शनिवार, 20 अगस्त 2011
Mandal"s Judgements & Dalit Muslim Reservation
Mandal’s(1992) Judgements & Dalit Muslim Reservation
The long standing demand of Muslims and chiristians, for inclusion of their Dalits in scheduled caste is waiting in supreme court for its final disposal. On the last jan. 21,2011.it has asked the central Govt to submit its views regarding the validity of para 3, of the constitutional(scheduled caste) order 1950, issued in exercise of Article 341(1) of the constitution of India which says “no person who profess a religion different from HINDU, SIKH & BUDDH religion shall be deemed to be a member of scheduled caste” From the very three (3) quaries asked, it appears as if para-3 is discriminatory being violative of Articles 14, 15, 16 and 25 in the eyes of court itself and it earnestly eagers to do away with this injustice. But the self claimed pro-minorities Govt of UPA is in mood to delay it further. The final date for the submission of later’s view in SC was 24 Feb,2011 but Govt could not act accordingly till now. Rather a lot of impugned points were being raised by the Govt. itself while hearing was going on in apex court since last 7 years. Following its traditional policy it is trying to carry the case to larger bench like that of Mandal’s judgement 1992. Again the same points like Caste, untouchability, religion & conversion etc are being raised which is nothing but to linger the issue. The Govt is trying to save its secular face from the blame for the blunder it did in 1950 by misusing it’s power against minorities. The paradox is that the fraud on constitution is being continued, even 61 years after endorsement of constitution. Hereby it is suggested that Govt should now accept its blunder of 1950 and submit its excuse in the court at the earliest possible. The Govt should know that court will solve this religious discrimination easily because whatever point it has raised in the court has already been discussed in 1992 during Mandal’s Judgements. The special bench of 9 Judges has already pointed out that religious binding upon reservation is against the letter & spirit of secularism, the basic feature of constitution(para 339).Ignoring the basic feature, if the Govt is still trying to hide itself behind the issues like casteism & untouchability in order to support its corrupt decision taken in 1950,it is absolutely misfortunate because the two negating factors (casteism & untouchability) have already been ruled out as hindrance in the path of reservation by the apex court in 1992.In its para 64 the judgement says that “The word caste is not used in constitution as indicative of any section of people or community except in scheduled caste……the word scheduled caste came into being only by the notification issued on 10 Aug,1950 by the President under Article 341….. the word caste appearing after scheduled is a misnomer and has been used only for the purpose of identifying the particular group of citizens which has a special history of several hundred years behind it(Js.Fazal Ali, state of kerala Vs V.M.tomas-page 996 para 165). In the same case Js.Mathew said “It is by virtue of the notification of the president that the word “scheduled caste”came into being”(SCCP-348, para 82). The forcible use of caste being scheduled is the first fraudism done, because during”. Objective Resolution of constituent assembly moved by pt.jawahar Lal Nehru on Dec,13,1946.The word depressed & other backward classes had been used respectively for untouchables & the rest of the exploited sections. No word like caste was used for any section of the society in the following ten days long debate on objective resolution. Even this mischief done to construe the social range was annulled by the earlier judgement.It upheld that caste ia a phenomenon of Hindu social system is not justifiable.The encyclopedia Americana (5 vol) says “The word caste is also used to describe, in whole or in part,social system that emerged at various time in other parts of the world.besides Indian sub continent”. Even in our subcontinent the presence of caste systems among non-Hindu religion has been proved several times in this historical Mandal’s Judgement.Para 84 says “ It cant be irrefutably asserted that Islam, Christanity, Sikhism are all completely immune from casteism. Since Para-85 says “There are marked distinction in one form or another among various sections of the muslim community specially among converts to Islam. The whole judgements is full of this fact. Anyway, at president dalit muslims have been kept on OBC.In para 92, the judgement has accepted.“All untouchables converted to a non-Hindu relgion will be kept in OBC”.The question arises ,when they have been accepted them as untouchable converts, then why they have not been kept in SC rather have been thrown in OBC campus to fight. Think twice “can a goat compete against buffalo?” Regarding untouchability the judgement is of opinion that “untouchability is a humiliating & shameful malady caused by deep rooted prejudice which doesnot disappear with the change of faith.To say that it does would imply that faith is the ultimate cause of untouchability. This is of course not true. The constitution mandates the all backward classes of citizen, who are the victims of the continuing ill effects of the prior discrimination,whatever be the faith or religion, whether or not they profess any religion, receive the same benefits which are accorded to the scheduled caste & scheduled tribes”(Balaji Vs state of Mysore and state of U.P Vs tondon).Even in The Harijan, Father of the nation, Mahatma Gandhi has written “whether the Harijan is nominally Christian, Muslim or Hindu and now Sikh, he is still a Harijan. He cant change his spots inherited from Hinduism so called. He may change his grab and call himself a catholic Harijan, or a Muslim Harijan, or Neo-Muslim or neo sikh, his untouchability will haunt him during life time.