Scheduled Caste Reservation - Untying the Knots
Ankur Mittal, Additional Advocate General Haryana
Punjab & Haryana High Court, Chandigarh
Email Id : firstname.lastname@example.org
Date : 05/01/2023 Location : House No. 894, Top Floor, Sector 38-A, Chandigarh
📱 +91 8437999999
Scheduled Caste Reservation - Untying the Knots1. Despite 75 years of the independence and continuous implementation of the reservation policy for Scheduled Castes over all these years in our country, still there is so much of confusion and misunderstanding amongst beneficiaries as well as authorities about the whole concept of reservation leading to continuous instances of depriving the genuine beneficiaries and allowing ineligible persons eat the share of bona fide entitled Scheduled Caste persons in a State. Some of the issues being consistently faced are does a migrant acquire the right of Scheduled Caste in the State of migration if his caste is/is not in the list of Scheduled Castes of the State of migration; does acquiring resident status of a State by virtue of residing in that State for 15 years makes a migrant eligible for privileges meant for people of Scheduled Castes in the State of migration, more so if his caste is found in the list of Scheduled Castes of that State; do children of such migrants whose birth takes place in the State of migration and whose caste with same nomenclature is included in the list of Scheduled Castes of the State of migration acquire status of Scheduled Caste person of that State?; does marriage changes caste of a woman, does a woman marrying a man of Scheduled Caste acquires the rights of being a Scheduled Caste of the State of origin of her husband; and whether a Scheduled Caste person carries with him the privileges after conversion to any other religion? 2. Through this article an attempt is being made to clear the cloud of doubts and misconceptions with regard the true spirit and concept of reservation for Scheduled Castes by taking the readers through the journey of evolution and interpretation of provisions by our Constitutional Courts.
A. Migration and Status of Scheduled Caste3. The Constitution of India is suprema lex. The Preamble of the Constitution of India envisages 'Sovereign Socialist Secular Democratic Republic'. Whereas in terms of Article 14 of the Constitution of India all persons similarly situated are entitled to enforcement of their fundamental right of equality before the law and equal protection of the laws. Articles 15 and 16 though aim at equality amongst citizens but also provide for certain exceptions. It envisages enabling provisions so as to enable the State to make any special provision for the advancement of any socially and educationally backward classes of citizens as provided in clause (4) of Article 15 of the Constitution of India and for making any provision for the reservation of appointments or posts in favour of any backward class of citizens or for the Scheduled Caste and Scheduled Tribes which, in the opinion of the State, is not adequately represented in the services of the State as provided for in clause (4) of Article 16 thereof. The term 'backward class of citizens' contained in clause (4) of Article 16 includes Scheduled Castes and Scheduled Tribes for all intent and purport. 4. The term 'Scheduled Castes' has been defined in clause (24) of Article 266 of the Constitution, as per which "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of the Constitution. Article 341 of the Constitution of India, lays down the procedure and manner by which the castes are specified as "Scheduled Castes". It reads as under:-
"341. Scheduled Castes:- (1) The President may with respect to any State or Union territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or group within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or groups, within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."5. In exercise of power conferred under Article 341 (1) of the Constitution of India, the President of India made Constitution (Scheduled Castes) Order, 1950 (as amended from time to time) thereby specifying the castes as "Scheduled Castes". Paragraph (2) and (3) of the order provides as under:
"2. Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes or tribes specified in Parts I to XXV of the Schedule to this order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards member thereof resident in the localities specified in relation to them in those Parts of the Schedule.
3. Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu, the Sikh or the Buddhist religion shall be deemed to be a member of a Scheduled Caste."6. Indisputably, having regard to clause (2) of Article 341 of the Constitution tinkering with the said list is impermissible, save and except by a law made by the Parliament. The reading of the aforesaid paragraphs of the Constitution Order reveals that "resident" status of a person with respect to a locality is the focal point for determining whether his caste is `Scheduled' or not. This aspect has been time and again clarified by the various notifications issued by Government of India. The instructions dated 22.03.1977 are relevant to shed light on the aspect of residence with respect to the status of a caste. The communication reads as under:-
"Thus the residence of a particular person in a particular locality assumes a special significance. This residence has not to be understood in the liberal or ordinary sense of the word. On the other hand it connotes the permanent residence of a person on the date of the notification of the Presidential Order scheduling his caste/tribe in relation to that locality."It further elaborated as
"Thus a person who is temporarily away from his permanent place of abode at the time of the notification of the Presidential Order applicable in his case, say, for example, to earn a living or seek education, etc., can also be regarded as a Scheduled Caste or a Scheduled Tribe, as the case may be, if his caste/tribe has been specified in that Order in relation to his State/UT. But he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his caste/tribe has been scheduled in respect of that area in any Presidential Order."In respect of persons who are born after the date of Presidential Notification, it provides as under:-
"In the case of persons born after the date of notification of the relevant Presidential Order, the place of residence for the purpose of acquiring Scheduled Caste or Scheduled Tribes status, is the place of permanent abode of their parents at the time of the notification of the Presidential Order under which they claim to belong to such a Caste/Tribe."7. In course of time persons belonging to Scheduled Castes/Scheduled Tribes who had migrated from one State to another in search of employment or for education purposes and the like, experienced great difficulty in obtaining Caste/Tribe Certificates from the State from which they had migrated. To remove this difficulty, earlier instructions contained in the letters of 22.03.1977 and 29.06.1982 were modified by the Government of India by the subsequent letter dated 18.11.1982. By this clarificatory order forwarded to Chief Secretaries of all States/Union Territories, the only facility extended was that the prescribed authority of the State/Union Territory to which a person had migrated was permitted to issue the certificate to the migrant on production of the genuine certificate issued to his father/mother by the prescribed authority of the State of the father's/mother's origin provided that the prescribed authority could always enquire into the matter through the State of origin if he entertained any doubt. The certificate to be so issued would be in relation to the State/Union Territory from which the person concerned had migrated and not in relation to the State/Union Territory to which he had migrated. This clearly meant that the migrant would not be entitled to derive benefits in the State to which he had migrated on the strength of such a certificate. 8. The proposal regarding reduction in the period of cut-off point of date for migration was spurned by the Government of India vide a subsequent letter dated 15.10.1987 addressed to Secretary, Social Welfare, Maharashtra Government. It was Stated that the proposal could have been taken care of only if the lists of Scheduled Castes and Scheduled Tribes were made on all-India basis which, it was said, was not feasible in view of the provisions of Articles 341 and 342 of the Constitution. It is thus clear that a Scheduled Caste/ Scheduled Tribe person who migrates from the State of his origin to another State in search of employment or for educational purposes or the like, cannot be treated as a person belonging to the Scheduled Caste/ Scheduled Tribe of the State to which he migrates and hence, he cannot claim benefit as such in the latter State. 9. The controversy, as regards the status of a person belonging to a Scheduled Caste/Tribe on his/ her migration to the State other than State of origin, has come up for consideration before the honorable Courts frequently. The Constitution Bench of Apex Court in and Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College & Ors., (1990) 3 SCC 130 and Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another v. Union of India and Anr., (1994) 5 SCC 244, have interpreted the scheme of Constitution to settle the controversy. 10. In Marri Chandra Shekhar Rao (supra), the Constitution Bench held that the expression "in relation to that State" would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. For example, in Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere of Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. It has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution. The Apex Court also noted the fate of such migrants where the migration was involuntary and answered that question in para 21 of its Judgment as under :-
