The Ploy - Balakrishnan Commission
Through a notification dated November 01, 2024, the Ministry of Social Justice and Empowerment, Government of India, has extended by a year the tenure of the Commission of Inquiry that was constituted on October 6, 2022, under the Commissions of Inquiry Act 1952, to examine whether Scheduled Castes (SC) status can be granted to individuals who have converted to religions other than Sikhism and Buddhism. This Commission, headed by former Chief Justice of India, KG Balakrishnan, comprises former Indian Administrative Service officer Dr Ravinder Kumar Jain IAS and University Grants Commission member Prof (Dr) Sushma Yadav as members. According to the latest notification, the Commission, initially set to conclude its work on October 10, 2024, had sought additional time to finalise its report. It is now required to submit its report by October 10, 2025.

The purpose and principal terms of reference of the Commission, according to the original notification dated October 06, 2022, are: "to examine the matter of according the Scheduled Caste status to new persons, who claim to historically have belonged to the Scheduled Castes, but have converted to religion other than those mentioned in the Presidential Orders issued from time to time under Article 341 of the Constitution; to examine the implications on the existing Scheduled Castes of adding such new persons as part of the existing list of Scheduled Castes; to examine the changes Scheduled Caste persons go through on converting to other religions in terms of their customs, traditions, social and other status discrimination and deprivation, and the implication of the same on the question of giving them Scheduled Caste status." The Commission can also examine any other related questions that it deems appropriate with the consent of the Central Government.

The notification emphasised the need for a detailed and definitive study through extensive consultation on the condition of Dalit Christians and Dalit Muslims after their conversion. It categorically expressed that no Commission has inquired into this matter in depth so far, which, in fact, is not accurate as many commissions and panels have already delved into it in the past. The incumbent Inquiry Commission is made to repeat the same process by the Government by assigning it to gather data regarding the socio-economic conditions. This exercise was never done in the past, nor was the data on their condition called for when the Sikhs and Buddhists were granted SC status.

This data is not necessary to determine SC status because it is a constitutional and legal issue subject to socio-economic factors. On the other hand, the Commission is not mandated to examine this aspect and the Constitutional anomaly of granting SC status based on religion. Hence, the very setting up of this Commission is a superfluous exercise, and extending its period for another year seems to be a ploy for further delaying justice to the Dalit Christians and Dalit Muslims that has already been deferred for over 70 years. As it is rightly said, justice delayed is justice denied. When a petition was filed challenging the validity of the Union Government's decision to set up this Commission, alleging that this would further delay the proceedings of the cases on SC status, the Supreme Court dismissed the plea on January 23, 2023.

Over one year, Justice KG Balakrishnan Commission has been gathering information, meeting with the stakeholders, and receiving memorandums from the representatives of the affected Dalit communities and others opposed to their demands. It is visiting some states to better understand the concerns and conditions of the converts to Christianity and Islam from Scheduled Caste origin in the context of their religious conversion. Many Christian delegations have held dialogues with him and made representations on the prevalence of discrimination against Dalit Christians based on their caste in the Church and society, and still worse, from the Government / State itself. The present writer participated in one such dialogue with Justice KG Balakrishnan as a member of the ecumenical delegation of All India United Christian Movement for Equal Rights (AIUCMER) on October 12, 2024, which submitted a memorandum (see Indian Currents October 21-27, 2024, p. 27) that contains many of the points spelt out below.

Converts Condition Substantially Unchanged
Justice K G Balakrishnan had previously dispensed with this matter as the Chief Justice of India while hearing the public interest litigation (PIL) WPC 180 of 2004 on giving Scheduled Caste status to Dalit Christians. On July 18, 2007, while hearing this petition, he had raised a query: "Would the Christians admit that they practise caste system and that Dalits (among them) face social discrimination requiring reservation to uplift their cause? This is not all that easy." During the meeting with delegates of AIUCMER, knowing that some bishops and pastors were present, he posed similar questions. It was made clear to him that the Christian leadership has been forthright in acknowledging the human failure of the Christian Community in India, which is comprised of over 70% Dalit Christians practising casteism despite the Christian principle of equality of all human beings.

The Catholic Bishops' Conference of India (CBCI) has acknowledged this reality in its statements at its various general body meetings. For instance, the CBCI reiterated in its statement of 1998 at Varanasi: "The prevalence of the caste system, not only in society but also in some parts of the Church in India even at the close of the twentieth century, is a matter of shame and disgrace to all of us. It is a cause of sorrow and expression of our inability to live our Christian faith adequately. It is not only a denial of human dignity and equality but also against the fundamental teaching of Christ who was friend of the outcasts of His time and freely mixed with them." The CBCI Policy of Dalit Empowerment in the Catholic Church in India, promulgated on December 13, 2016, also confirms this: "There is wider acceptance that the practice of untouchability and discrimination against Dalits exist in the Church and there is need to address these issues urgently" (No. 25).

Although some of the individual Dalit Christians have received a few benefits from the Church, like education and social welfare, the overall oppressive socio-economic condition of their caste group has not changed substantially. They remain as untouchables and continue to suffer the same discrimination, deprivation and dehumanisation even after their conversion. The CBCI admits that the Churches have limited resources, and the assistance rendered by them to the Dalit Christians, including educational and other benefits, neither can uplift them from their dire economic condition nor can they provide employment, reservation, social security and protection.