(Poona-saturdayDec 26, 1936) similarly para 268 says “ To deny them the constitutional protection of reservation solely by reason of change of faith or religion is to endanger the very concept of secularism & the raison d’eter of reservation”. Once the special bench of 9 judges in Apex court has already given verdict(in 1992) which is by now universal for all type of reservation,why, incase of Dalit Muslims and christians SC is waiting for Govt’s reply. The court should not wait rather it should take its own decision now.Because Para-3 of the executive order 1950, is a case of abuse of political power.It has been forcibly inserted in the constitution for collateral reasons and not as per the direction given in Article 341(1). In Balaji case or recently in AGI Vs Mehrotra, the verdict has made this point more clear. It says that “with respect to the argument of abuse of power by the political executive, we may say that certain objective social & other criteria have to satisfied before any group or class of citizen could be treated as backward.If the executive includes for collateral reasons, groups or classes not satisfying the relevant criteria.It would be a clear case of fraud on power”.so use of the word “scheduled caste” in place of “depressed class” and the religious binding in para 3 of the executive instruction were done for collateral reasons with the aim to debar the minorities from their basic “Rights to live”. It is also a paradox that for this purpose Article 341(1) was used which is actually meant for statutory provision to the depressed classes. And para 392 in Mandal Judgements says “Executive instruction can be issued only when there are no statutory provisions on the subject”.In spite of all these previous judgements why the apex court is waiting for govts reply. Whether the discrimination, with dalit muslim & Christians, is not a fit case of fraudism done with the minorities like 2G spectrum & CWG. Our secular and sacred constitution has actually been made tainted in case of article 341. . Dr.M.Ejaz Ali Ex.MP
The long standing demand of Muslims and chiristians, for inclusion of their Dalits in scheduled caste is waiting in supreme court for its final disposal. On the last jan. 21,2011.it has asked the central Govt to submit its views regarding the validity of para 3, of the constitutional(scheduled caste) order 1950, issued in exercise of Article 341(1) of the constitution of India which says “no person who profess a religion different from HINDU, SIKH & BUDDH religion shall be deemed to be a member of scheduled caste” From the very three (3) quaries asked, it appears as if para-3 is discriminatory being violative of Articles 14, 15, 16 and 25 in the eyes of court itself and it earnestly eagers to do away with this injustice. But the self claimed pro-minorities Govt of UPA is in mood to delay it further. The final date for the submission of later’s view in SC was 24 Feb,2011 but Govt could not act accordingly till now. Rather a lot of impugned points were being raised by the Govt. itself while hearing was going on in apex court since last 7 years. Following its traditional policy it is trying to carry the case to larger bench like that of Mandal’s judgement 1992. Again the same points like Caste, untouchability, religion & conversion etc are being raised which is nothing but to linger the issue. The Govt is trying to save its secular face from the blame for the blunder it did in 1950 by misusing it’s power against minorities. The paradox is that the fraud on constitution is being continued, even 61 years after endorsement of constitution. Hereby it is suggested that Govt should now accept its blunder of 1950 and submit its excuse in the court at the earliest possible. The Govt should know that court will solve this religious discrimination easily because whatever point it has raised in the court has already been discussed in 1992 during Mandal’s Judgements. The special bench of 9 Judges has already pointed out that religious binding upon reservation is against the letter & spirit of secularism, the basic feature of constitution(para 339).Ignoring the basic feature, if the Govt is still trying to hide itself behind the issues like casteism & untouchability in order to support its corrupt decision taken in 1950,it is absolutely misfortunate because the two negating factors (casteism & untouchability) have already been ruled out as hindrance in the path of reservation by the apex court in 1992.In its para 64 the judgement says that “The word caste is not used in constitution as indicative of any section of people or community except in scheduled caste……the word scheduled caste came into