"21. Having construed the provisions of Articles 341 and 342 of the Constitution in the manner we have done, the next question that falls for consideration, is, the question of the fate of those Scheduled Caste and Scheduled Tribe students who get the protection of being classed as Scheduled Caste or Scheduled Tribes in the States of origin when, because of transfer or movement of their father or guardian's business or service, they move to other States as a matter of voluntary transfer, will they be entitled to some sort of protective treatment so that may continue or pursue their education. Having considered the facts and circumstances of such situation, it appears to us that where the migration from one State to other is involuntary, by force of circumstances either of employment or of profession, in such cases if students or persons apply in the migrated State where without affecting prejudicially the rights of the scheduled castes or scheduled tribes in those States or areas, any facility or protection for continuance of study or admission can be given to one who has so migrated then some consideration is desirable to be made on that ground. It would, therefore, be necessary and perhaps desirable for the legislatures or the Parliament to consider appropriate legislations bearing this aspect in mind so that proper effect is given to the rights given to scheduled castes and scheduled tribes by virtue of the provisions under Articles 341 and 342 of the Constitution. this is a matter which the State legislatures or the Parliament may appropriately take into consideration."11. The Constitution Bench while rejecting the contention of the petitioners that on migration the caste or tribe of the person concerned does not change and if such person is denied the concessions, benefits and privileges available to Scheduled Castes and Scheduled Tribes in the State to which he migrates, such a denial would be in violation of Article 14 of the Constitution, in that, the right to equality and equal treatment would be denied, observed that the same cannot be sustained. In the case of Action Committee (supra) the question posed by the Constitution Bench was as under:-
"Where a person belonging to a caste or tribe specified for the purposes of the Constitution to be a Scheduled Caste or a Scheduled tribe in relation to State A migrates to State B where a caste or tribe with the same nomenclature is specified for the purposes of the Constitution to be a Scheduled Caste in relation to that State B, will that person be entitled to claim the privileges and benefits admissible to persons belonging to the Scheduled Castes and/or Schedule tribes in State B?"The Apex Court while referring to the judgment in Marri Chandra (supra) made following observations:
"It must also be realised that before specifying the castes or tribes under either of the two Articles the President is, in the case of a State, obliged to consult governor of that State. Therefore, when a class is specified by the President, after consulting the governor of State A, it is difficult to understand how that specification made 'in relation to that State' can be treated as specification in relation to any other State whose governor the President has not consulted. True it is that this specification is not only in relation to a given State whose governor has been consulted but is 'for the purposes of this Constitution' meaning thereby the various provisions of the Constitution which deal with Scheduled Castes/Scheduled Tribes. The Constitution Bench has, after referring to the debates in the Constituent Assembly relating to these Articles, observed that while it is true that a person does not cease to belong to his caste/tribe by migration he has a better and more socially free and liberal atmosphere and if sufficiently long time is spent in socially advanced areas, the inhibitions and handicaps suffered by belonging to a specially disadvantageous community do not truncate his growth and the natural talents of an individual gets full scope to blossom and flourish. Realising that these are problems of social adjustment it was observed that they must be so balanced in the mosaic of the country's integrity that no section or community should cause detriment or discontentment to the other community. Therefore, said the Constitution Bench, the Scheduled Castes and Scheduled Tribes belonging to a particular area of the country must be given protection so long as and to the extent they are entitled to in order to become equals with others but those who go to other areas should ensure that they make way for the disadvantaged and disabled of that part of the community who suffer from disabilities in those areas."12. The Full Bench of the Bombay High Court in the case of Shweta Santalal Lal v. State of Maharashtra, (2010) 32 R.C.R. (Civil) 288, while considering the question that " Whether a person who was not ordinarily resident as on the date of the relevant Presidential Notification in the area that now constitutes the State of Maharashtra will be entitled to the benefit of reservation in the State", observed that what was relevant is not the date of migration, but the date of inclusion of caste or tribe in the Schedule. The person must be ordinarily resident on the date of the Presidential Notification in the geographical area from which such person claims the benefit. If a person migrates to a geographical area forming part of another State after the date of Presidential Notification, such a person will be treated as a migrant. After placing reliance on the law laid down by the Apex Court, the question framed was answered in the following terms:-
