SOOSAI ETC.versusUNION OF INDIA AND OTHERS

    242


                              SOOSAI ETC.
A
                                   v.
                      UNION OF INDIA AND OTHERS

                          SEPIEMBER 30, 1985

      [P.N. BHAGWATI C.J., R.S. PATHAK AND AMARENDRA NATH SEN, JJ.]
B

         Constitution of India 1950, Articles 14 to 17 and 341 o
    Constitution (Scheduled Castes) Order 1950, Para 3.

          Persons belonging to Schedule Caste - Conversion         to
    Christianity - Disentitlement to benefit of        constitutional
    provisions relating to Schedule Castes - Whether legal, valid and   '
c   constitutional.

          The Government of India set up a special Central Assistance
    Scheme for the welfare of Scheduled Castes. Consequent to a pro-
    posal under this Scheme, allotment of bunk free of cost were to
    be made to cobblers by profession who worked on the roadaide, by
    the State Government of Tamilnadu in pursuance to G.O. No. 580
D
    Social Welfare Department dated February 13, 1982. This Order
    specifically stated that persons belonging to the Scheduled
    Caste& and converted to Christianity were not eligible for assis-
    tance under the scheme.

           The petitioner, who was a Hindu belonging to the
E   Adi-ilravida caste and on conversion to Christianity continued as
    a member of that caste, contended in his writ petition to this
    court that he had been denied the benefit of the welfare
    assistance intended for Scheduled Castes on the ground that he
    professes the Christian religion, and that such discrimination
    had been affected pursuant to the provision contained in
F   paragraph 3 of the Constitution (Scheduled Castes) Order, 1950
    and that the provision was co.c:titutionally invalid as being
    violative of Articles 14 to 17.

          In the connected writ petition, relief was sought against
    the Circular letter dated August 16/25, 1983 issued by the State
G   Government of Tamilnadu to the State Public Service Commission
    stating that "Scheduled Caste" Christians who revert to Hinduism
    and on that basis obtain appointments to reserved seats in
    Government services and having done so change their religion once


H
                         oOOSAI v. u.u.1.                       243


again after their entry into Government service were liable to
                                                                       A
have their selection cancelled, as being constitutionally invalid
and violative of Articles 14 to 17.

      On the question: whether the Constitution (Scheduled
Castes) Order, 1950 is constitutionally invalid on the ground
that only Hindu or Sikh members of the castes enumerated in the        B.
Schedule to that Order are deemed to be Scheduled Castes for the
purpose of the Constitution of India.

      Dismissing the writ petitions,

      l:IKLll: 1. It is not possible to say that the President acted
arbitrarily in the exercise of his judgment. in enacting paragraph
                                                                       c
3 of the Constitution (Scheduled Castes) Order, 1950. [250 F]

      2. Dr. J.H. Hutton, a Census Commissioner of India, framed
a list of the depressed classes and that list was made the basis
of an order promulgated by the British Government in India called
                                                                       D
the Governme11t of India (Scheduled Castes) Order, 1936. The
Constitution (Scheduled Castes) Order, 1950 was substantially
modelled on the Order of 1936. The Order of 1936 enumerated
several castes, races or tribes in an attached schedule and they
were, by paragraph 2 of the Order, deemed to be Scheduled Castes.
Paragraph 3 of the same Order declared that the Indian Christians
                                                                       E
would not be deemed to be members of the Scheduled Castes. [249
C-ilj

      3. The· President had before him material indicating that
the depressed classes of the Hindu and the Sikh Commun.Hies
suffered from economic and social disabilities and cultural and
educational backwardness so gross in character and degree that
                                                                       F
the members of these Castes iu the two communities called for the
protection of the Constitutional provisions relating to the
Scheduled Castes, and that in order to provide for their
amelioration and advancement it was necessary to conceive of
intervention by the State through its legislative and executive
powers. [249 H; 250 BJ
                                                                       G
      4.(i) In discharge of the obligation imposed by clause (1)
of Article 341 the PresidEnt issued the Constitution (Scheduled
Castes) Order, 1950. In its original form, paragraph 3 declared
that "(l) no person who professes a religion different from
Hinduism" would I><! deemed to be a member of a Scheduled Caste.
There was a proviso to paragraph 3 which declared that every
                                                                       H
member of the Ramdasi, Kabirpanthi, Mazhabi or Sikligar caste
     244                 SUPREME COURT REPORTS       [1985] SUPP.3 s.c.R

