The Supreme Court today said that it will consider in July, the issues of whether Commission reports that are not accepted by the government can be relied upon and to what extent, and whether the caste system can be imputed to Islam or Christianity, given their nature and character. The Court will consider these issues in the batch of petitions challenging the exclusion of Christians and Muslims from the Constitution (Scheduled Caste) Order, 1950.

After a brief hearing, the Bench of Justice Sanjay Kishan Kaul, Justice Ahsanuddin Amanullah and Justice Aravind Kumar dictated its order recording that the petitioners say that it will be an unending exercise and the case will never see the light of day if the latest Commission's report is awaited. The Court noted their submission that the material on record is sufficient to proceed with the hearing.

The Court noted the ASG's submission that the Court should await the report of the Commission headed by Justice KG Balakrishnan. It also noted that the Counsel opposing the petition on behalf of stakeholders have also sought to raise issues regarding the nature and character of the two religions (Islam and Christianity), whether the caste system can be imputed to Christian and Muslim religions by extending reservation post-conversion.

The Court said that it will also consider the effect of a Commission's report that has been rejected by the government. Whether the empirical data in the report can be accepted.

The Court directed listing on the cases on the regular board on 11 July for directions. The Court appointed nodal counsel on both sides and ordered the filing of convenience compilations. AoR Nachiketa Joshi is the nodal Counsel on behalf of the respondents.

When the matter was called, Advocate Prashant Bhushan appearing for the petitioner submitted that it is a purely legal and constitutional issue as to whether the state can discriminate on the ground of religion. He submitted that the Ranganath Misra Commission went into the issue and found that it is discriminatory. He said that the Centre is now saying that they have not accepted that report.

"Can this Court or should this Court wait when again and again the government appoints commission after commission? It has been 19 years since we filed this petition" he submitted.

They are saying that this commission has been given two years. Can the court go on waiting for decades altogether? he asked. Can't we decide the constitutional issue as it is, he asked.

Additional Solicitor General K. Nataraj appearing for the Center told the Court that the case can only be decided on the data that is to be collected.

Would the new Commission's data be germane to decide the Constitutional issue, that is the question, Justice Kaul said. The ASG responded that the issue cannot be decided without a proper study and the relevant material being on the record.

We have filed at least 20 authoritative studies. The Ranganath Misra Commission went through all the materials and gave its report, Bushan responded.

Another Senior Counsel on behalf of the petitioners submitted that the terms of reference of the new Commission are not germane to the issue before the Court, which relates to excluding two communities. He said that the finding of the new commission will have no bearing on the issue.

Senior Advocate Colin Gonsalves submitted that the 60 studies have been conducted post-1985, and all of them showed that discrimination persists post-conversion to Islam and Christianity. He submitted that in its affidavit, the Center has only referred to a colonial survey and has not referred to any of the large number of other surveys and that the Center has approached the issue in a casual manner.

Senior Advocate CU Singh also made submissions on behalf of the petitioners.

A lawyer submitted that he is opposing the writ petitions on the ground of maintainability, on behalf of scheduled caste Hindus. He submitted that a writ challenging a presidential order is not maintainable. He submitted that it is a matter of policy. He submitted that the benefit has consciously not been extended in the Constitution to other religions, which claim to be egalitarian.

They say that over a period of time, there are various studies and imperial data. The Court may or may not agree, but they say that empirical data is enough, Justice Kaul said.

The commission is constituted with a specific purpose and has a statutory backing, the ASG submitted.

The previous Commission gave a report and you did not accept it. The present Commission may also face the same scenario, Justice Kaul responded.

The apprehension is that tomorrow if there is a different political dispensation, it will not accept the latest Commission of Enquiry, Justice Kaul said, adding that the objections to the previous Commission's report are subjective.

It is too generalised a comment on the part of the Center to say that Ranganath Misra Commission had not considered many aspects, Justice Ahsanuddin Amanullah remarked. He asked the ASG to go through the report once again and said that the report is not perfunctory as projected by the Centre.

