Exclusion of Pasmanda Muslims and Dalit Christians from the Scheduled Caste Quota

Abstract

Based on a re-reading of the Indian Constituent Assembly Debates in light of subsequent developments, this article provides new insights about the extent to which the Indian constitution allows affirmative action for redressing historical disadvantages and empowering marginalised communities. Since the post-colonial Indian state introduced the criterion of religion in the lists of Scheduled Castes (SCs), this sparked suspicions of efforts to prevent conversions, further augmenting India’s Hindu majority. The article re-examines such claims in light of the Indian Constituent Assembly Debates and subsequent Government Orders for notifying/modifying SCs. It argues that the list of SCs was never envisioned as religion-neutral, so that the exclusion of Pasmanda Muslims and Dalit Christians from the SCs is not a communal afterthought, while religion has all along not been the only or main criterion for affirmative action policies.

Introduction

The Constitution of India contains powerful affirmative action policies popularly known as reservations or quotas in favour of women, Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs) and Economically Weaker Sections (EWS) mainly in employment, educational opportunities and in legislative representation. While the extent of those policies has been challenged time and again, following the recent rise of Hindu nationalism, scholars and activists have been claiming that particularly affirmative actions for SCs, whose lists were envisioned to be religion-neutral, have been turned into a majoritarian manipulation device to create or preserve a Hindu majority. This article sets out to examine such claims through a re-reading of the Constituent Assembly (CA) Debates and subsequent legal and policy-based documents.

The original Constitution of India in 1950 did not contain explicit provisions of reservation to address economic disadvantage but tackled social and educational backwardness. However, the Indian Supreme Court in Indra Sawhney v. Union of India (AIR 1993 SC 477) held that the so-called ‘creamy layer’ within backward classes was to be excluded from reservation arrangements. Moreover, the Supreme Court in Nagaraj v. Union of India (2006 8 SCC 212) and Jarnail Singh v. Lachhmi Narain Gupta (2018 10 SSC 396) clearly indicated extension of the creamy layer principle among SCs/STs and acknowledged that all communities have, within themselves, significant variations of social and economic status. Clearly, ‘the economic status of households varies a great deal within each caste’ (Chaudhury, 2004: 1990), since not all upper-caste people are rich, nor are all Dalits and/or other historically disadvantaged communities poor.

Meanwhile, India’s Bharatiya Janata Party (BJP) government introduced the Constitution (124th Amendment) Bill of 2019, which received the assent of the President of India on 12 January 2019. This amendment provided 10 per cent reservations for the EWS, a subcategory of people who do not belong to any other category but have an annual family income of less than ₹8 lakh. This change was challenged as unconstitutional in the Indian Supreme Court, since it involves amending Articles 15 and 16 of the Constitution, which respectively prohibit discrimination on grounds of religion, race, caste, sex or place of birth, and promise equality of opportunity in matters of public employment.

On 7 November 2022, in Janhit Abhiyan v Union of India (Writ Petition (Civil) No(S). 55 of 2019), a bench of India’s Supreme Court upheld the constitutional validity of the EWS reservations by a 3-2 majority. Fine-tuning the existing system to favour economically backward sections and individuals also among the general/ unreserved category of Indians introduces, of course, a significant change in how India’s affirmative action policies are going to work in practice in the coming years.

India’s highly complex historical debates on reservations and minority rights involve many different intersecting strands of arguments (Bajpai, 2000). Earlier, Galanter (1984), foregrounding the theme of ‘competing equalities’, provided ‘a good deal of background material about the setting and policies of compensatory discrimination and about the problems of identifying beneficiaries’ (D’Souza, 1986: 117), which Mahajan (1998) described as an attempt to achieve group equality. Bajpai (2000: 1840) has highlighted that the earlier issue of separate electorates for Muslims and some other communities introduced complications into the CA debates during the 1940s. She finds that the CA contained minority rights but allowed group rights, provided they were framed in the language of nationalism, national unity, development, secularism and social justice (Bajpai, 2011: 168). This is one justification why the CA allowed inclusion of religious minorities in backward classes in future, despite withdrawing their separate electorates (Bajpai, 2011: 169–70). Though insightful, Bajpai’s formulation remains ambiguous, since religious minorities have been allowed all benefits of affirmative action policies including reservation in the legislature under the ST category, while the disquiet focuses on SCs.

India’s affirmative action policies have been widely praised for empowering members of deprived communities (Bhavnani, 2009; Chauchard, 2014; Galanter, 1984; Gulzar et al., 2020; Jensenius, 2017). But they have also been criticised for promoting inefficiency (Shah, 1991), stigmatising deprived communities (Gudavarthy, 2012; Guru, 2011), creating a mismatch (Robles & Krishna, 2012), and benefitting miniscule creamy layer elites of erstwhile deprived communities (Chaudhury, 2004). Recently, this policy has also been criticised for preventing the entry of other social groups such as the economically poor and women (Bertrand et al., 2010), while Chaudhury (2004: 1991) argues that the politics of caste ‘identity’ founded on reservations ‘also prevents the poor belonging to high, middle and low castes from uniting on class lines’.

