Union of India Vs. State of Maharashtra and Ors-01/10/2019

SUPREME COURT OF INDIA JUDGMENTS

Atrocities Act –There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. Arrest of a public servant can only be after approval of the appointing authority and of a nonpublic servant after approval by the S.S.P. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP.

ACT: Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

SUPREME COURT OF INDIA

Union of India Vs. State of Maharashtra and Ors.

[Review Petition (CRL.) No.228 of 2018 in Criminal Appeal No.416 of 2018]

[Review Petition (Criminal) No.275 of 2018 in Criminal Appeal No.416 of 2018]

ARUN MISHRA, J.

1. The Union of India has filed the instant petition for review of the judgment and order dated 20.3.2018 passed by this Court in Criminal Appeal No.416 of 2018. This Court while dealing with the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act of 1989’) has issued guidelines in paragraph 83 of the judgment, which are extracted hereunder:”

83. Our conclusions are as follows:

i) Proceedings in the present case are clear abuse of process of court and are quashed.

ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);

iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a nonpublic servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.

iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

The above directions are prospective.”

2. This Court, while passing the judgment under review, has observed in paragraph 32 thus:

“32. This Court is not expected to adopt a passive or negative role and remain bystander or a spectator if violation of rights is observed. It is necessary to fashion new tools and strategies so as to check injustice and violation of fundamental rights. No procedural technicality can stand in the way of enforcement of fundamental rights1. There are enumerable decisions of this Court where this approach has been adopted and directions issued with a view to enforce fundamental rights which may sometimes be perceived as legislative in nature. Such directions can certainly be issued and continued till an appropriate legislation is enacted2. Role of this Court travels beyond merely dispute settling and directions can certainly be issued which are not directly in conflict with a valid statute3. Power to declare law carries with it, within the limits of duty, to make law when none exists4 .

3. Question has been raised by the Union of India that when the Court does not accept the legislative and specific provisions of law passed by the legislature and only the legislature has the power to amend those provisions if the Court finds provisions are not acceptable to it, it has to be struck them down being violative of fundamental rights or in case of deficiency to point out to the legislature to correct the same.

4. The Union of India has submitted that judgment and order dated 20.3.2018 entails wide ramification and it deserves to be reviewed by this Court. It is also submitted that this Court has failed to take note of aspects which would have a significant bearing on the present case.

5. It is submitted that the Act of 1989 had been enacted to remove the disparity of the Scheduled Castes and Scheduled Tribes who remain vulnerable and denied their civil rights. The Statement of Objects and Reasons of the Act of 1989, for which it had been enacted is as under: “Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations, and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social, and economic reasons.

2. ………. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their selfrespect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests.

Of late, there has been an increase in the disturbing trend of the commission of certain atrocities like making the Scheduled Caste persons ear inedible substances, like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by nonScheduled Castes and nonScheduled Tribes has, therefore, become necessary.”

The preamble to the Act of 1989 states as under: “An Act to prevent the Commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for special courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.” Section 18 of the Act of 1989 has been enacted to take care of an inherent deterrence and to instil a sense of protection amongst members of Scheduled Castes and Scheduled Tribes. It is submitted that any dilution of the same would shake the very objective of the mechanism to prevent the offences of atrocities. The directions issued would cause a miscarriage of justice even in deserving cases. With a view to object apprehended misuse of the law, no such direction can be issued. In case there is no prima facie case made out under the Act of 1989, anticipatory bail can be granted. The same was granted in the case in question also.

6. It is submitted that because of the continuing atrocities against the members of the Scheduled Castes and Scheduled Tribes, a commission of offences against them indicated an increase, even the existing provisions were not considered sufficient to achieve the objective to deliver equal justice to the members of the Scheduled Castes and the Scheduled Tribes. Hence, the Act of 1989 had been amended in April 2015, enforced with effect from 26.01.2016.

7. It is further submitted that the amendments broadly related to addition of several new offences/atrocities like tonsuring of head/moustache, or similar acts which are derogatory to the dignity of the members of Scheduled Castes and Scheduled Tribes, garlanding with footwear, denying access to irrigation facilities or forest rights, dispose or carry human or animal carcasses, or to dig graves, using or permitting manual scavenging, dedicating a Scheduled Caste or a Scheduled Tribe woman as devadasi, abusing in caste name, perpetrating witchcraft atrocities, imposing social or economic boycott, preventing Scheduled Caste and Scheduled Tribe candidates from filing nomination to contest elections, insulting a Scheduled Castes/ Scheduled Tribes woman by removing her garments, forcing a member of Scheduled Caste/ Scheduled Tribe to leave house, village or residence, defiling objects sacred to members of Scheduled Castes and Scheduled Tribes, touching or using acts or gestures of a sexual nature against members of Scheduled Castes and Scheduled Tribes and addition of certain IPC offences like hurt, grievous hurt, intimidation, kidnapping etc., attracting less than ten years of imprisonment committed against members of Scheduled Castes and Scheduled Tribes as offences punishable under the Act of 1989, beside rephrasing and expansion of some of the earlier offences.

8. It is submitted that the provisions have also been made for the establishment of exclusive Special Courts and specification of Exclusive Special Public Prosecutors to exclusively try the offences under the Act of 1989 to enable expeditious disposal of cases, Special Courts and Exclusive Special Courts to take direct cognisance of offences and completion of trial as far as possible within two months from the date of filing of the charge sheet and addition of chapter on the “Rights of Victims and Witnesses”.

9. It is also submitted on behalf of Union of India that as per the amendment Rules, 2016 the provisions have also been made with regard to relief amount of 47 offences of atrocities to victims, rationalisation of the phasing of payment of relief amount, enhancement of relief amount between Rs.85,000/to Rs.8,25,000/depending upon the nature of the offence, payment of admissible relief within seven days, on completion of investigation and filing of charge sheet within sixty days to enable timely commencement of prosecution and periodic review of the scheme for the rights and entitlements of victims and witnesses in accessing justice by the State, District and SubDivision Level Vigilance and Monitoring Committees in their respective meetings.

10. It is submitted that this Court has failed to appreciate that low rate of conviction and high rate of acquittal under the Act of 1989, related cases is attributable to several factors like delay in lodging the FIR, witnesses, and complainants becoming hostile, absence of proper scrutiny of the cases by the prosecution before filing the charge sheet in the Court, lack of proper presentation of the case by the prosecution and appreciation of evidence by the Court. There is long pendency of the trial, which makes the witness to lose their interest and lack of corroborative evidence. There are procedural delays in investigation and filing of the charge sheet.

11. It is submitted that Rule 7(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 provides that investigating officer to complete the investigation within 30 days. Without immediate registration of FIR and arrest and by providing anticipatory bail to the accused, Rule 7 is bound to be frustrated.

12. It is further submitted that the directions issued are legislative. It would devoid the object of the Act to remove the castebased sub7 judication and discrimination. Such directions are impermissible to be issued under Article 142 of the Constitution of India.

13. It is also submitted that offences of atrocities against the members of Scheduled Castes and Scheduled Tribes have been disturbingly continuing and as per the data of National Crime Records Bureau (NCRB), Ministry of Home Affairs, 47,338 number of cases were registered in the country under the Act of 1989 in conjunction with the Indian Penal Code during the year 2016. Further, only 24.5 % of the said cases ended in conviction and 89.3% were pending in the courts at the end of the year 2016. In the circumstances, it is not proper to dilute the provisions and make it easier for the accused to get away from arrest by directing a preliminary enquiry, approval for an arrest.

14. Per contra, it is submitted that directions are proper because of misuse of the legislative provisions of the Atrocities Act, and no case for interference is made out in the review jurisdiction.

15. Before dealing with submission, we refer to the decisions. In National Campaign on Dalit Human Rights & Ors v. Union of India & Ors. (2017) 2 SCC 432, this Court has considered the report of Justice K. Punnaiah Commission and the 6th Report of the National Commission for Scheduled Castes/ Scheduled Tribes. The NHRC report also highlighted the nonregistration of cases and various other machinations resorted to by the police to discourage Dalits from registering cases under the Act of 1989. In the said case this Court had directed the strict implementation of the provisions of the Act of 1989. The relevant portion of the decision mentioned above is extracted hereunder:

“18. We have carefully examined the material on record, and we are of the opinion that there has been a failure on the part of the authorities concerned in complying with the provisions of the Act and the Rules. The laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities. It is true that the State Governments are responsible for carrying out the provisions of the Act as contended by the counsel for the Union of India. At the same time, the Central Government has an important role to play in ensuring the compliance with the provisions of the Act. Section 21(4) of the Act provides for a report on the measures taken by the Central Government and State Governments for the effective implementation of the Act to be placed before Parliament every year.

The constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected. The abundant material on record proves that the authorities concerned are guilty of not enforcing the provisions of the Act. The travails of the members of the Scheduled Castes and the Scheduled Tribes continue unabated. We are satisfied that the Central Government and the State Governments should be directed to strictly enforce the provisions of the Act and we do so. The National Commissions are also directed to discharge their duties to protect the Scheduled Castes and Scheduled Tribes. ….”

16. Reliance has been placed on Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, wherein a Constitution Bench of this Court has observed as under: “35. However, on the other hand, there are a number of cases which exhibit that there are instances where the power of the police to register an FIR and initiate an investigation thereto are misused where a cognizable offence is not made out from the contents of the complaint. A significant case in this context is the case of Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667 wherein this Court has expressed its anxiety over misuse of Section 498A of the Penal Code, 1860 (in short “IPC”) with respect to which a large number of frivolous reports were lodged. This Court expressed its desire that the legislature must take into consideration the informed public opinion and the pragmatic realities to make necessary changes in law.

36. The abovesaid judgment resulted in the 243rd Report of the Law Commission of India submitted on 3082012. The Law Commission, in its report, concluded that though the offence under Section 498A could be made compoundable, however, the extent of misuse was not established by empirical data, and, thus, could not be a ground to denude the provision of its efficacy. The Law Commission also observed that the law on the question whether the registration of FIR could be postponed for a reasonable time is in a state of uncertainty and can be crystallised only upon this Court putting at rest the present controversy.” ***

99. In CBI v. Tapan Kumar Singh (2003) 6 SCC 175, it was held as under: (SCC pp. 18384, para 20) “20. ……If he has reasons to suspect, on the basis of information received, that a cognizable offence may have been committed, he is bound to record the information and conduct an investigation. At this stage, it is also not necessary for him to satisfy himself about the truthfulness of the information. It is only after a complete investigation that he may be able to report on the truthfulness or otherwise of the information. …..The true test is whether the information furnished provides a reason to suspect the commission of an offence, which the police officer concerned is empowered under Section 156 of the Code to investigate. If it does, he has no option but to record the information and proceed to investigate the case either himself or depute any other competent officer to conduct the investigation…..”

It is apparent from the decision in Lalita Kumari (supra) that FIR has to be registered forthwith in case it relates to the commission of the cognizable offence. There is no discretion on the Officer Incharge of the Police Station for embarking upon a preliminary inquiry before registration of FIR. Preliminary inquiry can only be held in a case where it has to be ascertained whether a cognizable offence has been committed or not. If the information discloses the commission of a cognizable offence, it is mandatory to register the FIR under Section 154 of Cr.PC, and no preliminary inquiry is permissible in such a situation. This Court in Lalita Kumar (supra) observed as under:

“54. Therefore, the context in which the word “shall” appears in Section 154(1) of the Code, the object for which it has been used and the consequences that will follow from the infringement of the direction to register FIRs, all these factors clearly show that the word “shall” used in Section 154(1) needs to be given its ordinary meaning of being of “mandatory” character. The provisions of Section 154(1) of the Code, read in the light of the statutory scheme, do not admit of conferring any discretion on the officer in charge of the police station for embarking upon a preliminary inquiry prior to the registration of an FIR. It is settled position of law that if the provision is unambiguous and the legislative intent is clear, the court need not call into it any other rules of construction.” Concerning the question of arrest, in Lalita Kumari (supra) this Court has considered the safeguard in respect of arrest of an accused person. This Court affirmed the principle that arrest cannot be made routinely on the mere allegation of commission of an offence. The question arises as to justification to create a special dispensation applicable only to complaints under the Atrocities Act because of safeguards applicable generally.

17. In State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp (1) SCC 335, which has been relied upon in Lalita Kumari (supra), this Court has observed as under:

“31. At the stage of registration of a crime or a case on the basis of the information disclosing a cognizable offence in compliance with the mandate of Section 154(1) of the Code, the concerned police officer cannot embark upon an enquiry as to whether the information, laid by the informant is reliable and genuine or otherwise and refuse to register a case on the ground that the information is not reliable or credible.

On the other hand, the officer in charge of a police station is statutorily obliged to register a case and then to proceed with the investigation if he has reason to suspect the commission of an offence which he is empowered under Section 156 of the Code to investigate, subject to the proviso to Section 157. (As we have proposed to make a detailed discussion about the power of a police officer in the field of investigation of a cognizable offence within the ambit of Sections 156 and 157 of the Code in the ensuing part of this judgment, we do not propose to deal with those sections in extenso in the present context.)

In case, an officer in charge of a police station refuses to exercise the jurisdiction vested in him and to register a case on the information of a cognizable offence reported and thereby violates the statutory duty cast upon him, the person aggrieved by such refusal can send the substance of the information in writing and by post to the Superintendent of Police concerned who if satisfied that the information forwarded to him discloses a cognizable offence, should either investigate the case himself or direct an investigation to be made by any police officer subordinate to him in the manner provided by subsection (3) of Section 154 of the Code.

32. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression “information” without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, “reasonable complaint” and “credible information” are used. Evidently, the nonqualification of the word “information” in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information.

In other words, ‘reasonableness’ or ‘credibility’ of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word “information” without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of 1861) passed by the Legislative Council of India read that ‘every complaint or information’ preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act 10 of 1872) which thereafter read that ‘every complaint’ preferred to an officer in charge of a police station shall be reduced in writing. The word ‘complaint’ which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word ‘information’ was used in the Codes of 1882 and 1898 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of 1974).

An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a first information report is that there must be an information and that information must disclose a cognizable offence. 33. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information.” The Court observed the conduct of an investigation into an offence after the registration of FIR is a procedure established by law and conforms with Article 21 of the Constitution. This Court has also considered possible misuse of the provisions of the law in Lalita Kumari (supra).

18. On behalf of Union of India, the decision in State of M.P. v. Ram Krishna Balothia (1995) 3 SCC 221 has been relied on, in which this Court has upheld the validity of Section 18 of the Act of 1989 and observed in background relating to the practice of untouchability and the social attitude which lead to the commission of such offences against the Scheduled Castes/ Scheduled Tribes, there is justification of apprehension that if benefit of anticipatory bail is made available to persons who are alleged to have committed such offences, there is every possibility of their misusing that liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. This Court in Ram Krishna Balothia’s (supra) has observed:

“6. It is undoubtedly true that Section 438 of the Code of Criminal Procedure, which is available to an accused in respect of offences under the Penal Code, is not available in respect of offences under the said Act. But can this be considered as violative of Article 14? The offences enumerated under the said Act fall into a separate and special class. Article 17 of the Constitution expressly deals with the abolition of ‘untouchability’ and forbids its practice in any form. It also provides that enforcement of any disability arising out of ‘untouchability’ shall be an offence punishable under the law. The offences, therefore, which are enumerated under Section 3(1) arise out of the practice of ‘untouchability.’ It is in this context that certain special provisions have been made in the said Act, including the impugned provision under Section 18 which is before us.

The exclusion of Section 438 of the Code of Criminal Procedure in connection with offences under the Act has to be viewed in the context of the prevailing social conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. In this connection we may refer to the Statement of Objects and Reasons accompanying the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was introduced in Parliament. It sets out the circumstances surrounding the enactment of the said Act and points to the evil which the statute sought to remedy.

In the Statement of Objects and Reasons, it is stated: “Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations, and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons 2. … When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them.

When the Scheduled Castes and the Scheduled Tribes try to preserve their selfrespect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes, and Scheduled Tribes is resented, and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes…. A special legislation to check and deter crimes against them committed by nonScheduled Castes and nonScheduled Tribes has, therefore, become necessary.”

The above statement graphically describes the social conditions which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when members of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form a distinct class by themselves and cannot be compared with other offences. 9. Of course, the offences enumerated under the present case are very different from those under the Terrorist and Disruptive Activities (Prevention) Act, 1987.

However, looking to the historical background relating to the practice of “Untouchability” and the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification of an apprehension that if the benefit of the anticipatory bail is made available to the persons who are alleged to have committed such offences, there is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. It is in this context that Section 18 has been incorporated in the said Act. It cannot be considered as in any manner violative of Article 21.

10. It was submitted before us that while Section 438 is available for graver offences under the Penal Code, it is not available for even “minor offences” under the said Act. This grievance also cannot be justified. The offences which are enumerated under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society, and prevent them from leading a life of dignity and selfrespect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate class and cannot be compared with offences under the Penal Code.”

19. In Kartar Singh v. State of Punjab, (1994) 3 SCC 569, this Court has observed that denial of the right of anticipatory bail under section 438 would not amount to a violation of Article 21 of the Constitution of India. Thus, the provision of section 18 cannot be said to be violative of Article 21. Article 17 of the Constitution abolishes untouchability.

20. In Subramanian Swamy & Ors. v. Raju (2014) 8 SCC 390, it is observed that where statutory provisions are clear and unambiguous, it cannot be read down and has observed that the statistics are to be considered by a legislature. The Court must take care not to express any opinions on sufficiency or adequacy of such figures and should confine their scrutiny to legality not a necessity of law. This Court observed:

“67. Before parting, we would like to observe that elaborate statistics have been laid before us to show the extent of serious crimes committed by juveniles and the increase in the rate of such crimes, of late. We refuse to be tempted to enter into the said arena, which is primarily for the legislature to consider. Courts must take care not to express opinions on the sufficiency or adequacy of such figures and should confine its scrutiny to the legality and not the necessity of the law to be made or continued. We would be justified to recall the observations of Justice Krishna Iyer in Murthy Match Works (1974) 4 SCC 428, as the present issues seem to be adequately taken care of by the same: (SCC p. 437, paras 1315) “

13. Right at the threshold, we must warn ourselves of the limitations of judicial power in this jurisdiction. Mr. Justice Stone of the Supreme Court of the United States has delineated these limitations in United States v. Butler: 80L Ed 477: 297 US 1 (1936) thus: (L.Ed p. 495) “The power of Courts to declare a statute unconstitutional is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that Courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the Government is subject to judicial restraint, the only check upon our exercise of power is our own sense of selfrestraint. For the removal of unwise laws from the statute books appeal lies not to the Courts but to the ballot and to the processes of democratic Government.”

14. In short, unconstitutionality and not unwisdom of a legislation is the narrow area of judicial review. In the present case, unconstitutionality is alleged as springing from lugging together two dissimilar categories of match manufacturers into one compartment for like treatment.

15. Certain principles which bear upon classification may be mentioned here. It is true that a State may classify persons and objects for the purpose of legislation and pass laws for the purpose of obtaining revenue or other objects. Every differentiation is not a discrimination. But classification can be sustained only if it is founded on pertinent and real differences as distinguished from irrelevant and artificial ones. The constitutional standard by which the sufficiency of the differentia which form a valid basis for classification may be measured has been repeatedly stated by the courts. If it rests on a difference which bears a fair and just relation to the object for which it is proposed, it is constitutional.

To put it differently, the means must have nexus with the ends. Even so, a large latitude is allowed to the State for classification upon a reasonable basis and what is reasonable is a question of practical details and a variety of factors which the Court will be reluctant and perhaps illequipped to investigate. In this imperfect world perfection even in grouping is an ambition hardly ever accomplished. In this context, we have to remember the relationship between the legislative and judicial departments of Government in the determination of the validity of classification. Of course, in the last analysis courts possess the power to pronounce on the constitutionality of the acts of the other branches whether a classification is based upon substantial differences or is arbitrary, fanciful and consequently illegal. At the same time, the question of classification is primarily for legislative judgment, and ordinarily does not become a judicial question. A power to classify being extremely broad and based on diverse considerations of executive pragmatism, the judicature cannot rush in where even the legislature warily treads. All these operational restraints on judicial power must weigh more emphatically where the subject is taxation.”

(emphasis supplied)

It was observed in Subramanian Swamy (supra) that where statutory provisions are clear and unambiguous, it cannot be read down. It would not be possible to carry out directions of this Court as number of Dy. S.P. Level Officers is not sufficient to make compliance of the directions.

21. Concerning the exercise of powers under Article 142 of Constitution of India, learned Attorney General has submitted that such power could not have been exercised against the spirit of statutory provisions and to nullify them and field reserved for the legislature as there was no vacuum. He has referred to the following decisions: (a) In Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409, this Court has observed as under:

“47. …..It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. …..

48. …..Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.”

(b) In Prem Chand Garg v. Excise Commr., AIR 1963 SC 996, the Court observed that it has no power to circumscribe fundamental rights guaranteed under Article 32 of Constitution of India.

(c) In E.S.P. Rajaram v. Union of India, (2001) 2 SCC 186, the Court observed that the Supreme Court under Article 142 of the Constitution could not altogether disregard the substantive provisions of a statute and pass orders concerning an issue, which can be settled only through a mechanism prescribed in another statute.

(d) In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, it has been observed that though the language of article 142 is comprehensive and plenary, the directions given by the court should not be inconsistent with, repugnant to or in violation of the specific provisions of any statute.

(e) In Bonkya v. State of Maharashtra, (1995) 6 SCC 447, the Court has held that the Court exercises jurisdiction under Article 142 of the Constitution intending to do justice between the parties, but not in disregard of the relevant statutory provisions.

(f) In M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213, this Court has observed that Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly.

(g) In State of Punjab v. Rajesh Syal, (2002) 8 SCC 158, the Court held that even in exercising power under Article 142(1), it is more than doubtful that an order can be passed contrary to law.

(h) In Textile Labour Association v. Official Liquidator, (2004) 9 SCC 741, observation has been made that power under Article 142 is only a residuary power, supplementary and complementary to the powers expressly conferred on this Court by statutes, exercisable to do complete justice between the parties wherever it is just and equitable to do so. It is intended to prevent any obstruction to the stream of justice. (i) In Laxmidas Morarji v. Behrose Darab Madan, (2009) 10 SCC 425, it was observed that the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statutory provisions.

(j) In Manish Goel v. Rohini Goel, (2010) 4 SCC 393, it was observed that the courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law. The power under Article 142 not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure.

(k) In A.B. Bhaskara Rao v. CBI, (2011) 10 SCC 259, it was held that the power under Article 142 is not restricted by statutory provisions. It cannot be exercised based on sympathy and in conflict with the statute.