A    resident in Punjab or the Patiala and East Punjab States Union
     would in relation to that State be deemed to be a member of the
     Scheduled Castes whether he professed the Hindu religion or the
     Sikh religion. Subsequently, Parliament enacted the Scheduled
     Castes and Scheduled Tribes Orders (Amendment) Act, 1956 which
     substituted for the original paragraph 3 the present paragraph 3,
Jl   which declared :-

                "3, Notwithstanding anything contained in paragraph 2,
                no person who professes a religion different from the
                Hindu or the Sikh religion shall be deemed to be a
                member of a Scheduled Gas te. " [24 7 F; 248A]

C         (ii) For the purposes of the Constitution the constitutional
     provisions relating to Scheduled Castes are intended to be
     applied to only those members of the castes enumerated in the
     Constitution (Scheduled Castes) Order, 1950 who profess the Hindu
     or the Sikh religion. If a Christian belongs to one of those
     castes, he is barred by reason of paragraph 3, from being
     regarded as a member of a Scheduled Caste and is, therefore, not
D    entitled to the benefit of the constitutional provisions relating
     to Scheduled Castes. (248 B-C]

           5. The declaration incorporated in paragraph 3 was a
     declaration made for the purposes of the Constitution. It was a
     declaration enjoined by clause (1) of Article 341 of the
E    Constitution. To establish that paragraph 3 of the Constitution
     (Scheduled Castes) Order, 1950 discriminates against Christian
     members of the enumerated castes it must be shown that they
     suffer from a comparable depth of social and economic
     disabilities and cultural and educational backwardness and
     similar levels of degradation within the Christian colllllllllity
F    necessitating intervention by the State under provisions of the
     Constitution. It is not sufficient to show that the same caste
     continues after conversion. It is necessary to establish further
     that the disabilities and handicaps suffered from such .::aste
     membership in the social order of its origin - Hinduism continue
     in their oppressive severity in the new enviromoent of a
G    different religious colllllllllity. No authoritative or detailed study
     dealing with the present conditions of Christian society have
     been placed on the record in this case. [2 50 B-£ J

           ORIGINAL JURISDICTION : Writ Petition No. 9596      of   1983 &
     1017 of 1984.
H
           (Under Article 32 of the Constitution of India.)
                  SOOSAl v. U.O.I. [PATHAK, J.]                 245


       F.S. Nariman, U.S. Prasad, Jose Verghese, N.P. Midha,   V.A.   A
'Bobde and L.R. Singh for the Petitioners.

      Govind Das, M.M. Abdul Khadar, R. Thiyagarajan, Ms. A.
8ubhashini and A. V. Rangam for the Respondents.

      The Judgment of the Court was delivered by                      B

      PA'lllAK, J. This and the connected writ petitions raise the
important question whether the Constitution (Scheduled Castes)
Order, 1950 is constitutionally invalid on the ground that only
Hindu or Sikh members of the castes enumerated in the Schedule to
that Order are deemed to be Scheduled Castes for the purposes of      C
the Constitution of India.

        The petitioner Soosai (in Writ Petition No. 9596 of 1983)
s ta tea that he belongs to the Adi-Dravida Community and is a
convert to Christianity. He is a cobbler by profession and works
on the roadside at one of the cross-roads in Madras. In May,          D
1982, the officers of the Tamil Nadu Khadi and Village Industries
Board surveyed the sites on which c,obblers were working,
including the place occupied by the petitioner, and subsequently
on July 21; 1982 several cobblers were allotted bunks free of
cost by the Regional Deputy Director, !Qiadi and Village
Industries Board. The petitioner was not. On enquiry the              E
petitioner came to know that the allotment of bunks free of cost
was consequent to a proposal under the Special Central Assistance
Scheme of the Government of India for the welfare of Scheduled
Castes. The funds for the purpose were provided from the Special
Central Assistance of the Government of India set, up for giving
effect to schemes exclusively intended for Scheduled Castes under
G.O.Ms. No. 580 Social Welfare Department dated February 13,          F
1982. It is pointed out that this Order specifically states that
persons belonging to the Scheduled Castes and converted to
Christianity are not eligible for assistance under the scheme.
The petitioner points out that the said Order has been made in
consonance with the Constitution (Scheduled Castes) Order, 1950,
which specifically declares that no person who professes a            G
religion different from the Hindu or the Sikh religion shall be
deemed to be a member of a Scheduled Caste. The petitioner
assails the validity of that Order on the ground that it violates
Articles 14, 15 and 25 of the Constitution.