It is totally unsurprising that India’s reservation policies have been a contested topic, especially querying whether they should be based on purely economic criteria or should also involve social parameters, not to speak of religion. In this regard, Bajpai (2000: 1843) rightly concluded that ‘the retraction of quotas for religious minorities during the making of the Constitution was always a likely outcome’. However, this is not the same as saying or claiming that there are no reservations at all for disadvantaged sections among Muslims, Christians and some other communities, apart from SC reservations.

Precisely this issue has become contested following the rise of Hindu nationalism in India since the 1990s (Chatterji et al., 2019; Hansen, 1999; Jaffrelot, 1996). Scholars and activists have been claiming that particularly affirmative actions for SCs, whose lists were envisioned to be religion-neutral, have been turned into a majoritarian manipulation device. The ensuing debate gradually shifted towards examining to what extent the exclusion of Muslims and Christians from the SC category connects to the much-debated agenda of Hinduisation in India. From this angle, it has been argued that India’s affirmative action policy is designed to benefit only those who have been branded as Hindu, thus it is not a religion-blind policy. Particularly Khalidi (2008: 1557) has asserted that ‘Christian and Muslim poor are denied the benefits of reservation simply because they profess a religion other than Hinduism’. Moreover, since parliamentary and assembly constituencies are reserved for SCs/STs, and Muslim and Christian Dalits cannot be SCs, this has recently been raised as causing low representation of Muslims in legislatures (Agha, 2019). This issue has been part of public debates since the Sachar Committee of 2006 stated that a number of Parliamentary and Assembly constituencies with substantial Muslim voter population ‘are reserved for SCs while the SC population was not high there. Contrarily, constituencies with comparatively lesser Muslim voter population remain unreserved even though they have sizeable SC population’ (Sachar et al., 2006: xiii). This observation of the Committee underpins allegations that SC reservations have become an instrument of gerrymandering. While the Delimitation Commission has been accused of unfairness to Muslims (Falahi, 2011), Jensenius (2013) finds no substance in these allegations.

This article argues that such sweeping observations about India’s reservation policy are untenable, because several Muslim communities have actually been included in lists of STs, OBCs and EWS for availing benefits of reservation. However, like Indian Christians, Muslims do not legally qualify for SC status (Alam, 2010). Hence, there have been vociferous demands for including Pasmanda Muslims, who are Backward Muslims, also referred to as ‘Dalit Muslims’ (Sikand, 2001) and Dalit Christians in the SC category (Ahmad, 2007; Ali, 2012; Anwar, 2005; Hasan, 2009). Such demands, initially started by Christian organisations such as the All India Christian Council and the Catholic Bishops Conference of India, were later joined by Muslim organisations such as the All India Backward Muslim Morcha (AIBMM) in the early 1990s. This was sparked partly by the destruction of the Babri mosque in 1992 (Sikand, 2001: 289) and also reacted to the implementation of the Mandal Commission Report (Hasan, 2009: 202–3).

The next section briefly discusses the underlying premises on which such demands for inclusion have been raised, debating pertinent questions which have arisen out of this battle. Subsequent sections critically test those premises by re-examining the CA Debates on SC/ST reservation and tracing its genealogy in colonial India through post-colonial India, situating this demand within similar claims raised by other social groups.

Demands for Inclusion of Muslims and Christians

Such demands have been mainly based on the premise that social disabilities and educational backwardness, rather than religion, should be the criterion of special treatment. No religious community in India seems to be free of caste, and Pasmanda Muslims and Dalit Christians are low/outcaste converts from Hinduism, whose conversion has not altered the nature of oppression resulting in suffering similar social disability and discrimination as their Hindu counterparts (Hasan, 2009: 203). Furthermore, demands have been advanced on the ground that exclusion of Pasmanda Muslims and Dalits Christians violates the doctrine of equal treatment, discriminates against specific religions, and infringes the freedom to freely profess and practise religion enshrined in the Indian constitution (Hasan, 2009: 203–4).