"The Church, by any measure, cannot fully provide compensatory justice to Dalit Christians, who have been forced to live as outcastes for thousands of years, but it has the capacity to negotiate and prevail over the political leadership, using all the resources within its reach. The Catholic Church is committed to intensify its efforts in support of the Dalit Christians' struggle for justice, equality and empowerment." (Policy of Dalit Empowerment, No. 19)

The dominant castes in the society subject the Dalit Christians to the same exploitation and oppression and discriminate and maltreat them as other Dalits. They do not differentiate the Dalit Christians from other Dalits while offending and attacking them. Dalit Christians do become equal victims of atrocities and brutalities along with other Scheduled Castes, as happened at Neerukonda, Karamchedu and Tsundur in Andhra Pradesh and at Kandhamal in Odisha. Yet, these SC Christian victims are not eligible to avail of the benefits of the SC/ST (Prevention of Atrocities) Act 1989 for protection and compensation.

The Vital Issue of Constitutional Anomaly 
The main bone of contention and core issue in the matter of SC status to Dalit Christians and Dalit Muslims is the issue of the constitutional anomaly of the Constitution Order (Scheduled Castes) 1950, which is based on religion, in contradiction to Article 15(1) which prohibits discrimination based on religion. Para 3 of this order under Article 341 states: "No person who professes a different religion from Hinduism shall be deemed to be a member of Scheduled Caste." Later, it was amended to include the Dalit Sikhs in 1956 and Dalit Buddhists in 1990. This order is blatantly unconstitutional, illegal, communal, anti-secular and arbitrary, contrary to the fundamental rights of equality and freedom of religion as enshrined in the Constitution of India. It is, in effect, a denial of freedom of religion for all Dalits who are coerced to remain in the religion of their birth. This principle issue is being challenged in the Supreme Court in WPC 180 of 2004 and other related cases.

Recent observations of the Supreme Court Benches, assertions of the Prime Minister in the Parliament, and some political leaders that reservations cannot be based on religion overlook that the Constitution (SC) Order 1950 itself is based on religion. Since religion cannot be a basis for granting reservations, religion also cannot be a basis for denying reservations, as it is being imposed on Dalit Christians and Dalit Muslims.

In 1983, the Case Soosai v. Union of India (Writ Petition No: 9596 of 1983) was filed by a Dalit Christian to challenge the Constitution (SC) Order 1950. The Supreme Court, in its judgement delivered in 1985, while accepting that caste continues even after conversion, held that there was not enough evidence to verify that Dalit Christians, after their conversion, are socially and economically as backwards as Dalit Hindus. It called for socio-economic data to prove the "continuation in their oppressive severity in the new environment of different religious community."

The Apex Court order also declared: "It must be shown that convert Christian members of the enumerated castes people suffer from comparable depth of social and economic disabilities, cultural and educational backwardness and similar levels of degradation within Christian community necessitating intervention by the state under provisions of the Constitution." Nevertheless, in its hearings and judgment of the Soosai case, the Apex Court did not go into the Constitutional irregularity and illegal aspects of the Constitution (SC) Order of 1950.
Also, Justice KG Balakrishnan himself did not delve into the Constitutional inconsistency of the order during the Supreme Court proceedings of case WPC 180 of 2004 held on July 18, 2007. He only raised some queries regarding the condition of the Dalit converts to Christianity and adjourned the case, serving a notice to the Government of India to file a reply in eight weeks. Unfortunately, in a travesty of justice, the Union Government took nearly fifteen years to respond.

Meanwhile, the National Commission for Religious and Linguistic Minorities (NCRLM), also called the Ranganath Misra Commission, established in 2004, dealt with this Constitutional issue and recommended making the SC status religion-neutral. Its report presented in 2007 found "the caste system to be all pervading social phenomenon … shared by almost all Indian communities irrespective of religious persuasions". The NCRLM Report categorically declared: "So the Presidential Order of 1950 is unconstitutional and it is a black letter written outside the Constitution introduced through the back door by an executive order. Para 3 of the Presidential Order is anathema which disfigures the beauty of the written Constitution of India" (Vol. I, p. 141).

It arrived at the following conclusion and recommendation: "In view of what has been said above, we recommend that Para 3 of the Constitution (Scheduled Castes) Order 1950, which originally restricted the scheduled caste net to the Hindus and later opened it to Sikhs and Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc. – should be wholly deleted by appropriate action so as to completely de-link the scheduled caste status from religion and make the scheduled castes net fully religion – neutral like that of the Scheduled Tribes" (Vol. I, p. 154).

On January 08, 2020, the Supreme Court agreed to examine the Constitutional issue in the plea by Adv Franklin Ceaser Thomas, on behalf of the National Council for Dalit Christians (NCDC), for deleting Para 3 as recommended by the Misra Commission. A bench led by Chief Justice of India, Sharad A. Bobde, notified the Central Government that reservation should be made "religion neutral". Unfortunately, on August 30, 2022, during the court proceedings on WPC 180 of 2004, through Solicitor General of India, Tushar Mehta, the Union Government informed the Supreme Court, "We do not accept the Ranganath Misra Commission report as it ignored many aspects." The Government rejected the recommendations of the Misra Commission alleging it to be "flawed" for lack of required data on the matter. Also, the Government repudiated the findings of the Misra Commission, stressing that the Constitutional (SC) Order did not suffer any unconstitutionality and "the oppressive system of untouchability is not present in Christianity and Islam."

By not accepting the recommendations of the Misra Commission, the Union Government justified the constituting of the incumbent Inquiry Commission headed by Justice KG Balakrishnan. Nonetheless, its terms of reference mandate only to collect data on the socio-economic condition of converts and study the implications of granting reservations to Dalit Christians and Dalit Muslims. Thus, the Union Government has again expediently overlooked and consciously deferred the matter of Constitutional incongruity. However, everything is not lost. It is hoped that the Apex Court, which has seized this matter in the abovementioned cases, would set the constitutional anomaly right.