"In case of a migrant belonging to a Scheduled Caste, not ordinarily resident as on 10.3.1950 in the area that now constitutes the State of Maharashtra and in a case of S.T., considering Rule 5, on 6.9.1950, would not be entitled to benefits of reservation as S.C./S.T. in the State of Maharashtra. They and their progeny will continue to get the benefits of reservation in the State of origin."13. This judgment made the position of the children of migrants born in the State of migration abundantly clear. Thus, what stands now as per law laid down is that not just the first generation migrants but their children and further generations born after effective date of notification are not entitled to get any benefits meant for Scheduled Caste/Tribes from the State of migration even if their caste by same name is recognized as Scheduled Caste or Scheduled Tribe in the State of migration and/or in their State of origin. Furthermore, the State of origin is not defined by the birth or domicile (resident) of a State. This has been clarified by the Government of India through communication of 22.03.1977 thereby clarifying that it is the permanent abode at time of the relevant notification which is to be seen even for the children born after the date of notification. And the prescribed Revenue authorities of that place of permanent abode at the time of relevant notification alone can issue the caste certificate. The said communication has passed the judicial scrutiny in the case of Action Committee (supra). 14. Recently, the Hon'ble Supreme Court of India in Ranjana Kumari v. State of Uttarakhand & Ors., (2019) 15 SCC 664, observed that two Constitution Bench judgments of this Court in Marri Chandra and Action Committee have taken the view that merely because in the migrant State the same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State and, issuance of a caste certificate by the State to a migrant cannot dilute the rigours of the these Constitution Bench Judgments. 15. Therefore, as far as status of migrant is concerned, law is categoric and clear that a person take benefit related to caste only in the State of origin and not in the Sate to which it has migrated for any reason. 16. Another question that arises here is whether the law laid by both the Constitution Benches applies only to matters pertaining to reservation benefits sought for educational and service purposes, or does it extend to all the matters related with the Scheduled Caste/Tribe. This has been answered by the Supreme Court in the latest judgment in Bhadar Ram v. Jassa Ram, (2022) 4 SCC 259, stating that the decision in the case of Action Committee (supra) shall be applicable with full force even to a dispute with respect to sale /sale of property as the reasonings given in the case of Action Committee (supra) are on interpretation and on a plain reading of Clause I of Articles 341 and 342 of the Constitution of India. And there is no reason to restrict the applicability of the decision only with respect to employment, education or the like and not to make applicable the same with respect to purchase and sale of the property as in present case of sale and purchase of the land belonging to a Scheduled Caste person in the State of Rajasthan and when the said land was allotted to the original land owner as Scheduled Caste landless person. 17. Thus, the law as laid down by Hon'ble Supreme Court is that a person and his progeny can claim benefits of reservation only from the State of origin, that is, the State where they had their permanent abode on the date of relevant notification and under no circumstance it can be extended to migrants of that caste who came to State after the relevant notification, even if they have lived in State of migration for very long period, their children or grandchildren are born and brought up in that State, even if they have got their education and are employed or have established business in that State or even if whatsoever amount of land and property they may have acquired in that State. It is certainly not permissible under law to dilute this provision and allow any person to get benefits meant for Scheduled caste from the State of migration on the ground that he/she was born in that State or have become resident of that State by virtue of staying in that State for 15 years or more.
B. Does Marriage acts as a Gateway to Scheduled Caste Benefits18. The ancient Hindu tradition of wife adopting the `surname' of the husband after marriage, often leads to misconception that the `caste' of the wife changes to that of her husband after marriage. But here it must be understood that the caste is attained by birth (exceptional cases being of inter-caste marriages, adoption etc) and cannot change upon marriage. The issue is no longer res-integra, for it stands settled by Hon'ble Supreme Court of India in its various decisions. At first reference is made to the judgment of the Apex Court in Mrs. Valsamma Paul v Cochin University, (1996) 2 SCT 248, wherein following question was framed for consideration:
"Whether a candidate, by marriage, adoption or obtaining a false certificate of social status would be entitled to identification as such member of the class for appointment to a post reserved under Article 16(4) or for an admission in an educational institution under Article 15(4)?"19. The Apex Court while answering the question in negative, observed that the object of reservation is to remove handicaps, disadvantages, sufferings and restrictions to which the members of the Dalits or Tribes or OBCs were subjected and was sought to bring them in the mainstream of the nation's life by providing them opportunities and facilities. Therefore, a candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or conversion, does not become eligible to the benefit of reservation either under Article 15(4) or 16(4), as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign constitutional policy under Articles 15(4) and 16(4) of the Constitution. 