(l) In State of Punjab v. Rafiq Masih, (2014) 8 SCC 883, this Court held that Article 142 is supplementary and it cannot supplant the substantive provisions. It is a power which gives preference to equity over the law. The relevant portion is extracted hereunder:

“12. Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justiceoriented approach as against the strict rigours of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. “Declaration of law” as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the highest court of the land…..This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case.” (emphasis supplied)

22. It is submitted that there was no legislative vacuum calling for the exercise of power under Article 142 of the Constitution of India and hence the reliance on Vishakha v. State of Rajasthan, (1997) 6 SCC 241 is misplaced. On the contrary, the matter was covered by the statute; namely, Section 18 of the said Atrocities Act read with Section 41 of Cr.PC.

23. We now propose to examine the law concerning field reserved for the legislature and extant of judicial interference in the field reserved for the legislature. The difference between the common law and statute law has been brought out in the following passage in the book, Salmond on Jurisprudence, 12th Edition; Sweet & Maxwell: “In the strict sense, however, legislation is the laying down of legal rules by a sovereign or subordinate legislator. Here we must distinguish lawmaking by legislators from lawmaking by the courts. Legislators can lay down rules purely for the future and without reference to any actual dispute; the courts, in so far as they create law, can do so only in application to the cases before them and only in so far as is necessary for their solution. Judicial lawmaking is incidental to the solving of legal disputes; legislative lawmaking is the central function of the legislator.”

24. In various decisions, this Court has dealt with the scope of judicial review and issuance of guidelines. The directions mentioned above touch the realm of policy. In Bachan Singh v. the State of Punjab, (1980) 2 SCC 684, the Court has laid down and recognised the judicial review thus:

“67. Behind the view that there is a presumption of constitutionality of a statute and the onus to rebut the same lies on those who challenge the legislation, is the rationale of judicial restraint, a recognition of the limits of judicial review, a respect for the boundaries of legislative and judicial functions, and the judicial responsibility to guard the trespass from one side or the other. The primary function of the courts is to interpret and apply the laws according to the will of those who made them and not to transgress into the legislative domain of policymaking. “The job of a Judge is judging and not lawmaking.” In Lord Devlin’s words: “Judges are the keepers of the law, and the keepers of these boundaries cannot, also, be among outriders.”

(emphasis supplied)

It has been observed that the Court should not transgress into the legislative domain of policymaking.

25. In Asif Hameed & Ors. v. State of Jammu and Kashmir & Ors., 1989 Supp. (2) SCC 364, this Court has observed that it is not for the Court to pronounce policy. It cannot lay down what is wise or politic. Selfrestraint is the essence of the judicial oath. The Court observed:

“17. Before adverting to the controversy directly involved in these appeals, we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein.

The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people’s will, they have all the powers, including that of finance. Judiciary has no power over sword or the purse; nonetheless, it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the selfimposed discipline of judicial restraint.

18. Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles, 356 US 96 observed as under: “All power is, in Madison’s phrase, “of an encroaching nature.” Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is selfrestraint… Rigorous observance of the difference between limits of power and wise exercise of power – between questions of authority and questions of prudence – requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce.

No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one’s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the court’s giving effect to its own notions of what is wise or politic. That selfrestraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the executive branch do.”

(emphasis supplied)

The Court held that it could not affect its notions of what is wise or politic. It is for the legislature to consider data and decide such aspects. The law laid down in Asif Hameed v. State of Jammu and Kashmir (supra) has been reiterated by this Court in S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279.

26. In Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408, the Court observed thus: “40. The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case. The relevant caselaw and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam v. Dy. Supdt. of Police, AIR 2005 Mad 1 and we fully agree with the views expressed therein.”

27. In Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683, this Court held as under: “18. Judges must` exercise judicial restraint and must not encroach into the executive or legislative domain, vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408 and S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279 (see concurring judgment of M. Katju, J.).

19. Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily, it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.”

28. In Kuchchh Jal Sankat Nivaran Samili & Ors. v. State of Gujarat & Anr., (2013) 12 SCC 226, it has been observed that Court should not encroach upon the legislative domain. It cannot term a particular policy as fairer than the other. The Court observed:

“12. We have given our most anxious consideration to the rival submissions, and we find substance in the submission of Mr. Divan. We are conscious of the fact that there is wide separation of powers between the different limbs of the State and, therefore, it is expected of this Court to exercise judicial restraint and not encroach upon the executive or legislative domain. What the appellants in substance are asking this Court to do is to conduct a comparative study and hold that the policy of distribution of water is bad. We are afraid; we do not have the expertise or wisdom to analyse the same.

It entails intricate economic choices and though this Court tends to believe that it is expert of experts, but this principle has inherent limitation. True it is that the Court is entitled to analyse the legal validity of the different means of distribution but it cannot and will not term a particular policy as fairer than the other. We are of the opinion that the matters affecting the policy and requiring technical expertise be better left to the decision of those who are entrusted and qualified to address the same. This Court shall step in only when it finds that the policy is inconsistent with the constitutional laws or is arbitrary or irrational.”

(emphasis supplied)

29. In Dr. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454, this Court held that no directions could be issued which are directly in conflict with the statute.

30. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, this Court has observed as under: 292. The learned AttorneyGeneral said that every provision of the Constitution is essential; otherwise, it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

31. In I.R. Coelho v. State of T.N., (2007) 2 SCC 1, the following observations have been made: “129. Further, the Court in Kesavananda case not only held that Article 31B is not controlled by Article 31A but also specifically upheld the Twentyninth Constitution Amendment whereby certain Kerala Land Reform Acts were included in the Ninth Schedule after those Acts had been struck down by the Supreme Court in Kunjukutty Sahib v. State of Kerala, (1972) 2 SCC 364. The only logical basis for upholding the Twentyninth Amendment is that the Court was of the opinion that the mechanism of Article 31B, by itself, is valid, though each time Parliament in exercise of its constituent power added a law in the Ninth Schedule, such exercise would have to be tested on the touchstone of the basic structure test. [See Shelat & Grover, JJ., paras 607 & 608(7); Hegde & Mukherjea, JJ., paras 73843, 744(8); Ray, J., paras 105560, 1064; Jaganmohan Reddy, J., para 1212(4); Palekar, J., para 1333(3); Khanna, J., paras 1522, 1536, 1537(xv); Mathew, J., para 1782; Beg, J., paras 1857(6); Dwivedi, J., para 1994, 1995(4) and Chandrachud, J., paras 213641 and 2142(10).] 130. As pointed out, it is a fallacy to regard that Article 31B read with the Ninth Schedule excludes judicial review in the matter of violation of fundamental rights. The effect of Article 31B is to remove a fetter on the power of Parliament to pass a law in violation of fundamental rights.

On account of Article 31B, cause of action for violation of fundamental right is not available because the fetter placed by Part III on legislative power is removed and is nonexistent. Nonavailability of cause of action based on breach of fundamental right cannot be regarded as exclusion or ouster of judicial review. As a result of the operation of Article 31B read with the Ninth Schedule, occasion for exercise of judicial review does not arise. But there is no question of exclusion or ouster of judicial review. The two concepts are different.”

32. In Bhim Singh v. Union of India, (2010) 5 SCC 538, it was held as under:

“77. Another contention raised by the petitioners is that the Scheme violates the principle of separation of powers under the Constitution. The concept of separation of powers, even though not found in any particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of separation of powers is to achieve the maximum extent of accountability of each branch of the Government.

78. While understanding this concept, two aspects must be borne in mind. One, that separation of powers is an essential feature of the Constitution. Two that in modern governance, a strict separation is neither possible, nor desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the constitutional text. The Constitution does not prohibit overlap of functions, but in fact, provides for some overlap as a parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wresting away of the regime of constitutional accountability. 26 ***

85. Again, in the Constitution Bench judgment in A.K. Roy v. Union of India Chandrachud, C.J. speaking for the majority held at p. 295, para 23 that: “our Constitution does not follow the American pattern of a strict separation of powers.”

86. This Court has previously held that the taking away of the judicial function through legislation would be violative of separation of powers. As Chandrachud, J. noted in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: (SCC p. 261, para 689) “689. … the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our cooperative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances.” This is because such legislation upsets the balance between the various organs of the State thus harming the system of accountability in the Constitution.

87. Thus, the test for the violation of separation of powers must be precisely this. A law would be violative of separation of powers not if it results in some overlap of functions of different branches of the State, but if it takes over an essential function of the other branch leading to lapse in constitutional accountability. It is through this test that we must analyse the present Scheme.”

33. In State of T.N. v. State of Kerala, (2014) 12 SCC 696, it was observed as under: “126. On deep reflection of the above discussion, in our opinion, the constitutional principles in the context of Indian Constitution relating to separation of powers between the legislature, executive and judiciary may, in brief, be summarised thus:

126.1. Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation, and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs-legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers.

126.2. Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India.

126.3. Separation of powers between three organs-the legislature, executive and judiciary-is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution.

126.4. The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State Legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution.

126.5. The doctrine of separation of powers applies to the final judgments of the courts. The legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aliunde. In other words, a court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.

126.6. If the legislature has the power over the subjectmatter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subjectmatter and whether in making the validation law it removes the defect which the courts had found in the existing law.

126.7. The law enacted by the legislature may apparently seem to be within its competence but yet in substance if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers. In such situation, the legal effect of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction. The questions to be asked are:

(i) Does the legislative prescription or legislative direction interfere with the judicial functions?

(ii) Is the legislation targeted at the decided case or whether impugned law requires its application to a case already finally decided?

(iii) What are the terms of law; the issues with which it deals and the nature of the judgment that has attained finality? If the answer to Questions (i) and (ii) is in the affirmative and the consideration of aspects noted in Question

(iii) sufficiently establishes that the impugned law interferes with the judicial functions, the Court may declare the law unconstitutional.”

34. The House of Lords in Stock v. Frank Jones (Tipton), 1978 (1) WLR 231 with respect to interpretation of the legislative provisions has observed thus: “It is idle to debate whether, in so acting, the court is making law. As has been cogently observed, it depends on what you mean by “make” and “law” in this context. What is incontestible is that the court is a mediating influence between the executive and the legislature, on the one hand, and the citizen on the other. Nevertheless, it is essential to the proper judicial function in the constitution to bear in mind:

(1) modern legislation is a difficult and complicated process, in which, even before a bill is introduced in a House of Parliament, successive drafts are considered and their possible repercussions on all envisageable situations are weighed by people bringing to bear a very wide range of experience: the judge cannot match such experience or envisage all such repercussions, either by training or by specific forensic aid;

(2) the bill is liable to be modified in a Parliament dominated by a House of Commons whose members are answerable to the citizens who will be affected by the legislation: an English judge is not so answerable;

(3) in a society living under the rule of law citizens are entitled to regulate their conduct according to what a statute has said, rather than by what it was meant to say or by what it would have otherwise said if a newly considered situation had been envisaged;

(4) a stark contradistinction between the letter and the spirit of the law may be very well in the sphere of ethics, but in the forensic process St. John is a safer guide than St. Paul, the logos being the informing spirit; and it should be left to peoples’ courts in totalitarian regimes to stretch the law to meet the forensic situation in response to a gut reaction;

(5) Parliament may well be prepared to tolerate some anomaly in the interest of an overriding objective;

(6) what strikes the lawyer as an injustice may well have seemed to the legislature as no more than the correction of a now unjustifiable privilege or a particular misfortune necessarily or acceptably involved in the vindication of some supervening general social benefit;

(7) the parliamentary draftsmen knows what objective the legislative promoter wishes to attain, and he will normally and desirably try to achieve that objective by using language of the appropriate register in its natural, ordinary and primary sense to reject such an approach on the grounds that it gives rise to an anomaly is liable to encourage complication and anfractuosity in drafting;

(8) Parliament is nowadays in continuous session so that an unlookedfor and unsupportable injustice or anomaly can be readily rectified by legislation: this is far preferable to judicial contortion of the law to meet apparently hard cases with the result that ordinary citizens and their advisers hardly know where they stand. All this is not to advocate judicial supineness: it is merely respectfully to commend a selfknowledge of judicial limitations, both personal and constitution…..”

35. A lecture delivered by Mr. Justice M.N. Venkatachaliah, former Chief Justice of India, at the Constitution Day on 26.2.2016 in this Court, has been relied upon in the context of judicial determination of policy. Following observations have been relied upon: “The proposition that “when there is no law the executive must stepin and when the executive also does not act the judiciary should do so” is an attractive invitations: but it is more attractive than constitutionally sound. Executive power is of course coextensive with legislative power. A field unoccupied by law is open to the executive. But there is no warrant that by virtue of those provisions the courts can come in and legislate. The argument that the larger power of the court to decide and pronounce upon the validity of law includes the power to frame schemes and issue directions in the nature of legislation may equally be open to question.

This is typically the converse case of Bills of attainder; Legislative determination of disputes/rights has been held to be illegal and impressible. Ameerunnisa, Ram Prasad Narayan Sahi and Indira Gandhi are some of the telling cases. By the same logic and converse reasoning, judicial legislation which is judicial determination of policy and law is difficult to be justified jurisprudentially. It is one of the basic constitutional principles that just as courts are not constitutionally competent to legislate under the guise of interpretation so also neither Parliament nor State Legislatures can perform an essentially judicial function. None of the three constitutionally assigned spheres or orbits of authority can encroach upon the other. This is the logical meaning of the supremacy of the Constitution. Lord Devlin’s comment comes to mind; ‘The British have no more wish to be governed by the judges than they wish to be judged by their admirations’. This is not to deny the need and the desirability of such measures. The question is one of legitimacy and propriety, Robert Bork’s profound statement comes to mind: “.. the desire to do justice whose nature seems obvious is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack develops in the American foundation. A judge has begun to rule where a legislator should”.

(THE TEMPTING OF AMERICA)

Any support or justification for judicial legislation will have to be premised on sound legal reasoning. It cannot be justified for the reason that it produces welcome and desirable results. If that is done, law will cease to be what justice Holmes named it, “the calling of thinkers and becomes the province of emotions and sensitivities”. It then becomes a process of personal choice followed by rationalisation. The major and minor premises do not lead to a result; but the result produces major and minor premises. This is a reversal of the process virtually making concept of constitutional adjudication stand on its head.

It is to law what Robert Frost called ‘free verse,’ “Tennis with the net down.” Then naturally there are no rules, only passions. Legal reasoning rooted in a concern for legitimate process rather than desired results restricts judges to their proper role in a constitutional democracy. That marks off the line between judicial power and legislative power. Legislation, contrary to some popular notions, is a very elaborate democratic process. It takes much to distil the raw amorphous public opinion into scalable legislative values through the multitiered filter of parliamentary processes & procedures…..”

36. In the light of the discussion mentioned above of legal principles, we advert to directions issued in paragraph 83. Direction Nos. (iii) and (iv) and consequential direction No. (v) are sought to be reviewed/recalled. Directions contain the following aspects:

1. That arrest of a public servant can only be after approval of the appointing authority.

2. The arrest of a nonpublic servant after approval by the Senior Superintendent of Police (SSP).

3. The arrest may be in an appropriate case if considered necessary for reasons to be recorded;

4. Reasons for arrest must be scrutinised by the Magistrate for permitting further detention;

5. Preliminary enquiry to be conducted by the Dy. S.P. level officers to find out whether the allegations make out a case and that the allegations are not frivolous or motivated.

6. Any violation of the directions mentioned above will be actionable by way of disciplinary action as well as contempt.

37. Before we dilate upon the aforesaid directions, it is necessary to take note of certain aspects. It cannot be disputed that as the members of the Scheduled Castes and Scheduled Tribes have suffered for long; the protective discrimination has been envisaged under Article 15 of the Constitution of India and the provisions of the Act of 1989 to make them equals.

38. All the offences under the Atrocities Act are cognizable. The impugned directions put the riders on the right to arrest. An accused cannot be arrested in atrocities cases without the concurrence of the higher Authorities or appointing authority as the case may be. As per the existing provisions, the appointing authority has no power to grant or withhold sanction to arrest concerning a public servant.

39. The National Commission for Scheduled Castes Annual Report 201516, has recommended for prompt registration of FIRs thus: “The Commission has noted with concern that instances of procedural lapses are frequent while dealing atrocity cases by both police and civil administration. There are delays in the judicial process of the cases. The Commission, therefore, identified lacunae commonly noticed during police investigation, as also preventive/curable actions the civil administration can take. NCSC recommends the correct and timely application of SC/ST (PoA) Amendment Act, 2015 and Amendment Rules of 2016 as well as the following for improvement:

8.6.1 Registration of FIRs The Commission has observed that the police often resort to preliminary investigation upon receiving a complaint in writing before lodging the actual FIRs. As a result, the SC victims have to resort to seeking directions from courts for registration of FIRs u/s 156(3) of Cr.P.C. Hon’ble Supreme Court has also on more than one occasion emphasized about registration of FIR first. This Commission again reemphasizes that the State / UT Governments should enforce prompt registration of FIRs.”

(emphasis supplied)

40. The learned Attorney General pointed out that the statistics considered by the Court in the judgment under review indicate that 9 to 10 percent cases under the Act were found to be false. The percentage of false cases concerning other general crimes such as forgery is comparable, namely 11.51 percent and for kidnapping and abduction, it is 8.85 percent as per NCRB data for the year 2016. The same can be taken care of by the Courts under Section 482, and in case no prima facie case is made out, the Court can always consider grant of anticipatory bail and power of quashing in appropriate cases. For the low conviction rate, he submitted that same is the reflection of the failure of the criminal justice system and not an abuse of law. The witnesses seldom come to support downtrodden class, biased mindset continues, and they are pressurised in several manners, and the complainant also hardly muster the courage.

41. As to prevailing conditions in various areas of the country, we are compelled to observe that SCs/STs are still making the struggle for equality and for exercising civil rights in various areas of the country. The members of the Scheduled Castes and Scheduled Tribes are still discriminated against in various parts of the country. In spite of reservation, the fruits of development have not reached to them, by and large, they remain unequal and vulnerable section of the society. The classes of Scheduled Castes and Scheduled Tribes have been suffering ignominy and abuse, and they have been outcast socially for the centuries. The efforts for their upliftment should have been percolated down to eradicate their sufferings.

42. Though, Article 17 of the Constitution prohibits untouchability, whether untouchability has vanished? We have to find the answer to all these pertinent questions in the present prevailing social scenario in different parts of the country. The clear answer is that untouchability though intended to be abolished, has not vanished in the last 70 years. We are still experimenting with ‘tryst with destiny.’ The plight of untouchables is that they are still denied various civil rights; the condition is worse in the villages, remote areas where fruits of development have not percolated down.

They cannot enjoy equal civil rights. So far, we have not been able to provide the modern methods of scavenging to Harijans due to lack of resources and proper planning and apathy. Whether he can shake hand with a person of higher class on equal footing? Whether we have been able to reach that level of psyche and human dignity and able to remove discrimination based upon caste? Whether false guise of cleanliness can rescue the situation, how such condition prevails and have not vanished, are we not responsible? The answer can only be found by soul searching. However, one thing is sure that we have not been able to eradicate untouchability in a real sense as envisaged and we have not been able to provide downtrodden class the fundamental civil rights and amenities, frugal comforts of life which make life worth living. More so, for Tribals who are at some places still kept in isolation as we have not been able to provide them even basic amenities, education and frugal comforts of life in spite of spending a considerable amount for the protection, how long this would continue. Whether they have to remain in the status quo and to entertain civilized society? Whether under the guise of protection of the culture, they are deprived of fruits of development, and they face a violation of traditional rights?

43. In Khadak Singh vs. State of Himachal Pradesh, AIR 1963 SC 1295, this Court has observed that the right to life is not merely an animal’s existence. Under Article 21, the right to life includes the right to live with dignity. Basic human dignity implies that all the persons are treated as equal human in all respects and not treated as an untouchable, downtrodden, and object for exploitation. It also implies that they are not meant to be born for serving the elite class based upon the caste. The caste discrimination had been deeprooted, so the consistent effort is on to remove it, but still, we have to achieve the real goal. No doubt we have succeeded partially due to individual and collective efforts.

44. The enjoyment of quality life by the people is the essence of guaranteed right under Article 21 of the Constitution, as observed in Hinch Lal Tiwari v. Kamla Devi, (2001) 6 SCC 496. Right to live with human dignity is included in the right to life as observed in Francis Coralie Mullin v. Union Territory Delhi, Administrator, AIR 1981 SC 746, Olga Tellis v. Bombay Corporation, AIR 1986 SC 180. Gender injustice, pollution, environmental degradation, malnutrition, social ostracism of Dalits are instances of human rights violations as observed by this Court in People’s Union for Civil Liberties v. Union of India, (2005) 2 SCC 436:

“34. The question can also be examined from another angle. The knowledge or experience of a police officer of human rights violation represents only one facet of human rights violation and its protection, namely, arising out of crime. Human rights violations are of various forms which besides police brutality are – gender injustice, pollution, environmental degradation, malnutrition, social ostracism of Dalits, etc. A police officer can claim to have experience of only one facet. That is not the requirement of the section.”

(emphasis supplied)

45. There is right to live with dignity and also right to die with dignity. For violation of human rights under Article 21 grant of compensation is one of the concomitants which has found statutory expression in the provisions of compensation, to be paid in case an offence is committed under the provisions of the Act of 1989. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty, and property. Therefore, it has been held to be an essential element of the right to life of a citizen under Article 21 as observed by this Court in Umesh Kumar v. State of Andhra Pradesh, (2013) 10 SCC 591, Kishore Samrite v. State of Uttar Pradesh, (2013) 2 SCC 398 and Subramanian Swamy v. Union of India, (2016) 7 SCC 221. The provisions of the Act of 1989 are, in essence, concomitants covering various facets of Article 21 of the Constitution of India.

46. They do labour, bonded or forced, in agricultural fields, which is not abrogated in spite of efforts. In certain areas, women are not treated with dignity and honour and are sexually abused in various forms. We see sewer workers dying in due to poisonous gases in chambers. They are like death traps. We have not been able to provide the masks and oxygen cylinders for entering in sewer chambers, we cannot leave them to die like this and avoid tortious liability concerned with officials/machinery, and they are still discriminated within the society in the matter of enjoying their civil rights and cannot live with human dignity.

47. The Constitution of India provides equality before the law under the provisions contained in Article 14. Article 15(4) of the Constitution carves out an exception for making any special provision for the advancement of any socially and educationally backward classes of citizens or SCs. and STs. Further protection is conferred under Article 15(5) concerning their admission to educational institutions, including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions. Historically disadvantageous groups must be given special protection and help so that they can be uplifted from their poverty and low social status as observed in Kailas & Ors. v. State of Maharashtra, 2011 (1) SCC 793.

The legislature has to attempt such incumbents be protected under Article 15(4), to deal with them with more rigorous provisions as compared to provisions of general law available to the others would create inequality which is not permissible/envisaged constitutionally. It would be an action to negate mandatory constitutional provisions not supported by the constitutional scheme; rather, it would be against the mandated constitutional protection. It is not open to the legislature to put members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position visàvis others and in particular to socalled upper castes/general category. Thus, they cannot be discriminated against more so when we have a peep into the background perspective. What legislature cannot do legitimately, cannot be done by the interpretative process by the courts.

