As we post this last part of the PIL file in supreme court for Dalit Muslims cause, we have a good news to share with all our IDMV readers and supporters. The way when the PIL will be heard in the SC demanding justice and equality for Dalit Muslims has finally arrived and is scheduled tomorrow on 31st July 2009.
~IDMV
Read PART-1 , PART-II, PART-III also
That in conference on the Muslim OBCs convened by the Justice Sachar Committee there was a consensus among the participants that Muslims were a differentiated group and this should be reflected in all policy initiatives of the government.
37. About the Scheduled Caste status to Muslim groups, the report of the committee is as follows:
“While the ashrafs and Ajlafs occupy the highest and middle positions in the Muslim social structure the arzals are the lowest comprising of those having similar traditional occupation as their Hindu counterparts in the list of schedule castes. It is widely believed that these communities are converts from the untouchables among Hindus. Change in religion did not bring any change in their social or economic status. Because of the stigma attached to their traditional occupation they suffer social exclusion. Despite this they have been deprived of SC status available to their Hindu Counterparts.
Their exclusion from the SC list dates back to 1936 when the imperial (scheduled caste)order rejected SC status to Christians and Buddhists of similar origins. Depressed classes among the Muslims such as Halakhors were included in the list but were barred from availing the benefits. This colonial decree remained the basis on which the government of independent India through the Constitutional (scheduled caste) order 1950 has denied them the status in accordance with the deprivations that they face. The order however has been amended twice one in 1956 to include the SCs among the Sikhs and later in 1990 to include the neo Budhists. Thus practically only the Muslims and Christians of such origins continue to be denied the status. As a result such Muslim groups namely gadheris, gorkuns, mehtars or halalkhors, Muslim dhobis, bakhos, nats, pamarias, lalbegis and others remain impoverished and marginalized. Their inclusion in the OBC lit has failed to make any impact as they are clubbed with the more advanced castes.
Many have argued that the Order of 1950 is inconsistent with Article 14,15,16 and 25 of the Constitution that guarantee equality of opportunity, freedom of conscience and protect the citizens from discrimination by the state on grounds of religion, caste or creed.
38. The caste has been recognised by various Commissions and in some judgments by the Hon’ble court also. The report of the Justice Sachar Committee is worth quoting here :
“Article 340 empowers the state to appoint a commission to investigate the condition of socially and educationally backward classes. At the all India level too, such commissions have so far been appointed Kaka Kalekar Commission and B.P. Mandal Commission. The first backward classes commission, Kaka Kalekar Commission submitted its report in 1955. The commission emphasized the lower status in the caste hierarchy as the determining factor for backwardness alongwith other considerations such as educational levels income levels and representation in public employment. The commissions, report was the first instance in which certain castes/communities among Muslims (and other religious minorities) were also declared backward and brought within the purview of affirmative action. The second backward classes commission (B.P.Mandal commission 1980) too relied on the caste criterion, however the tangible indicators to ascertain a caste or any social group as backward included lower position in the caste hierarchy lower age at marriage within the group, higher lower average value of family assets, higher occurrence of Kutcha houses and so on. In the case of non Hindu communities, different yardstick was employed which is discussed later in this chapter.
The usage of classes instead of caste in Constitutional reference to OBCs viz article 15 (4) 16(4) and 340 (1) has led to may legal wrangles and disputes. However the courts like the two backward classes commissions accepted caste as a basis of classification. In Venkataramana vs. State of Madras, the Supreme Court upheld the list of Hindu castes declared as backward by the Madras government. This was further confirmed in Ramakrishna Singh vs. State of Mysore in which the Mysore High Court held that class included persons grouped on the basis of their castes. A series of Supreme Court cases have further refined the provision. In Balaji vs the State of Mysore the Supreme Court put a ceiling on the total quota for affirmative action at fifty %. It was critical of using the caste criterion and on the reasons cited was its inapplicability to non-Hindu groups. In Chitralekha vs. State of Mysore the court clarified that the (i) caste ..may be relevant in ascertaining social backwardness but (ii) it cannot be the sole or dominant test . The caste basis was further clarified in 1968 in P.Rajendran vs. State of Madras wherein the Supreme Court held that a caste is also a class of citizens if the caste as a whole is socially and educationally backward. This was reaffirmed in U.S.V. Balaram vs. State of Andhra Pradesh when the Supreme Court scrapped the Andhra Pradesh High Court ruling and allowed the use of caste as a determinant to define backwardness. In the celebrated Indira Swhney vs. The Union of India (Mandal case), the 9 judge bench rejected economic criterion as the determinant of backwardness. The court upheld the concept of caste as caste can be and quite often is a social class in India. On the question of backward classes among non Hindus, the court held that they should be identified on the basis of their traditional occupations. True copy of a part of the Sachar Committee report dated 17.11.2006 contained in Chapter 10 captioned “The Muslim OBCs and Affirmative Action “ is filed as Annexure P-17.