The quest for SC status by Pasmanda Muslims has been dubbed by Ahmad (2003) as ‘a different Jihad’, noting also concerns and fears over designs to divide Muslims (Ahmad, 2003: 4886) and observing the largely reactive nature of Muslim politics in India (Ahmad, 2003: 4890). Such fear has been augmented recently with the announcement of BJP outreach to this community (Haider & Ahmad, 2022). Earlier, in response to such highly sensitive perceptions, and to investigate the legality and constitutionality of such demands, on 29 October 2004 the UPA government had announced the appointment of the National Commission for Religious and Linguistic Minorities (NCRLM, 2007). Chaired by Ranganath Misra, a former Chief Justice of India, it became popularly known as the Misra Commission. Since, under Article 338 of the Indian Constitution, there already exists a permanent constitutional commission, the National Commission for SCs, which had previously rejected the demand for SC status to Pasmanda Muslims and Dalit Christians in 2001, the appointment of the Misra Commission created further controversy. When the Misra Commission submitted its report in May 2007, according to Vishwanath (2015: 449), it attempted to determine the ‘religion of caste’ and concluded that ‘the Constitution of India does not restrict the Scheduled Castes class to any select religion’ (NCRLM, 2007: 139). It also stated that it seems that the SC net was initially restricted to Hindus for some supra-constitutional reasons and seeking support from the Constitution for later extending it to Sikhs and Buddhists was an afterthought. This, however, ‘is wholly repugnant to the letter and spirit of the Constitution’ (NCRLM, 2007: 169).

This argumentation indicates the continuing scope for fine-tuning the affirmative action criteria, once the system had been put into place. Obviously a highly complex construct, it needs close monitoring and amendments. The relevant laws and policies are not set in stone but remain subject to further debates and changes in new socio-economic and political contexts. However, scholars and activists have concentrated their critiques on pinpointing attempts to prevent conversion of SCs to create or maintain a Hindu majority (Ahmad, 2007; Hasan, 2009). Notably, this discourse lacks historical reference points in light of previous research on conversion. This suggests that measures of discontinuing reservations after conversion have limited effects on preventing conversion (Kalam, 1984), while recent scholarly allegations of Hindu-biased politics, which certainly exist, fail to prove that there has all along been a kind of devious master plan to Hinduise India. As we shall see, the multi-dimensional agreement of those Muslims, Christians and Sikhs who decided to form part of postcolonial India cannot be simply defined away by politicised allegations about infringements of specific group rights. These allegations are also somehow juxtaposed to the Pasmanda Muslim organisations who according to Sikand (2001: 294–5) started demanding inclusion in the SCs for creating a ‘Dalit nation’.

The conclusions of NCRLM (2007) have sparked further debates on the legality and constitutionality of the Presidential Orders of 1950, 1956 and 1990 that have, according to several scholars (Ahmad, 2007; Alam, 2022: Anwar, 2005; Hasan, 2009; Mandal, 2021; Rahman, 2019; Sikand, 2007), arbitrarily laid down the criterion of religion, while notifying/modifying the SC list in the 1950s. Ahmad (2007: 104) has claimed that ‘on what grounds the presidential order of 1950 decided, in opposite to the explicit wording of the Constitution, remains an enigma and has not been adequately researched’. Ahmad (2007) also held Hindu nationalism, which was still at a nascent stage in the 1940s, responsible for excluding Pasmanda Muslims and Dalit Christians from the SC list. Arguing that Indian nationalism had already taken strong Hindu undertones by then, he notes that prevention of conversion of stigmatised and excluded castes to other religions, which had depleted the Hindu community, was sought to be countered by restricting the SC category to Hindu ‘ex-untouchables’. But do such claims stand the test of rigorous academic analysis, since such reservations already existed since before the 1940s?

The extended debates around SC status for Pasmanda Muslims and Dalit Christians thus raise a number of pertinent, interrelated questions for this article: Was the SC list ever envisioned to be religion-neutral? Was exclusion of Pasmanda Muslims and Dalit Christians and subsequent inclusion of Sikhs and Buddhists, but not Jains, in the list of SCs an afterthought intended to prevent possible conversion and to create a Hindu majority? Why were Pasmanda Muslims and Dalit Christians not included among the SCs? And why is there a rising demand for SC status? Answering these questions will also address the enigma that Ahmad (2007) indicated.

The SC Category as Religion-Neutral

Pasmanda Muslims and Dalit Christians have been demanding their inclusion among SCs on the premise that such list as envisioned in Article 341 of the constitution is supposed to be religion-neutral, because the explicit wording of this article does not mention any exclusion based on religion (Alam, 2010; Ali, 2012; NCRLM, 2007). However, as the present study shows, this premise is falsified when one closely re-investigates the Indian CA debates on the SC list.

