The Supreme Court has decided to hear in July nearly two-decade old petitions challenging the 1950 Presidential order, which excluded Scheduled Castes in Muslim and Christian communities from the ambit of reservation, on the grounds of it being discriminatory and violative of Article 14, 15, 16 and 25 of the constitution.
The 1950 Presidential order has been amended twice to include Sikhs and the Buddhists.
Posting the matter for directions on July 11, a bench of Justice Sanjay Kishan Kaul, Justice Ahsanuddin Amanullah and Justice Aravind Kumar said that besides three questions referred to by an earlier three-judge bench on January 21, 2011, the court will adjudicate other aspects as well.
Other aspects include whether the top court can put on hold adjudication of a constitutional issue merely because the government has appointed a commission headed by former Chief Justice of India, Justice K G Balakrishnan on the question whether to extend the scheduled caste reservation to the similarly placed people amongst Muslims and Christians and its implication on existing reservation enjoyed by the Hindus, Sikhs and Buddhists.
Another question that the bench flagged to be examined is whether petitioners can use the empirical data that has emerged from the reports of different commissions in the past three decades to question the Presidential order.
Of the three questions framed by a top court bench on January 21, 2011, includes whether “… no person who professes a religion different from Hinduism, Sikhism and Buddhism shall be deemed to be a member of a Scheduled Caste” is unconstitutional and void, being violative of Articles 14, 15, 16 and 25 of the Constitution of India?”
The other question was whether the non-inclusion of “Christians” and “Muslims” along with Hinduism, Sikhism and Buddhism in list of people who have historically suffered inequality and discrimination and consequent backwardness and are identified as scheduled castes is discriminatory and violative of Articles 14, 15, 16 and 25 of the constitution.
The court nominated two lawyers, one each representing the petitioners and the Central government to prepare a common compilation that will be used in the course of the hearing. The court gave two days each to the petitioners and the Central government to advance their arguments when the matter will be heard.
Advocate Prashant Bhushan appearing for NGO Centre for Public Interest Litigation (CPIL) told the court that the issue before the court is purely legal and constitutional whether the State can discriminate on the ground of religion. He said that mere embracing of Islam or Christianity does not take away the social backwardness historically suffered or disabilities attached to them.
Bhushan said that the issue, which has been pending for the last 19 years, is not subject to empirical data. He said that there was sufficient material that can be relied upon for adjudicating it.
“They are saying now, that they have not accepted (Justice Ranganath Misra Commission report). They are saying that they have appointed a new commission with a two-year term. But should this court wait again and again as the government appoints Commissions. The petition was filed in 2004. It has been 19 years”, Bhushan told the court.
He said that they have filed at least 20 authoritative studies, apart from the fact that Justice Ranganath Misra Commission went through all the documents and gave the report in 2007 which had held that the exclusion was discriminatory.
Additional Solicitor General K.M. Nataraj said that unless there is relevant material there is no question of going into the constitutional issue. Questioning the maintainability of the challenge to the Presidential order, Nataraj said that it was a policy decision.
As Nataraj said that the government has not accepted Justice Ranganath Misra Commission report, Justice Kaul said these are coloured decisions.
“There is some kind of colour… if tomorrow another political dispensation comes in it may say we don’t accept (Justice Balakrishnan) commission report”, Justice Kaul said.
Justice Amanullah said that “the social stigma and religious stigma are different things. Social stigma may continue even after conversion…We cannot shut our eyes when we are considering all these constitutional matters.”