being only by the notification issued on 10 Aug,1950 by the President under Article 341….. the word caste appearing after scheduled is a misnomer and has been used only for the purpose of identifying the particular group of citizens which has a special history of several hundred years behind it(Js.Fazal Ali, state of kerala Vs V.M.tomas-page 996 para 165). In the same case Js.Mathew said “It is by virtue of the notification of the president that the word “scheduled caste”came into being”(SCCP-348, para 82). The forcible use of caste being scheduled is the first fraudism done, because during”. Objective Resolution of constituent assembly moved by pt.jawahar Lal Nehru on Dec,13,1946.The word depressed & other backward classes had been used respectively for untouchables & the rest of the exploited sections. No word like caste was used for any section of the society in the following ten days long debate on objective resolution. Even this mischief done to construe the social range was annulled by the earlier judgement.It upheld that caste ia a phenomenon of Hindu social system is not justifiable.The encyclopedia Americana (5 vol) says “The word caste is also used to describe, in whole or in part,social system that emerged at various time in other parts of the world.besides Indian sub continent”. Even in our subcontinent the presence of caste systems among non-Hindu religion has been proved several times in this historical Mandal’s Judgement.Para 84 says “ It cant be irrefutably asserted that Islam, Christanity, Sikhism are all completely immune from casteism. Since Para-85 says “There are marked distinction in one form or another among various sections of the muslim community specially among converts to Islam. The whole judgements is full of this fact. Anyway, at president dalit muslims have been kept on OBC.In para 92, the judgement has accepted.“All untouchables converted to a non-Hindu relgion will be kept in OBC”.The question arises ,when they have been accepted them as untouchable converts, then why they have not been kept in SC rather have been thrown in OBC campus to fight. Think twice “can a goat compete against buffalo?” Regarding untouchability the judgement is of opinion that “untouchability is a humiliating & shameful malady caused by deep rooted prejudice which doesnot disappear with the change of faith.To say that it does would imply that faith is the ultimate cause of untouchability. This is of course not true. The constitution mandates the all backward classes of citizen, who are the victims of the continuing ill effects of the prior discrimination,whatever be the faith or religion, whether or not they profess any religion, receive the same benefits which are accorded to the scheduled caste & scheduled tribes”(Balaji Vs state of Mysore and state of U.P Vs tondon).Even in The Harijan, Father of the nation, Mahatma Gandhi has written “whether the Harijan is nominally Christian, Muslim or Hindu and now Sikh, he is still a Harijan. He cant change his spots inherited from Hinduism so called. He may change his grab and call himself a catholic Harijan, or a Muslim Harijan, or Neo-Muslim or neo sikh, his untouchability will haunt him during life time.(Poona-saturdayDec 26, 1936) similarly para 268 says “ To deny them the constitutional protection of reservation solely by reason of change of faith or religion is to endanger the very concept of secularism & the raison d’eter of reservation”. Once the special bench of 9 judges in Apex court has already given verdict(in 1992) which is by now universal for all type of reservation,why, incase of Dalit Muslims and christians SC is waiting for Govt’s reply. The court should not wait rather it should take its own decision now.Because Para-3 of the executive order 1950, is a case of abuse of political power.It has been forcibly inserted in the constitution for collateral reasons and not as per the direction given in Article 341(1). In Balaji case or recently in AGI Vs Mehrotra, the verdict has made this point more clear. It says that “with respect to the argument of abuse of power by the political executive, we may say that certain objective social & other criteria have to satisfied before any group or class of citizen could be treated as backward.If the executive includes for collateral reasons, groups or classes not satisfying the relevant criteria.It would be a clear case of fraud on power”.so use of the word “scheduled caste” in place of “depressed class” and the religious binding in para 3 of the executive instruction were done for collateral reasons with the aim to debar the minorities from their basic “Rights to live”. It is also a paradox that for this purpose Article 341(1) was used which is actually meant for statutory provision to the depressed classes. And para 392 in Mandal Judgements says “Executive instruction can be issued only when there are no statutory provisions on the subject”.In spite of all these previous judgements why the apex court is waiting for govts reply. Whether the discrimination, with dalit muslim & Christians, is not a fit case of fraudism done with the minorities like 2G spectrum & CWG. Our secular and sacred constitution has actually been made tainted in case of article 341. . Dr.M.Ejaz Ali Ex.MP
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