Bajpai (2000) clearly identifies that the withdrawal of group preferences for religious minorities, insofar as it facilitated the preservation of distinct cultural identities, occurred during the extended process of the CA debates. As is well-known, there was near consensus in the CA that the SCs/STs would be given reservations, and the President of India would issue a notification after the commencement of the Constitution specifying the list of communities to be included in such provisions. This is made quite clear in the intervention of V.I. Muniswami Pillai in the CA Debates on 17 September 1949, stating that ‘the President on the 26th January 1950 will publish a list of such communities that come under the category of Scheduled Castes’ (CAD, 1999b: 1640). In fact, the original draft of the Constitution contained a long list of SCs and STs, together with its definition, which was omitted, as suggested by Ambedkar, the Chairman of the Drafting Committee, on 16 September 1949 (CAD, 1999b:1585):

We are proposing to drop from the Constitution two Parts which we had originally proposed in which certain communities had been enumerated as Scheduled Castes and certain communities as Scheduled Tribes. We thought that was cumbering the Constitution too much and that this could be left to be done by the President by order. This is our present proposal. It seems to me that, in that event, it will be necessary to transfer the definition clauses of the Scheduled Castes and the Scheduled Tribes to some other part of the Constitution and make provision for them in a specific article itself, saying that the President shall define who are the Scheduled Castes and who are the Scheduled Tribes.

The CA took up the question of definition of SCs and STs on 17 September 1949. Important in this context is the intervention of Ambedkar to explain that the word ‘specified’ has been replaced with ‘deemed’, allowing the President to include new castes and communities in the SC list (CAD, 1999b: 1638).

Ambedkar proposed that SCs ‘means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 300A of this Constitution to be Scheduled Castes for the purposes of this Constitution’ (CAD, 1999b: 1638). Similarly, STs would be ‘such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 300B of the Constitution to be scheduled tribes for the purposes of the Constitution’ (CAD, 1999b: 1638). As already observed, this substitution of ‘specified’ with ‘deemed’ empowered the President of India to later include further groups in the list of SCs/STs. Notably, accounting for India’s huge internal and region-specific diversity, any change should occur after consultation with the Governor or ruler of a state, reflecting also the fact that at this point in time there were still some local rulers (for example, prominently, in Kashmir) who claimed special constitutional powers (Menski & Yousuf, 2022).

The above definition of SCs is often termed as merely administrative and legal (Hasan, 2009), devoid of sociological meaning. However, the long intervention of Pillai in the CA on 17 September 1949 tells a different story, and thus fills the void which scholars and activists have been grappling with, providing much historical detail. Pillai remarked (CAD, 1999b: 1640-1):

…I would like to inform this House of the background which brought out the special name of Scheduled Castes. It was the untouchability, the social evil that has been practised by the Hindu Community for ages, that was responsible for the Government and the people to know the section of people coming under the category of Hindus and who were kept at the outskirts of the Hindu society. Going backwards to 1916 it was in that year when Government found that something had to be done for the untouchable classes, (when they said untouchable classes, they were always understood to be Hindus,) (emphasis added) and they had to be recognised. In Madras there were six communities that came under this classification. During the Montago Chelmsford reforms they were made ten. In 1930 when the great epoch-making fast of Mahatma Gandhi came about, then only the country saw who were the real untouchable classes. And in the 1935 Act, the Government thoroughly examined the whole thing and as far as the Province of Madras is concerned they brought 86 communities into this list or category, though there were some touchable classes also. Now, after further examination, the Provincial Governments have drawn up a list and I think according to the amendment mover’s suggestions, all those communities that come under the category of untouchables and those who profess Hinduism will be the Scheduled Castes, because I want to emphasise about the religion. I emphasise this because of late there have been some movements here and there; there are people who have left Scheduled Castes and Hinduism and joined other religions and they also are claiming to be scheduled Castes. Such convert cannot come under the scope of this definition (emphasis added). While I have no objection to Government granting any concessions to these converts, I feel strongly that they should not be clubbed along with Scheduled Castes.

Here, Pillai not only talks about the administrative origin of the SC list but also explains its sociological meanings. Furthermore, his strong stance against the inclusion of converted communities among the SCs is noticeable for three reasons: Firstly, he was one of the signatories to the Poona Pact and had presided over the National Executive Meeting of the All India Depressed Classes Federation in 1932. Secondly, he had been elected to the CA from the Madras Presidency on a Congress ticket and had been instrumental in persuading continuation of reservation for SCs/STs in the meetings of the Advisory Committee of the CA, where the decision was taken to abolish reservation for all minority communities. This point has been repeated several times in the CA Debates, including speeches of Sardar Patel (Rao, 1968: 604). And lastly, his remarks about non-inclusion of religious converts were not contested in the CA.

Re-reading the CA Debates makes it clear, then, that the President of India had been empowered to notify the SC list, and was expected to utilise the existing SC list, which was already notified through the Government of India (Scheduled Castes) Order of 1936. While doing so, the President had also been empowered to include any other castes, races or tribes as deemed appropriate. Here, then, we find the important element of discretion of office holders to make changes, which would presumably be minor, once the big issue had been determined in principle to shape India’s constitution as a ‘cornerstone of the nation’ (Austin, 1966).