"Whether there can be a writ issued for inclusion in the presidential order is an issue", Justice Kaul said. We are challenging exclusion, Bushan responded. It is the same thing. You are seeking inclusion, Justice Kaul replied.

Agreeing with a submission of Senior Advocate S. Guru Krishnakumar for a respondent opposing the petition, Justice Kaul asked, "Whether historically in terms of a religion's contents, if it does not provide for any discrimination, can we say that the discrimination that is sociologically not existing should take place?"

The argument has come that they have converted because they wanted to lose their cast identity is not correct. Religious stigma and social stigma are two different things. I may convert to a religion for a different reason. Why are you shying away from the debate? It has been kept back for 19 years, Justice Ahsanuddin Amanullah asked the Counsel opposing the petitions.

"There is no difficulty in examining the constitutional position. What will be the status of the Ranganath Misra Commission report? How do we rely on the report that has not been accepted by the centre", asked Justice Kaul.

"What is the status of the material that has not been accepted by the Government? Pure constitutional issues can be gone into", he added.

When we go to the question as to whether there is material, the only thing that a flavour of recognition is the Commission reports. If they are not accepted, to what extent can they be relied upon? Justice Kaul asked.

"Only imperial data from the report can be relied upon. Not the findings or opinions in the report", Justice Ahsanuddin Amanullah said.

"If a report is not accepted, what is the status of the finding or empirical data? Can we accept the imperial data from a report is not accepted", Justice Kaul asked.

The government accepting or not accepting the report is irrelevant, Bushan submitted.

We will have to begin with this aspect. To what extent can a report not accepted by the government can be relied upon?, Justice Kaul said.

What is the structure of the religions, do they recognise the caste system and what is the effect of it? There are reports to this effect that the problem is not wished away by conversion, Justice Kaul said.

The Bench then proceeded to pass its order.

The writ petition filed in 2004 challenges the exclusion of Christians and Muslims from the Constitution (Scheduled Caste) Order 1950 and contends that the Constitution (Scheduled Castes) Order 1950, as amended from time to time is discriminatory and violative of Articles 14 and 15 of the Constitution in as much as it discriminates against Scheduled Caste converts to a religion other than the Hinduism, Sikhism and the Buddhism.

On the previous date of hearing, the Supreme Court had adjourned the batch of cases to consider whether it should await the report of the newly appointed Commission headed by former Chief Justice K. G. Balakrishnan. The previous Justice Ranganath Misra Commission had by its 2007 report, endorsed the extension of reservation benefits to converted Dalits.

The petitioners before the Court have contended that the social and economic disabilities of Scheduled Castes convert to Christianity continue to persist in most cases even after their conversion and in this regard, there cannot be any distinction between Scheduled Castes converts to Sikh and Buddhist Religions and Scheduled Caste converts to Christianity.

They seek in their petition to declare Clause 3 of the Constitution (Scheduled Castes) order 1950 as unconstitutional and void.

The Counter Affidavit filed by the Central Government opposing the petition states that Christianity is an egalitarian religion which does not recognize caste. It states that the criteria followed in deciding whether a caste or community is eligible for inclusion in the list of Scheduled Caste are extremely social, educational and economic backwardness arising out of traditional practices of untouchability practised by Hindus since time immemorial.

The Center says that ST converted to Christianity cannot be compared with SC converted to Christianity. It relies on Judgments to argue that a determination under Article 341 is final and the Courts have no power except to give effect to the Notification issued by the President of India and that that there is no discrimination or violation of Article 14 of the Constitution in the matter and that Courts have already recognised the benefit being limited to religions mentioned in the 1950 order.

As per the Constitution (Scheduled Castes) Order, 1950, no person who professes a religion different from Hinduism, Sikhism and Buddhism can be a member of a Scheduled Caste. The Supreme Court on January 23, 2023, had refused to entertain a plea challenging the Centre's 2022 decision to form a panel headed by former CJI KG Balakrishnan for examining the grant of scheduled caste status to Dalits who have converted to Christianity or Islam.

Cause Title: Ghazi Saaduddin V. State of Maharashtra Thr. Secy And Ors.

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