Judgements in Mandal commission case(1992) & 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. in the month of jan 2011.later 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) quarries asked, it appears as if para-3 is discriminatory being violative of Articles 14, 15, 16 and 25 in the eyes of court itself. But the self claimed pro-minorities Govt of UPA is not showing any interest in it. The final date for the submission of Govt’s  view in SC was 24 Feb,2011 but Govt could not act accordingly till now. Following its traditional policy it is trying to carry the case to larger bench like that of mandal commission in1992. Again the same points like Caste,  untouchability, religion & conversion etc will be raised which is nothing but to linger the issue. The Govt is trying to save its secular image from the blame for the  blunder it did in 1950 by misusing it’s power against minorities. Hereby it is suggested that Govt should now accept the blunder of 1950 and submit its excuse in the court at the earliest possible. The Govt should know that court will strike off the discrimination done in the ground of religion easily because whatever point it has raised in the court during 7 years long hearing has already been discussed in 1992 during Mandal commssion Judgements. The special bench of 9 Judges at that tune 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 dump the issue by putting it again in the controversies if caste system & untouchability, 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.thomas-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 behind 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 has already been annulled by several the earlier judgements. It upheld that caste is a phenomenon of Hindu social system is not justifiable.The encyclopedia Americana (5 th 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. similarly 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 present dalit muslims have been kept on OBC.The question arises when the section have been accepted as untouchable converts, then why they have not been kept in sc rather been thrown in OBC campus to compete with them.

 The entire world is of opinion that conversion beings a change in faith & nothing else. In spite of the global fact if untouchability is such an important facts then ragarding 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 that 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”. Change the para 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, SC 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. The fact is that Para-3 of the executive order 1950, is absolutely an 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 be satisfied before any group or class of citizen could be treated as backward.If the executive includes or excludes for collateral reasons, groups or classes not satisfying the relevant criteria.It would be a clear case of fraud on power”.so by now it is clear that use of the word “scheduled caste” in place of  “depressed class”  in article 341 and the religious binding in para 3 of the executive instruction were done for collateral reasons with the aim to just debar the minorities specilly muslm community 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 .Our secular and sacred constitution has actually been made tainted in case of article 341. 

       Dr.M.Ejaz Ali  

          Ex.MP