Pillai’s intervention, discussed above, clarifies that originally the SC list included only communities that were victims of untouchability and professed Hinduism. Similar observations were made by Jagat Narain Lal, who belonged to the Hindu Mahasabha and Congress, stating that ‘the Scheduled Castes have been given reservation not on grounds of religion at all; they form part and parcel of the Hindu Community, and they have [been] given reservation apparently and clearly on grounds of their economic, social educational backwardness’ (CAD, 1999a: 308).

The term ‘Scheduled Castes’ itself first appeared in the Government of India Act, 1935 and to operationalise it, the Government of India (Scheduled Castes) Order of 1936 was passed. Section 2 of this Order gave the power to specify who should be treated as SC. Section 3(a) of the same Order laid down that ‘no Indian Christian shall be deemed to be a member of a scheduled caste’ and section 3(b) provided that ‘in Bengal, no person who professes Buddhism or a tribal religion shall be deemed to be a member of any scheduled caste’.

Rahman (2019) sees this Order as the genesis of the exclusion of Pasmanda Muslims and Dalit Christians, since it denies SC status to Indian Christians and Buddhists with a similar origin, whereas Hasan (2009) justifies this as an attempt to avoid double reservation, since every religious community had reservations already in 1936. The 1936 Order itself makes it crystal-clear that since its inception, the SC category was never religion-neutral, because Indian Christians and Buddhists of Bengal were prohibited from inclusion in the list. The constitution makers were aware of this during the debate on Article 341, which empowers the president to notify the list of SCs. Working under the assumption that the existing SC list would be reproduced through the Presidential Order of 1950, they left discretionary powers of amendment to postcolonial India’s president. This becomes also evident by examining the position of Sikhs in India.

Inclusion of Dalit Sikhs not an Afterthought

It has been argued that SC status was initially meant only for those who professed Hinduism, but in 1956 the Constitution (Scheduled Castes) Order of 1950 was amended to include Sikhs, and in 1990 Buddhists were included, too (Alam, 2010; Ali, 2012; Hasan, 2009; NCRLM, 2007). Based on this development, accusations have been raised that the Indian state has distinguished between Indic and Abrahamic religions while framing the criteria for inclusion in the SC list. This distinction also finds a place in the Report of the NCRLM (2007: 169) in the context of a dissent note from the Commission’s member secretary and its counter reply by other members.

There are, however, two empirical pieces of evidence which falsify the above- mentioned assertions. First, closer examination of the Presidential Order 1950 proves that the above proposition is at best a half-truth; because the 1950 Order already provided for the inclusion of certain Sikh communities. Its clause 3 first states that notwithstanding anything contained in paragraph 2, ‘no person who professes a religion different from Hinduism shall be deemed to be a member of a Scheduled Caste’. However, there is then a proviso, which analysts cannot simply ignore:

Provided that every member of the Ramdasi, Kabirpanthi, Muzhabi or Silkgar caste resident in Punjab or Patiala and East Punjab State Union shall, in relation to that state be deemed to be a member of Scheduled Caste whether he professes Hinduism or Sikhism.

In addition, it needs to be remembered that for the purpose of the Hindu personal laws, too, Sikhs as well as Buddhists and Jains are in India classified as Hindus, firmly based on Explanation II in Article 25 of the Indian constitution. While that certainly raises its own politics, it indicates the close interaction between Hindu and Sikh policy matters, from which religious differences cannot be simply erased or neatly segregated.

The Presidential Modification Order of 1956 served, therefore, just to remove certain ambiguities arising from the reorganisation of states, rather than exclusively operating for the inclusion of Sikhs, as has been wrongly alleged. Like witnessed earlier in Madras, the 1956 Order then included more Sikh castes in the SC list, while some Sikh groups were already beneficiaries under the 1950 Order. Clearly, any argument that the inclusion of Sikhs was an afterthought is factually incorrect.

Careful re-reading of the CA debates on 14 October 1949 further substantiates this finding. Here, the demand for inclusion of Dalit Sikhs was raised by two CA members, Sardar Bhupinder Singh Mann and Sardar Hukam Singh, and assurance for inclusion was given. Mann presented a memorandum, which argued that the special needs of ‘the Sikh Backward Classes, namely Mazhbis, Kabirpanthis, Ramdasias, Bawrias, Sareras and Sikligars, should be placed at par with the Scheduled Castes in the matter of their political rights’ (CAD, 1999c: 256).