20. The aforesaid principle has recently been reiterated by the Apex Court in Sunita Singh v. State of Uttar Pradesh and others, (2018) 2 SCC 493, wherein a complaint was lodged against the appellant to the effect that she was born in "Agarwal" family (general caste category) and after her marriage with a person of Scheduled caste, she obtained the caste certificate in question. After making preliminary verification, the jurisdictional officer directed to conduct an enquiry in respect of the caste certificate of the appellant. The Tehsildar vide his order dated 22/27.6.2013 cancelled the caste certificate of the appellant and asked the appellant to return the caste certificate issued earlier to the appellant. The Court observed that there cannot be any dispute to the fact that the caste is determined by birth and the caste cannot be changed by marriage with a person of Scheduled caste. Undoubtedly, the appellant was born in "Agarwal" family, which falls in general category and not in Scheduled caste. Merely because her husband is belonging to a Scheduled caste category, the appellant should not have been issued a caste certificate showing her caste as Scheduled caste. 21. Significantly, not only in the case of appointment but also in the cases of election, the Apex Court has consistently followed the aforesaid principles. In Sobha Hymavathi Devi v. Setti Gangadhara Swamy (2005) 2 SCC 244, while upholding the conclusion arrived at by the High Court, Hon'ble Supreme Court held that marriage by a non-tribe in a Scheduled tribe will not confer a status of such Scheduled tribe upon him/her so as to claim benefits of reservation under Articles 15(4) or 16(4) or 330 and 332 for such tribes for election or service. The said reservation would benefit only those who belong to a Scheduled caste or Scheduled tribe and not those who claim to acquire the status by marriage. Although it recognized that in a given case acceptance of such a marriage by the community may be held to subserve the purpose but in no uncertain terms held that reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly are constitutional reservations. 22. Likewise, in Sandhya Thakur v. Vimla Devi Kushwah, 2005 (2) SCC 731, the appellant was born a Maharashtrian Brahmin. She married to one Naresh Kumar Thakur who was a Namdev by caste. She filed her nomination for election for the post of Corporator for a Ward reserved for backward communities and got elected. The Apex Court while reiterating the law laid down in Sobha Hymavathi Devi (supra), observed "In the light of the decision in Valsamma Paul v. Cochin University and Others (supra) and our decision rendered today in Sobha Hymavathi Devi v. Setti Gangadhara Swamy, which were heard along with this appeal, it must be held that the appellant, who by birth did not belong to a backward class or community, would not be entitled to contest a seat reserved for a backward class or community, merely on the basis of her marriage to a male of that community..." 23. On a later occasion in Meera Kanwaria v. Sunita & Ors. (2006) 1 SCC 344, wherein the respondent contested an election for the Municipal Councilor from a seat reserved for a Scheduled caste woman and was declared elected. This was challenged by way of election petition on ground that the first respondent herein was born in an upper caste family, she could not have been considered to be belonging to Scheduled caste by reason of her marriage only. Hon'ble Supreme Court observed that it is one thing to say that a lady belonging to a forward caste has been accepted by the community to which her husband belongs; but it is another thing to say that her marriage has been accepted only by her husband's family. 24. Recently, in the case of Ranjana kumari (supra), a three Judges Bench of Hon'ble Supreme Court had an occasion to consider the issue that if the caste of a migrant by way of marriage to person of Scheduled caste is found in the list of Scheduled castes of the State of migration as well, will the migrant be entitled to the status of Scheduled caste in the State of migration. In this case, the appellant belonged to Valmiki caste (Scheduled caste of the State of Punjab), who married a person belonging to Valmiki caste of Uttarakhand and migrated to that State. It was found that in the State of Uttarakhand also, under the Presidential order `Valmiki' was recognized as notified Scheduled caste and accordingly, the State of Uttarakhand issued a caste certificate to the appellant. However, later it denied the benefits available to the Scheduled Caste belonging to State of Uttarakhand to the appellant. Thereafter the appellant approached the High Court. The High Court rejected the claim and said decision came to be challenged before the Apex Court. The said appeal was also dismissed with observations that in view of the two Constitution Bench judgments in Marri Chandra Shekar Rao (supra) and Action Committee (supra), merely because in the migrant State same caste is recognized as Scheduled Caste, the migrant cannot be recognized as Scheduled Caste of the migrant State. 25. Therefore, it is evident from the above judgments that the law as it stands today, it is very clear and categorical that a person who does not belongs to a Scheduled Tribe or a Scheduled Caste category by birth, simply by virtue of marrying a person belonging thereto cannot gain the status of that particular caste or tribe. Thus, let alone a General category candidate who marries a person belonging to a Scheduled Caste or a Scheduled Tribe, even a person belonging to Scheduled Caste or Scheduled Tribe of one State cannot get the benefit of Scheduled Caste or Scheduled Tribe in another State. These provisions are to benefit the real underprivileged of the State and not to be extended to those who come to the class by way of marriage or migration. However, SC/ST woman by birth would be eligible to take benefits of belonging to "Scheduled caste" category in the State of origin.
