Why is there a debate on reservation after religious conversion of Tribals?

The Constitution of India, Article 366(25) defines Scheduled Tribes as castes, races, or tribes or parts of groups within such castes, races, or tribes as are deemed under Article 342 to be Scheduled Tribes for the purpose of this constitution. Article 46 expressly lays down that the State shall promote the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

This is further stated in Articles 15(4) and 29 that the State is empowered to make special provisions for the advancement of other backward classes (OBC) which includes STs. In the Pre-Constitutional era, the British identified Scheduled Tribes for the first time since Schedule Tribes were included as different types of indigenous tribal groups in the Indian Constitution. Post-Independence, the makers of the constitution introduced special provisions for STs and continued their affirmative action to raise the standard of living of the scheduled tribes. The Ministry of Tribal Affairs is the Nodal Ministry for overall policy planning and coordination of programs for the development of the Scheduled Tribes. Further, another constitutional body named National Commission for Scheduled Tribes was constituted under Article 338A to oversee the implementation of various safeguards provided to Scheduled Tribes under the Constitution or under any other law and to evaluate the working of such safeguards.

In order, the Department of Personnel and Training (DoPT) cited a Supreme Court order issued in January 2022, which outlined certain conditions that are to be satisfied by the government for the purpose of implementing the policy of reservation in promotions.

These conditions include the "collection of quantifiable data regarding the inadequacy of representation of Scheduled Castes and Scheduled Tribes" among others.

In order to maintain the efficiency of administration, the DPC (Departmental Promotion Committee) carefully would assess the suitability of the officers being considered for promotion, said the order issued on Tuesday.

The Central Secretariat Service (CSS) Forum had in January urged the DoPT to immediately resume the long-stalled promotions for its members. The CSS Forum is an association of officers of the Central Secretariat Service whose members form the backbone of the central secretariat's work. With the aim to raise its vote share in Madhya Pradesh assembly polls to at least 51 per cent, the BJP has prepared a blueprint with a focus on deepening its penetration among Scheduled Caste (SC) and Scheduled Tribe (ST) communities to address their issues, party leaders said. In the run-up to the assembly elections in the state next year, the BJP-led state government has been organizing various cultural and other programs in memory of tribal leaders and freedom fighters. In September 2021, senior BJP leader Amit Shah launched 'Janajatiya Abhiyan' (tribal campaign) to mark the martyrdom of tribal king Shankar Shah and his son Raghunath Shah.

The BJP-led state government last year celebrated the first Tribal Pride Day (Janjatiya Gourav Diwas) to honour and commemorate Chota Nagpur tribal leader Birsa Munda, who in the late 19th century fought the British, and contractors and landlords whom he thought were exploitative. The underlying idea behind all these events was to reach out to Madhya Pradesh's 15 million tribal communities. STs constitute 17 per cent of the state's population and SCs 21 per cent. There are 47 tribal seats and 35 reserved seats, which combined together are more than one-third of the total 230 seats of the state assembly.

In an official statement released on December 2021, the Vishwa Hindu Parishad (VHP) on Saturday asserted that people from the Scheduled Tribes (ST) converting to other religions should not be given benefits under reservation. The Right-wing Hindu organization also stated that it is in talks with many Parliamentarians to discuss various issues related to religious conversions in the country. While speaking to the media, VHP's central working president Alok Kumar said, "If important then an amendment in the Constitution or law should be amended to ensure that the tribals converting to another religion do not get the benefits of reservation and other facilities provided to the scheduled tribes under Constitution."

He further added that "We will continue to reach out to more Parliamentarians to discuss various issues pertaining to religious conversions in the country.”

The VHP launched a campaign against religious conversion from December 20 to 31 across India to prove its statement. While making the announcement, VHP's national joint general secretary Surendra Jian demanded a law against forced interfaith marriages and for denying benefits due to Dalits and Hindu tribals who convert to other faiths.

He claimed that large-scale conversion had taken place during the outbreak of the Covid pandemic. "We are in talks with Centre. This is not a political issue. We urge both the central and state governments, belonging to whichever party, to stop forcible conversion by Muslim and Christian preachers," the Vishwa Hindu Parishad leader added.

The norms of listing the scheduled tribes are that,

Article 342(1) provides that 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 tribes, or tribal communities, or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.

What the Law Says

Officially, India’s population has been classified within several groups, including the Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBC), and the General category. Article 366 of the Constitution of India defines the SC category that includes castes, races, tribes, or parts/ groups within castes, races, or tribes as notified. Article 341 of the Constitution empowers the President of India to specify these groups as SCs in relation to a state or Union Territory through a public notification. The Constitution (Scheduled Castes) Order, 1950 was passed in adherence with the provision. To amend such notification and include or exclude a group, a law must be passed by Parliament. A 1956 amendment to the said order specified that individuals professing religions other than Hinduism or Sikhism may not claim to be members of an SC group.

Another procedure for listing a tribal community is mentioned in Article 342(2) wherein the Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (2) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notifications.

However, the legal definition of a Hindu is also built upon Hindu law which includes the Hindu Marriage Act, of 1955; the Hindu Adoptions and Maintenance Act, the Hindu Succession Act, and the Hindu Minority and Guardianship Act of 1956. A Hindu by religion in any of its form or development includes individuals from the Buddhist and Jain communities, besides the Sikh communities, alongside other persons not professed to be Muslims, Christians, or Parsis. Such persons are governed under Hindu law.