39. That the National Commission for Religious and Linguistic Minorities consisting of Justice Ranganath Mishra (Chairman) Tahir Mehmood (member) Dr.Anil Wilson (member) Dr.Mohinder Singh (member) Mrs.Asha Das (Member Secretary) Mr.M.C.Joshi Joint Secretary Appellate Authority and Shri Abdul Rashid Dy. Secretary, Public Information Officer appointed by the Ministry of Social Justice and Empowerment, Government of India vide a notification dated 15.3.2005 submitted its report and recommended, interalia, that all those groups and classes among the Muslims and Christians etc whose counterparts among the Hindus Sikhs or Budhists are all included in the Central or State Schedule Castes list should also be covered by the Scheduled Castes net. If any such group or class among the Muslims and Christians etc is now included in OBC list, it should be deleted from there while transferring it to the schedule castes placing the same persons in the scheduled caste lists if they are Hindus, Sikhs or Budhist but in the OBC list if they follow any other religious which is the case in many states in our opinion clearly amounts to religion based discrimination. A true copy of the Commissions report dated 21.5.2007 is filed as Annexure P-18.
40. That from the newspaper reports, it appears that even a statutory body like the National Commission for the Scheduled Caste has recommended that the Dalit Muslims and Dalit Christians be treated as scheduled castes and that this issue be delinked from religion.
41. That the opponents of this demand claim that scheduled caste is a status arising out of untouchability, caste system and other disabilities associated with Hindu religion. As such, when any member of the scheduled caste leaves Hindu fold and enters Islam or Christianity as the religious which recognise no caste system and believe in equality as he or she cannot enjoy that facility. This contention is superfluous and baseless on the following grounds:
A untouchability-Article 17 of the Constitution abolishes untouchability and makes its practice an offence.
Abolition of untouchability aC a Coe untouchability is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of untouchability shall be an offence punishable . Therefore, to assert the Hindu system of untouchability is standing at the root of this reservation facility to Scheduled caste (dalits) is itself contradicting with Constitutional mandate and is also an offence likewise.
42. That many State Governments and political parties are also in favour of granting Scheduled Caste status to the Muslim Arzals or Muslim Dalit like Khatik, Mehter/Bhangi/Lal Begi/ Halakhor, Mochi, Mukri and Garudi etc. also to the neo Muslims and neo Christians converted from the Hindu Scheduled Castes.
GROUNDS
I. Because originally the Hindu Dalits, Muslim Dalits (arzal) and Christian Dalits were one and the same. It is a later phenomenon that some of the Hindu Scheduled Castes/Dalits converted to other religions.
II. Because the dispisiment, humiliation and discrimination at the social level continues even after conversion from scheduled caste to any other religion like Islam or Christianity.
III. Because it is unconstitutional that similarly situated persons viz (Hindu Dalits) Christian Dalits and Muslim dalits are differentiated and discriminated though they perform the same type of so called dirty jobs. For example Hindu Mehtars, Dhobi, Mochi, Khatiks, Bangaras etc have been put in the schedule caste category whereas their Muslim and Christian counterparts have been discriminated and denied the same Constitutional protection or privilege.
IV. Because the Constitution (Schedules Castes) order 1950 is based on religion, hence it is unconstitutional and hit by Article 15 and 16 of the Constitution of India which prohibit discrimination based only on religion or caste.
V. Because the said Presidential Order is also hit by the equality Article 14 of the Constitution which prohibits discrimination amongst similarly situated persons or groups.
VI. Because the said Order is further hit by the principle of reasonableness and propriety which has been judicially read in Article 14 of the Constitution of India.
VII. Because though the religions of Islam and Christianity do not recognise caste system like Hindus but reality is that it prevails amongst them also with a difference in degree.
VIII. Because the Presidential Order, 1950 is anti secular as it is hit by article 25 of the Constitution also.
IX. Because the Hindu butchers called Khatiks have been declared as Scheduled Castes whereas Muslim Khatiks doing the same job or profession though in a different way have been denied the same despite the fact that their educational, social and economic situations are same.
X. Because, Kasai, butchers, Khatiks and Bakar Kasab are one and the same known by different nomenclatures.
XI. Because many Commissions including the National Commission for minorities and the National Commission for Religious and Linguistic Minorities have recommended that the Christian Dalits and the Muslim Dalits be declared as Scheduled caste at par with their Hindu counterparts.