This demand arose after a meeting on 10 May 1949 between most Sikh members of the East Punjab Legislative Assembly and the CA, leading to a unanimous resolution demanding that the Sikh Backward Classes should be given the same privileges regarding representation in legislatures and other political concessions for SCs in East Punjab and in the Patiala and East Punjab States Union (PEPSU), which existed from 1948 to 1956. For this purpose, either these classes may be included in the list of the SCs enumerated in the draft Constitution, or seats may be reserved for them out of the quota reserved for Sikhs (Rao, 1968: 599). The Sikh lobbyists further said that ‘Sikhs would be ready to give up reservation in the East Punjab if Sikh and Hindu Scheduled Castes are lumped together and seats reserved for them on the strength of their population’ (Rao, 1968: 599).

In the context of these demands, Ambedkar had clearly stated that these Sikh classes would be included among SCs (CAD, 1999c: 262). This exchange in the CA indicates Sikh nervousness and doubts whether specific pledges would be honoured. But there was a robust promise by K.M. Munshi that this would simply be within the powers of the President under Article 300-A of the constitution. Munshi (CAD, 1999c: 262) had said:

The President has that power. The President is sure to keep to the pledge which has been given. This decision finds a place in the Advisory Committee’s Report that the Sikh Scheduled Castes will form part of the Scheduled Castes and provided with the safeguards under article 296 which we have already passed. There is no question of going back upon that pledge, you may take it from me. I repeat the Sikh Scheduled Castes will be included in the list of Scheduled Castes and Scheduled Tribes in the Punjab (emphasis added).

This analysis further clarifies that the list of SCs was never envisioned as religion-neutral. If that had been the case, instead of giving assurances for the inclusion of Sikhs, the Constitution makers would have responded that this question did not arise because the list is going to be religion-neutral (Kumar, 2021a). This simply did not happen, while the internal distinctions among Sikhs remain a hidden subtext.

Though the Sikh backward classes/castes were promised inclusion among the SCs in the CA, their inclusion was not unanimously agreed and was particularly opposed by SC members. This finds special mention in the speech of Patel while presenting the Report of the Advisory Committee on Minorities, Fundamental Rights, etc. (Rao, 1968: 604-5). Patel had given the justification that such castes were allowed SC status because they were recent converts, originally SC Hindus, but still suffering from the disabilities which SC Hindus faced vis-à-vis the wider Hindu community. The Sikh members had raised aspersions that if they were denied SC status, they might reconvert to Hinduism (Rao, 1968: 604-5). The recommendations of the Advisory Committee reveal that it had decided to accord SC status to the Sikh backward castes, although its Special Sub-Committee of Patel, Nehru, Prasad, Ambedkar and Munshi had rejected this demand. The speech of Patel indicates some sympathy towards Sikh demands for SC status, since they had been severely victimised by the partition in 1947. However, the memorandum of the Sikh CA members suggests that their demand was accepted because they bargained their communal electorate with including some of their castes in the SC category (CAD, 1999c: 247). One may also detect here signs of an early concern by Congress regarding future election outcomes and cultivating a vote bank.

Why Were Pasmanda Muslims and Dalit Christians not Given SC Status?

The CA Debates on 24 August 1949 reveal that the original draft of the Indian constitution under Article 292 included reservations for religious minorities, namely Muslims, Christians, Sikhs and Parsees, seen in the remarks of Jaspat Roy Kapoor (CAD, 1999b: 640-1). All major Congress leaders had initially accepted this provision, but two years later, in 1949, Patel, as Chairman of the Advisory Committee on Fundamental Rights, rejected the proposal for providing special measures to safeguard the interests of religious groups (Hasan, 2009). Since Patel is considered an icon of Hindu conservatives, attempts have been made to shift blame on him for removing the provision of reservation for religious minorities. But the CA Debates on 24 August 1949 and 14 October 1949 reveal that the members of religious minorities had voluntarily given up their reservation, which the colonial government had provided them. Nobody else than Patel himself narrated this development (CAD, 1999c: 247), though the focus here is, notably, on reservations for separate electorates:

…the minorities themselves began to feel that we should reconsider our decision and, headed by the great patriotic Christian leader, they brought in a Resolution that they want to give up the reservations. And what reservations? - Not this Petty [sic] reservation of minorities in the services - but the big reservations in the Assemblies, both in the Centre and in the provinces.

They agreed to have joint electorates and to have nothing to do with this communal separatism. When they desired that, I called a meeting of the minorities [sic] Committee and the Advisory Committee. At their instance decisions were taken.