48. The particular law, i.e., Act of 1989, has been enacted and has also been amended in 2016 to make its provisions more effective. Special prosecutors are to be provided for speedy trial of cases. The incentives are also provided for rehabilitation of victims, protection of witnesses and matters connected therewith.

49. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper Castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care in proceeding under section 482 of the Cr.PC.

50. The data of National Crime Records Bureau, Ministry of Home Affairs, has been pointed out on behalf of Union of India which indicates that more than 47,000 cases were registered in the year 2016 under the Act of 1989. The number is alarming, and it cannot be said that it is due to the outcome of the misuse of the provisions of the Act.

51. As a matter of fact, members of the Scheduled Castes and Scheduled Tribes have suffered for long, hence, if we cannot provide them protective discrimination beneficial to them, we cannot place them at all at a disadvantageous position that may be causing injury to them by widening inequality and against the very spirit of our Constitution. It would be against the basic human dignity to treat all of them as a liar or as a crook person and cannot look at every complaint by such complainant with a doubt. Eyewitnesses do not come up to speak in their favour. They hardly muster the courage to speak against upper caste, that is why provisions have been made by way of amendment for the protection of witnesses and rehabilitation of victims. All humans are equal including in their frailings.

To treat SCs. and STs. as persons who are prone to lodge false reports under the provisions of the Scheduled Castes and Scheduled Tribes Act for taking revenge or otherwise as monetary benefits made available to them in the case of their being subjected to such offence, would be against fundamental human equality. It cannot be presumed that a person of such class would inflict injury upon himself and would lodge a false report only to secure monetary benefits or to take revenge. If presumed so, it would mean adding insult to injury, merely by the fact that person may misuse provisions cannot be a ground to treat class with doubt. It is due to human failings, not due to the caste factor. The monetary benefits are provided in the cases of an acid attack, sexual harassment of SC/ST women, rape, murder, etc. In such cases, FIR is required to be registered promptly.

52. It is an unfortunate state of affairs that the caste system still prevails in the country and people remain in slums, more particularly, under skyscrapers, and they serve the inhabitants of such buildings.

53. To treat such incumbents with a rider that a report lodged by an SCs/STs category, would be registered only after a preliminary investigation by Dy. S.P., whereas under Cr.PC a complaint lodged relating to cognizable offence has to be registered forthwith. It would mean a report by uppercaste has to be registered immediately and arrest can be made forthwith, whereas, in case of an offence under the Act of 1989, it would be conditioned one. It would be opposed to the protective discrimination meted out to the members of the Scheduled Castes and Scheduled Tribes as envisaged under the Constitution in Articles 15, 17 and 21 and would tantamount to treating them as unequal, somewhat supportive action as per the mandate of Constitution is required to make them equals. It does not prima facie appear permissible to look them down in any manner. It would also be contrary to the procedure prescribed under the Cr.PC and contrary to the law laid down by this Court in Lalita Kumari (supra).

54. The guidelines in (iii) and (iv) appear to have been issued in view of the provisions contained in Section 18 of the Act of 1989; whereas adequate safeguards have been provided by a purposive interpretation by this Court in the case of State of M.P. v. R.K. Balothia, (1995) 3 SCC 221. The consistent view of this Court that if prima facie case has not been made out attracting the provisions of SC/ST Act of 1989, in that case, the bar created under section 18 on the grant of anticipatory bail is not attracted. Thus, misuse of the provisions of the Act is intended to be taken care of by the decision above. In Kartar Singh (supra), a Constitution Bench of this Court has laid down that taking away the said right of anticipatory bail would not amount to a violation of Article 21 of the Constitution of India. Thus, prima facie it appears that in the case of misuse of provisions, adequate safeguards are provided in the decision mentioned above.

55. That apart directions (iii) and (iv) issued may delay the investigation of cases. As per the amendment made in the Rules in the year 2016, a charge sheet has to be filed to enable timely commencement of the prosecution. The directions issued are likely to delay the timely scheme framed under the Act/Rules.

In re: sanction of the appointing authority :

56. Concerning public servants, the provisions contained in Section 197, Cr.PC provide protection by prohibiting cognizance of the offence without the sanction of the appointing authority and the provision cannot be applied at the stage of the arrest. That would run against the spirit of Section 197, Cr.PC. Section 41, Cr.PC authorises every police officer to carry out an arrest in case of a cognizable offence and the very definition of a cognizable offence in terms of Section 2(c) of Cr.PC is one for which police officer may arrest without warrant.

57. In case any person apprehends that he may be arrested, harassed and implicated falsely, he can approach the High Court for quashing the FIR under Section 482 as observed in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.

58. While issuing guidelines mentioned above approval of appointing authority has been made imperative for the arrest of a public servant under the provisions of the Act in case, he is an accused of having committed an offence under the Act of 1989. Permission of the appointing authority to arrest a public servant is not at all statutorily envisaged; it is encroaching on a field which is reserved for the legislature. The direction amounts to a mandate having legislative colour which is a field not earmarked for the Courts.

59. The direction is discriminatory and would cause several legal complications. On what basis the appointing authority would grant permission to arrest a public servant? When the investigation is not complete, how it can determine whether public servant is to be arrested or not? Whether it would be appropriate for appointing authority to look into case diary in a case where its sanction for prosecution may not be required in an offence which has not happened in the discharge of official duty. Approaching appointing authority for approval of arrest of a public servant in every case under the Act of 1989 is likely to consume sufficient time. The appointing authority is not supposed to know the ground realities of the offence that has been committed, and arrest sometimes becomes necessary forthwith to ensure further progress of the investigation itself.

Often the investigation cannot be completed without the arrest. There may not be any material before the appointing authority for deciding the question of approval. To decide whether a public servant should be arrested or not is not a function of appointing authority, it is wholly extrastatutory. In case appointing authority holds that a public servant is not to be arrested and declines approval, what would happen, as there is no provision for grant of anticipatory bail. It would tantamount to take away functions of Court. To decide whether an accused is entitled to bail under Section 438 in case no prima facie case is made out or under Section 439 is the function of the Court. The direction of appointing authority not to arrest may create conflict with the provisions of Act of 1989 and is without statutory basis.

60. By the guidelines issued, the anomalous situation may crop up in several cases. In case the appointing authority forms a view that as there is no prima facie case the incumbent is not to be arrested, several complications may arise. For the arrest of an offender, maybe a public servant, it is not the provision of the general law of Cr.PC that permission of the appointing authority is necessary. No such statutory protection provided to a public servant in the matter of arrest under the IPC and the Cr.PC as such it would be discriminatory to impose such rider in the cases under the Act of 1989. Only in the case of discharge of official duties, some offence appears to have been committed, in that case, sanction to prosecute may be required and not otherwise. In case the act is outside the purview of the official discharge of duty, no such sanction is required.

61. The appointing authority cannot sit over an FIR in case of cognizable, nonbailable offense and investigation made by the Police Officer; this function cannot be conferred upon the appointing authority as it is not envisaged either in the Cr.P.C. or the Act of 1989. Thus, this rider cannot be imposed in respect of the cases under the Act of 1989, may be that provisions of the Act are sometimes misused, exercise of power of approval of arrest by appointing authority is wholly impermissible, impractical besides it encroaches upon the field reserved for the legislature and is repugnant to the provisions of general law as no such rider is envisaged under the general law.

62. Assuming it is permissible to obtain the permission of appointing authority to arrest accused, would be further worsening the position of the members of the Scheduled Castes and Scheduled Tribes. If they are not to be given special protection, they are not to be further put in a disadvantageous position. The implementation of the condition may discourage and desist them even to approach the Police and would cast a shadow of doubt on all members of the Scheduled Castes and Scheduled Tribes which cannot be said to be constitutionally envisaged. Other castes can misuse the provisions of law; also, it cannot be said that misuse of law takes place by the provisions of Act of 1989. In case the direction is permitted to prevail, days are not far away when writ petition may have to be filed to direct the appointing authority to consider whether accused can be arrested or not and as to the reasons recorded by the appointing authority to permit or deny the arrest. It is not the function of the appointing authority to intermeddle with a criminal investigation. If at the threshold, approval of appointing authority is made necessary for arrest, the very purpose of the Act is likely to be frustrated. Various complications may arise. Investigation cannot be completed within the specified time, nor trial can be completed as envisaged. Act of 1989 delay would be adding to the further plight of the downtrodden class.

In ref: approval of arrest by the SSP in the case of a nonpublic servant:

63. Inter alia for the reasons as mentioned earlier, we are of the considered opinion that requiring the approval of SSP before an arrest is not warranted in such a case as that would be discriminatory and against the protective discrimination envisaged under the Act. Apart from that, no such guidelines can prevail, which are legislative. When there is no provision for anticipatory bail, obviously arrest has to be made. Without doubting bona fides of any officer, it cannot be left at the sweet discretion of the incumbent howsoever high. The approval would mean that it can also be ordered that the person is not to be arrested then how the investigation can be completed when the arrest of an incumbent, is necessary, is not understandable. For an arrest of accused such a condition of approval of SSP could not have been made a sine qua non, it may delay the matter in the cases under the Act of 1989.

Requiring the Magistrate to scrutinise the reasons for permitting further detention:

64. As per guidelines issued by this Court, the public servant can be arrested after approval by appointing authority and that of a nonpublic servant after the approval of SSP. The reasons so recorded have to be considered by the Magistrate for permitting further detention. In case of approval has not been granted, this exercise has not been undertaken. When the offence is registered under the Act of 1989, the law should take its course no additional fetter sare called for on arrest whether in case of a public servant or nonpublic servant. Even otherwise, as we have not approved the approval of arrest by appointing authority/S.S.P., the direction to record reasons and scrutiny by Magistrate consequently stands nullified.

65. The direction has also been issued that the Dy. S.P. should conduct a preliminary inquiry to find out whether allegations make out a case under the Atrocities Act, and that the allegations are not frivolous or motivated. In case a cognisable offence is made out, the FIR has to be outrightly registered, and no preliminary inquiry has to be made as held in Lalita Kumari (supra) by a Constitution Bench. There is no such provision in the Code of Criminal Procedure for preliminary inquiry or under the SC/ST Act, as such direction is impermissible. Moreover, it is ordered to be conducted by the person of the rank of Dy. S.P. The number of Dy. S.P. as per stand of Union of India required for such an exercise of preliminary inquiry is not available.

The direction would mean that even if a complaint made out a cognizable offence, an FIR would not be registered until the preliminary inquiry is held. In case a preliminary inquiry concludes that allegations are false or motivated, FIR is not to be registered in such a case how a final report has to be filed in the Court. The direction (iv) cannot survive for the other reasons as it puts the members of the Scheduled Castes and Scheduled Tribes in a disadvantageous position in the matter of procedure visavis to the complaints lodged by members of upper caste, for later no such preliminary investigation is necessary, in that view of matter it should not be necessary to hold preliminary inquiry for registering an offence under the Atrocities Act of 1989.

66. The creation of a casteless society is the ultimate aim. We conclude with a pious hope that a day would come, as expected by the framers of the Constitution, when we do not require any such legislation like Act of 1989, and there is no need to provide for any reservation to SCs/STs/OBCs, and only one class of human exist equal in all respects and no caste system or class of SCs/STs or OBCs exist, all citizens are emancipated and become equal as per Constitutional goal.

67. We do not doubt that directions encroach upon the field reserved for the legislature and against the concept of protective discrimination in favour of downtrodden classes under Article 15(4) of the Constitution and also impermissible within the parameters laid down by this Court for exercise of powers under Article 142 of Constitution of India. Resultantly, we are of the considered opinion that direction Nos.(iii) and (iv) issued by this Court deserve to be and are hereby recalled and consequently we hold that direction No. (v), also vanishes. The review petitions are allowed to the extent mentioned above.

68. All the pending applications regarding intervention etc. stand disposed of.

J. (Arun Mishra)

J. (M.R. Shah)

J. (B.R. Gavai)

October 01, 2019.

New Delhi;


1 Bandhua Mukti Morcha vs. UOI (1984) 3 SCC 161, para 13

2 Vishakha versus State of Rajasthan (1997) 6 SCC 241, para 16; Lakshmi Kant Pandey v. UOI (1983)

2 SCC 244; Common Cause v. UOI (1996) 1 SCC 753; M.C. Mehta v. State of T.N. (1996) 6 SCC 756

3 Supreme Court Bar Assn. v. UOI (1998) 4 SCC 409, para 48

4 Dayaram v. Sudhir Batham (2012) 1 SCC 333, para 18


 

পশ্চিমবঙ্গে তফসিলি জাতি ও তফসিলি উপজাতি ও ওবিসিদের তালিকা

এসসি/এসটি সার্টিফিকেটের বিষয়টির কোনও বয়স বার নেই । ওবিসি সার্টিফিকেট ইস্যু করার ক্ষেত্রে বয়স বার করার বিষয়টিও তুলে নেওয়া হয়েছে ।

পেইজ আপডেট:-Nov 10, 2018

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2019 আপডেটের জন্য চেক করুন

এসসি/এসটি/ওবিসি সার্টিফিকেট (বর্ণ সনদ) সব উপ-বিভাগে SDOs দ্বারা ইস্যু করা হয় । কলকাতায় এ ধরনের শংসাপত্র জারি করে কলকাতার DWO । তফসিলি জাতি ও তফসিলি উপজাতি (আইডেন্টিফিকেশন) আইন, 1994-এর ক্ষেত্রে এসসি & ST-র জন্য জাতিগত শংসাপত্র ইস্যু করা হয় । ওবিসি সার্টিফিকেট ইস্যু করা হয় সরকারি বিজ্ঞপ্তি নং 347-TW/ইসি তারিখ 13-07-1994 ।

এসসি/এসটি সার্টিফিকেটের বিষয়টির কোনও বয়স বার নেই । ওবিসি সার্টিফিকেট ইস্যু করার ক্ষেত্রে বয়স বার করার বিষয়টিও তুলে নেওয়া হয়েছে ।

আইন, বিধি এবং বিজ্ঞপ্তি ইত্যাদিতে উল্লেখিত এসসি এসটি/ওবিসি-র জন্য জাতিগত শংসাপত্র ইস্যু করার পদ্ধতি সম্প্রতি সংকলিত হয়েছে এবং ব্যাপক নির্দেশিকা জারি করা হয়েছে ।


তফসিলি জাতি

১ ।
বাগদি, ডুলি
৩১ ।
কৌর
২ ।
বাহেলিয়া
32 ।
কেকোট, কেইট
৩ ।
বাইতি
33 ।
খাইরার
৪ ।
ব্যাংটার
34 ।
খাতিক
৫ ।
বাউরি
35 ।
কক
৬ ।
বেলদার
36 ।
কোনাই
৭ ।
ভোজিটিএ
37 ।
কোনওয়ার
৮ ।
ভুইমালি
38 ।
কোটাল
৯ ।
ভূঁইয়া
39 ।
কুরারিয়ার
১০ ।
বাঁধতে
40 ।
লালবেগই
১১ ।
চরের, চরমকর, মোচী, মুচি, রাব্য়েড, রুইদাস, ঋষি
41 ।
লোধার
১২ ।
চৌপাল
42 ।
মাখার
১৩ ।
ডাগর
43 ।
মাল
১৪ ।
দাসাই (নেপালি)
44 ।
মাল্লাহ
১৫ ।
ধোবা, ধোবি
45 ।
মুহার
১৬ ।
দোয়াই
46 ।
নাসাদ্র
১৭ ।
ডোম, ধীঅঙ্গদ
47 ।
ন্যাট
১৮ ।
দোসাধ, দুধ, ধরণী, ধারি
48 ।
ননিয়ায়া
১৯ ।
ঘাসি
49 ।
পাইইল্যা
২০ ।
গনরহি
50 ।
প্যান, সাসি
২১ ।
হাললাখোর
50 ।
পাসই
২২ ।
হরি, মেহটার, মেবা, বেঙ্গলি, বাল্মীকির
52 ।
পাটনি
২৩ ।
জালিয়া কৈবারত্তা
53 ।
পড, পাউনদরা
২৪ ।
ঝালা মালো, মালো
54.
রাজবংশী
25.
কাদেরের
55.
রাজওয়ার
26.
কামি (নেপালি)
56.
সারকি (নেপালি)
27.
কান্দরা
57.
সুনরি (সাহা বাদে)
28.
কাঞ্জর
58.
টিকিয়ার
29.
কাওরা
59.
হয়েছে
30.
করেঙ্গা, কোরঙ্গা
60.
চেন * *

* বিলোপ করা হয়েছে সংবিধান (তফসিলি জাতি) অর্ডিন্যান্স (সংশোধন) আইন, 2016 তারিখ ৯ মে, 2016, নয়াদিল্লি (ভারতের গেজেট)

* * এলাকা সীমাবদ্ধতা মুছে দিয়েছে “ভারতের গেজেট 09-05-2016-এ প্রকাশিত সংবিধান (তফসিলি জাতি) অর্ডিন্যান্স (সংশোধন) আইন, 2016” ।


তফসিলি উপজাতি

১ ।
অসুর
২১ ।
অমেঠির কোরওয়া
২ ।
বৈগা
২২ ।
লেপচা
৩ ।
বেদিয়া, বেদিয়া
২৩ ।
লোধা, খেরিয়া, খড়িয়া
৪ ।
ভুমিজ
২৪ ।
লোহারা, লোহরা
৫ ।
ভুটিয়া, শেরপা, টোটো, দুধপা, কাগতকায়, তিব্বতি, ইয়োলামো
25.
মাঘ
৬ ।
বিরহোর
26.
মাহালি
৭ ।
বিরজিয়া
27.
মহলী
৮ ।
চাকমা
28.
মাল পাহাড়িয়া
৯ ।
চেও
29.
মেচ
১০ ।
চিক বারাইকে
30.
মরু
১১ ।
গারো
৩১ ।
মুন্ডা
১২ ।
গোন্ড
32 ।
নাগসিয়া
১৩ ।
গোরএইট
33 ।
ওরাঁও
১৪ ।
হাজঙ্গ
34 ।
পারহাড়িয়া
১৫ ।
হো
35 ।
রাভা
১৬ ।
কারমালি
36 ।
সন্তলাল
১৭ ।
খারওয়ার
37 ।
সৌরিয়া পাহাড়িয়া
১৮ ।
খন্ড
38 ।
সাভার
১৯ ।
কিসান
39 ।
লিম্বু
২০ ।
কোরা
40 ।
তামাং

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আরও পিছিয়ে পড়া (ক্যাটাগরি-এ)

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পিছিয়ে পড়া (ক্যাটাগরি-বি)

1

আবদাল (মুসলিম) *

1

বৈশ্য কাপালি

2

বৈয়া মুসলিম *

2

বংশী বর্মন

3

বান্নি/বসনি (মুসলিম) *

3

বারুজিবি

বেলদার মুসলিম *

বেতকার (বেনলকার)

5

বেপারী/বাইপারী মুসলিম *

5

ভর

ভাটিয়া মুসলিম *

ভরভুজা

মুসলিম ভাতিয়ারা *

ভুজেলের

চৌদুলি (মুসলিম) *

বুচুচহেং

9

মুসলিম চুটর মিসসরি *

9

চাসাটি (চাসা)

10

মুসলিম দাদর *

10

চিত্রকার

11

ধুকপুক (মুসলিম) *

11

তফসিলি জাতি খ্রিস্টান ও তাদের বংশধরদের ধর্মান্তরিত

12

ধেনিয়া *

12

দেবডাঙ্গা

13

ফকির, সাঁই *

13

দেওয়ান

14

গায়েন (মুসলিম) *

14

Dhimal

15

ঘোসি (মুসলিম) *

15

গানপেয়েছেন

16

হাজজাম (মুসলিম) *

16

গোয়ালা, জিপে (পল্লভ জিপে, বালিলাভ জিপে,
যাদব জিপে, জিপে, আহির ও যাদব)

17

হাওয়ারি, ধোবি (যারা তফসিলি জাতির তালিকায় অন্তর্ভুক্ত) *

17

হেলে/হলিয়া/চাসি-কৈবারত্তা, দাস কৈবারত্তা

18

মুসলিম জমাদার *

18

কাহার

19

জোহ্ (আনসারি-মোমিন) *

19

কেআনসারি

20

মুসলিম কালান্দর *

20

কাপালি

21

কান (মুসলিম) *

21

করণী

22

কাসাই

22

কর্মকার

23

খোট্টা মুসলিম *

23

কেওরি/কোরি

24

মুসলিম লস্করের *

24

খেন (নন-বানিয়া ক্যাটাগরি)

25

মাহালদার (মুসলিম) *

25

কুম্ভকার

26

মাহী/পাটনী মুসলিম *

26

কুর্মি

27

মাল মুসলিম *

27

মালাকার

28

মল্লিক

28

মঙ্গার

29

মিদ্দে

29

মোইরা (হালওয়াই), মোদক (হালওয়াই)

30

মুসলিম মোল্লা *

30

নগর

31

মুচি/চামার মুসলিম *

31

ন্যাওটা

32

মুসলিম বারুজিবি/বারুনি *

32

নেম্বং

33

মুসলিম বিদেয় *

33

নিউজার

34

মুসলিম হালদার *

34

রাই (চামলিং সহ)