XII. Because the Scheduled Castes converted to Sikhism enjoy reservation although Sikhism does not allow caste system and no proof was adduced that even after conversion to Sikhism the same caste disability and the former customs and traditions continued. Same is the case with Budhists.
XIII. Because the issue of the Scheduled Tribes is delinked from religion, hence the issue of Scheduled Castes should also be delinked from religion.
XIV. Because untouchability should not be the sole criteria for the purpose of identifying the Scheduled Castes in view of the Article 17 of the Constitution Protection of Civil Rights Act and SC/ST(Prevention of Atrocities Act etc.)
PRAYER
It is, therefore, most respectfully prayed that this Hon’ble Court may be graciously pleased ;
(i) to issue a writ of certiorari and declare clause 3 of the Constitution (Scheduled Castes) Order, 1950 as ultra vires the Constitution of India
OR
(ii) to issue a writ, mamdamus commanding the respondent Union of India to identify and include the Muslim Arzals or Muslim Dalits like khatiks, mehters/ Bhangi/Lal- Begi/ Halakkhor, Mochi, Mukri and Garudi etc. in the category of other Scheduled Castes mentioned in the Constitution (Scheduled Castes) Order, 1950.
(iii) to pass further order as deemed fit and proper by this Hon’ble Court.
AND FOR THIS ACT OF KINDLNESS THE PETITIONER SHALL AS IN DUTY BOUND EVER PRAY.
Drawn on: 6.1.2008 Drawn and filed by:
Filed on : 8.1.2008
(MUSHTAQ AHMAD)
ADVOCATE FOR THE PETITIONERS
AN APPLICATION FOR EXEMPTION FROM
FILING OFFICIAL TRANSLATION
To
The Hon’ble Chief Justice of India
And his companion Justices of the
Supreme Court of India
The petitioners above named
MOST RESPECTFULLY SHOWETH:
1. That the petitioners have filed the accompanying writ petition for the enforcement of their fundamental rights as contained in Articles 14, 15, 16, 21, and 25 of the Constitution. The averments of the writ petition may be treated as part and parcel of this application as the same are not being reproduced for the sake of brevity.
2. That annexures P- are in Marati language which have been faithfully translated in the office of the counsel.
PRAYER
It is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to :-
(i) to exempt the petitioners from filing the official translation of Annexure P-
(ii) to pass further order as deemed fit and proper in the interest of justice.
Drawn & Filed by:
(MUSHTAQ AHMAD) Advocate for the petitioners
Drawn on : 6.1.2008
Filed on : 8.1.2008
INDEX
Sr. No. Particulars Pages
1. Synopsis and List of Dates A-H
2. Writ Petition with Affidavits 1-57
3. Annexure P-1
A list of the names of the Muslim
Khatik community (undated) with
similar names to their Hindu
counterparts ) 58-
4. Annexure P-2
True copy of the Gazetteer
of the Bombay Presidency, Sholapur
District, Volume XX originally printed
in 1884 showing that Muslim-Khatiks
are converts 59-65
5. Annexure P-3
True copy of the Gazetteer of the
Bombay Presidency Ahmad Nagar,
District, Volume XVII originally
printed in 1884 showing that Muslim
Khatiks are converts 66-69
6. Annexure P-4
True copy of the Gazetteer of
the Bombay Presidency, Satara
District, Volume XIX originally printed
in 1885 showing that Muslim Khatiks
are local converts 70-79
5. Annexure P-5
True copy of the Gazetteer of
Bombay Presidency, Poona District
Vol. XVIII, Part-I Originally printed
in 1985 showing that Muslim Khatiks
are converts. 80-81
6. Annexure P-6
True copy of an extract of the Govt.
