26. That the Arzals or the Muslim Dalits constitute a sizable section of the society. The stoutness and strength of a chain lies in the fact that all its links are equally stronger. If one of its links is weak, it will break from there. Hence, for this great country to be stronger, it is necessary that the Dalit Muslims are also raised upward at par with their Hindu counterparts by putting them in the category of the Scheduled Castes thereby delinking religion from the issue of the Scheduled Castes. This will enable them to benefit from the statutory as well as non-statutory beneficial provisions. The statutory provisions pertain to article 15 (4) , 16(4) Article 330 (reservations of seats for SCs and STs in the House of the People Article 332 (reservation of seals for SCs and STs in the Legislative Assemblies of the States, 335 (claims of SCs and STs to services and posts, Article 338 (National Commission for SCs and STs and Article 341 (Schedule Castes). In Chapter 3 of the Annual report 2002-2003 issued by the Ministry of Social Justice and Empowerment, Government of India the Ministry has implemented various schemes for the development of Scheduled Castes as the scheme of Post Matric scholarships for SC students for their Economic Development, National Scheduled Castes Finance and Development Corporation (NSKFDC) and State Karamcharis Finance and Development Corporation are playing a key role at National and State level Dr.Ambedkar National Scholarship Scheme for meritorious students belonging to SC/ST has been initiated from 2003 with the objective of recognising, promoting and assisting meritorious students for pursuing higher studies. There is centrally sponsored scheme of hostels for SC boys and girls and many others. Copy of the said Annual report 2002-2003 issued by Ministry of Social Justice and Empowerment, Government of India is attached herewith as Annexure P-16. Thus, as Scheduled Caste converts to Islam and Christianity are not considered as Scheduled Castes, they could not avail those non-statutory benefits, which are implemented for the welfare of Scheduled Castes.
27. That it sounds pertinent and in the fitness of things to reproduce some articles and provisions of the Constitution of India by virtue of which para 3 of the Constitution (Scheduled Castes) order, 1950 becomes nugatory, void, ultra vires and unconstitutional. The said Order is violative of Article 14 because similarly situated castes or people belonging to religions other than Hinduism Sikhism and Buddism have been discriminated. The said Order is hit by the principle of reasonableness, which has been read into Article 14 by this Hon’ble Court. The relevant Articles of the constitution are reproduced herein for the sake of convenience:
Article 14: The state shall not deny to any person equality before law and equal protection of law within the territory of India.
Article 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The state shall not discriminate against any citizen on grounds only of religion, race, caste,sex, place of birth or any of them.
(2) No citizen shall , on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, restriction or condition with regard to-
(a) access to shops, public restaurants, hotels and places of public entertainment or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of general public.
(3) Nothing in this article shall prevent state from making any special provision for women and children.
(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
16. Equality of opportunity in matters of public employment (1) there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,residence or anyof them be ineligible for or discriminated against in respect of any employment or office under the State.
(3)Nothing in this article shall prevent Parliament from making any law prescribing in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within a state or Union territory, any requirement as to residence within the State or Union Territory prior to such employment or appointment.
(5) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which in the opinion of state, is not adequately represented in the service under the State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation [ in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.]
(4B) Nothing in this article shall prevent the state from considering any unfilled vacancies of a year which are reserve for being filed up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year]
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
28. That it is most respectfully submitted that a bare perusal of the provisions in the preceding para will reveal that discrimination on the ground interalia of religion and caste or any of them is unconstitutional. The impugned Presidential Order is discriminatory on the ground of religion and caste in that some particular religions and castes have been overlooked without intelligible differentia. For example, Hindu Khatiks, in Maharashtra have been put in the category of the Scheduled Castes whereas Muslim khatiks of Maharashtra have been left out, though socially, educationally and economically they are similarly situated with minor variations which are natural. Similar is the case with Muslim Mehters. The nature of the professional work done for earning their livelihood is almost the same.
29. That the said impugned Presidential Order of 1950 is also hit by article 25 of the Constitution of India;
“Freedom of conscience and free profession, practice and propagation of religion: (1) subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.
(b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation 1. The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation.II In sub-clause (b) of clause (2) the reference to Hindus shall be construed as including a reference to persons professing the Sikh,jaina or Buddhist religion and the reference to Hindu religion institutions shall be constructed accordingly.”
It is respectfully submitted that Christianity and Islam are proselytizing religions. They have a right to preach their religious ideologies to attract others towards their religion and freely embrace it if they conscientiously so desire. True, conversation by lurement or greed is illegal but non conversion by virtue of fear of losing some benefit is equally illegal and unconstitutional. There are instances that some scheduled caste person wants to freely and conscientiously convert to some other religion of his choice but for fear of losing the benefit of reservation and other benefits.