C. Claims Made by Off-Springs of Inter-Caste Marriages and Adopted Children26. Another issue which is coming up for consideration before the courts is the claims made for social status certificates by off-springs of inter-caste marriage couples wherein the mother belongs to reserved backward class, may be Scheduled caste or Scheduled tribe or Other Backward class (OBC) recognized under the Constitutional scheme. While answering this question, each case has to be dealt with individually on the basis of its own facts. But the underlying principle remains same as discussed earlier - the claimant must have had suffered deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Courts had been liberal enough in the post-Constitutional, independent India where there is such great consciousness and so much effort is being made for the empowerment of women and when instances of inter-caste marriage are ever on the increase in such cases by not to rigidly follow the age-old tradition that the child gets its caste from the father. 27. In changing times when the society is acknowledging the family raised by single biological and adoptive mothers, there is a need to have a pragmatic approach while dealing with such cases. The reference here is made to the recent judgment delivered by the Bombay High court in Dr. Sonal Pratapsingh Vahanwala v. Deputy District Collector, (2022) 2 ALL MR 729, wherein the petitioner approached the High Court after she being single adoptive mother was denied caste certificate for her adopted son whose biological parents were unknown. While reflecting upon the provisions of section 12 of the Hindu Adoptions and Maintenance Act, 1956, Court observed that a conjoint reading of section 12 and section 9 sub-section 4 of this Act provides that the adopted child becomes a child of his or her adoptive father, mother for all purposes with effect from the date of the adoption and hence such a child would take the caste of the adoptive parents. While allowing the petition Court observed that the child being adopted from orphanage if not allowed to take caste of his mother would remain without identity throughout his life which would frustrate the very purpose of adoption, a situation not envisaged by law. Moreover, being raised by the single mother belonging to a Scheduled caste the fact that he has suffered the deprivations and humilities which his mother has faced being a member of Scheduled caste community could not be denied. 28. The law as laid down in Rameshbhai Dabhai Naika v. State of Gujrat, (2012) 3 SCC 400, by the Supreme Court is that while the presumption that the child has the caste of father is strong in inter-caste marriages and more so in marriages where the father belongs to a forward caste, but nonetheless by no means such presumption is conclusive or irrebuttable and it is open for the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled caste/tribe. And also to prove that he/she did not have any advantageous start in life being born to a forward caste father. But on the contrary, suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated a member of the community to which her mother belonged not only by that community but by people outside the community as well. 29. At the same time the Courts have cautioned that any concerned authority issuing such certificates in a routine manner would be committing the dereliction of Constitutional duty. In Anjan Kumar v. Union of India (2006) 3 SCC 257 while deciding the question as to whether the offshoot of the tribal woman married to non-tribal husband could claim status of Scheduled Tribe and on the basis of which the Scheduled Tribe certificate could be given, it observed that the Scheduled Caste and Scheduled Tribe Certificate is not a bounty to be distributed. To sustain the claim, one must show that he/she suffered disabilities - socially, economically and educationally cumulatively. The concerned authority, before whom such claim is made, is duty bound to satisfy itself that the applicant suffered disabilities socially, economically and educationally before such certificate is issued. 30. A similar controversy erupted in the case of Rumy Chowdhury v. Department Of Revenue, (2020) 5 AD(Delhi) 402, before Delhi High Court wherein the appellant was serving as a Wing Commander in the Indian Air Force and belonged to a Scheduled Caste community in Assam. After dissolution of her marriage, the appellant miserably failed before the Executive Magistrate to rebut the presumption drawn against her that her two children have the caste of their father, who belongs to a forward caste. Apart from contending that the ex-husband of the appellant has re-married and has nominated his children from the second marriage for all the benefits and that he has not provided any alimony to the appellant, no evidence had been brought on record to demonstrate the deprivations, humilities, handicaps, faced by the appellant or her children in their life. Such positive evidence was woefully lacking. The children were born when the marriage was subsisting and therefore, they were not entitled to the community certificate of the caste to which the appellant belongs. After the divorce, the children continued to keep the surname of the father, which showed that they have projected themselves to the society as belonging to a forward community. In the absence of any positive or cogent evidence demonstrating that the community of the mother had accepted the children and they have grown-up in the company of their relatives from the maternal side and had attended family holidays, ceremonies, rituals, gatherings, etc., thereby assimilating into the community, simply on the strength of the appellant having raised the children on her own, they cannot be entitled to a certificate of the caste to which their mother belongs. Court went a step ahead in observing that as the appellant was serving at a senior post in the Indian Air Force, her children have had the advantage of a safe, secure and sheltered environment, excellent schooling and other related opportunities. There was no occasion for them to have suffered any destitution, deprivation or denial, as would have been suffered by a member of the Schedule Caste from which their mother hails, to be eligible for a caste certificate. On the contrary, issuance of a caste certificate to the appellant's children would result in depriving a genuine Schedule caste person of an opportunity to claim entitlement to the limited number of Schedule caste seats reserved in higher education and in service, thereby causing a setback to the equality goal enshrined in the Constitution. 31. The observations made by the Court goes on to show that the ultimate test in such case would be, whether the children were subject to deprivation, humility, denial or destitution on account of being a member of Scheduled caste/ tribe. In absence of such evidence, no benefit could be given based upon caste of the mother. It would be no gainsaying that these observations shall act as a guiding light so as to bring a balance in the approach of the legislatures that how long the blanket reservation to all who belong to the Scheduled castes be given viz-a-viz should it be denied to those who have been able to break the shackles of discrimination over the generations by availing the benefits meant for their community and should pave way for the more deprived to let them have better platform to get out of the social and economic disabilities they are facing since times immemorial owing to their caste.