As per a report of 2018, The Supreme Court on May 5 struck down the Maharashtra government's decision to exceed 50 per cent reservation for the Maratha community in education and jobs. The court said the Maratha community was not an Educational and Social Backward Category (ESBC). The court said, "The 2018 Maharashtra state law violates the right to equality. We won't re-examine the 1992 verdict which capped reservation at 50%”. 10% reservation under the Economically Weaker Section (EWS) category applies to those not covered under the existing scheme of reservations for the Scheduled Castes, the Scheduled Tribes, and the Socially and Educationally Backward Classes.

Since the 1992 order, several states have passed laws breaching the 50% ceiling, including Haryana, Telangana, Tamil Nadu, Andhra Pradesh, Madhya Pradesh, and Uttar Pradesh, Rajasthan, Chhattisgarh, and Maharashtra.

Many states have breached the 50% ceiling before and intend to bring more reservations. A notable example in Tamil Nadu. Its Act of 1993 reserves 69% of the seats in colleges and jobs in the state government. However, this was done by amending the Constitution, to place the law in the Ninth Schedule after the Indra Sawhney judgment.

A recent judgment delivered by the Madras High Court ruled that displaying religious symbols (such as the holy cross) cannot be the ground to cancel a classifying Scheduled Caste certificate. The ruling has opened up a legal debate on religious identity and conversion. The debate may be contextualized within a matrix of legal classifications (built upon Constitutional provisions and Hindu law), socioeconomic factors, which underlie the Indian system of affirmative action, and makers of religious identity.

Contextualizing Religious Identity for SCs

In the case of conversion and re-conversation, three instances must be considered with respect to SCs. First, if a member of an SC converts to a religion other than Hinduism, Sikhism, or Buddhism, they cease to be a member of the SC and avail of benefits of affirmative action. However, they may be recognized as members of an OBC, which has been seen in categorizations by several states. Second, if such an individual converts back to Hinduism, Sikhism, or Buddhism, they may be deemed to have reverted to their original SC, based on acceptance by members of that caste. Third, in the case of descendants of SC converts, they must be accepted by members of the specified SC to establish membership and claim benefits of affirmative action.

A 2008 report by the National Commission of Minorities on ‘Dalits in the Muslim and Christian Communities’ highlighted the socio-economic evidence of discrimination faced by Dalit Muslims and Christians. Built on this, the report stated that there was a strong case to include such communities in the SC categories.

Article 25 of the Indian Constitution recognises the fundamental right to profess, practice and propagate religion, and also emphasises on the equality of all religions before the law. Article 26 gives effect to the right and freedom to manage religious affairs (with restrictions based on public order, morality, and health). Articles 25 and 26 extend to rituals and are not confined to the abstractions of doctrine. This was reiterated in the 1954 Shirur Mutt case by the Supreme Court which recognised that religion was a matter of faith and not necessarily theistic. Professing religion is usually a public declaration of religious identity. Practice here can be understood as religious worshipping and observing rituals. Propagating connotes the right of individuals to communicate their religious beliefs by expounding tenets of their beliefs.

Article 18 of the Universal Declaration of Human Rights specified that freedom of religion also includes the freedom to change one’s religion or practice. Thus, rights enshrined under articles 25 and 26 empowering individuals to profess religion also translate to the freedom to change religious identity. While individuals have the right to propagate their religious ideals, in the 1977 case of Rev. Stanislaus v. State of Madhya Pradesh, the Supreme Court observed that this cannot be seen as a right to convert individuals using pressure or forced inducement.

Beyond this, conversion from one religion to another has socio-legal consequences affecting succession, marital status, and the right to seek elective office. Thus, if an individual decides to change their religion, a legal process must be adhered to to ensure that the change is reflected in government documents and proofs of identification.

In 1971, the Supreme Court recognized the importance of upholding a legal process for conversion in the Perumal Nadar v. Ponnuswami case. It stated that a “theoretical allegiance" or “bare declaration" of becoming a Hindu is insufficient. However, a “bonafide intention" accompanied by evidence of conversion may “effectuate conversion".

The issue was further examined by the Law Commission of India headed by Justice P.V. Reddi in a 2010 report based on a reference made by the Kerala High Court. The Commission made note of a report by the Kerala Law Academy on the “Statutory vacuum for effectuating voluntary religious conversion" which had stressed the need to legislatively prescribe a simple procedure to effectuate conversion. The Law Commission recommended against enacting special legislation for the purpose of conversion. However, the commission formulated a procedure to declare and register conversion with an officer in charge of registering marriages and recommended that the Central Government may exercise its executive power to issue appropriate instructions to the states and Union Territories giving effect to the said procedure.

Practicing, Expressing, and Changing Religious Identity

Presently it is notable that the religious conversion argument goes on all around the country at a stage when various religious communities are in talks with the Central as well as State governments in order to exercise their thoughts and views. Although it is a matter of discussion whether the Central Government should accept their views and ideology as the issue of equality and fair means remain for national citizens of all the religious communities including the Scheduled Tribal Communities, and Scheduled Castes.

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