      The essence of the petitioner's case is that he was a Hindu
belonging   to the Adi-Dravida caste and on conversion to             H
Christianity he continues as a member of that caste. The
     246                SUPREME COURT REPORTS       [1985] SUPP.3 s.c.R.

     Adi-Dravida caste is one of the castes enumerated in the
A
     Schedule to the Constitution (Scheduled Castes) Order, 1950. The
     petitioner alleges that he has been denied the benefit of welfare
     assistance intended for Scheduled Castes on the ground only that
     he professes the Christian religion, and he contends that
     inasmuch as such discrimination has been effected pursuant .to the
     provision contained in paragraph 3 of the Constitution (Scheduled
Jl
     Castes) Order, 1950, that provision is constitutionally invalid.
     The petitioner invokes Article 14, which is the central provision
     in the Constitution guaranteeing the right to equality before the
     law and the equal protection of the laws, and clause (1) of
     Article 15, which prohibits the State from discriminating against
     any citizen on the ground only, amoilg others, of religion. It is
     pointed out that when clause (4) of Article 15 permits the State,
c    notwithstanding the prohibition contained in clause (1) of
     Article 15 to make special provision for the advancement of
     socially and educationally backward classes of citizens and for
     the Scheduled Castes and Scheduled Tribes, it envisages such
     special provision for the advancement of all members of such
     backward classes of citizens, Scheduled Castes and Scheduled
     Tribes. If any discrimination is exercised between the members of
D
     a Scheduled Caste on the ground of religion only so as to promote
     the welfare of one group of members and deny it to the others the
     denial will be invalid. Reference has also been made to Article
     25 on the ground that a Christian convert will be tempted to
     re-convert to Hinduism or Sikhism in order to benefit from the
     constitutional provisions relating to Scheduled Castes and
     therefore paragraph 3 in its operation denies him freedom of
     conscience and the right      freely   to   profess,   practice   and
     propagate his religion.

           The framers of the Constitution have taken great care to
     ensure that- sufficie.nt provision is made for ameliorating the
F
     conditions of certain backward classes found in India who suffer
     from social and economic disabilities. Article 46 enjoins upon
     the State, as a Directive Principle of State policy, to promote
     with special care the educational and economic interests of the
     weaker sections of the people, and in particular of the Scheduled
     Castes and Scheduled Tribes, and to protect them from social
     injustice and all forms of exploitation. In consonance with this
     objective they enacted a number of provisions in the
     Constitution, of which clause (4) of Article 15 is one. Besides,
     although clause (1) of Article 16 guarantees equality of
     opportunity to all citizens in matters relating to employment or
     appointment to any office under the State, there is clause (4) of
ti
                  SOOSAI v. U.o.I. [PATHAK, J.]                247


Article 16 which lays down that nothing in Article 16 will            A
prevent the State from making any provision for the reservation
of appofotments or posts in favour of any backward clase of
citizens which, in the opinion of the State, is not adequately
represented in the services under the State. Article 17 abolishes
"Untouchability" and forbids its practice in any form, and
declares that the enforcement of any disability arising out of        B
"Untouchability" will be an offence punishable in accordance with
law. There are other provisions, such as Article 330 which
provides for the reservation of seats in the House of the People
for Scheduled Castes and Scheduled Tribes and Article 132 which
makes similar provision for the reservation of seats for them in
the State Legislative Assemblies, We are concerned here with the      c
advantages and benefits envisaged by the Constitution in respect
of members of the Scheduled Castes.

