove altogether the nexus between religion and membership of schedules castes in the existing Presidential Orders. A true copy of the note for cabinet dated 6.3.1996 vide No. 12016/30/90-SCD (R-Cell) is filed as Annexure P-14.
25. But the SC statuses was subsequently cancelled by caste certificate verification committee, Maharashtra vide order No. 278/2000 dated 05.2.2001, as he is Muslim. A true copy of the order-dated 5.2.2001 is filed as Annexure P-15.