35

মুসলিম মালি, ফারজি (মুসলিম) *

35

রাজু

36

মুসলিম মণ্ডল *

36

সামপাং

37

মুসলিম পিয়োদা *

37

সড়ক

38

মুসলিম সাঁপুই/সাপুই *

38

সাতচাসি

39

নিশিয়া-শেখ *

39

শঙ্খকাকার

40

মুসলিম নীহারিয়া *

40

সুলুওয়ার

41

নিকারি (মুসলিম) *

41

সূত্রধর

42

পাতিদার

42

সরনকার

43

মুসলিম পেচি *

43

তামবোলি/তামলী

44

মুসলিম রাজমিসরি *

44

তানতি, তানতুরাইয়া

45

রায়েয়েন (কুজরা) *

45

তেলি, কোলু

46

মুসলিম সর্দার *

46

থামি

47

শেরশাবাডিয়া *

47

তুরহা

48

সিলী (মুসলিম) *

48

যোগী, নাথ

49

টুটিয়া (মুসলিম) *

49

মুসলিম দারাজি/ওস্তাগর/ইডঋষি *

50

ধানুক

50

ঢালি (মুসলিম) *

51

জোগী

51

পাহডিয়া মুসলিম *

52

খাএএইট

52

তাল-পাকহা বেনিয়া *

53

কোস্তা/কোথা

53

আদলদর (মুসলিম) *

54

লাহেরা/লাহেরা

54

আই এনজি/হবে/আকাহান (মুসলিম) *

55

রিয়েশ্বর

55

ব্যাগ (মুসলিম) *

56

সুকলি

56

চাপ্রশী (মুসলিম) *

57

বেঙ্গলি (মুসলিম) *

57

চুইহার *

58

ধাত্রি/ডাই/ধালিটি (মুসলিম) *

58

দাদনৃত্য (মুসলিম) *

59

ঘরামি (মুসলিম) *

59

হাউজ (মুসলিম) *

60

ঘোড়াখান *

60

ধাবক (মুসলিম) *

61

গোলদার/গোল্ডের (মুসলিম) *

61

গাজী (মুসলিম), পার (মুসলিম) *

62

হালসানা (মুসলিম) *

62

খান (মুসলিম) *

63

কায়ল (মুসলিম) *

63

সদহুখান (মুসলিম) *

64

নাইয়া (মুসলিম) *

64

মাহী

65

শিকারি/সিকারি (মুসলিম) *

65

মালতা/মালিথা/মালাত্যা (মুসলিম) *

66

শেখ *

66

মিসসরি (মুসলিম) *

67

বায়েন (মুসলিম) *

67

পিসিক (মুসলিম) *

68

ভূঁইয়া/বিহুয়া (মুসলিম) *

68

পালান (মুসলিম) *

69

বোরাহ/বারা/বোরা (মুসলিম) *

69

পূর্কাতা (মুসলিম) *

70

গোলি (মুসলিম) *

70

সানা (মুসলিম) *

71

হাটি (মুসলিম) *

71

সারং (মুসলিম) *

72

যাত্রায়া (মুসলিম) *

72

#Omitted

73

খোনডেকার/খনকর (মুসলিম) *

73

সরকার (মুসলিম) *

74

পাহার (মুসলিম) *

74

শাহ (শাহ/সাহাজি) *

75

রাতান (মুসলিম) *

75

তরফদার (মুসলিম) *

76

কালাযুদ্ধ

76

গাভাসকর

77

ত্তা (মুসলিম) *

77

মৌলী (মুসলিম) *

78

খানসামা

78

সেপাই (মুসলিম) *

79

হাওয়াইকার (মুসলিম) *

79

বারাদি (মুসলিম) *

80

খাজোকৃয়া/খাজনকৃয়া (মুসলিম) *

80

দালাল (মুসলিম) *

81

হাজারী (মুসলিম) *

81

হোসেনি গিয়ালা (মুসলিম) *

82

খালিশি (মুসলিম) *

83

কিন্নি (মুসলিম) *

84

মুক্তি/মুফতি (মুসলিম) *

85

কালাল/ইরাকি *

86

সারালা/সারওয়ালা (মুসলিম) *

87

বাঘানি (মুসলিম) *

88

ভাণ্ডারি (মুসলিম) *

89

কথক (মুসলিম) *

90

মুদি/মেহেদী (মুসলিম) *

91

সাহানা (মুসলিম) *

92

কাজী/কাজি/কুয়াজি/কোয়াজী (মুসলিম) *

93

কোটাল (মুসলিম) *

94

গুরুং

95

লায়েক (মুসলিম) *
96 খাস
97 শিডার/শিকদার/শিকদার/সিকদার (মুসলিম) *

*ওসিএস এর মধ্যে মুসলিম সম্প্রদায়কে নির্দেশ

সূত্র: ওয়েস্ট বেঙ্গল সরকার


সংযুক্ত আইন:

সংবিধান (তফসিলি জাতি) অর্ডিন্যান্স, 1950

  1. পশ্চিমবঙ্গ তফসিলি জাতি উপদেষ্টা পরিষদ আইন, 2017
  2. পশ্চিমবঙ্গ তফসিলি জাতি ও তফসিলি উপজাতি (শনাক্তকরণ) আইন, 1994
  3. পশ্চিমবঙ্গ তফসিলি জাতি ও তফসিলি উপজাতি ( পরিষেবা ও পদে পদ সংরক্ষণ) আইন, 1976
  4. পশ্চিমবঙ্গ তফসিলি জাতি উন্নয়ন ও অর্থ নিগম আইন, 1976

মামলা :

বীর সিং বনাম দিল্লি জল বোর্ড & ওআরএস – সুপ্রিম কোর্ট অনুষ্ঠিত:-রাষ্ট্র ‘ এ ‘ একটি তফসিলি জাতি হিসেবে বিজ্ঞাপিত ব্যক্তি ‘ a ‘ কে রাষ্ট্র ‘ এ ‘ একটি তফসিলি জাতি হিসেবে ঘোষণা করা হয় এমন ভিত্তিতে অন্য রাজ্যে একই স্ট্যাটাস দাবি করতে পারে না…… ‘ ‘ [মাননীয় প্রধান বিচারপতি মাননীয় বিচারপতি N.V. রামানা, মাননীয় বিচারপতি আর ববনমাথি, মাননীয় বিচারপতি মোহন এম শান্ততানগাউদার, মাননীয় মাননীয় বিচারপতি এস আব্দুল নাজিবের]


আপনি পছন্দ করতে পারেন:

Current Affairs and GK 2019

Denotified Tribes (DNTs)-Vimukta Jati

 Also known as Vimukt Jati, Ghumantu, Ardh-Ghumantu and Tapriwas jatis.

Many castes are included in the list of DNTs (Vimukt Jati are Bawaria, Sanshi, Bajigar (Banjara), Spela (Nath), Hedi (Nayak), Deha, Odh, Sikligarh, Gadia lohar, Doom/Mirasi, Singikat, Jogi, Nut, Bhatt, Sorgar/Shergar, Palgadaria and Ram Sik.

Vimukt Ghumantu Jati Vikas Board was constituted in 2015 in Haryana to uplift the DNTs.

Authority

National Commission for Denotified, Nomadic and Semi-Nomadic Tribes (NCDNT)

Ministry of Social Justice and Empowerment
Department of Social Justice and Empowerment
Government of India

West Bengal Scheduled Castes Development And Finance Corporation Act, 1976

West Bengal Act 39 of 1976

[23rd July, 1976]

An Act to establish a Scheduled Castes [and Scheduled Tribes] Development and Finance Corporation in West Bengal.
Whereas it is expedient to provide for the establishment of a Scheduled Castes [and Scheduled Tribes] Development and Finance Corporation in West Bengal;
It is hereby enacted as follows :-

1. Short title, extent and commencement. – (1) This Act may be called the West Bengal Scheduled Castes [and Scheduled Tribes] Development and Finance Corporation Act, 1976.
(2) It extends to the whole of West Bengal.
(3) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.

2. Definitions. – In this Act, unless there is anything repugnant in the subject or context, –
(a) “the Corporation” means the Scheduled Castes [and Scheduled Tribes] Development and Finance Corporation established under section 3;

(b) “marketing” includes all activities in connection with the transport, grading, pooling, marketing and sale of industrial produce, whether in the primary form or in semi-processed or processed form;

(c) “prescribed” means prescribed by rules made under this Act;

[(d) “Scheduled Castes” shall have the same meaning as in clause (24) of Article 366 of the Constitution of India (hereinafter referred to as the Constitution);]

[(dd) “Scheduled Tribes” shall have the same meaning as in clause (25) of Article 366 of the Constitution;]

(e) “traditional occupation” means caste-based occupations such as those followed by the Muchis, Dorns, Dhobas, Jalias, Mals, etc.

3. Incorporation. – (1) The State Government may, by notification in the Official Gazette, establish a Scheduled Castes [and Scheduled Tribes] Development and Finance Corporation for West Bengal.
(2) The Corporation shall be a body corporate by the name notified under sub-section (1) and having perpetual succession and a common seal and shall by the said name sue and be sued.

4. Constitution of the Corporation. – (1) The Corporation shall consist of the following members, namely :-
(a) the Secretary, Department of Agriculture and Community Development, Government of West Bengal, ex officio;

(b) the Secretary, Department of Animal Husbandry and Veterinary Services, Government of West Bengal, ex officio;

(c) the Secretary, Department of Co-operation, Government of West Bengal, ex officio;

(d) the Secretary, Department of Cottage and Small-Scale Industries, Government of West Bengal, ex officio;

(e) the Secretary, Department of Forests, Government of West Bengal, ex officio;

(f) the Chairman of the West Bengal Khadi and Village Industries Board established under section 3 of the West Bengal Khadi and Village Industries Board Act, 1959, ex officio;

(g) such number of other members not exceeding [fifteen] but not less than five as the State Government may, by notification in the Official Gazette, appoint:

[Provided that at least –
(i) three shall be from amongst the members of the Scheduled Castes, and

(ii) two shall be from amongst the members of the Scheduled Tribes.]

(2) The State Government shall appoint one of the members as the Chairman and may, if it thinks fit, appoint another member as the Vice-Chairman of the Corporation.
(3) In the event of the capital of the Corporation being raised by the issue of shares to the members of the public, provision shall be made by rules made under this Act for the representation of such share-holders in the Corporation and the manner in which the representatives shall be elected by such share-holders.
(4) The term of, and the manner of filling casual vacancies among,the members of the Corporation shall be such as may be prescribed.

5. Disqualifications for membership. – A person shall be disqualified for being chosen as, and for being, a member of the Corporation –
(a) if he is a lunatic or a person of unsound mind, or

(b) if he has been adjudged insolvent, or

(c) if he has been convicted of an offence involving moral turpitude, or

(d) if he has directly or indirectly any interest in any subsisting contract made with, or in any work being done for, the Corporation except as a shareholder (other than a Director) in an incorporated company, provided that where he is a shareholder, he shall disclose to the State Government the nature and extent of the shares held by him in such company, or

(e) if he has any financial interest in any work undertaken by the Corporation for execution.

6. Resignation of Chairman, Vice-Chairman and members. – The Chairman, Vice-Chairman or any other member of the Corporation may resign his office by giving notice in writing to the State Government and, on such resignation being accepted by that Government, shall be deemed to have vacated his office.

7. Removal from office of Chairman, Vice-Chairman or members. – The State Government may remove from office the Chairman, Vice-Chairman or any other member of the Corporation who –
(a) without excuse, sufficient in the opinion of the State Government, is absent from more than four consecutive meetings of the Corporation,

(b) has, in the opinion of the State Government, so abused his position as a member as to render his continuance on the Corporation detrimental to the interests of the Corporation.

8. Validity of acts and proceedings. – No act or proceeding of the Corporation shall be invalid by reason only of the existence of any vacancy amongst its members or any defect in the constitution thereof.

9. Transaction of business. – (1) The Corporation shall meet at such time and place and shall, subject to the provisions of sub-sections (2) and (3), observe such rules of procedure in regard to transaction of business at its meetings as may be provided by regulations made under this Act.
(2) The person to preside at a meeting of the Corporation shall be the Chairman thereof or in his absence from any meeting, the Vice-Chairman, if any, or in the absence of both the Chairman and the Vice-Chairman, such member as may be chosen by the members present from amongst themselves to preside.
(3) All questions at a meeting of the Corporation shall be decided by majority of votes of the members present and voting and in the case of equality of votes, the Chairman or in his absence any other person presiding shall have a second or casting vote.

10. [Managing Director] and Chief Accounts Officer and other staff. – (1) The Corporation shall have [a Managing Director] and a Chief Accounts Officer, both of whom shall be appointed by the State Government.
(2) The Corporation may appoint such other officers and employees as it considers necessary for the efficient performance of its functions.
(3) The conditions of appointment of officers and employees and the scales of pay of the officers and employees of the Corporation shall –
(a) as respect [the Managing Director] and the Chief Accounts Officer be such as may be prescribed; and

(b) as respect the other officers and employees be such as may, subject to the approval of the State Government be determined by regulations made under this Act.

(4) [The Managing Director] shall be the Executive Head of the Corporation and all other officers and employees of the Corporation shall be subordinate to him.

11. Officers and employees of Corporation not to have any interest in contract, etc. – No person who has directly or indirectly by himself or his partner or agent, any share or interest in any contract, by or on behalf of the Corporation or in any work undertaken by the Corporation shall become or remain an officer or employee of the Corporation.

12. Conferment of powers on [Managing Director]. – The Corporation may authorise [the Managing Director], subject to such conditions and limitations as it may specify, to exercise such powers and perform such duties as it may deem necessary for the efficient administration of its business.

13. Authentication. – All orders and decisions of the Corporation shall be authenticated by the signature of the Chairman or any other member authorised by the Corporation in this behalf and all other instruments issued by the Corporation shall be authenticated by the signature of [the Managing Director] or by any other officer of the Corporation authorised by the Administrative Officer in this behalf.

14. Functions of the Corporation. – (1) Subject to the provisions of this Act, the functions of the Corporation shall be to undertake generally the task of economic welfare of the members of the Scheduled Castes [and Scheduled Tribes] through industrial and commercial activities.
(2) In particular and without prejudice to the generality of the foregoing provisions of this section, the functions of the Corporation shall be –
(i) to plan and promote training programmes for increasing the skill and efficiency in different traditional occupations and to establish vocational institutes for the purpose;

(ii) to promote employment opportunities in various trades and crafts and to sanction stipends for training in different training institutes;

(iii) to provide necessary infra-structures in connection with all traditional occupations such as establishing ‘dhobighats’, ‘tcanning grounds’, ‘fisheries’, etc.;

(iv) to encourage and undertake setting up of manufacturing and processing units on commercial basis;

(v) to promote entrepreneurship by sponsoring self-employment programmes in different trades, crafts and business with the assistance of various financing institutions;

(vi) to arrange the supply of necessary inputs at reasonable prices for different trades and crafts and to acquire and install suitable machinery and equipments for the purpose of bring out;

(vii) to plan, promote and undertake, on its own or in collaboration with such agencies as may be approved by the Corporation, programmes of agricultural development, marketing, processing, supply and storage of agricultural produce, small-scale industry, building construction, transport and such other business, trade or activity as may be approved in this behalf by the State Government;

(viii) to arrange for in-service training, apprenticeship, dealership, etc., in different factories, commercial organisations and industrial complexes;

(ix) to provide financial assistance by way of grants, subsidies and loans in cash or kind for such purposes as may be approved by the Corporation and also by providing cash credit accommodation against hypothecation of their products;

(x) to find out resources for financing all programmes to be undertaken by the Corporation and to that end to receive grants and gifts, raise loans, issue bonds and debentures, draw, make, accept, discount, execute and issue promissory notes, bills of exchange, hundies bills, warrants, debentures and ether negotiable instruments;

(xi) to invest or deposit surplus funds in Government securities or in such other means to be approved by the Corporation;

(xii) to continue and run the works and programmes transferred to the Corporation by the State Government for operation and to adopt suitable changes for their better execution;

(xiii)to discharge such other functions as may be prescribed or as are supplemental, incidental or consequential to any of the functions conferred on it under this Act.

15. Powers of the Corporation. – Subject to the provisions of this Act, the Corporation shall have power –
(a) to acquire or hold such property both movable and immovable as the Corporation may deem necessary for the purpose of any of its functions and to lease, sell or otherwise transfer any property held by it;

(b) to purchase by agreement or to take on lease or under any form of tenancy any land and to erect thereon such buildings as may be necessary for the purpose of carrying on its undertakings;

(c) to enter into or perform such contracts as may be necessary for the discharge of its functions and the exercise of its powers under this Act;

(d) to provide facilities for the consignment, storage and delivery of goods;

(e) with the prior approval of the State Government to do all other things to facilitate the proper carrying on of the business and the functions of the Corporation.

16. Acquisition of land. – The Corporation may take steps for acquisition of any land for discharging any of its functions under this Act in the manner provided in the Land Acquisition Act, 1894 and such acquisition shall be deemed to be acquisition for a public purpose within the meaning of the said Act.

17. Corporation to act on business principles. – It shall be the general principle of the Corporation that in carrying on its undertakings it shall act on business principles.

18. Capital of the Corporation. – (1) The State Government may provide to the Corporation such capital as the State Government may consider necessary for the purpose of carrying out any or all of its functions under this Act subject to such terms and conditions not inconsistent with the provisions of this Act as the State Government may determine.
(2) The Corporation may supplement its capital by the issue of shares when so authorised by the State Government.
(3) The authorised capital of the Corporation shall be divided into such number of shares as the State Government may determine, and the number of shares which may be subscribed by the State Government and the members of the public shall also be determined by the State Government:
Provided that the value of the shares to be subscribed by the State Government shall not be less than fifty-one per cent, of the authorised capital.
(4) The allotment of shares to other parties mentioned in sub-section (3) shall be made by the Corporation in such manner as may be prescribed.
(5) The shares of the Corporation shall not be transferable except in accordance with such rules as may be made under this Act.
(6) The Corporation may at any time, with the previous approval of the Government, redeem the shares issued to the members of the public in such State manner as may be prescribed.

19. Additional capital. – If after the issue of shares under sub-section (2) of section 18, the Corporation requires any further capital, the Corporation may, with the previous sanction of the State Government, raise such additional capital by the issue of new shares and the provisions of sub-sections (3), (4), (5) and (6) of section 18 shall mutatis mutandis apply to such shares.

20. Guaranteed by State Government in respect of shares. – The shares of the Corporation shall be guaranteed by the State Government as to the payment of the principal.

21. Borrowing by the Corporation. – (1) The Corporation may, with the previous approval of the State Government, borrow money in the open market or otherwise for carrying out any of its functions under this Act.
(2) Money borrowed by the Corporation under sub-section (1) shall be guaranteed by the State Government as to the repayment of the principal and the payment of interest at such rate not being less than four per cent, per annum as the State Government may, on the recommendation of the Corporation, fix at the time the money is borrowed.

22. Receipts into and payments from the general fund of the Corporation. – All receipts of the Corporation shall be carried into its general fund and all payments by the Corporation shall be made therefrom.

23. Dividends on shares. – The Corporation shall pay dividends on shares at such rate as may from time to time be fixed by the State Government subject to any general limitations which may be imposed by the State Government, and the payment of such dividend shall be deemed to be a part of the expenditure of the Corporation.

24. Reserve and other funds. – (1) The Corporation shall make such provisions for reserve and other specially denominated funds as the State Government may from time to time direct.
(2) The management of the funds referred to in sub-section (1), the sums to be carried from time to time to the credit thereof and the application of the money comprised therein shall be determined by the Corporation.
(3) None of the funds referred to in sub-section (1) shall be utilised for any purpose not connected with the functions of the Corporation without the previous approval of the State Government.

25. Expenditure from the fund. – The Corporation shall have power to spend such sums as it thinks fit on objects authorised under this Act and such sums shall be treated as expenditure payable out of the general fund of the Corporation or the funds referred to in sub-section (1) of section 24, as the case may be.

26. Budget. – (1) The Corporation shall, by such date in each year as may be prescribed, prepare and submit to the State Government for approval the budget for the next financial year showing the estimated receipts and expenditure during that financial year in such form as may be prescribed.
(2) The Corporation may sanction any reappropriation within the grant from one head of expenditure to another or from a provision made for one work to that in respect of another, subject to the condition that the aggregate of the grant is not exceeded.
(3) The Corporation may, within such limits and subject to such conditions as may be prescribed, incur expenditure in excess of the limit provided in the budget approved by the State Government or in connection with any particular work.
(4) A copy of the budget shall be placed before the State Legislature as soon as may be after the budget has been approved by the State Government.

27. Audit by Auditor appointed by State Government. – (1) The Corporation shall cause to be maintained books of account and other books in relation to its accounts in such form and in such manner as may be prescribed.
(2) The accounts of the Corporation shall be audited by the Auditor appointed by the State Government in this behalf at such times and in such manner as may be prescribed.
(3) As soon as the accounts of the Corporation have been audited, the Corporation shall send a copy thereof together with a copy of the report of the Auditor thereon to the State Government.

28. Power of State Government to issue instructions. – The State Government may issue to the Corporation general instructions to be followed by the Corporation and such instructions may include directions relating to the recruitment, the conditions of service and training of its employees, the wages to be paid to the employees, the reserves to be maintained by it and the disposal of its property, movable or immovable, and the Corporation shall be bound to follow such instructions.

29. Furnishing of returns, etc. – (1) The Corporation shall furnish to the State Government such returns, statistics, accounts and other information with respect to its property or activities or in regard to any proposed work as the State Government may from time to time require.
(2) The Corporation shall also furnish to the State Government an annual report on its working as soon as may be after the end of each year and a copy of the annual report shall be placed before the State Legislature as soon as may be after it is received by the State Government.

30. Supersession of the Corporation. – (1) The State Government may, by an order published in the Official Gazette, supersede the Corporation for such period as may be specified in the order after giving reasonable opportunity to the Corporation to show cause against the order proposed to be issued and after considering the objection, if any, of the Corporation:
Provided that it shall not be necessary to give any opportunity to the Corporation to show cause against the order proposed to be issued if the State Government is of the opinion that it is neither expedient nor necessary to do so in public interest.
(2) Upon the publication of a notification under sub-section (1) superseding the Corporation –
(a) all the members of the Corporation shall as from the date of supersession vacate their offices as such members;

(b) all the powers and duties which may by or under the provisions of this Act or of any other law be exercised or performed by or on behalf of the Corporation shall during the period of supersession be exercised and performed by such person or persons as the State Government may direct;

(c) all property vested in the Corporation shall during the period of supersession vest in the State Government.

(3) On the expiration of the period of supersession as specified in the notification issued under sub-section (1), the State Government may –
(a) extend the period of supersession for such further term as it may consider necessary, or

(b) reconstitute the Corporation in the manner provided in this Act for establishing the Corporation.

31. Liquidation of the Corporation. – No provision of any law relating to the winding up of companies or corporations shall apply to the Corporation and the Corporation shall not be placed in liquidation save by order of the State Government and save in such manner as may be directed by the State Government.

32. Recovery of sums due. – Any sum payable to the Corporation shall be recoverable as an arrear of land-revenue under the Bengal Public Demands Recovery Act, 1913.

33. Power to make rules. – (1) The State Government may, by notification in the Official Gazette, make rules to give effect to the provisions of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :-
(a) the Conditions and manner of appointment and election of members of the Corporation, the representation in the Corporation of the State Government and where shares are issued to the members of the public under section 18 or section 19, the representation of such shareholders and generally all matters relating to the constitution of the Corporation;

(b) the remuneration, allowance or fees to be paid to the members of the Corporation;

(c) the term of office of members of the Corporation and the manner of filling casual vacancies among such members;

(d) the number of the members necessary to constitute a quorum at a meeting of the Corporation;

(e) the conditions of appointment and service and the scales of pay of [the Managing Director] and the Chief Accounts Officer;

(f) the manner in which the shares of the Corporation shall be allotted, transferred or redeemed;

(g) the manner in which the net profits of the Corporation shall be utilised;

(h) the date by which and the form in which the budget shall be prepared and submitted in each year and the limits and conditions under which the Corporation may incur expenditure in excess of the limit provided in the budget under section 26;

(i) the form and the manner in which the accounts of the Corporation shall be maintained;

(j) the time at which and the manner in which the accounts of the Corporation shall be audited;

(k) the form in which returns, statistics and reports shall be submitted under section 29;

(l) any other matter which has to be or may be prescribed.