      The expression "Scheduled Gas tes" is defined in clause 24
of Article 366 to mean "such castes, races or tribes or parts of
or groups within such castes, races or tribes as are deemed under     D
Article 341 to be Scheduled Castes for the purpose of this
Constitution". Clause (1) of Article 341 enjoins upon the
President to specify by public notification the castes, races or
tribes or parts of or groups within castes, races or tribes,
which for the purposes of the Constitution are deemed to be
Scheduled Castes in relation to a State or Union territory. Once      E
such notification is issued by the President it cannot be varied
by any subsequent notification except that, by virtue of clause
(2) of Article 341, Parliament may by law include in or exclude
from the list of Scheduled Castes specified in _the notification
Lssued under clause (1) any caste, race .or tribe or part of or
group within any caste, race or tribe. In discharge of the
obligation imposed by clause (1) of Article 341 the President         F
issued the Constitution (Scheduled Castes) Order, 1950. In its
original form, paragraph 3 declared that " •••• no person who
professes a religion different from Hinduism" would be deemed to
be a member of a Scheduled Caste. There was a proviso to
paragraph 3 which declared that every member of the Ramdasi,
Kabirpanthi, Mazhabi or Sikligar caste resident in Punjab or the      G
Patiala and East Punjab States Union would .in relation to that
State be deemed to be a member of the Scheduled Castes whether he
professed the Hindu religion or the Sikh religion. Subsequent~y,
Parliament enacted the Scheduled Castes and Scheduled Tri.fY2E
Orders (Amendment) Act, 1Y56 which substituted for the origlG-?..i.
paragraph 3 the present paragraph, which declares~-
    248                SUPRF.ME COUP.T REPORTS    [1585] SUPP.3 s.c.R.

A
               "3, Notwithstanding anything contained in paragraph 2,
               no person who professes a religion different from the
               Hindu or the Sikh religion shall be deemed to be a
               member of a Scheduled Caste. "

B   It is apparent that ·for the purpose of the Constitution the
    constitutional provisions relating to Scheduled Castes are
    intended to be applied to only those members of the castes
    enumerated in the Constitution (Scheduled Castes) Order, 1950 who
    profess the Hindu or the Sikh religion. Clearly, if it can be
    contemplated t~t a Christian belongs to one of those castes, he
    is barred by reason of paragraph 3, from being regarded as a
c   member of a Scheduled Caste and is, therefore, not entitled to
    the benefit of the constitutional provisions relating to
    Scheduled Castes.

         The main question debated before us is whether a Hindu
    belonging to a Scheduled Caste retains his caste on conversion to
    Christianity. Cases decided by this Court and by the High Courts
D   bearing on the point have been cited on both sides of the line,
    and our attention has been invited to text books, collllllentaries
    and Collllllission Reports, some of which contain the observation
    that depressed groups and castes are to be found not only among
    Hindus and Sikhs but also among Muslims and Christians • It
    appears to us unnecessary in this case to enter upon that
E   question and to decide whether a Hindu belonging to the
    Adi-Dravida caste continues to be a member of that caste on his
    conversion to the Christian religion. We shall assume, for the
    purposes of this case, that the caste is retained on conversion
    from one religion to the other. The real question is whether on
    the material before us it can be said that in confining the
F
    declaration to members of the Hindus and the Sikh religions,
    paragraph 3 of the Constitution (Scheduled Castes) Order, 1950
    discriminates against members of the christian religion.

          Now it cannot be disputed that the caste system is a feature
    of the Hindu social structure. It is a social phenomenon peculiar
G
    to Hindu society. The division of the Hindu social order by
    reference at one time to professional or vocational occupation
    was moulded into a structural hierarchy which over the centuries
    crystallised into a stratification where the place of the
    individual was determined by birth. Those who occupied the lowest
    rung of the social ladder were treated as existing beyond the
H
    periphery of civilised society, and were indeed not even
    "touchable". This social attitude committed those caetes to
                 SOOSAI v. u.o.I. [PATHAK, J.]               249