Of Indian Act, 1935 82-83
7. Annexure P-7
True copy of the relevant parts
of the Constituent Assembly
Dalites (report on minority rights)
held during 1947-49 84-93
8. Annexure P-8
True copy of the relevant parts of
the Constitution (Scheduled Castes)
Order 1950 dated 10.8.1950 with
list of Maharashtra SCs and OBCs 94-106
9. Annexure P-9
True copy of the Jalgaon District
Gazetteer issued in or about 1952
showing that Muslim Khatiks
are local converts 107-111
10. Annexure P-10
True copy of the document dated
27.9.1955 showing the name Kshatriya
Maratha and Musatma Khatik Samaj 112-115
11. Annexure P-11
True Copy of the resolution
dated 14.5.1958 issued by the
Govt. of Maharashtra delinking
the STs from religion 116
12. Annexure P-12
True copy of the resolution dated
10.9.1993 passed by the Ministry of
Social Welfare wherein Muslim
Mehters have been show as SEBC
at Serial No. 37 117-118
13. Annexure P-13
True copy of the Scheduled Caste
Certificate dated 20.1.1996 issued
by the Executive Magistrate, Raver
Maharashtra 119
14. Annexure P-14
True copy of the Note for Cabinet
dated 6.3.1996 vide No. 12016/
30/90-SCD (C-Cell) 120-132
15. Annexure P-15
True copy of order dated 5.2.2001
whereby caste certificate was
cancelled by Caste Certificate Verification
Committee, Maharashtra vide order
No. 278/2000 133-134
16. Annexure P-16
True copy of the Annual Report
2002-03 issued by Ministry of Social
Justice and Empowerment,
Govt. of India. 135-156
17. Annexure P-17
True copy of a part of the Sachar
Committee Report dated 17.11.2006 157-182
18. Annexure P-18
True copy of the extract of the
Report of the National Commission
for Religious and Linguistic Minorities
dated 21.5.2007 recommending
delinking of religion from SC issue 183-187
19. I.A. No. of 2007
An application for exemption from
filing official translation of Annexures 188-189
INDEX
Sr. No. Particulars Pages
1. Synopsis and List of Dates A-H
2. Writ Petition with Affidavits 1-57
3. Annexure P-1
A list of the names of the Muslim
Khatik community (undated) with
similar names to their Hindu
counterparts ) 58-
4. Annexure P-2
True copy of the Gazetteer
of the Bombay Presidency, Sholapur
District, Volume XX originally printed
in 1884 showing that Muslim-Khatiks
are converts 59-65
5. Annexure P-3
True copy of the Gazetteer of the
Bombay Presidency Ahmad Nagar,
District, Volume XVII originally
printed in 1884 showing that Muslim
Khatiks are converts 66-69
6. Annexure P-4
True copy of the Gazetteer of
the Bombay Presidency, Satara
District, Volume XIX originally printed
in 1885 showing that Muslim Khatiks
are local converts 70-79
5. Annexure P-5
True copy of the Gazetteer of
Bombay Presidency, Poona District
Vol. XVIII, Part-I Originally printed
in 1985 showing that Muslim Khatiks
are converts. 80-81
6. Annexure P-6
True copy of an extract of the Govt.
Of Indian Act, 1935 82-83
7. Annexure P-7
True copy of the relevant parts
of the Constituent Assembly
Dalites (report on minority rights)
held during 1947-49 84-93
8. Annexure P-8
True copy of the relevant parts of
the Constitution (Scheduled Castes)
Order 1950 dated 10.8.1950 with
list of Maharashtra SCs and OBCs 94-106
9. Annexure P-9
True copy of the Jalgaon District
Gazetteer issued in or about 1952
showing that Muslim Khatiks
are local converts 107-111
10. Annexure P-10
True copy of the document dated
27.9.1955 showing the name Kshatriya
Maratha and Musatma Khatik Samaj 112-115
11. Annexure P-11
True Copy of the resolution
dated 14.5.1958 issued by the
Govt. of Maharashtra delinking
the STs from religion 116
12. Annexure P-12
True copy of the resolution dated
10.9.1993 passed by the Ministry of
Social Welfare wherein Muslim
Mehters have been show as SEBC
at Serial No. 37 117-118
13. Annexure P-13
True copy of the Scheduled Caste
Certificate dated 20.1.1996 issued
by the Executive Magistrate, Raver
Maharashtra 119
14. Annexure P-14
True copy of the Note for Cabinet
dated 6.3.1996 vide No. 12016/
30/90-SCD (C-Cell) 120-132
15. Annexure P-15
True copy of order dated 5.2.2001
whereby caste certificate was
cancelled by Caste Certificate Verification
Committee, Maharashtra vide order
No. 278/2000 133-134
16. Annexure P-16
True copy of the Annual Report
2002-03 issued by Ministry of Social
Justice and Empowerment,
Govt. of India. 135-156
17. Annexure P-17
True copy of a part of the Sachar
Committee Report dated 17.11.2006 157-182
18. Annexure P-18
True copy of the extract of the
Report of the National Commission
for Religious and Linguistic Minorities
dated 21.5.2007 recommending
delinking of religion from SC issue 183-187
19. I.A. No. of 2007
An application for exemption from
filing official translation of Annexures 188-189
Indian Dalit Muslims' Voice 