34. Regulations. – (1) The Corporation may, with the previous sanction of the State Government, make regulations not inconsistent with this Act, and the rules made thereunder for the administration of the affairs of the Corporation.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely :-
(a) the time and place of meetings of the Corporation and the procedure to be followed in regard to transaction of business at such meetings;

(b) the conditions of appointment and service and the scales of pay of officers and employees of the Corporation other than [the Managing Director] and the Chief Accounts Officer.

West Bengal Scheduled Castes Advisory Council Act, 2017

(Act No. 29 of 2017)

The following Act of the West Bengal Legislature received the assent of the Governor and was first published in the Kolkata Gazette, Extraordinary, of the 13th September, 2017.

An Act to constitute an Advisory Council for the Scheduled Castes and to provide formatters connected therewith or incidental thereto.

Whereas it is expedient to constitute an Advisory Council for the Scheduled Castes and to provide for matters connected therewith or incidental thereto;
It is hereby enacted as follows-

CHAPTER-I

Preliminary

1. Short title and commencement. – (1 )This Act may be called the West Bengal Scheduled Castes Advisory Council Act, 2017.
(2) It extends to the whole of West Bengal.
(3) It shall come into force on such date as the State Government may, by notification in the Official Gazette, appoint.

2. Definitions. – In this Act, unless the context otherwise requires,-
(a) “Chairperson” means the Chairperson of the Council;

(b) “Council” means the West Bengal Scheduled Castes Advisory Council;

(c) “member” means a member of the Council and includes the Chairperson and the Vice-Chairperson;

(d) “notification” means a notification published in the Official Gazette;

(e) “regulations” means the regulations made by the Council under section 14;

(f) “rules” means the rules made by the State Government under section 13;

(g) “Scheduled Castes” shall have the same meaning as defined in clause (24) of article 366 of the Constitution;

(h) “Secretary” means the Secretary of the Council;

(i) “State Government” means the Government of West Bengal in the Backward Classes Welfare Department;

(j) “Vice-Chairperson” means the Vice-Chairperson of the Council.

CHAPTER-II

West Bengal Scheduled Castes Advisory Council

3. Constitution of the Council. – (1) The State Government shall, by notification in the Official Gazette, constitute a body to be known as the West Bengal Scheduled Castes Advisory Council, to exercise the powers conferred on, and to perform the functions assigned to it, under this Act.
(2) The Council shall consist of a Chairperson, a Vice-Chairperson and not more than seventeen other members.
(3) The Chief Minister of the State of West Bengal shall be the ex officio Chairperson and Member of the Council.
(4) The Minister-in-charge, Backward Classes Welfare Department, shall be the ex officio Vice-Chairperson and member of the Council. In the absence of the Chairperson, the Vice-Chairperson shall preside over the meeting.
(5) In addition to Chairperson and Vice-Chairperson, there shall be-
(a) one Member of Parliament from a Scheduled Castes constituency in West Bengal;

(b) not more than ten Scheduled Castes representatives of the West Bengal Legislative Assembly;

(c) not more than four members having special knowledge and experience of the needs and problems of the Scheduled Castes; and

(d) not more than two members, to be nominated by the State Government, by notification in the Official Gazette.

(6) The Commissioner of the Backward Classes Welfare and Tribal Development Directorate, shall be the Secretary to the Council.
(7) (a) The Chief Secretary, West Bengal and the Principal Secretary, Backward Classes Welfare Department, shall be permanent invitee members in the Council.
(b) The Chairperson may invite persons to participate in the deliberations of the meetings.

(c) The Council shall, unless earlier dissolved by the Governor, be coterminous with the tenure of the West Bengal Legislative Assembly and shall be reconstituted as soon as possible after each General Election.

4. Terms of office and conditions of service and determination of allowances of Chairperson, Vice-Chairperson and other members. – (1) The Chairperson, Vice-Chairperson and every member shall hold office for such period not exceeding five years.
(2) The Chairperson, the Vice-Chairperson and every member may, by writing under his hand addressed to the State Government, resign from the office of the Chairperson, the Vice-Chairperson and member, as the case may be.
(3) The State Government shall remove a person from the office of the Chairperson, the Vice-Chairperson or a member, if such person-
(a) becomes an undischarged insolvent;

(b) is convicted and sentenced to imprisonment for an offence which, in the opinion of the State Government, involves moral turpitude;

(c) becomes an unsound mind and so declared by a competent court;

(d) refuses to act or becomes incapable of acting;

(e) is, without obtaining leave of absence from the Council, absent from three consecutive meetings of the Council;

(f) has, in the opinion of the State Government, so abused the position of Chairperson, Vice-Chairperson or member as to render that person’s continuance in office detrimental to the public interest:

Provided that no person shall be removed under these clauses until such person has been given a reasonable opportunity of being heard.
(4) A vacancy caused due to removal of the Chairperson, Vice-Chairperson or member for any of the grounds mentioned in sub-section (3), shall be filled by fresh nomination and a person so nominated shall hold office for the un-expired period of the term for which his predecessors in office would have held office if such vacancy had not arisen.

5. Allowances. – For attending a meeting of the Council, the Chairperson, the Vice-Chairperson and other members shall be entitled to travelling and sitting allowances at such rate as may be specified in the regulations made by the Council.

6. Secretarial Service to the Council. – The Backward Classes Welfare and Tribal Development Directorate shall provide the secretarial support to the Council for its functioning.

7. Vacancy, etc. not to invalidate the proceedings of the Council. – No act or proceedings of the Council shall be invalid merely on the ground of the existence of any vacancy or defect in the constitution of the Council.

8. Procedure to be regulated by the Council. – (1) The Council shall meet as and when necessary and shall meet at such time and place as the Chairperson may decide but there shall be at least one meeting of the Council in every six months.
(2) The Council shall regulate its own procedures.
(3) The agenda of the meeting shall be finalised by the Secretary of the Council in consultation with the Chairperson. A notice containing such agenda for each meeting of the Council shall be circulated by the Secretary amongst the members ordinarily for a period of seven days before the date’s fixed for the meeting.
(4) Seven (1/3rd) members shall form a quorum, and if, at any time there is no quorum, the meeting shall be adjourned. The adjourned meeting shall be held on time and date in accordance with sub-section (1) of section 8 and the agenda shall remain unchanged.
(5) The final decision of the Council shall be made by a unanimous decision of the members present in the meeting of the Council.
(6) The invitee members can participate in the deliberations of the meeting.
(7) A record of the proceedings of the meetings shall be drawn up and entered in a book. This shall be signed by the Secretary of the Council and copy of such proceedings shall be sent to the State Government.

CHAPTER III

Functions and Powers of Council

9. Functions and Powers of Council. – (1) The Council shall render advice to the State Government on-
(a) formulating specific action plans for comprehensive socioeconomic development of the Scheduled Castes in West Bengal;

(b) various ways to address the shortcomings of the Scheduled Castes communities in availing the opportunities in education and employment and facilitate them in availing these opportunities;

(c) existence of specific geographical and special disadvantages faced by the villages and habitats with dominant Scheduled Castes population and the ways to address these through the concerned Departments;

(d) the livelihood opportunities for the Scheduled Castes communities and how to harness these opportunities;

(e) the proper ways and means for convergence of activities of various Departments of the State Government and pooling of resources for holistic development of Scheduled Castes communities;

(f) activities under special component plan by various Departments for addressing specific developmental needs of the Scheduled Castes communities;

(g) promotion and development of specific cultural practice of Scheduled Castes communities, their traditional folksongs and dance forms;

(h) protection and preservation of historical and cultural landmarks, objects, structures, festivals of Scheduled Castes communities;

(i) any other matters which may be referred to it by the State Government.

(2) In the discharge of its functions under sub-section (1), the Council shall have power to call for any information with respect to any matter specified in that sub-section from the State Government, local or any other authority.

CHAPTER IV

Miscellaneous

10. Chairperson, Vice-Chairperson, and Members and staff of the Council to be Public Servant. – The Chairperson, the Vice-Chairperson and other members, shall be deemed to be the public servant within the meaning of section 21 of the Indian Penal Code.

11. Delegation of powers. – The Council may, by general or specific order delegate to the Chairperson, the Vice-Chairperson or any member or to the Secretary of the Council subject to such conditions and limitations, if any, as may be specified therein, such of its powers and duties under this Act as it may deem fit.

12. Protection of action taken in good faith. – No suit, prosecution or other legal proceeding shall lie against the State Government, the Council, the Chairperson, the Vice-Chairperson, other members or the Secretary of the Council for anything which is done in good faith or intended to be done under this Act.

13. Power to make rules. – (1) The State Government may, by notification, make rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of. the matters which under any provision of this Act are required to be prescribed or to be provided for by rules.
(3) Every rule made under this section shall, as soon as may be after it is made, be laid before the West Bengal Legislative Assembly.

14. Power to make regulations by the Council. – The Council may, in consultation with the State Government, make regulations to regulate its own procedures and allowances to the Chairperson, Vice-Chairperson and other members.

15. Power to remove difficulties. – (1) If any difficulty arises in giving effect to the provisions of this Act, the State Government may, by order published in the Official Gazette, make provisions not inconsistent with the provisions of the Act as appear to it to be necessary or expedient for removing such difficulties:
Provided that no such order shall be made after the expiry of a period of two years from the date of commencement of this Act.
(2) Every order made under this section shall, as soon as may be after it is made, be laid before the West Bengal Legislative Assembly.

The West Bengal Scheduled Castes And Scheduled Tribes (Identification) Act, 1994

West Bengal Act 38 of 1994

[3rd August, 1994.]
Assent of the Governor was first published in the Calcutta Gazette, Extraordinary, dated the 3rd August, 1994.
An Act to provide for the identification of the Scheduled Castes and the Scheduled Tribes in West Bengal and for matters connected therewith or incidental thereto;
Whereas it is expedient to provide for the identification of the Scheduled Castes and the Scheduled Tribes in West Bengal and for matters connected therewith or incidental thereto;
It is hereby enacted as follows :-

1. Short title, extent and commencement. – (1) This Act may be called the West Bengal Scheduled Castes and Scheduled Tribes (Identification) Act, 1994.
(2) It extends to the whole of West Bengal.
(3) It shall come into force on such date as the State Government may, by notification, appoint.

2. Definitions. – In this Act, unless the context otherwise requires, –
[(a) “Committee” means the State Scrutiny Committee constituted under section 8A for verification of social status of a person in whose favour a certificate is issued under section 5;]

[(aa) “Constitution” mean the constitution of India.]

(b) “notification” means a notification published in the Official Gazette;

(c) “prescribed” means prescribed by rules made under this Act;

(d) “Scheduled Castes” shall have the same meaning as in clause (24) of Article 366 of the Constitution;

(e) “Scheduled Tribes” shall have the same meaning as in clause (25) of Article 366 of the Constitution;

(f) “the Constitution (Scheduled Castes) Order” means the Constitution (Scheduled Castes) Order, 1950, made by the President in exercise of the powers conferred by clause (1) of Article 341 of the Constitution;

(g) “the Constitution (Scheduled Tribes) Order” means the Constitution (Scheduled Tribes) Order, 1950,” made by the President in exercise of the powers conferred by clause (1) of Article 342 of the Constitution.

3. Identification of members of Scheduled Castes. – Any person belonging to any of the castes, races or tribes or parts of or groups within castes, races or tribes, specified in Part XIII of the Schedule to the Constitution (Scheduled Castes) Order, and resident in the locality specified in relation to him in that Part of such Schedule, may be identified, by a certificate, to be a member of the Scheduled Castes.

4. Identification of members of Scheduled Tribes. – Any person belonging to any of the tribes or tribal communities or parts of or groups within tribes or tribal communities, specified in Part XII of the Schedule to the Constitution (Scheduled Tribes) Order, and resident in the locality specified in relation to him in that Part of such Schedule, may be identified, by a certificate, to be a member of the Scheduled Tribes.

5. Issue of certificate of identification. – A certificate under section 3 or section 4 may be issued, –
(a) in the district, by the Sub-Divisional Officer of the sub-division concerned, and

[(b) in Kolkata by such officer as the State Government may, by notification, authorise.

Explanation I. – “Kolkata” means kolkata as defined in clause (9) of section 2 of the Kolkata Municipal Corporation Act, 1980.
Explanation II. – For the removal of doubt, it is hereby declared that for the purpose of this Act, an officer authorised under clause (b) of this section, shall have jurisdiction over Kolkata.]

6. Procedure of issue of certificate. – A certificate under this Act may be issued on application by the person requiring the certificate under this Act in such form and manner, and, upon production of such evidence, as may be prescribed.

7. Power to refuse to issue certificate. – If the Sub-Divisional Officer [an affiar authorised] authorised by the District Magistrate, South 24-Parganas, under clause (b) of section 5, as the case may be (hereinafter referred to as the certificate issuing authority), is not satisfied with the evidence produced by any person under section 6 and the rules made thereunder for the issue of a certificate under section 5, he may refuse, in writing, to issue such certificate after giving such person a reasonable opportunity of being heard.

[7A. Issue of duplicate or fresh certificate. – (1) In the event of loss or damage of the certificate issued under this Act, the holder of the certificate may, upon an application made in such manner as may be prescribed, be granted –
(a) a duplicate certificate in lieu of lost certificate, or

(b) a fresh certificate in lieu of damaged certificate.

(2) On receipt of the application under sub-section (1), the certificate issuing authority, shall verify whether or not the record of the certificate, which has been lost or damaged, is available with it and, –
(a) if such record is available with the authority, it shall verify the application with such record, and if the statements relating to the certificate made in the application are true and correct, or

(b) if such record is not available with the authority, it shall cause a fresh inquiry to be conducted in the same manner as may be prescribed for issuance of a certificate under section 5, and if findings of the inquiry are satisfactory,

it shall issue a duplicate certificate in lieu of lost certificate or a fresh certificate in lieu of damaged certificate, as the case may be, in such form as may be prescribed :

Provided that the certificate issuing authority may, for the purpose of issuing the certificate under this section, give a personal hearing to the person requiring such certificate.

(3) If, during the course of verification of the application with the record under sub-section (2), it appears to the certificate issuing authority that the certificate, which has been lost or damaged was issued by mistake, or by any misrepresentation of facts, or on the basis of an incomplete evidence, it may cause a fresh inquiry and ask the person requiring the certificate under this section to produce such evidence, as it may considers necessary, to determine his eligibility.

(4) If the certificate issuing authority is not satisfied with the evidence produced by the person requiring the certificate under this section, he may refuse, in writing, to issue such certificate after giving such person a reasonable opportunity of being heard.]

8. Appeal against refusal to issue certificate. – (1) An appeal against any refusal under section 7 [or sub-section (4) of section 7A] to issue any certificate shall lie –
(a) to the District Magistrate, or the Additional District Magistrate authorised by the District Magistrate in this behalf, where the certificate is refused by the Sub-Divisional Officer, and

(b) to the Commissioner, Presidency Division, where the certificate is refused by [an officer authorised] under clause (b) of section 5, as the case may be:

Provided that every such appeal shall be made in such manner and within such time as may be prescribed :
Provided further that every such appeal shall be disposed of within three months from the date on which the appeal is made.
Provided also that no such appeal shall be disposed of without giving the appellant a reasonable opportunity of being heard.
(2) The decision of the District Magistrate or the Additional District Magistrate or the Commissioner, Presidency Division, as the case may be on any appeal under sub-section (1) shall be final.

[8A. Constitution of State Scrutiny Committee and its powers. – (1) The State Government may, by order, constitute a Committee to be called the State Scrutiny Committee for verification of social status of a person in whose favour a certificate is issued under section 5.
(2) The Committee shall consist of the following Members :
(a) the Secretary, Backward Classes Welfare Chairperson;

Department, Government of West Bengal.

Explanation. – Secretary shall include a Special Secretary.

(b) the Commissioner, Directorate of Backward, Convenor :

Classes Welfare, West Bengal or any officer not below the rank of Deputy Director, duly authorised by him.

(c) the Director, Cultural Research Institute, Expert Member, Backward Classes Welfare Department or any officer not below the rank of Deputy Director, duly authorised by him.

(3) Subject to any general or special order of the State Government, provisions of this Act and rules made thereunder, the Committee shall have powers –
(a) to verify the social status of a person in whose favour a certificate is issued under section 5;

(b) to issue directions to the Vigilance Cell constituted under section 8B;

(c) to make an inquiry in connection with the contravention of any provision of this Act;

(d) to issue notice to any person or authority in such manner as may be prescribed;

(e) to call for information from any person or authority for the purpose of satisfying itself whether there has been any contravention of any provision of this Act or any rule or order made or direction issued thereunder;

(f) to require any person or authority to produce or deliver any document or thing useful or relevant to the inquiry;

(g) to examine any person acquainted with the facts and circumstances of the case;

(h) to issue direction under sub-section (2) of section 9 to the certificate issuing authority;

(i) to do such other things and perform such other acts not inconsistent with the provisions of this Act as may appear to be necessary or expedient for the proper conduct of its function, or which may be prescribed.

(4) The Committee shall meet at such place and time, and the meeting shall be conducted in such manner, as may be prescribed.
(5) All orders or directions of the Committee shall be authenticated by the Chairperson or by such officer of the Committee as may be authorised by the Chairperson on this behalf.]

[8B. Constitution of Vigilance Cell and its powers. – (1) The State Government may, by order, constitute a Vigilance Cell for each district of the West Bengal.

[(2) The Vigilance Cell shall consist of the following Members :
(a) the Additional District Magistrate in charge Chairperson;

of the affairs of the Backward Classes Welfare Department in the district,

(b) Officer-in-charge not below the rank of Convenor;

Deputy Superintendent of Police,

(c) Investigating officers not exceeding three from Members;

amongst the police officers in the rank of Inspector,]

(3) Subject to any general or special order of the State Government or the provisions of this Act and rules made thereunder, the Vigilance Cell shall have powers –
(a) to inquire the cases relating to social status claims of a person in whose favour a certificate is issued under section 5;

(b) to make an inquiry in connection with the contravention of any provision of this Act;

(c) to issue notice to any person or authority in such manner as may be prescribed;

(d) to call for information from any person or authority for the purpose of satisfying himself whether there has been any contravention of any provisions of this Act or any rule or order made or direction issued thereunder;

(e) to require any person or authority to produce or deliver any document or thing useful or relevant to the enquiry;

(f) to examine any person or authority acquainted with the facts and circumstances of the case;

(g) to do such other things and perform such other acts not inconsistent with the provisions of this Act as may appear to be necessary or expedient for the proper conduct of its function, or which may be prescribed.]

9. Power to cancel, impound or revoke certificate. – [(1) If the certificate issuing authority is satisfied; that a certificate under this Act has been obtained by any person by furnishing any false information or by misrepresenting any material information or by producing any document which is an act of forgery, it may cancel, impound or revoke such certificate in such manner as may be prescribed.
(2) Notwithstanding anything contained in sub-section (1), if the Committee is satisfied that a certificate under this Act has been obtained by any person by furnishing any false information or by misrepresenting any fact or by suppressing any material information or by producing any document which is an act of forgery, it may issue a direction to the certificate issuing authority, in such manner as may be prescribed, to cancel, impound or revoke such certificate and, on receipt of such direction, the certificate issuing authority shall, by order in writing, cancel, impound or revoke such certificate.]

10. Offences and penalties. – Whoever –
(a) knowingly furnishes any false information, or

(b) knowingly misrepresents any fact or

(c) knowingly suppresses any material information, or

(d) knowingly produces any document which is an act of forgery, with a view to obtaining a certificate under this Act [shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to five thousand rupees] or with both.

11. Validation of certificate. – Notwithstanding anything contained in this Act, any certificate identifying any person to be a member of the Scheduled Castes or the Scheduled Tribes, issued by any authority, competent under any law for the time being in force to issue such certificate, prior to the commencement of this Act, shall be valid and shall be deemed to have been issued under this Act unless such certificate is proved to have been obtained by furnishing any false information or by misrepresenting any fact or by suppressing any material information or by producing any document which is an act of forgery, and in every such case the certificate issuing authority shall have the power to cancel, impound or revoke such certificate in accordance with the provisions of this Act and the rules made thereunder.

[11A. Verification of certificate. – (1) If the appointing authority or the head of an establishment, from which a person in whose favour a certificate is issued under section 5 is going to derive benefit as a holder of the certificate, has any doubt that such certificate has been obtained by furnishing false information or by misrepresenting any fact or by suppressing any material information or by producing any document which is an act of forgery, it shall send an application alongwith the certificate to the Committee for verification.

Explanation. – The expressions “appointing authority” and “establishment” shall have the meaning respectively as assigned to them in clauses (a) and (b) of section 2 of the West Bengal Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1976.
(2) The Committee shall dispose of the application referred to in sub-section (1) in such manner as may be prescribed.]

12. Power to make rules. – (1) The State Government may, by notification, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters which under any provision of this Act, are required to be prescribed or to be provided for by rules.

Scheduled Tribes in India as per The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976

State/Union Territory-wise list of Scheduled Tribes in India

Andaman and Nicobar Islands

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Andamanese, Chariar, Chari, Kora, Tabo, Bo, Yere, Kede, Bea, Balawa, Bojigiyab, Juwai, Kol
  2. Jarawas
  3. Nicobarese
  4. Onges
  5. Sentinelese
  6. Shom Pens

Andhra Pradesh

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Andh
  2. Bagata
  3. Bhil
  4. Chenchu, Chenchwar
  5. Gadabas
  6. Gond, Naikpod, Rajgond
  7. Goudu (in the Agency tracts, i.e.: Srikakulam, Vizianagaram, Visakhapatnam, East Godavari, West Godavari and Khammam districts)
  8. Hill Reddis
  9. Jatapus
  10. Kammara
  11. Kattunayakan
  12. Kolam, Mannervarlu
  13. Konda Dhoras
  14. Konda Kapus
  15. Kondareddis
  16. Kondhs, Kodi, Kodhu, Desaya Kondhs, Dongria Kondhs, Kuttiya Kondhs, Tikiria Kondhs, Yenity Kondhs
  17. Kotia, Bentho Oriya, Bartika, Dhulia, Dulia, Holva, Paiko, Putiya, Sanrona, Sidhopaiko
  18. Koya, Goud, Rajah, Rasha Koya, Lingadhari Koya (ordinary), Kottu Koya, Bhine Koya, Rajkoya
  19. Kulia
  20. Malis (excluding Adilabad, Hyderabad, Karimnagar, Khammam, Mahbubnagar, Medak, Nalgonda, Nizamabad and Warangal districts)
  21. Manna Dhora
  22. Mukha Dhora, Nooka Dhora
  23. Nayaks (in the Agency tracts, i.e.: Srikakulam, Vizianagaram, Visakhapatnam, East Godavari, West Godavari and Khammam districts)
  24. Pardhan
  25. Porja, Parangiperja
  26. Reddi Dhoras
  27. Rona, Rena
  28. Savaras, Kapu Savaras, Maliya Savaras, Khutto Savaras
  29. Sugalis, Lambadis
  30. Thoti (in Adilabad, Hyderabad, Karimnagar, Khammam, Mahbubnagar, Medak, Nalgonda, Nizamabad and Warangal districts)
  31. Valmiki (in the Agency tracts, i.e.: Srikakulam, Vizianagaram, Visakhapatnam, East Godavari, West Godavari and Khammam districts)
  32. Yenadis
  33. Yerukulas

Arunachal Pradesh

In accordance with The Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 and as inserted by Act 69 of 1986.