The intervention of M. Ananthasayanam Ayyangar further substantiates this argument that ‘Article 292 originally stated that there would be reservations for the Muslim community, for Indian Christians and others. But they have voluntarily given that up and reservation is now only to be made for the Scheduled Castes, and Scheduled Tribes’ (CAD, 1999b: 662). The agreement to give up claims of reservation regarding seats for separate electorates was arrived at in the Minorities Committee, according to Jaspat Roy Kapoor, who welcomed this development (CAD, 1999b: 640-1):

By that agreement our Muslim friends and our Christian friends as also our Sikh brethren have agreed to give up reservation of seats in the different legislatures. I would like to take this opportunity to congratulate them all for this wise and bold decision that they have taken in the larger interest of the country. I would particularly like to congratulate my Muslim brethren because for so many years past they have had separate electorates and separate representation and they had begun to think that therein only lay their salvation.

In the same speech, Kapoor also blamed the British for dividing the electorate and ultimately the people of British India (CAD, 1999b: 641). But why did the religious minority leaders surrender their claims for reservations? Bajpai (2000: 1837) has argued that the fragmentation within the leadership of religious minorities after partition culminated in such action. She later added: ‘It is also thought to have changed minority attitudes towards political safeguards as a consequence of their weakened bargaining position’ (Bajpai, 2011; 65). However, Robinson (2014: 88) argues that the partition morally compelled those leaders to do so, to prove their patriotic credentials to the newly formed Indian state.

Although all minority members had voluntarily surrendered their communal reservations, Sikh members bargained for inclusion of their backward classes among the SCs, which as discussed was granted, despite opposition from SC members. Unlike the Sikhs, Muslim and Christian members did not bargain for inclusion of Dalit Muslims and Dalit Christians while giving up their communal reservation, but emphasised cultural rights. These related to language issues and personal laws to govern family matters, and the right to religious freedom including propagation of religion (Robinson, 2014). Re-reading of the CA Debates suggests that Muslim and Christian members hardly raised the issue of SC status for Pasmanda Muslims and Dalit Christian, and for this the elite character of these members has been questioned (Robinson, 2014: 88).

However, the case of Sikhs suggests the existence of a moral dilemma before Muslim and Christian CA members when it came to accepting that conversion to their respective religion had not helped untouchables. Such acceptance would not only question egalitarian claims of Islam and Christianity, but also affected the utility of demands for the right to propagate religion, including conversion. Moreover, some demand for inclusion of converted communities among the SCs seems to have arisen outside the CA. As already cited above (CAD, 1999b: 1641), Pillai repudiated these claims and this intervention was not contested by any other members of the CA. This means that this position was unanimously accepted or it indicates that, in September 1949, nobody realised the wider implications of such hotly contested issues. Much before Muslims, Christians and Sikhs, the SCs had been forced to abandon their demands for separate electorates and they were given extended provisions of reservations in return. The SC/ST members had consistently demanded reservations in the CA debates. This was accepted because it was an outcome of the Poona Pact of 1932, a trade-off between the leaders of the SCs, Congress and the Hindu Mahasabha.

The Pact was signed on 24 September 1932 between Gandhi, Ambedkar, Members of Depressed Classes, a term which then loosely referred to Dalits, Untouchables and SCs, and leaders of the Hindu Mahasabha. This Pact made provisions of reservations for SCs which exist until present times. This was the first historical moment when some political settlement was made regarding the practice of untouchability in the Indian subcontinent. However, the Muslim, Christian and Sikh leaders refrained from participating in any historic settlement for untouchability, particularly the Poona Pact, as a result of which these communities remained excluded. Since they were then enjoying separate electorates, the issue of representation of SCs was seen as an internal matter of Hindus. Actually, that is why the Hindu Mahasabha signed the Pact along with Congress. If Muslim, Christian and Sikh leaders had insisted on inclusion of some of their communities among the SCs, in colonial India, they would have been required to surrender some seats from their share of the separate electorate in order to become signatories to the Pact (Kumar, 2021c).

The above finding is contrary to the argument of Hasan (2009), who writes that Muslims, Christians and Sikhs were excluded in the 1936 Order to avoid the benefit of double reservation. As shown above, the Sikh leaders surrendered their communal electorate during the Constitution making process, but demanded inclusion of some of their backward castes among the SCs. While raising this demand, they accepted that Sikhism has been unable to resolve the problem of social disability that recent converts faced due to their previous religious affiliation. The Muslim and Christian members failed to raise similar demands since this would have required acceptance of the inability of their respective religion to solve social disabilities for converts because of their previous affiliation with Hinduism. Such acceptance might have weakened their moral claim of the right under Articles 25 to 30 of the Indian constitution to freely profess, practise and propagate religion. Therefore, Muslim and Christian members of the CA, unlike their Sikh counterparts, could not bargain for the inclusion of Pasmanda Muslims and Dalit Christians while giving up their communal reservation. Instead, they bargained for religious, cultural and educational rights to establish their own institutions.

Rising Demand for SC Status?