30. That there are other reports also in favour of this. Various Commissions appointed by the Government, have also recommended reservations for scheduled caste converts to religions other than Hinduism. The Central Government appointed the first Backward Classes Commission under Article 340 of the Constitution of India on 29.1.1953. The Commission also known as Kaka Kalelkar Commission was required “ to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove difficulties and to improve their conditions.” The Commission submitted its report on 30.3.1955. In paragraphs 5 of Chapter 4, it says “Christianity has consistently refused to recognize caste. Taboo on inter marriage, inter dining and widow marriages are systematically opposed in Christian society. And yet, in practice, we found that segregation of converts from Scheduled Castes was not successfully overcome in certain parts of South India. We were informed that this segregation has spread even beyond the secular side of life and sometimes Harijan converts were not allowed to pray together with the upper class Christians. We were told that in some places in the South. These classes are forced to have a separate cemetery for their dead. Further, para 9 says “The State should devise ways and means of helping the backward amongst the advanced communities of Christians and Muslims without forcing them to prove that caste is recognised and casteism is on the increase in their own fold. State help based on communal considerations is never without its dangers. We have accepted it as a necessity in counteracting an age old evil. We recommend with all the emphasis that we can command that help on communal basis should not be a permanent feature. However, the Central Government did not accept that report and put it in the cold storage.
31. That it is submitted that the President of India by an order in the year 1979 under Article 340 appointed the second Backward Classes Commission also popularity known Mandal Commission to investigate the conditions of socially and educationally backward classes within the territory of India. This Commission submitted its report on 31.12.1980. In para 10.36 it quotes Prof Madhu Dandavate who stated that conversion from one faith to another did not change the socio economic status of a person. It was, therefore, desirable that converts from schedules castes to Budhism and Christianity etc should be treated as Scheduled Castes. But until this change was brought about by legislation, all such converts should be listed as OBCs.” In para 12.11, the report goes on to say there is no doubt that social and educational backwardness among non Hindu communities is more or less of the same order as among Hindu communities. Though caste system is peculiar to Hindu society, yet in actual practice, it also pervades the non Hindu communities in India in varying degree.” On the basis of this report the reservation is given to socially and educationally backward classes in services under the Government of India.
32. That the report of the National Commission for Minorities is important in this respect. The Commission in its 3rd Annual Report, 1980 has said on page no.31 that “The Commission has prima facie felt that since the Christians, Muslims and Buddhists of scheduled caste origin continue to suffer from social and economic disabilities even after their conversion, there should be no objection to their availing of the concessions admissible to them before their conversion. The Commission, however, proposes to study this subject in depth before submitting its considered views on the subject.”
33. That it is a pity that Islam does not recognise caste system. It is egalitarian. The equality principle pervades all through the Holy Quran. It say.” O mankind we have created you from a single pair of male and female (Adam and Eve) and made you into nations and tribes that you know (recognise) each other (not that you may discriminate and despise each other).
Verify the most honoured in the sight of Allah is he who is the most righteous of you. And Allah had full knowledge and is well acquainted (with all things)
“O mankind be careful for your duty to you Lord who created you from a single being and from the same created your mate and from these he caused to spread countless men and women and be careful of your duty and be mindful of your ties of kinship, for God is ever watchful over you.”
The Holy Prophet thus declared at the Last Sermon: “No Arab has superiority over a non Arab and no non Arab has a superiority over an Arab. No blackman has superiority over a red and no red over a black. All are born of Adam and Adam was born of earth.”
In another Hadith (tradition of the Prophet) the Prophet of Islam declared;
“ I bear witness that all human beings are brothers to each other.”
This concept of equality found expression much later in Article 1 of the UN Declaration of Human Rights (UNDHR), 1948 which declared “all human beings are born free and equal in dignity and rights.”
34. It is a pity that despite a casteless society despite lofty ideals and preachings about the equality of all human beings, the Indian brand of Islam is caste ridden. True, Allah created different nations clans and tribes etc so that they could be recognised not that they be discriminated. But the lower castes amongst the Muslims are despised, looked down upon and discriminated. The reason for infiltration of the caste system amongst the Muslims in India, according to historians, is that they actually converted to Islam. Thus, the dalit Muslims in India are the converted lot.