severe social and economic disabilities and cultural and            A
educational backwardness. And through most of Indian history the
oppressive nature of the caste structure has denied to those
disadvantaged cas·tes the fundamentals of human. dignity, human
self respect and even some of the attributes of the human
personality. Both history and latter day practice in Hindu
society are heavy with evidence of this oppressive tyranny, and     B
despite the efforts of several noted social reformers, specially
during the last two centuries, there has been a crying need for
the emancipation of the depressed classes from the degrading
conditions of their social and economic servitude. Dr. J.H.
Hutton, a Census Commissioner of India, framed a list of the
depressed classes systematically, and that list was made the        c
basis of an order promulgated by the British Government in India
called the Goverrunent of India (Scheduled Castes) Order, 1936.
The Constitution (Scheduled Castes) Order, 1950 is substantially
modelled on the Order of 1936. The Order of 1936 enumerated
several castes, races or tribes in an attached Schedule and they
were, by paragraph 2 of the Order, deemed to be Scheduled           D
Gas tes. Paragraph 3 of the same order declared that the Indian
Christians would not be deemed to be members of the Scheduled
Castes. During the framing of the Constitution, the Constituent
Assembly recognised "that the Scheduled Castes were a backward
section of the Hindu community who were handicapped by the
practice of untouchability", . and that "this evil practice of      E
untouchability was not recognised by any other religion and the
question of any Scheduled Caste belonging to a religion other
 than Hinduism did not therefore arise B. Shiva Kao: The .Framing
of India's Coustitntion: A Study p. 771). The Sikhs however,
demanded that some of their backward sections, the Mazhabis,
l<amdasias, Kabirpanthis and Sikligars, should be included in the
 Us t of Scheduled Castes. The demand was accepted on the basis     F
 that these sects were originally Scheduled Caste Hindus who had
only recently been converted to the Sikh faith and "had the same
disabilities as the Hindu Scheduled Castes"' (Supra P• 771). The
depressed classes within the fold of Hindu society and the four
classes of the Sikh community were therefore made .the subject of
 the original Constitution (Scheduled Castes) Order, 1950. Subse-   G
quently in 1956 the Constitution (Scheduled Castes ) Order, 1950
was amended and i t was broadened to include all Sikh un touch-
ables.

     It is quite evident that the President had before him all
this material indicating that the depressed classes of the Hindu
and the Sikh connnunities suffered from economic and social         H
        £5U                  SUPREME COURT REPORTS         [1985] SUPP.3 s.c.R.


        disabilities and cultural and educational backwardness so gross
A       in character and degree that the members of those castes in the
        two communities called for the protection of the Constitutional
        provisions relating to the Scheduled Castes. It was evident that
        in order to provide for their amelioration and advancement it was
        necessary to conceive of intervention by the State through its
        legislative and executive powers. It nrust b~ remembered that the
B       declaration incorporated in paragraph 3 deeming them to be
        members of the Scheduled Castes was a declaration made for the
        purposes of the Constitution. It was a declaration enjoined by
        clause (1) of Article 341 of the Constitution. To establish that
        paragraph 3 of the Constitution (Scheduled Castes) Order, i950
        discriminates against Christian members of the enumerated cas~es
        it must be shown that they suffer from a comparable depth of
c       social and economic disabilities and cultural and educational
        backwardness and similar levels of degradation within the
        Christian community necessitating intervention by the State under
        the provisions of the Constitution. It is not sufficient to show
        that the same caste continues after conversion. It is necessary
        to establish further that the disabilities and handicaps suffered
        from such caste membership in the social order of its origin -
D       liinduism - continue in their oppressive severity in the new
        environment of a different religions connnunity. References have
        been made in the material before us in the most cursory matlller to
        the character and incidents of the castes within the Christian
        fold, but no authoritative and detailed study dealing with the
        pre&ent conditions of Christian society have been placed on the
E       record in this case. It is, therefore, net possible to say that
        the .:'resident acted arbitrarily in the exercise of his judgment
        in euac ting paragraph 3 of the Con~ tj tu ti.un \Scheduled Castes)
        Order, 1950. It is now well established that when a violation of
        Article 14 or any of its related provisions is alleged, the
        burden rests on the petitioner to establish by clear and congent
F       evidence    that     the   State   has    been    guilty    uf      arbitrary
        discrimination. Having regard to thP. State of the record before
        us, we are unable to hOld that the petitioner has established his
        case. The challenge must, therefore, fail.

              In   the   connected writ    petition No.      1017 of 1984          the
G       submissions have .proceeded substantially on the same grounds 1 and
        relief has been sought additionally against a Circular Letter No.
         21711/AJMII/80-26     dated   August    16/25,   1983     issued     by   the
        Government of Tamil Nadu to the Tamil Nadu Public Service
        Connnission stating that "Scheduled Caste" Christians whc revert
        to Hinduism and on that basis obtain appointments to reserved
    H
                  SOOSAI v. u.o.r. [PATHAK, J.]                 251


seats in Government services, and having done so change their
                                                                       A
religion once again after their entry into Gover!llllent service are
liable to have th9ir selection cancelled. On the considerations
which have prevailed with us in dismissing the earlier writ
petition, this writ petition orust also be dismissed.

      The writ petitions are dismissed but without any order as to
                                                                       B
costs.




N. V.K.                                         Petitions dismissed.