Thursday, July 29, 2010

Dalit Christians and Caste Disabilities Removal Act

Does anyone know of the status of this case filed by the All India Christian Federation challenging the unconstitutionality of the Constitution Order 1950 which excludes Christian and Muslim dalits from the benefits of affirmative action measures available to scheduled castes? I was wondering whether an old colonial law, the Caste Disabilities Removal Act 1850, may be relevant to this litigation. This is what the operative section of this Act says:

So much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste, shall cease to be enforced as law in any Court.

This legislation raises a number of interesting issues. Firstly, much will turn on the meaning of the phrase 'now in force'. I would think that, despite this unhelpful terminology, the legislation should apply to administrative orders and secondary legislation made after 1850. Primary legislation, on the other hand, will clearly override a preceding legislation (doctrine of implied overruling). Second, and it follows from the first point, a court will need to decide whether the 'public notification' issued by the President under Article 341 is primary or secondary legislation. I doubt very much it will have the authority to impliedly overrule pre-existing primary legislation, but I have not researched this point. Does anyone know of any case on this point? Thirdly, if the 1850 Act continues to apply to secondary legislation passed after 1850, and if the Presidential Order of 1950 is indeed one such legislation, the latter must conform to the 1850 Act. Fourthly, it seems obvious to me that dalit Christians and dalit Muslims are deprived of the benefits of reservations 'by reason of his or her renouncing, or having been excluded from the communion of, any religion, or being deprived of caste', and that such deprivation amounts to 'forfeiture of rights'. As such, Courts cannot enforce their exclusion from these benefits.

I recognise that this is, at best, a plausible (rather than the only possible) interpretation. I am just thinking aloud, from a position of ignorance of jurisprudence surrounding the 1850 Act or the 1950 Order. Some of you will know more than I do, and I look forward to being enlightened.

As an aside, I find the 1850 Act fascinating. It may well be the first legislation protecting freedom of religion in colonial India. Also, it uses gender-neutral language in 1850! More interestingly, it does not invalidate laws that fall foul with it - instead, it demands that the courts refuse to 'enforce' them (presumably while they continue to be valid laws). The distinction between invalidation and non-enforcement has been salient in the second Factortame case, where the House of Lords decided that British law that is inconsistent with EU law will not be enforced by courts, even though it will continue to be valid law. Finally, this Act may also be relevant to the various decisions on excommunication that have been decided by our courts. I wonder whether it was cited by the parties in any of these cases.
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