Pasmanda Muslims and Dalit Christians are not the only social groups which have been demanding SC status. A section of backward castes, known as Extreme/Most Backward Castes (E/MBCs) have also demanded the same status. Such claims have surged although these groups are already beneficiaries of OBC reservation. Their growing demand for SC status is surprising, because inclusion among the SCs also brings the stigma of untouchability (Gudavarthy, 2012; Guru, 2011).

Recently, political leaders and social activists have been making claims of SC status in the name of the continued existence of untouchability, of which they claim to be victims. They argue that this would provide them extra ammunition regarding the SCs/STs (Prevention of Atrocities) Act of 1989 (PoA), according to Alam (2022). The PoA was amended in 2015, under the current political dispensation, after mass protests against attempts to weaken it through judicial intervention. To further investigate such claims of Pasmanda Muslims and Dalit Christians, the government of India has recently appointed another commission under K.G. Balakrishnan, a former Chief Justice of India. However, the argument about getting protection of PoA seems futile, since the Civil Rights Act of 1955 also exists as a similar legislation. Moreover, the accessibility of PoA can be demanded just by seeking expansion of its ambit without demand for SC status.

The ongoing debates regarding SC status suggest that they are now guided by the fact that SC status provides opportunities to contest in reserved constituencies for state assemblies and parliament. Evidence that here is another agenda intersecting with SC reservation issues arises from reports that several organisations have launched campaigns to de-reserve constituencies (Agha, 2019). It has been found that underrepresented social groups such as women relatively easily succeed in SC-reserved constituencies (Jensenius, 2016), though there may be gender-related reasons for this (R. Kumar, 2021). Women’s nomination increases in such constituencies because SC males lack network connections in their party organisation in comparison to their upper caste counterparts, required for retaining seats; they also lack the criminal and financial resources required for succeeding in elections (Jensenius, 2016). This uniqueness of reserved constituencies seems to have created incentives for other underprivileged groups to demand inclusion among the SCs.

Besides, in the context of E/MBCs, I found during field interviews that these demands are an outcome of social churnings in contemporary Indian society, which have arisen due to upward social mobility among SC members (Kumar, 2021a). Due to the practice and stigma of untouchability, the SCs have not only been seen at the bottom of Hindu society, but also of the whole of Indian society (Kumar, 2021b). However, affirmative action policies along with their powerful social and political mobilisation have not only ensured social mobility for SCs, but have also forced dominant castes to change their social and legal norms of interaction, reducing discrimination in the long run (Chauchard, 2014). The change in the social, economic and political status of SCs in India has started a new debate on ‘who is at the bottom’ (Mandal, 2022). While this is not just a Muslim issue, the resulting tensions need to be seen side by side with strenuous individual efforts among SCs to get by and avoid falling behind, as recent insightful fieldwork studies show (Inglis, 2019).

Conclusions

Close re-examination of the CA Debates in the context of minority rights and SC/ST reservations has demonstrated clearly that since its conception in colonial India, accepted by the constitution-makers of post-colonial India, the SC list has never been envisioned as religion-neutral. The article also shows that the inclusion of Sikh backward castes among the SCs was not an afterthought. Rather, it constitutes early evidence of the ‘living nature’ of the reservation system as an act of fulfilment of earlier promises made to the Sikhs during the framing of the Constitution and in the run-up to the subcontinent’s Partition on 14/15 August 1947. This study confirms that the promise was made because Sikh members had bargained for inclusion of their backward castes among the SCs in return for abandoning their separate electorate. This exemplifies the intersection of religious, social, economic and political considerations in managing India’s complex reservation system, a labyrinth that cannot ever satisfy all potential claimants.

Unlike Sikhs, Muslim and Christian members of the CA did not bargain for the inclusion of Pasmanda Muslims and Dalit Christians in return for giving up their communal reservation. Instead, they focused on bargaining for religious, cultural and educational rights, indicating a different relationship between Hindus and Sikhs, on the one hand, and Muslim and Christian relations with Hindus in postcolonial India on the other.

The article also brings out that Muslim, Christian and Sikh communities remained excluded from the list of SCs because their leaders had historically refrained from participating in any settlement for untouchability, particularly the Poona Pact of 1932. Their participation would have raised aspersions on claims of the egalitarian nature of India’s minority religions. Problems in this regard seem to have discouraged Muslim and Christian members to raise the issue of SC status for Pasmanda Muslims and Dalit Christians in the CA, since doing this might have jeopardised their demand for the right to freely practise and propagate their respective religions.

Lastly, the article brings out that growing demand for SC status in present-day India is not only limited to Pasmanda Muslims and Dalit Christians, but also extends to other social groups, which have been claiming to lag behind SCs. Presenting the exclusion of Pasmanda Muslims and Dalit Christians from the SCs simply as a matter of communal discrimination, evidently, does not do justice to the complexity of the issues involved.