All tribes in the state including:

  1. Abor
  2. Aka
  3. Apatani
  4. Dafla
  5. Galong
  6. Khampti
  7. Khowa
  8. Mishmi
  9. Momba
  10. Any Naga tribes
  11. Sherdukpen
  12. Singpho

Assam

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

Autonomous districts

The autonomous districts comprise Karbi, Anglong and North Cachar Hills districts.

  1. Chakma
  2. Dimasa, Kachari
  3. Garo
  4. Hajong
  5. Hmar
  6. Khasi, Jaintia, Synteng, Pnar, War, Bhoi, Lyngngam
  7. Any Kuki Tribes, including:
    1. Biate, Biete
    2. Changsan
    3. Chongloi
    4. Doungel
    5. Gamalhou
    6. Gangte
    7. Guite
    8. Hanneng
    9. Haokip, Haupit
    10. Haolai
    11. Hengna
    12. Hongsung
    13. Hrangkhwal, Rangkhol
    14. Jongbe
    15. Khawchung
    16. Khawathlang, Khothalong
    17. Khelma
    18. Kholhou
    19. Kipgen
    20. Kuki
    21. Lengthang
    22. Lhangum
    23. Lhoujem
    24. Lhouvun
    25. Lupheng
    26. Mangjel
    27. Misao
    28. Riang
    29. Sairhem
    30. Selnam
    31. Singson
    32. Sitlhou
    33. Sukte
    34. Thado
    35. Thangngeu
    36. Uibuh
    37. Vaiphei
  8. Lakher
  9. Man (Tai speaking)
  10. Any Mizo (Lushai) tribes
  11. Mikir
  12. Any Naga tribes
  13. Pawi
  14. Syntheng

Other areas

  1. Barmans in Cachar
  2. Boro, Borokachari
  3. Deori
  4. Hojai
  5. Kachari, Sonwal
  6. Lalung
  7. Mech
  8. Miri
  9. Rabha

Bihar

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Asur
  2. Baiga
  3. Banjara
  4. Bathudi
  5. Bedia
  6. Bhumij in North Chotanagpur and South Chotanagpur divisions and in Santal Parganas district. North Chotanagpur division comprises Dhanbad, Giridih and Hazaribag districts; South Chotanagpur division comprises Palamu, Lohardaga, Gumla, Ranchi, Purbi Singhbhum and Pashchimi Singhbhum districts; Santal Parganas district comprises Godda, Sahibganj, Dumka and Deoghar districts.
  7. Binjhia
  8. Birhor
  9. Birjia
  10. Chero
  11. Chick Baraik
  12. Gond
  13. Gorait
  14. Ho
  15. Karmali
  16. Kharia
  17. Kharwar
  18. Kondh
  19. Kisan
  20. Kora
  21. Korwa
  22. Lohara, Lohra
  23. Mahli
  24. Mal Pahariya
  25. Munda
  26. Oraon
  27. Parhaiya
  28. Santal
  29. Sauria Paharia
  30. Savar

Chhattisgarh

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and as inserted by Act 28 of 2000.

  1. Agariya
  2. Andh
  3. Baiga
  4. Bhaina
  5. Bharia Bhumia, Bhuinhar Bhumia, Bhumiya, Bharia, Paliha, Pando
  6. Bhattra
  7. Bhil, Bhilala, Barela, Patelia
  8. Bhil Mina
  9. Bhunjia
  10. Biar, Biyar
  11. Binjhwar
  12. Birhul, Birhor
  13. Damor, Damaria
  14. Dhanwar
  15. Gadaba, Gadba
  16. Gond; Arakh, Arrakh, Agaria, Asur, Badi Maria, Bada Maria, Bhatola, Bhimma, Bhuta, Koilabhuta, Kolibhuti, Bhar, Bisonhorn Maria, Chota Maria, Dandami Maria, Dhuru, Dhurwa, Dhoba, Dhulia, Dorla, Gaiki, Gatta, Gatti, Gaita, Gond, Gowari Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya, Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar, Moghya, Mogia, Monghya, Mudia, Muria, Nagarchi, Nagwanshi, Ojha, Raj Gond, ‘Sonjhari, Jhareka, Thatia, Thotya, Wade Maria, Vade Maria, Daroi
  17. Halba, Halbi
  18. Kamar
  19. Karku
  20. Kawar, Kanwar, Kaur, Cherwa, Rathia, Tanwar, Chattri
  21. Khairwar, Kondar
  22. Kharia
  23. Kondh, Khond, Kandh
  24. Kol
  25. Kolam
  26. Korku, Bopchi, Mouasi, Nihar, Nahul, Bondhi, Bondeya
  27. Korwa, Kodaku
  28. Majhi
  29. Majhwar
  30. Mawasi
  31. Munda
  32. Nagesia, Nagasia
  33. Oraon, Dhanka, Dhangad
  34. Pao
  35. Pardhan, Pathari, Saroti
  36. Pardhi, Bahelia, Bahellia, Chita Pardhi, Langoli Pardhi, Phans Pardhi, Shikari, Takankar, Takia (in (i) Bastar, Dantewara, Kanker, Raigarh, Jashpurnagar, Surguja and Koria districts; (ii) Katghora, Pali, Kartala and Korba tehsils of Korba district’ (iii) Bilaspur, Pendra, Kota and Takhatpur tehsils of Bilaspur district; (iv) Durg, Patan, Gunderdehi, Dhamdha, Balod, Gurur and Dondilohara tehsils of Durg district; (v) Chowki, Manpur and Mohala Revenue Inspector Circles of Rajnandgon district’ (vi) Mahasamund, Saraipali and Basna tehsils of Mahasamund district; (vii) Bindra-Navagarh Rajim and Deobhog tehsils of Raipur district; and (viii) Dhamtari, Kurud and Sihava tehsils of Dhamtari district)
  37. Parja
  38. Sahariya, Saharia, Seharia, Sehria, Sosia, Sor
  39. Saonta, Saunta
  40. Saur
  41. Sawar, Sawara
  42. Sonr

Dadra and Nagar Haveli

In accordance with The Constitution (Dadra & Nagar Haveli) Scheduled Tribes Order,1962.

  1. Dhodia
  2. Dubla including Halpati
  3. Kathodi
  4. Kokna
  5. Koli Dhor including Kolgha
  6. Naikda or Nayaka
  7. Varli

Daman and Diu

In accordance with The Constitution (Goa, Daman and Diu) Scheduled Tribes Order, 1968 and as inserted by Act 18 of 1987.

  1. Dhodia
  2. Dubla (Halpati)
  3. Naikda (Talavia)
  4. Siddi (Nayaka)
  5. Varli

Goa

In accordance with The Constitution (Goa, Daman and Diu) Scheduled Tribes Order, 1968 and as inserted by Act 18 of 1987.

  1. Dhodia
  2. Dubla (Halpati)
  3. Naikda (Talavia)
  4. Siddi (Nayaka)
  5. Varli

 List updated by the Ministry of Tribal Affairs, Government of India, to add the following three.

  1. Kunbi
  2. Gawda
  3. Velip

Gujarat

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Barda
  2. Bavacha, Bamcha
  3. Bharwad (in the Nesses of the forests of Alech, Barada and Gir). The area comprises Jamnagar and Junagadh districts.
  4. Bhil, Bhil Garasia, Dholi Bhil, Dungri Bhil, Dungri Garasia, Mewasi Bhil, Rawal Bhil, Tadvi Bhil, Bhagalia, Bhilala, Pawra, Vasava, Vasave
  5. Charan (in the Nesses of the forests of Alech, Barada and Gir). The area comprises Jamnagar and Junagadh districts.
  6. Chaudhri (in Surat and Valsad districts)
  7. Chodhara
  8. Dhanka, Tadvi, Tetaria, Valvi
  9. Dhodia
  10. Dubla, Talavia, Halpati
  11. Gamit, Gamta, Gavit, Mavchi, Padvi
  12. Gond, Rajgond
  13. Kathodi, Katkari, Dhor Kathodi, Dhor Katkari, Son Kathodi, Son Katkari
  14. Kokna, Kokni, Kukna
  15. Koli (in Kachchh district)
  16. Koli Dhor, Tokre Koli, Kolcha, Kolgha
  17. Kunbi (in the Dangs district)
  18. Naikda, Nayaka, Cholivala Nayaka, Kapadia Nayaka, Mota Nayaka, Nana Nayaka
  19. Padhar
  20. Paradhi (in Kachchh district)
  21. Pardhi, Advichincher, Phanse Pardhi (excluding Amreli, Bhavnagar, Jamnagar, Junagadh, Kachchh, Rajkot and Surendranagar districts)
  22. Patelia
  23. Pomla
  24. Rabari (in the Nesses of the forests of Alech, Barada and Gir). The area comprises Jamnagar and Junagadh districts.
  25. Rathawa
  26. Siddi (in Amreli, Bhavnagar, Jamnagar, Junagadh, Rajkot and Surendranagar districts)
  27. Vaghri (in Kachchh district)b
  28. Varli
  29. Vitola, Kotwalia, Barodia

Himachal Pradesh

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Bhot, Bodh
  2. Gaddi (excluding the territories specified in sub-section (1) of section 5 of the Punjab Reorganisation Act, 1966 (31 of 1966), other than the Lahaul and Spiti district). The areas excluded now comprise Kangra, Hamirpur, Kullu, Una and Shimla districts.
  3. Gujjar (excluding the territories specified in sub-section (1) of section 5 of the Punjab Reorganisation Act, 1966 (31 of 1966)). The areas excluded now comprise Kangra, Hamirpur, Kullu, Una, Shimla and Lahul and Spiti districts.
  4. Jad, Lamba, Khampa
  5. Kanaura, Kinnara
  6. Lahaula
  7. Pangwala
  8. Swangla

Jammu and Kashmir

In accordance with The Constitution (Jammu & Kashmir) Scheduled Tribes Order, 1989 and The Constitution (Scheduled Tribes) Order (Amendment) Act, 1991.

  1. Bakarwal
  2. Balti
  3. Beda
  4. Bot, Boto
  5. Brokpa, Drokpa, Dard, Shin
  6. Changpa
  7. Gaddi
  8. Garra
  9. Gujjar
  10. Mon
  11. Purigpa
  12. Sippi

Jharkhand

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and as inserted by Act 30 of 2000.

  1. Asur
  2. Baiga
  3. Banjara
  4. Bathudi
  5. Bedia
  6. Binjhia
  7. Birhor
  8. Birjia
  9. Chero
  10. Chick Baraik
  11. Gond
  12. Gorait
  13. Ho
  14. Karmali
  15. Kharia
  16. Kharwar
  17. Khond
  18. Kisan
  19. Kora
  20. Korwa
  21. Lohra
  22. Mahli
  23. Mal Pahariya
  24. Munda
  25. Oraon
  26. Parhaiya
  27. Santhal
  28. Sauria Paharia
  29. Savar
  30. Bhumij

Karnataka

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and as inserted by Act 39 of 1991.

  1. Adiyan
  2. Barda
  3. Bavacha, Bamcha
  4. Bhil, Bhil Garasia, Dholi Bhil, Dungri Bhil, Dungri Garasia, Mewasi Bhil, Rawal Bhil, Tadvi Bhil, Bhagalia, Bhilala, Pawra, Vasava, Vasave
  5. Chenchu, Chenchwar
  6. Chodhara
  7. Dubla, Talavia, Halpati
  8. Gamit, Gamta, Gavit, Mavchi, Padvi, Valvi
  9. Gond, Naikpod, Rajgond
  10. Gowdalu
  11. Hakkipikki
  12. Hasalaru
  13. Irular
  14. Iruliga
  15. Jenu Kuruba
  16. Kadu Kuruba
  17. Kammara (in Dakshina Kannada district and Kollegal taluk of Chamarajanagar district)
  18. Kaniyan, Kanyan (in Kollegal taluk of Chamarajanagar district)
  19. Kathodi, Katkari, Dhor Kathodi, Dhor Katkari, Son Kathodi, Son Katkari
  20. Kattunayakan
  21. Kokna, Kokni, Kukna
  22. Koli Dhor, Tokre Koli, Kolcha, Kolgha
  23. Konda Kapus
  24. Koraga
  25. Kota
  26. Koya, Bhine Koya, Rajkoya
  27. Kudiya, Melakudi
  28. Kuruba (in Kodagu district)
  29. Kurumans
  30. Maha Malasar
  31. Malaikudi
  32. Malasar
  33. Malayekandi
  34. Maleru
  35. Maratha (in Kodagu district)
  36. Marati (n Dakshina Kannada district)
  37. Meda
  38. Naikda, Nayaka, Cholivala Nayaka, Kapadia Nayaka, Mota Nayaka, Nana Nayaka, Naik, Nayak, Beda, Bedar and Valmiki
  39. Palliyan
  40. Paniyan
  41. Pardhi, Advichincher, Phanse Pardhi
  42. Patelia
  43. Rathawa
  44. Sholaga
  45. Soligaru
  46. Toda
  47. Varli
  48. Vitolia, Kotwalia, Barodia
  49. Yerava

Kerala

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Adiyan
  2. Arandan
  3. Eravallan
  4. Hill Pulaya
  5. Irular, Irulan
  6. Kadar
  7. Kammara (in the areas comprising the Malabar district as specified by sub-section (2) of section 5 of the States Reorganisation Act, 1956 (37 of 1956)). Malabar district comprises Kannur (earlier Cannanore), Kozhikode, Malappuram districts and Palakkad (earlier Palaghat) district excluding Chittur taluk.
  8. Kanikaran, Kanikkar
  9. Kattunayakan
  10. Kochu Velan
  11. Konda Kapus
  12. Kondareddis
  13. Koraga
  14. Kota
  15. Kudiya, Melakudi
  16. Kurichchan
  17. Kurumans
  18. Kurumbas
  19. Maha Malasar
  20. Malai Arayan
  21. Malai Pandaram
  22. Malai Vedan
  23. Malakkuravan
  24. Malasar
  25. Malayan (in the areas comprising the Malabar district as specified by sub-section (2) of section 5 of the States Reorganisation Act, 1956 (37 of 1956)). Malabar district comprises Kannur (earlier Cannanore), Kozhikode, Malappuram districts and Palakkad (earlier Palaghat) district excluding Chittur taluk.
  26. Malayarayar
  27. Mannan
  28. Marati (in Hosdrug and Kasaragod taluks of Kasaragod district)
  29. Muthuvan, Mudugar, Muduvan
  30. Palleyan
  31. Palliyan
  32. Palliyar
  33. Paniyan
  34. Ulladan
  35. Uraly

Lakshadweep

In accordance with The Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 and the Laccadive, Minicoy and Amindivi Islands (Alteration of Name) (Adaptation of Laws) Order, 1974.

  1. Inhabitants of the Lakshadweep who, and both of whose parents, were born in the Union Territory.

Madhya Pradesh

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Agariya
  2. Andh
  3. Baiga
  4. Bhaina
  5. Bharia Bhumia, Bhuinhar Bhumia, Bhumiya, Bharia, Paliha, Pando
  6. Bhattra
  7. Bhil, Bhilala, Barela, Patelia
  8. Bhil Mina
  9. Bhunjia
  10. Biar, Biyar
  11. Binjhwar
  12. Birhul, Birhor
  13. Damor, Damaria
  14. Dhanwar
  15. Gadaba, Gadba
  16. Gond; Arakh, Arrakh, Agaria, Asur, Badi Maria, Bada Maria, Bhatola, Bhimma, Bhuta, Koilabhuta, Koliabhuti, Bhar, Bisonhorn Maria, Chota Maria, Dandami Maria, Dhuru, Dhurwa, Dhoba, Dhulia, Dorla, Gaiki, Gatta, Gatti, Gaita, Gond Gowari, Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya, Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar, Moghya, Mogia, Monghya, Mudia, Muria, Nagarchi, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia, Thotya, Wade Maria, Vade Maria, Daroi
  17. Halba, Halbi
  18. Kamar
  19. Karku
  20. Kawar, Kanwar, Kaur, Cherwa, Rathia, Tanwar, Chattri
  21. Keer (in Bhopal, Raisen and Sehore districts)
  22. Khairwar, Kondar
  23. Kharia
  24. Kondh, Khond, Kandh
  25. Kol
  26. Kolam]
  27. Korku, Bopchi, Mouasi, Nihal, Nahul, Bondhi, Bondeya
  28. Korwa, Kodaku
  29. Majhi
  30. Majhwar
  31. Mawasi
  32. Mina (in Sironj sub-division of Vidisha district)
  33. Munda
  34. Nagesia, Nagasia
  35. Oraon, Dhanka, Dhangad
  36. Panika (in Chhatarpur, Datia, Panna, Rewa, Satna, Shahdol, Sidhi and Tikamgarh districts)
  37. Pao
  38. Pardhan, Pathari Saroti
  39. Pardhi (in Bhopal, Raisen and Sehore districts)
  40. Pardhi; Bahelia, Bahellia, Chita Pardhi, Langoli Pardhi, Phans Pardhi, Shikari, Takankar, Takia (in (i) Bastar, Chhindwara, Mandla, Raigarh, Seoni and Surguja districts; (ii) Baihar tehsil of Balaghat district; (iii) Betul and Bhainsdehi tehsils of Betul district; (iv) Bilaspur and Katghora tehsils of Bilaspur district; (v) Durg and Balod tehsils of Durg district; (vi) Chowki, Manpur and Mohala Revenue Inspectors Circles of Rajnandgaon district; (vii) Murwara, Patan and Sihora tehsils of Jabalpur district; (viii) Hoshangabad and Sohagpur tehsils of Hoshangabad district and Narsimhapur district; (ix) Harsud tehil of East Nimar district; and (x) Dhamtari and Mahasamund districts and Bindra-Nawagarh tehsil of Raipur district)
  41. Parja
  42. Sahariya, Saharia, Seharia, Sehria, Sosia, Sor
  43. Saonta, Saunta
  44. Saur
  45. Sawar, Sawara
  46. Sonr

Maharashtra

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Andh
  2. Baiga
  3. Barda
  4. Bavacha, Bamcha
  5. Bhaina
  6. Bharia Bhumia, Bhuinhar Bhumia, Pando
  7. Bhattra
  8. Bhil, Bhil Garasia, Dholi Bhil, Dungri Bhil, Dungri Garasia, Mewasi Bhil, Rawal Bhil, Tadvi Bhil, Bhagalia, Bhilala, Pawra, Vasava, Vasave
  9. Bhunjia
  10. Binjhwar
  11. Birhul, Birhor
  12. Chodhara (excluding Akola, Amravati, Bhandara, Gondiya, Buldana, Chandrapur, Nagpur, Wardha, Yavatmal, Aurangabad, Jalna, Bid, Nanded, Osmanabad, Latur, Parbhani and Hingoli districts)
  13. Dhanka, Tadvi, Tetaria, Valvi
  14. Dhanwar
  15. Dhodia
  16. Dubla, Talavia, Halpati
  17. Gamit, Gamta, Gavit, Mavchi, Padvi
  18. Gond Rajgond, Arakh, Arrakh, Agaria, Asur, Badi Maria, Bada Maria, Bhatola, Bhimma, Bhuta, Koilabhuta, Koilabhuti, Bhar, Bisonhorn Maria, Chota Maria, Dandami Maria, Dhuru, Dhurwa, Dhoba, Dhulia, Dorla, Gaiki, Gatta, Gatti, Gaita, Gond, Gowari, Hill Maria, Kandra, Kalanga, Khatola, Koitar, Koya, Khirwar, Khirwara, Kucha Maria, Kuchaki Maria, Madia, Maria, Mana, Mannewar, Moghya, Mogia, Monghya, Mudia, Muria, Nagarchi, Naikpod, Nagwanshi, Ojha, Raj, Sonjhari Jhareka, Thatia, Thotya, Wade Maria, Vade Maria
  19. Halba, Halbi
  20. Kamar
  21. Kathodi, Katkari, Dhor Kathodi, Dhor Kathkari, Son Kathodi, Son Katkari
  22. Kawar, Kanwar, Kaur, Cherwa, Rathia, Tanwar, Chattri
  23. Khairwar
  24. Kharia
  25. Kokna, Kokni, Kukna
  26. Kol
  27. Kolam, Mannervarlu
  28. Koli Dhor, Tokre Koli, Kolcha, Kolgha
  29. Koli Mahadev, Dongar Koli
  30. Koli Malhar
  31. Kondh, Khond, Kandh
  32. Korku, Bopchi, Mouasi, Nihal, Nahul, Bondhi, Bondeya
  33. Koya, Bhine Koya, Rajkoya
  34. Nagesia, Nagasia
  35. Naikda, Nayaka, Cholivala Nayaka, Kapadia Nayaka, Mota Nayaka, Nana Nayaka
  36. Oraon, Dhangad
  37. Pardhan, Pathari, Saroti
  38. Pardhi: Advichincher, Phans Pardhi, Phanse Pardhi, Langoli Pardhi, Bahelia, Bahellia, Chita Pardhi, Shikari, Takankar, Takia
  39. Parja
  40. Patelia
  41. Pomla
  42. Rathawa
  43. Sawar, Sawara
  44. Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar
  45. Thoti (in Aurangabad, Jalna, Bid, Nanded, Osmanabad, Latur, Parbhani and Hingoli districts and Rajura tehsil of Chandrapur district)
  46. Varli
  47. Vitolia, Kotwalia, Barodia

Manipur

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Aimol
  2. Anal
  3. Angami
  4. Chiru
  5. Chothe
  6. Gangte
  7. Hmar
  8. Kabui
  9. Kacha Naga
  10. Koirao
  11. Koireng
  12. Kom
  13. Lamgang
  14. Mao
  15. Maram
  16. Maring
  17. Any Mizo (Lushai) tribes
  18. Monsang
  19. Moyon
  20. Paite
  21. Purum
  22. Ralte
  23. Sema
  24. Simte
  25. Suhte
  26. Tangkhul
  27. Thadou
  28. Vaiphui
  29. Zou

Meghalaya

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 and The Constitution (Scheduled Tribes) Order (Amendment) Act, 1987.