35. That the existence of the caste system amongst the Indian Muslims has been accepted and highlighted by the Prime Minister’s High Level Committee on social, economic and educational status of the Muslim community of India popularly knows as the Justice Sachar Committee Report submitted to the prime Minister Dr. Manmohan Singh on 17.11.2006. Some of the important highlights having direct bearing on the issue at hand are reproduced verbatim for your Lordships perusal and convenience.
(i)Sociological studies on the social structure of Muslims in India have emphasized on the presence of descent based social stratification among them. Features of the Hindus caste system such as hierarchical ordering of social groups endogamy and hereditary occupation have been found to be amply present among the Indian Muslims as well. The census of India 1901 listed 133 social groups wholly or partially Muslim. The present day Muslim society in India is divided into four major groups (i) the ashrafs who trace their origins to foreign lands such Arabia Persia, turkistan or afghanistan (ii) the upper caste Hindus who converted to Islam (iii) the middle caste converts whose occupations are ritually clean(iv) the converts from the erstwhile untouchable castes, Bhangi (scavenger)Mehtar (sweaper) Chamar (tanner) Dom and so on.’
(ii)These four groups are usually placed into two broad categories namely ashraf and ajlaf . The former meaning noble includes all Muslims of foreign blood and converts from higher castes.While ajlaf meaning degraded or unholy embraces the ritually clean occupational groups and low ranking converts. In Bihar, U.P. and Bengal Sayyads Sheikhs Moghuls and Pathans constitute the ashrafs. The ajlaf are carpenters artisans , painters , grazioers tanners milkmen etc. According to the census of 1901 the ajlaf category includes the various classes of converts who are knowsn as neo Muslim in Bihar and Nasya in North Bengal. It also includes various functional groups such as that of the Jolaha or weaver Dhunia or cotton carder Kulu or oil presser Kunjra or vegetable seller, Hajjam or barber, Darzi or tailoer and the like. The 1901 census also recorded the presence of a third category called Arzal. It consists of the very lowest castes such the Halalkhor Lalbegi, Abdal and Bediya.”
(iii)Similar pattern of descent based social stratification is discernible in other regions as well. In Kerala the Mophlahs of Malabar are divided into five ranked sections called Thangals, Arabis, Malbaris, Pussalars and Ossans. The thangals trace their descent from the Prophets’s daughter Fatima and are of the highest rank. Next in rank are Arabis who claim descent from the Arab men and local women and retain their Arab lineage. The Malbaris are next in rank. They have lost their Arab lineage and follow matrilineal descent. The Pusalaras are the converts from Hindu fishermen called Mukkuvan the new Muslims. They have low status. The Ossans are the barbers and by virtue of their occupations they rank lowest. In Andhra Pradesh a field study conducted in 1987 found hierarchically arranged endogamous groups among Muslims. At the top of the ladder were those claiming foreign descent Syeds, Shaikh, Pathan and Labbai (descendants of Arab Traders who took native wives). At the lowest level were groups with unclear occupations Dudekula (cotton cleaners)Hazam (barber) and Fakir Budbudki (mendicants)”
(iv) Muslim groups currently bracketed under the category OBC come essentially from the non ashraf section of the Muslim population. They are the converts from the middle and lower caste Hindus and are identified with their traditional occupation. A study of a village in Uttar Pradesh could identify eighteen such groups for example Julahas (weaver) Mirasis (singers) Darzis (tailors) Halwais (sweetmakers) manihars (banglemakers) and so on. The 1911 census listed some 102 caste groups among Muslims in Uttar Pradesh at least 97 of them came from the non ashraf category . Many such groups such as the Rajputs Kayasthas Koeris Koris Kumhars Kurmis Malis MOchais were common among both Hindus and Muslims.
(v) Since the Constitutional (Schedule Caste) Order, 1950 popularly known as the Presidential Order (1950) restricts the SC status only to Hindu groups having unclean occupations their hon Hindu equivalents have been bracketed with the middle caste converts and declared OBC. Thus the OBCs among Muslims constitute two broad categories. The halakhors helas, lalbegis or bhangis (scavengers), dhobis (washermen), nais or hajjams (barbers) chiks (butheers) faquirs (beggers) etc belonging to the Arzals are the untouchable converts to Islam that have found their way in the OBC list. The momins or julahas (weavers) darzi or idiris (tailors) rayeens or kunjuaras (vegetable sellers) are Ajlafs or converts from clean occupation castes. Thus one can discern three groups among Muslims. (1) those without any social disabilities the ashraf (2)those equivalent to Hindu OBCs the ajlafs and (3) those equivalent to Hindu SCs the arzals. Those who ae referred to as Muslim OBCs combine (2) and (3).