D. Conditions for Acceptance for Scheduled Caste Benefits in Cases of Conversion and Reconversion32. After having discussed the effect of migration and marriage upon the entitlement of person to caste related benefits, another aspect which is worth discussion is "effect of conversion upon the caste of a person". Recently, the Apex Court has also seized of this issue and the Centre Government has appointed a Commission headed by former Chief Justice K.G Balakrishnan to examine the matter of according Scheduled caste status to new persons who claim to have historically belonged to the Scheduled Castes, but have converted to a religion other than those mentioned in the Presidential Orders under Article 341 of the Indian Constitution. Even though matter is under consideration, but it is important to the have a re-look on the judicial pronouncements in this regard by the courts. 33. As early as in 1952, while dealing with the issue of conversion in G. Michael v. S. Venkateswaran, 1952 (1) MLJ 239, the Hon'ble Court observed that a member of one of the castes or sub-castes when converts to Islam ceases to be a member of any caste. He becomes just a Mussalman and his place in Muslim society is not determined by the caste to which he belonged before his conversion. This decision of the Madras High Court was approvingly cited recently in K.P. Manu v. Scrutiny Committee, (2015) 4 SCC 1. 34. In C.M. Arumugam v. S. Rajgopal and Others, (1976) 1 SCC 863, three judges Bench of Supreme Court observed that the Paragraphs 2 and 3 of the Constitution (Scheduled Castes) Order, 1950 also support the view that even after conversion, a person may continue to belong to a caste which has been specified in the Schedule to that Order as a Scheduled Caste. Paragraph 2 provides that the castes specified in the Schedule to the Order shall be deemed to be Scheduled Castes but Paragraph 3 declares that, notwithstanding anything contained in Paragraph 2, that is, notwithstanding that a person belongs to a caste specified as a Scheduled Caste, he shall not be deemed to be a member of the Scheduled Caste, if he professes a religion different from Hindu or Sikh religion. Paragraphs 2 and 3 read together thus clearly recognise that there may be castes specified as Scheduled Castes which comprise persons belonging to a religion different from Hindu or Sikh religion and if that be so, it must follow a fortiori, that in such cases, conversion of a person from Hinduism cannot have the effect of putting him out of the caste, though by reason of Paragraph 3 he would be deemed not to be a member of a Scheduled Caste. 35. The Constitution Bench in The Principal, Guntur Medical College, Guntur v. Y. Mohan Rao, (1976) 3 SCC 411, has clearly laid down that if a person born to Christian parents, who, belonging to Scheduled Caste had converted themselves to Christianity, the said person on reconversion to his religion and on acceptance by his community with a further rider that he would practise the customs and traditions of the caste, would be treated as a member of the said Scheduled Caste and if the said caste is one of the castes falling within the Constitution (Scheduled Castes) Order, 1950, then he will be treated as a Scheduled Caste. The larger Bench in S. Anbalagan v. B. Devarajan, (1984) 2 SCC 112, dealt in detail with the legal position in regard to caste status on conversion or reconversion to Hinduism. It observed that the precedents, particularly those from South India, clearly establish that no particular ceremony is prescribed for reconversion to Hinduism of a person who had earlier embraced another religion. Unless the practice of the caste makes it necessary, no expiatory rites need be performed and, ordinarily, he regains his caste unless the community does not accept him. In fact, it may not be accurate to say that he regains his caste; it may be more accurate to say that he never lost his caste in the first instance when he embraced another religion. The practice of caste however irrational it may appear to our reason and however repugnant it may appear to our moral and social sense, is so deep rooted in the Indian people that its mark does not seem to disappear on conversion to a different religion. If it disappears, it disappears only to reappear on reconversion. The mark of caste does not seem to really disappear even after some generations after conversion. In this case the parents and sisters of the first respondent had become Christians and that the first respondent himself had been baptised when he was seven months old, but as per the evidence in the case the first respondent had long since reverted to Hinduism and to the Adi Dravida caste. There was not a scrap of acceptable evidence to show that he ever professed Christianity. On the other hand, evidence in the case showed that from his childhood, he was always practising Hinduism and was treated by everyone concerned as an Adi Dravida. Hence, the Court held him as a member of Scheduled caste and upheld his election in Lok Sabha against seat reserved for Scheduled caste candidate. 36. In three-Judge Bench decision in Kailash Sonkar v. Maya Devi, (1984)2 SCC 91 the Court posed the issue thus:
"The knotty and difficult, puzzling and intricate issue with which we are faced is, to put it shortly, "what happens if a member of a scheduled caste or tribe leaves his present fold (Hinduism) and embraces Christianity or Islam or any other religion" does this amount to a complete loss of the original caste to which he belonged for ever and, if so, if he or his children choose to abjure the new religion and get reconverted to the old religion after performing the necessary rites and ceremonies, could the original caste revive? The serious question posed here arose and has formed the subject-matter of a large catena of decisions starting from the year 1861, traversing a period of about a century and a half, and culminating in a decision of this Court in the case of C.M. Arumugam v. S. Rajagopal."The Court, after referring to several decisions including the decision in C.M. Arumugam (supra), has held thus:
"31. In our opinion, the main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a ruse or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely a show for achieving a particular purpose whereas the real intention may be shrouded in mystery. The reconvert must exhibit a clear and genuine intention to go back to his old fold and adopt the customs and practices of the said fold without any protest from members of his erstwhile caste. In order to judge this factor, it is not necessary that there should be a direct or conclusive proof of the expression of the views of the community of the erstwhile caste and it would be sufficient compliance of this condition if no exception or protest is lodged by the community members, in which case the caste would revive on the reconversion of the person to his old religion.
32. Another aspect which one must not forget is that when a child is born neither has he any religion nor is he capable of choosing one until he reaches the age of discretion and acquires proper understanding of the situation. Hence, the mere fact that the parents of a child, who were Christians, would in ordinary course get the usual baptism certificate and perform other ceremonies without the child knowing what is being done but after the child has grown up and becomes fully mature and able to decide his future, he ought not to be bound by what his parents may have done. Therefore, in such cases, it is the intention of the convertee which would determine the revival of the caste. If by his clear and conclusive conduct the person reconverts to his old faith and abjures the new religion in unequivocal terms, his caste automatically revives."Thus, it was held that the caste to which a Hindu belongs is essentially determined by birth. Upon conversion original caste remains under eclipse and as soon as the person is reconverted to the original religion, the eclipse disappears and the caste automatically revives. 37. Clarifying this issue, the Hon'ble Supreme Court of India in the case of K.P. Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate, (2015) 4 SCC 1, has laid down three tests to be passed by the person for claiming the benefit of "Scheduled caste" on reconversion. These are (i) there must be absolutely clear cut proof that he belongs to the caste that has been recognised by the Constitution (Scheduled Castes) Order, 1950; (ii) there has been reconversion to the original religion to which the parents and earlier generations had belonged; and (iii) there has to be evidence establishing the acceptance by the community. In order to get recognition, all three aspects need to be substantiated, otherwise recognition would not be possible. 38. Therefore, as far as law regarding "reconversion" is concerned, it is settled, however, there is still less clarity as regards the status of persons, who convert to a religion other than those mentioned in the 1950 Order from the Scheduled Caste community and their entitlement to the benefit of reservation as Scheduled Caste. The said question is pending consideration before the Larger Bench as stands referred in Centre, Public Interest Litigation & Another v. Union of India. (Writ Petition (Civil) No.180 of 2004 vide order dated 21.01.2011) and as stated above the Commission constituted by the Central Government is also considering this aspect. 39. The aforesaid discussion goes on to show that the intent and object of the Constitution is very clear i.e., to uplift the persons who have faced dejection, destitution and humiliation on account of belonging to a particular caste. To ensure the same, restrictions have been imposed so that the persons who have had benefit of belonging to a forward class or practice a religion which does not recognize caste system do not hijack the benefits to the prejudice of actually deserving beneficiaries.
© Chawla Publications (P) Ltd.