  1. Boro Kacharis
  2. Chakma
  3. Dimasa, Kachari
  4. Garo
  5. Hajong
  6. Hmar
  7. Khasi, Jaintia, Synteng, Pnar, War, Bhoi, Lyngngam
  8. Koch
  9. Any Kuki Tribes, including:
    1. Biate, Biete
    2. Changsan
    3. Chongloi
    4. Doungel
    5. Gamalhou
    6. Gangte
    7. Guite
    8. Hanneng
    9. Haokip, Haupit
    10. Haolai
    11. Hengna
    12. Hongsungh
    13. Hrangkhwal, Rangkhol
    14. Jongbe
    15. Khawchung
    16. Khawathlang, Khothalong
    17. Khelma
    18. Kholhou
    19. Kipgen
    20. Kuki
    21. Lengthang
    22. Lhangum
    23. Lhoujem
    24. Lhouvun
    25. Lupheng
    26. Mangjel
    27. Misao
    28. Riang
    29. Sairhem
    30. Selnam
    31. Singson
    32. Sitlhou
    33. Sukte
    34. Thado
    35. Thangngeu
    36. Uibuh
    37. Vaiphei
  10. Lakher
  11. Man (Tai speaking)
  12. Any Mizo (Lushai) tribes
  13. Mikir
  14. Any Naga tribes
  15. Pawi
  16. Raba, Rava
  17. Synteng

Mizoram

In accordance with The Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956 and as inserted by Act 81 of 1971.

  1. Chakma
  2. Dimasa (Kachari)
  3. Garo
  4. Hajong
  5. Hmar
  6. Khasi and Jaintia (including Khasi Synteng or Pnar, War, Bhoi or Lyngngam)
  7. Any Kuki Tribes, Including:
    1. Biate, Biete
    2. Changsan
    3. Chongloi
    4. Doungel
    5. Gamalhou
    6. Gangte
    7. Guite
    8. Hanneng
    9. Haokip, Haupit
    10. Haolai
    11. Hengna
    12. Hongsungh
    13. Hrangkhwal, Rangkhol
    14. Jongbe
    15. Khawchung
    16. Khawathlang, Khothalong
    17. Khelma
    18. Kholhou
    19. Kipgen
    20. Kuki
    21. Lengthang
    22. Lhangum
    23. Lhoujem
    24. Lhouvun
    25. Lupheng
    26. Mangjel
    27. Misao
    28. Riang
    29. Sairhem
    30. Selnam
    31. Singson
    32. Sitlhou
    33. Sukte
    34. Thado
    35. Thangngeu
    36. Uibuh
    37. Vaiphei
  8. Lakher
  9. Man (Tai speaking)
  10. Any Mizo (Lushai) tribes
  11. Mikir
  12. Any Naga tribes
  13. Pawi
  14. Synteng

Nagaland

In accordance with The Constitution (Nagaland) Scheduled Tribes Order, 1970.

  1. Garo
  2. Kachari
  3. Kuki
  4. Mikir
  5. Naga

Odisha

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Bagata
  2. Baiga
  3. Banjara, Banjari
  4. Bathudi
  5. Bhottada, Dhotada
  6. Bhuiya, Bhuyan
  7. Bhumia
  8. Bhumij
  9. Bhunjia
  10. Binjhal
  11. Binjhia, Binjhoa
  12. Birhor
  13. Bondo Poraja
  14. Chenchu
  15. Dal
  16. Desua Bhumij
  17. Dharua
  18. Didayi
  19. Gadaba
  20. Gandia
  21. Ghara
  22. Gond, Gondo
  23. Ho
  24. Holva
  25. Jatapus|Jatapu
  26. Juang
  27. Kandha Gauda
  28. Kawar
  29. Kharia, Kharian
  30. Kharwar
  31. Khond, Kond, Kandha, Nanguli Kandha, Sitha Kandha
  32. Kisan
  33. Kol
  34. Kolah Loharas, Kol Loharas
  35. Kolha
  36. Koli, Malhar
  37. Kondadora
  38. Kora
  39. Korua
  40. Kotia
  41. Koya
  42. Kulis
  43. Lodha
  44. Madia
  45. Mahali
  46. Mankidi
  47. Mankirdia
  48. Matya
  49. Mirdhas
  50. Munda, Munda Lohara, Munda Mahalis
  51. Mundari
  52. Omanatya
  53. Oraon
  54. Parenga
  55. Paroja
  56. Pentia
  57. Rajuar
  58. Santal
  59. Saora, Savar, Saura, Sahara
  60. Shabar, Lodha
  61. Sounti
  62. Tharua

Punjab

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Ad Dharmi
  2. Balmiki, Chura, Bhangi
  3. Bangali
  4. Barar, Burar, Berar
  5. Batwal, Barwala]
  6. Bauria, Bawaria
  7. Bazigar
  8. Bhanjra
  9. Chamar, Jatia Chamar, Rehgar, Raigar, Ramdasi, Ravidasi, Ramdasia, Ramdasia Sikh, Ravidasia, Ravidasia Sikh
  10. Chanal
  11. Dagi
  12. Darain
  13. Deha, Dhaya, Dhea
  14. Dhanak
  15. Dhogri, Dhangri, Siggi
  16. Dumna, Mahasha, Doom
  17. Gagra
  18. Gandhila, Gandil, Gondola
  19. Kabirpanthi, Julaha
  20. Khatik
  21. Kori, Koli
  22. Marija, Marecha
  23. Mazhabi, Mazhabi Sikh
  24. Megh
  25. Nat
  26. Od
  27. Pasi
  28. Perna
  29. Pherera
  30. Sanhai
  31. Sanhal
  32. Sansi, Bhedkut, Manesh
  33. Sansoi
  34. Sapela
  35. Sarera
  36. Sikligar
  37. Sirkiband.
  38. Mochi
  39. Mahatam, Rai Sikh

Rajasthan

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Bhil, Bhil Garasia, Dholi Bhil, Dungri Bhil, Dungri Garasia, Mewasi Bhil, Rawal Bhil, Tadvi Bhil, Bhagalia, Bhilala, Pawra, Vasava, Vasave
  2. Bhil Mina
  3. Damor, Damaria
  4. Dhanka, Tadvi, Tetaria, Valvi
  5. Garasia (excluding Rajput Garasia)
  6. Kathodi, Katkari, Dhor Kathodi, Dhor Katkari, Son Kathodi, Son Katkari
  7. Kokna, Kokni, Kukna
  8. Koli Dhor, Tokre Koli, Kolcha, Kolgha
  9. Mina
  10. Naikda, Nayaka, Cholivala Nayaka, Kapadia Nayaka, Mota Nayaka, Nana Nayaka
  11. Patelia
  12. Seharia, Sehria, Sahariya

Sikkim

In accordance with The Constitution (Sikkim) Scheduled Tribes Order, 1978.

  1. Bhutia (including Chumbipa, Dopthapa, Dukpa, Kagatey, Sherpa, Tibetan, Tromopa, Yolmo)
  2. Lepcha

Tamil Nadu

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Adiyan
  2. Aranadan
  3. Eravallan
  4. Irular
  5. Kadar
  6. Kammara (excluding Kanniyakumari district and Shencottah taluk of Tirunelveli district)
  7. Kanikaran, Kanikkar (in Kanniyakumari district and Shencottah taluk of Tirunelveli district)
  8. Kaniyan, Kanyan
  9. Kattunayakan
  10. Kochu Velan
  11. Konda Kapus
  12. Kondareddis
  13. Koraga
  14. Kota (excluding Kanniyakumari district and Shencottah taluk of Tirunelveli district)
  15. Kudiya, Melakudi
  16. Kurichchan
  17. Kurumbas (in the Nilgiri district)
  18. Kurumans
  19. Maha Malasar
  20. Malai Arayan
  21. Malai Pandaram
  22. Malai Vedan
  23. Malakkuravan
  24. Malasar
  25. Malayali (in Dharmapuri, Vellore, Tiruvannamalai, Pudukkottai, Salem, Namakkal, Villupuram, Cuddalore, Tiruchirappalli, Karur and Perambalur districts)
  26. Malayekandi
  27. Mannan
  28. Mudugar, Muduvan
  29. Muthuvan
  30. Palleyan
  31. Palliyan
  32. Palliyar
  33. Paniyan
  34. Sholaga
  35. Toda (excluding Kanniyakumari district and Shencottah taluk of Tirunelveli district)
  36. Uraly

Tripura

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Bhil
  2. Bhutia
  3. Chaimal
  4. Chakma
  5. Garoo
  6. Halam
  7. Jamatia
  8. Khasia
  9. Kuki, including the following sub-tribes:
    1. Balte
    2. Belalhut
    3. Chhalya
    4. Fun
    5. Hajango
    6. Jangtei
    7. Khareng
    8. Khephong
    9. Kuntei
    10. Laifang
    11. Lentei
    12. Mizel
    13. Namte
    14. Paitu, Paite
    15. Rangchan
    16. Rangkhole
    17. Thangluya
  10. Lepcha
  11. Lushai
  12. Mag
  13. Munda, Kaur
  14. Noatia
  15. Orang
  16. Riang
  17. Santal
  18. Tripura, Tripuri, Tippera
  19. Uchai

Uttarakhand

Formerly Uttaranchal. In accordance with The Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967 and as inserted by Act 29 of 2000.

  1. Bhotia
  2. Buksa
  3. Jaunsari
  4. Raji
  5. Tharu

Uttar Pradesh

In accordance with The Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967.

  1. Bhotia
  2. Buksa
  3. Jaunsari
  4. Raji
  5. Tharu

West Bengal

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

  1. Asur
  2. Baiga
  3. Bedia, Bediya
  4. Bhumij
  5. Bhutia, Sherpa, Toto, Dukpa, Kagatay, Tibetan, Yolmo
  6. Birhor
  7. Birjia
  8. Chakma
  9. Chero
  10. Chik Baraik
  11. Garo
  12. Gond
  13. Gorait
  14. Hajang
  15. Ho
  16. Karmali
  17. Kharwar
  18. Khond
  19. Kisan
  20. Kora
  21. Korwa
  22. Lepcha
  23. Lodha, Kheria, Kharia
  24. Lohara, Lohra
  25. Magh
  26. Mahali
  27. Mahli
  28. Mal Pahariya
  29. Mech
  30. Mru
  31. Munda
  32. Nagesia
  33. Oraon
  34. Parhaiya
  35. Rabha
  36. Santal
  37. Sauria Paharia
  38. Savar

Scheduled Tribe in West Bengal

  1. Santal 2,280,540 – 51.8%
  2. Oraon 617,138 -14.0%
  3. Munda 341,542 -7.8%
  4. Bhumij 336,436- 7.6%
  5. Kora 142,789 – 3.2%
  6. Lodha 84,966- 1.9%
  7. Mahali 76,102 – 1.7%
  8. Bhutia 60,091- 1.4%
  9. Bedia 55,979 -1.3%
  10. Sa bar 43,599 – 1%

Total 40,39,192- 100.00%

[Source: Census of India, 2001]

In accordance with The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976.

Asur
Baiga
Bedia, Bediya
Bhumij
Bhutia, Sherpa, Toto, Dukpa, Kagatay, Tibetan, Yolmo
Birhor
Birjia
Chakma
Chero
Chik Baraik
Garo
Gond
Gorait
Hajang
Ho
Karmali
Kharwar
Khond
Kisan
Kora
Korwa
Lepcha
Lodha, Kheria, Kharia
Lohara, Lohra
Magh
Mahali
Mahli
Mal Pahariya
Mech
Mru
Munda
Nagesia
Oraon
Parhaiya
Rabha
Santal
Sauria Paharia
Savar

Restrictions on Alienation of Land by Scheduled Tribes under The West Bengal Land Reform Act 1955

INTRODUCTION

The tribal economy was simple but with the gradual contact with the non-tribals they started taking loans. The wiles of money-lenders and traders exploited their innocence. Honest, truthful and hard working tribals become prey for the greed and exploitation by non-tribals. They charged maximum rate of interest etc. for fringe money or gains or goods lent to them. Tribes had to repay disproportionately in three or four-fold in kind. Exorbitant rate of interest was charged and repayment collected in kind, i.e., the produce in three or four-fold. In the “Land Alienation and Restoration in Tribal Communities in India” edited by S. N. Dubey and Ratna Murdia, (Himalaya Publishing House), compilation of articles presented and read out at a Seminar organised by Tata Institute of Social Science in which bureaucrats and social scientists participated. B. Danam, IAS, then Project Officer, ITDA, Khammam, had highlighted in his paper about diverse modes of exploitation by moneylenders of the tribals in Andhra Pradesh. They were : short-term loan at an exorbitant rate of interest (Kandagutha), the repayment of which was made in kind, i.e., harvest produced from a particular extent of land; the medium-term loan on the security of the immovable property, repayable with compound interest at yearly or half-yearly rests. Third mode was lease of land against a loan for a fixed number of years (Tirumanam) during which period the Tribes have to cultivate their land, raise the crop and deliver the entire produce to the money-lender; by usufructuary mortgage, the money-lender remains in possession and enjoys the produce from the land for a fixed number of years or till the principal sum is repaid; by advancing cash and find loans (Namu) and lending commodities like food grains mostly for sustenance during the lean months or for seedlings, on the condition that the same would be repaid in full along with flat rate of interest at the time of harvest and in default payment should be with compound interest; in case of further default, the accumulated arrears get merged with the principal, i.e., by way of compound interest. The other types of money-lending extend to petty loans or selling clothes on credit to the Tribes during the lean months on the condition that it would be paid in full at the time of harvest and in default the money-lender would take over the land by threat of physical force.

The West Bengal Land Reform Act 1955

14A. Provisions of Chapter IIA to override other provisions of this Act.—The provisions of this Chapter shall have effect notwithstanding anything to the contrary contained elsewhere in this Act.

14B. Restrictions on alienation of land by Scheduled Tribes.—Save as provided in section 14C, [any transfer, other than restoration made under section 14E, by a raiyat] belonging to a Scheduled Tribe of his [plot of and] or part thereof shall be void.

14C. Modes of transfer of land by Scheduled Tribes.—(1) A raiyat belonging to a Scheduled Tribe may transfer his [plot of land] or part thereof in any one of the following ways, namely,—

(a) by a complete usufructuary mortgage entered into with a person belonging [to a Scheduled Tribe] for a period not exceeding seven years;

(b) by sale or gift to the Government for a public or charitable purpose;

(c) by simple mortgage to the Government or to a registered cooperative society;

[(cc) by simple mortgage or mortgage by deposit of title deeds in favour of a scheduled bank, a cooperative land mortgage bank or a corporation, owned or controlled by the Central or State Government, or by both, for the development of land or improvement of agricultural production;]

[(d) by gift or will to a person belonging to a Scheduled Tribe;]

[(e) by sale or exchange in favour of any person belonging to a Scheduled Tribe:

Provided that any such raiyat may, with the previous permission, in writing, of the Revenue Officer, transfer by sale his [plot of land] or any part thereof to a person not belonging to any Scheduled Tribe:

Provided further that no such permission shall be granted by the Revenue Officer unless he is satisfied that no purchaser belonging to a Scheduled Tribe is willing to pay the’ fair market price of the [plot of land] or any part thereof and that the proposed sale is intended to be made for one or more of the following purposes, namely,—

(a) for the improvement of any other part of the [plot of land], or

(b) for investment, or

(c) for such other purposes as may be prescribed.]

[(2) xxx ]

(3) A complete usufructuary mortgage referred to in sub-section (1) may be redeemed at any time before the expiry of the term.

(4) A mortgagor under a complete usufructuary mortgage intending to redeem such mortgage before the expiry of its term or any person acting on his behalf, may make an application for redemption in such form and containing such particulars as may be prescribed to the Revenue Officer. On receipt of such application the Revenue Officer shall after service of notice to the mortgagee make an enquiry in the prescribed manner and pass a preliminary order declaring the amount due under such mortgage to the mortgagee at the date of such order and fixing a date for payment of such amount by the mortgagor. If the mortgagor pays such amount by the date so fixed the Revenue Officer shall make a final order directing the mortgagee to restore possession of the mortgaged property and to deliver up the mortgage-deed, to the mortgagor.

(5) A final order made under sub-section (4) shall be executed by the Revenue Officer in such manner as may be prescribed.

Explanation.—In this section “complete usufructuary mortgage” means a transfer by a raiyat of the right of possession in any land for the purpose of securing the payment of money or the return of grain advanced or to be advanced by way of loan upon the condition that the loan, with all interest thereon, shall be deemed to be extinguished by the profits arising from the land during the period of the mortgage.

14D. Transfer in contravention of Chapter HA shall not be valid unless registered.—(1) No transfer of any land or any interest in such land by a raiyatbelonging to a Scheduled Tribe shall be valid unless made by a registered instrument.

(2) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908) or in any other law for the time being in force, no instrument of transfer or dealing with land or interest in such land by a raiyat belonging to the Scheduled Tribe made in contravention of the provisions of this Chapter shall be recognised as valid by any court, officer or authority exercising civil, criminal or revenue jurisdiction and no registering officer shall register any such instrument unless he is satisfied that the instrument does not contravene any of the provisions of this Chapter.

(3) If, in course of registration of any instrument referred to in sub-section (2) or in any proceeding relating to the registration of such instrument or in any proceeding before any civil, criminal or revenue court, any question arises as to whether the raiyat executing such instrument belongs to the Scheduled Tribe or as to whether such instrument has been made in contravention of the provisions of this Chapter, the registering officer or other officer or authority exercising powers under the Registration Act, 1908 (16 of 1908) or the civil, criminal or revenue court before whom such question arises, shall refer such question to the Revenue Officer referred to in section 14C and shall give effect to the decision of the Revenue Officer.]

14E. Power to Revenue Officer to set aside improper transfers by raiyat.—(1) If a transfer of a [plot of land] or any portion thereof is made by a ralyat belonging to a Scheduled Tribe in contravention of the provisions of section 14C, or if the permission for the transfer is found, after an inquiry in the prescribed manner, to have been obtained by misrepresentation or fraud, or if in the case of a complete usufructuary mortgage referred to in clause (a) of sub-section (1) of section 14C, the transferee has continued or is in possession for more than seven years from the date of transfer, the Revenue Officer may, of his own motion or on an application made in that behalf and after giving the transferee an opportunity of being heard, by an order in writing annul the transfer where necessary and eject the transferee from such [plot of land] or part thereof :

Provided that the transferee whom it is proposed to eject has not been in continuous possession for [thirty years] under the transfer made in contravention of section 14C, or in the case of a complete usufructuary mortgage referred to in clause (a) of sub-section (1) of section 14C, for [thirty years] from the expiry of the[period of seven years, notwithstanding anything contained in the Limitation Act, 1963 (Act 36 of 1963)].

(2) When the Revenue Officer has passed any order under sub-section

(1), he shall restore the transferred [plot of land] or part thereof to [the transferor or his successor-in-interest, in such manner as may be prescribed.]

[Explanation.—For the purpose of this sub-section, the word “restoration” shall mean restoration of the plot of land or part thereof which has been transferred by araiyat belonging,to a Scheduled Tribe and include an equivalent quantum of plot of land or part thereof of the same character within the near vicinity of the transferred plot of land or part thereof.]

[(3) For the purpose of restoration of possession of any land and evicting any person in actual occupation of such land under sub-section (2), any such Revenue Officer may use such force as may be required for evicting the person in actual occupation of such land and may send a written requisition in such form and in such manner as may be prescribed to the officer-in-charge of the local police station having jurisdiction or to any police officer superior in rank to such officer-incharge, and on receipt of such written requisition, the police officer concerned shall render all necessary lawful assistance for enforcing delivery of possession of such land:

Provided that the provisions of this sub-section shall not be ‘applicable to any person not belonging to the Scheduled Tribe, if he has been owning, possessing or cultivating land not exceeding 0.4047 hectare in area in the aggregate and the transfer was made by a member of the Scheduled Tribe owning, possessing or cultivating land measuring 4 hectares or more in area in the aggregate.]

14F. Restriction on the sale of raiyat’s [plot of land] or any portion thereof.-[(1) No decree or order shall be passed by any court for the sale of the [plot of land] or any portion thereof, of a raiyat belonging to a Scheduled Tribe nor shall any such [plot of land] be sold in execution of any decree or order.

(2) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), and the Indian Contract Act, 1872 (9 of 1872), no decree or order relating to any land or interest in such land shall be passed by any court against a raiyat belonging to a Scheduled Tribe on the basis of any consent, agreement or compromise. Any such decree or order passed in contravention of this sub-section shall be void.]

14FF. Benami transaction or instrument to be void.—(1) Notwithstanding anything contained in the Transfer of Property Act, 1882 (4 of 1882) or in any other law for the time being in force, any benami transaction or instrument relating to any land or any interest therein showing the name of any person belonging to a Scheduled Tribe as the ostensible owner shall be void for all purposes.

(2) No Court shall entertain any suit to enforce any right in respect of any such land or interest in such land against a person belonging to a Scheduled Tribe by or on behalf of a person claiming to be the real owner of such land or interest therein.

14G. Power to the Revenue Officer to settle or sell [plot of land] for realization of certificate dues.—(1) When a certificate is filed for the recovery of an arrear of revenue or any other public demand recoverable under the Bengal Public Demands Recovery Act, 1913 (Bengal Act 3 of 1913), in respect of the [plot of land] of a raiyat belonging to a Scheduled Tribe, the Certificate Officer shall, before a proclamation for sale of the [plot of land] is issued in execution of the certificate, refer the case to the Revenue Officer having jurisdiction who may, in his discretion—

(a) eject the defaulting raiyat from his [plot of land] and put another person belonging to a Scheduled Tribe in possession of the [plot of land] for a period not exceeding seven years on payment of the amount due in respect of the certificate by him; or

(b) sell the [plot of land] to a member of a Scheduled Tribe, if available, and, if not available, to any other person at a fair market price to be fixed by the Revenue Officer, not being less than the amount due in respect of the certificate:

Provided that if the homestead of the defaulting raiyat is comprised in the [plot of land], he shall not be ejected from such homestead under clause (a), nor shall such homestead be sold under clause (b).

(2) (I) If the Revenue Officer puts any person in possession of the [plot of land] under clause (a) of sub-section (1) for any period, the amount paid by such person shall, at the end of such period, be deemed to have been satisfied in full, and the Revenue Officer shall then restore the [plot of land] to the defaulting raiyat.

(ii) If the Revenue Officer sells the [plot of land] under clause (b) of sub-section (1), any amount that may remain out of the sale-proceeds after satisfaction of the amount due in respect of the certificate shall be paid to the defaulting raiyat.

14H. Appeal and revision.—An appeal, if presented within thirty days from the date of the order appealed against, shall lie to the Munsif having jurisdiction from any order made under sub-section (4) of section 14C or section 14E or section 14G and his order shall be final:

Provided that an application for revision or modification of the order passed by the Munsif on appeal shall lie to the District Judge if made within sixty days from the date of the order:

Provided further that the provisions of section 5 of the Limitation Act, 1963 (Act 36 of 1963), shall apply to an appeal under this section.

14HH. Setting aside of sale of land of a raiyat belonging to a Scheduled Tribe.—Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), or in any other law for the time being in force, every court exercising appellate or revisional jurisdiction shall, either of its own motion or on an application made in this behalf, set aside the sale of land of a raiyat belonging to a Scheduled Tribe or any portion of such land in execution of a decree in favour of a person not belonging to a Scheduled Tribe, notwithstanding the failure of the party to file any objection before the court which passed the decree or passed any order for execution of the decree.

14I. Bar to suits.—No suit shall lie in any Civil Court to vary or set aside any order passed by the Revenue Officer in any proceeding under this Chapter except on the ground of fraud or want of jurisdiction.

Comment:-

Prohibition of Transfer

Some Regulation prohibits absolutely the transfer of land in scheduled areas of Andhra Pradesh between tribals and non-tribals or non-tribals inter se. In 1971, an amendment was made to exempt hypothecation of lands by tribes to the Co-operative Land Mortgage Banks and other financial institutions approved by the Government, subject to certain conditions. In Assam, the Assam Land and Revenue Regulation Act, 1964 was enacted. In Himachal Pradesh, the H.P. Transfer of Land (Regulation) Act, 1968 was made. In Karnataka, the Bombay Tenancy and Agricultural Lands Act, 1948 was made applicable in Bombay region of the Karnataka Stale. The Mysore Land Revenue (Amendment) Rule, 1960 was suitably amended imposing restriction or alienation of the lands allotted to the Scheduled Tribes and Scheduled Castes without prior permission of the Government. In Kerala, the Kerala Land Reforms Act, 1963 contains similar provision. The Kerala Scheduled Tribes (Restriction of Transfer of Land and Regulation of Alienation of Lands), Act, 1975 was enacted for the same object which has recently been amended by a bill, details whereof are not available. Madhya Pradesh, the M.P.L.P. Code, 1959, under Sections 165(6) and 168(1), prohibits alienation of land and remedy .of restoration thereof is provided. In Manipur, the Manipur Land Reforms and Land Revenue Act,; 1970 was made. Similarly, the Orissa Scheduled Areas (Transfer of Immovable Property) Regulation and also Orissa Land Reforms Act, 1960 were made for the same purpose. The Rajasthan Tenancy Act, 1955, as amended in 1956, prohibits such transfer of lands. In Sikkim, Sikkim Revenue Order, 1977 and Sikkim Agricultural Land Ceiling and Reforms Act, 1977 are enforced. Equally, the Madras Cultivating Tenants Protection Act, 1955 provides the same relief. In Tripura, Tripura Land Revenue and Land Reforms Act, 1960 imposes similar restrictions. In Uttar Pradesh, the U. P. Land Laws (Amendment) Act, 1982 was made though its implementation was stayed by the High Court.

Constitutional Scheme to protect the Tribes

Chapter VI, Part X of the Constitution deals with “Scheduled Tribes and Tribal Areas”. Article 244 provides that the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the State of Assam, Meghalaya, Tripura and Mizoram. The provision of Clause (2) of Article 244-A are not relevant for the purpose of this case; hence omitted. The Fifth Schedule makes the provisions as to the administration and control of Scheduled Area and Scheduled Tribes. Para (1) envisages that unless the context otherwise requires, the expression “State” defined in the Schedule does not include the State of Assam. Meghalaya, Tripura and Mizoram. Part V of the Schedule gets attracted to the administration and control. Para (2) envisaged that subject to the provisions of the Schedule, the executive power of a State extends to the Scheduled Areas enumerated therein. Special duty has been entrusted to the Governor to report to the President of the administration of scheduled area. It enjoins that the Governor of each State, having Scheduled Areas therein, shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said area. Para 5(2) provides that the Governor may make regulations for the peace and good Government of any area in a State which is for the time being a Scheduled Area. Without prejudice to the above general power, special power has been conferred under Clause (a) to prohibit or to restrict the transfer of land by or among members of the Scheduled Tribes in such area and under Clause (b) to regulate the allotment of land to members of the Scheduled Tribes in such area; under Clause (c) regulates money-lending to the tribals in the Scheduled Area.

In the Constitution, the expression ‘Scheduled Areas’ has been defined to mean such area as the President may by order declare to be Scheduled Areas. Clause (2) of para 6 provides that the President may at any time by order (a-) direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area; (aa) increase the area of any Scheduled Area in a State, after consultation with the Governor of that State; (b) alter, but only by way of rectification of boundaries, any Scheduled Area; (c) on any ” alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of a Scheduled Area. Clause (d) deals with the rescission of any order under para 6. Such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of that paragraph shall not be varied by any subsequent order. Part D, para 7 empowers the Parliament to amend the Schedule by way of addition, variation or repeal of any of the provisions of the Fifth Schedule. Such a varied or modified Schedule shall be referred to such amended Schedule. The other details are not material for the purpose of this case. Hence they are omitted.

Meaning of Person :

The word ‘person’ in the interplay of juristic thought is either natural or artificial. Natural persons are human beings while artificial persons are Corporations. Corporations are either Corporation aggregate or Corporation sole. In “English Law” by Kenneth Smith and Denis Keenan (Seventh Edition) at page 127, it is staled that “legal personality is not restricted to human beings. In fact various bodies and associations of persons can, by forming a corporation to carry out their functions, create an organisation with a range of rights and duties not dissimilar to many of those possessed by human beings. In English law such corporations are formed either by charter, statute or registration under the Companies Acts; there is also the common law concept of the Corporation Sole”. At page 163. it is further staled that “(T]he Crown is the executive head in the United Kingdom and Commonwealth, and government departments and civil servants act on behalf of the Crown”. In “Salmond on Jurisprudence” by P. J. Fitzgerald [Twelfth Edition], at page 66, it is stated that “[A] legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality beyond the class of human beings is one of the most noteworthy feats of the legal imagination…”.At page 72, it is further amplified that “[T]he King himself, however, is in law to mere mortal man. He has a double capacity, that is to say, a corporation sole. The visible wearer of the crown is merely the living representative and agent for the time being of this invisible and underlying persona fact, in whom by law the powers and prerogatives of the government of this realm are vested”. In “Jurisprudence” by R. W. M. Dias [Fifth Edition], at page 265, it is stated that”…the value of personifying group activities is further reduced by the fact that courts have evolved ways of dealing with such activities without resorting to the device of persona”.

Punjabrao Vs DR. D. P. Meshram and others[ALL SC 1964 OCTOBER]

KEYWORDS:- RELIGIOUS CONVERSION-Scheduled Castes-

supreme court of india 1

AIR 1965 SC 1179 : (1965) 1 SCR 849

(SUPREME COURT OF INDIA)

Punjabrao Appellant
Versus
DR. D. P. Meshram and others Respondent

(Before : P. B. Gajendragadkar, C.J.I., K. N. Wanchoo, M. Hidayatullah, Raghubar Dayal And J. R. Mudholkar, JJ.)

Civil Appeal No. 562 of 1964, Decided on : 26-10-1964.

ACTS:-(Scheduled Castes) Order, 1950

Hindu Law—Religion—Conversion to another religion—Proof of—Subsequent conduct of the person concerned is relevant in determining the conversion.

Counsel for the Parties:

MR. M. C. Setalvad, Senior Advocate (M/s. N. I. Belekar, H. D. Awade and A. G. Ratnaparkhi, Advocates with him), for Appellant

MR. N. C. Chatterjee, Senior Advocate, (M/s. V. S. Sawhney, S. S. Khanduja, S. K. Manchanda and Ganpat Rai, Advocates, with him), for Respondent No. 1.

Judgment

Mudholkar, JThe question which arises for consideration in this appeal by special leave from the judgment of the Bombay High Court is whether respondent No. 1 DR. D. P. Meshram was entitled to be a candidate for election to the Maharashtra Legislative Assembly from constituency No. 190 of Nagpur III a constituency reserved for candidates from scheduled castes.

2. The appellant and respondents 1 to 4 were candidates duly nominated for election to the Assembly from the aforesaid constituency. The poll was taken on February 27, 1962 and respondent No. 1 who had polled the highest number of votes was declared elected. The appellant thereupon preferred an election petition before the Election Commission; the main allegations in which were (a) that respondent No. 1 having embarced Buddhism on March 17, 1957 had ceased to be a member of a Scheduled Caste within the meaning of the Constitution (Scheduled Castes) Order, 1950 and was thus disentitled from being a candidate for the particular seat and (b) that respondent No. 1 was guilty of several corrupt practices. The Tribunal held that the corrupt practices alleged against respondent No. 1 were not established it, however, came to the conclusion that respondent No. 1 had embraced Buddhism as alleged by the appellant and was, therefore, not eligible for being a candidate for election from the reserved constituency. Upon this ground the Tribunal set aside the election of respondent No. 1. It may be mentioned that the appellant had made a further prayer to the effect that he should be declared elected to the seat; but this prayer was not granted by the Tribunal on the ground that he was not the only other candidate for election and, therefore, it cannot be said how the votes which respondent No. 1 had secured would have been distributed among the remaining candidates. Aggrieved by the decision of the Tribunal respondent No. 1 preferred an appeal before the High Court of Bombay. The only question which was urged before the High Court was regarding the alleged conversion of respondent No. 1 to Buddhism. On that question the High Court reversed the finding of the Tribunal and held that the fact had not been established by evidence. The High Court, therefore, upheld the election of respondent No. 1.

3. In support of his contention that respondent. No. 1 was converted to Buddhism on March 17, 1957 the appellant had adduced evidence of P.W. 9 Ramratan Janorkar, P.W. 2 Akant Mate, P.W. 5 Devaji Bhagat and P.W. 10 Wasudeo Dongre. Ramratan who claims to be a Buddha has said that he presided, over a meeting held at Lashkari bagh, Nagpur, two or three days after the Holi festival of the year 1957 at which a mass conversion of persons belonging to Scheduled Castes to Buddhism took place. He named ten persons who, according to him had been converted at that meeting, one of them being respondent No. 1. Amongst others named by him were P.W. 2 Akant Mate, P. W. 5 Devaji Bhagat and P.W. 10 Wasudeo Dongre. These three persons have corroborated the evidence of Ramratan. We have been taken through the evidence of these witnesses and though there may be some contradictions of minor points on the whole their evidence is consistent and has a ring of truth in it. Moreover, the Tribunal which heard and saw the witnesses depose has believed in their veracity. The High Court has, however, not chosen to accept their evidence mainly on the ground that these witnesses belong to a party which is opposed to respondent No. 1 and his party. It is not disputed before us that these witnesses as well as respondent No. 1 were members of the Republican Party of India founded by the late DR. ambedkar and that some time after his death them was rift in the party as a result of which two groups were farmed. The leader of one of these groups is Haridas Awade and that of the other is Khobragade:Respondent No. 1 belongs to the group headed by Khobargade while the appellant and the witnesses belong to the other group.

4. We agree with the High Court that we should not lose sight of this fact. In our opinion, however, there are good grounds for accepting the evidence.

5. In the first place there is the fact, which is admitted by respondent No. 1 himself, that a mass conversion of a very large number of persons belonging to the Scheduled Castes to Buddhism took place at Nagpur on October 14, 1956 at a meeting which was presided over by DR. Ambedkar. What took place at that meeting is set out in Ex. 66 which gives an account of the proceedings. It says that about 5 lakhs of persons attended the meeting. At that meeting DR. ambedkar was present along with Rev. Mahesthavir Chandramani who is a Bhikku. The Bhikku made DR. Ambedkar and Mrs. Ambedkar recite the three refuges (Thrisathi) and five precepts in Pali, after which both of them garlanded the idol of Lord Buddha which had been installed in the pandal where DR. and Mrs. Ambedkar, the Bhikku and other prominent people were sitting. DR. and Mrs. Ambedkar then took 22 vows which apparently he had himself prepared. Thereafter the mass ordination took place at which those who wished to be converted recited the three refuges three times. This event had attracted attention in throughout the country and was given wide publicity by the press which was well represented at the meeting Respondent No. 1 has admitted that he was a member of DR. Ambedkar’s party at that time and though he could not attend the conversion ceremony he had not dissociated himself from it. According to him the reason why he did not attend the ceremony was that he was then busy with making arrangements at the water works for the supply of water to the lakhs of people, most of whom had come from the neighbouring villages to attend the ceremony. It is in the evidence of witnesses that at least three lakhs of persons belonging to the Scheduled Castes were converted to Buddhism at that meeting and that the work of conversion went on even after October 14, 1956 for quite some time. Another factor to be borne in mind is that prominent persons belonging to the Scheduled Castes were converted to Buddhism and it would be highly improbable that respondent no. 1 who was a prominent member of the Scheduled Caste in Nagpur and a follower of DR. ambedkar would have remained aloof from the movement started by DR. Ambedkar. The main object of DR. Ambedkar was to secure for the members of the Scheduled Castes an honourable place in society and he felt that the various disabilities placed upon members of these castes were due to the fact that in Hindu religion, to which they belonged they had been accorded the lowest rank in society with the result that they had come to be regarded as untouchables. Undoubtedly, the caste system has virtually come to be regarded as as an essential feature of Hindu society and, therefore, DR. Ambedkar felt that the only was open to members belonging to the lowest group was to sever their connection completely from such a society. He found that Buddhism, the way or path of Peace, not only offered solace to the spirit but also social equality to all its members. DR. Ambedkar was the unquestioned leader of the Scheduled Castes, at any rate in Maharashtra. It would, therefore, not be unreasonable to infer that those who had accepted his leadership and those who in addition held prominent places amongst people belonging to the Scheduled Castes should follow DR. Ambedkar and renouncing Hinduism, embrace like him, Buddhism. If this probability is borne in mind the evidence of the witnesses who have deposed to the fact of the actual conversion of respondent No. 1 to Buddhism would become more easily acceptable.

6. That, however, is not all. Corroboration of this evidence was sought to be supplied by the appellant from the conduct of respondent No. 1 subsequent to his conversion. For this purpose he has relied upon three matters, one is the signing of a declaration by respondent No. 1 along with some other persons to the effect that he had embraced Buddhism and that he therefore, ceased to be any longer a member of the Scheduled Castes; the second is a wedding invitation subscribed to amongst others, by respondent No. 1 on which the picture of Lord Buddha is inscribed:and the third is the conversion of a Shiva temple situate near the appellant’s house to a Buddha temple.

7. The declaration is Ex. 42 and is dated July 5, 1957. It is to the following effect:

To whomsoever it may concern:

We the following signatories, do hereby affirm that we embraced Buddha Religion on 17-3l957 and no longer since remain Harijans”.

Then follow the names of ten persons, including P.W. 2 Akant Mate, P.W. 5 Devaji Bhagat and P.W. 10 Dongre. Each of them has signed therein against his name. The reason why this declaration came into existence is, according to the appellant, the following:

8. Elections had taken place to the Nagpur Corporation and a meeting was held on July 5, 1957 for election of six additional members. One of the Corporators. MR. Udhoji, raised a point of order to the effect that no member of the Scheduled Castes having been elected to the Corporation a person belonging to the Scheduled Castes was required to be selected under the provisions of the Nagpur Municipal Corporation Act. Respondent No. 1 was one of the persons who had already been elected to the Corporation and was present at the meeting. He, however, did not contest the statement of MR. Udhoji to the effect that no person belonging to the Scheduled Castes had been elected. Apparently, the point of order was disallowed and selection of six members, none of whom belonged to the Scheduled Castes, took place. Immediately thereafter the declaration referred to above was signed by ten persons, including respondent No. 1 who had all been elected as members of the Municipal Corporation at the corporation election. This was filed along with the writ petition presented before the High Court in which the selection made at the meeting of July 5, was sought to be quashed on the ground that no person belonging to a Scheduled Caste had been selected. Respondent No. 1 admits that he did sign this declaration but in his written statement the reason given by him is that he did so under political pressure. In his evidence, however, he has given a different explanation. This is what he has said:

“Akant Mate came there with some writing and told us that it was the directive of the Scheduled Castes Federation that members elected on its tickets should sign it. …I do not know how he got that directive from the Federation, and from whom he got it. The writing was in English and I signed upon it. Akant Mate told me that I should sign on the document, he would go and get signatures of other Corporators and give it in the Corporation office. I could not myself read the English typewritten material. Akant Mate told me that the President of the meeting gave the ruling on the information by the Comissioner that I and Mate were members of the Scheduled Caste and that if this were not so, we would be able to get one more member and, therefore, I should sign on the document. My consent was not taken for filing the declaration in the High Court. I was not a party to the proceedings in the High Court, in connection with which the declaration was taken.”

What he has said is, in substance, that he was duped by Akant Mate. There is thus a variation between his pleading and the proof adduced and in the circumstances we will be justified in rejecting his explanation. Once the explanation is rejected the declaration must be taken into account as a piece of corroboration of the fact that he had ceased to be Hindu as he had been converted to Buddhism.

9. Respondent No. 1 doesnot deny that the wedding invitation placed on record by the appellants bears his name as one of the hosts. The invitation pertains to the wedding of his daughters Lalita and Pushpa Lata and their respective bridegrooms were Sirish and Yashwant Rao. At the top of the invitation are the usual words “Subh Lagna” (auspicious wedding). Then there is a picture of Lord Buddha followed by the inscription “May victory and prosperity be yours – Obeisances to Buddha”. It is well known that in Hindu weddings the invitations issued in an Indian language picture of the Kuladaivata is generally printed and the blessings of the kuladaivata are invoked. Had respondent No. 1 considered himself to be a Hindu he would have followed the usual practice. No doubt, sophisticated people, though still belonging to Hindu religion, have discarded the practice of printing the picture of the family deity on wedding invitations and of invoking the blessings of the deity Respondent No. 1 does not suggest that he belongs to that class. Indeed, if that were so, there would have been no occasion to print the picture of Lord Buddha and seek his blessings. In this invitation the picture of the Kuladaivata was substituted by that of Lord Buddha. This is more consistent with respondent No. 1 having become a Buddhist than with his remaining a Hindu.

10. According to respondent No. 1 he did not known till after the Sakshyagandh (engagement) was over that either of the bridegrooms was a Buddhist. He says that a week before the marriages someone from the side of the bridegrooms met him and told him that the weddings had to be performed according to the Buddhist ritual and if he was not agreeable the engagements would be broken off. It was then that he first thought that the bridegrooms were Buddhists. However, he did not think it proper to break off the engagements. Now, if he were still a Hindu belonging to the Scheduled Castes it is unlikely that he would have reconciled him self with the idea of giving his daughters in marriage to non-hindus, more particularly when the bridegrooms’ side insisted on following the Buddhist ritual. He has, no doubt, tried to give an explanation for this curious conduct by saying that he treated Lord Buddha as the “11th (sic) incarnation” and that is why he had Lord Buddha’s picture printed on the wedding invitation. That explanation cannot be easily accepted.

11. As regards the third circumstance there is the evidence of Budhaji Godbole, P.W. 11, and Kisan Shende, P.W. 14, in addition to that of the appellant. According to them respondent. No. 1 converted the Shiva Temple in Gautamnagar into Buddha temple on June 6, 1959 and installed Lord Buddha’s image at a function over which he presided and at which DR. Y. B. ambedkar, President of Buddhist Society was present. Respondent No. 1 had admitted most of the facts, as pointed out by the High Court itself. The variation between the contentions of the parties is this. According to respondent No. 1 there was a Shiva Temple on a plot of land in Gaddigudam at NagpuR. While laying a new road in the year 1932 or so this plot was taken over by the Nazul authorities and another plot was given for the Shiva Temple in exchange. But according to him, no Shiva Temple was at all constructed or Shiva Ling installed therein. This is obviously untrue. He admits that this plot “was managed by a Panch Committee of which he was a membeR. For, without constructing a Shiva Temple on the plot there could have been nothing to manage by the Panch Committee. No doubt, he says that while he was Chairman of that Committee in the year 1959 or 1960 it was decided to construct a Shiva temple thereon. But it is difficult to believe that the people of the locality would have waited for 28 years for taking the decision. He admits that a temple dedicated to Lord Buddha was constructed thereon as alleged by the appellant and his witnesses. It seems clear that the decision of the committee to which he refers relater to the construction of this temple and not to a Shiva Temple which was already there. The evidence led on behalf of the appellant was to the effect that at the ceremony held on June 6, 1959 the idol of Lord Buddha was installed above the Shiva Linga, presumably meaning thereby that the Shiva Linga was overlaid with earth or bricks and on top of it the image of Lord Buddha was installed. Referring to the evidence of Shende the High Court has Observed:

“The witness however does not say that he saw the removal of the old image of Lord Shiva or the Ling and the Pinda which were already there. On the other hand, it is the case of Meshram that the Corporation had already given another plot to which the Shiva Mandir had long before been shifted and since this plot was idle, he gave it for the installation of Buddha’s idol”.

The observation of the High Court underlined (here into’ ‘ ) by us is apparently based on a misreading of the evidence of respondent No. 1 and also ignores his plea on the point in his written statement. It is not his case that two plots were allotted for a Shiva Temple one of which was vacant. His case, as already, stated, was that the plot given in exchange for the old one was never utilised and not that two plots were given one of which was utilised. Again, the High Court has failed to appreciate properly the evidence of Buddhaji Godbole. What he has said is this:

“One house away from the house of respondent No. 1 is a plot of land on which then stood a Shiv Temple. This plot stood in the name of the respondent No. 1. In that temple was a Ling and Pind of Shiva…. From June 6, 1959 this temple has now become Buddha ….VihaR. On that day, the Ling and Pind were put underground and at that place was installed idol of God Buddha. The installation of the image of God Buddha was done by Bhaiyasaheb Ambedkar. It was respondent No. 1 who was the principal man in converting the Shiva temple into a Buddha Bihar.”

There is no suggestion in his cross-examination that this witness had no personal knowledge of what he had deposed to Since he has clearly spoken about the burial of the Shiva Linga and the installation of the image of Lord Buddha on top of it, he must be understood to mean that this was what happended in his presence and also in that of respondent No. 1. Incidentally, it may be stated that this witness is also a convert to Buddhism. A reference may also be made to the evidence of the other witness Kisan Shende. The relevant portion of his deposition is as follows:

“The respondent No. 1 was the President of the function. The idol of Buddlla was installed by Bhaiyyasaheb ambedkar on an ota which covered the old ling and pind representing God Shiva…..”

This part of the evidence of this witness has not been challenged in cross-examination. There is no reason why this evidence ought not to be accepted, particularly when some of the essential facts deposed to by the witnesses have been admitted by respondent No. 1 himself. If we accept this evidence then the only conclusion which can emerge is that respondent No. 1 had ceased to be a Hindu. For, however great the admiration or regard a Hindu may have for Lord Buddha, he would shudder at the idea of desecrating a Shiva Linga in this manner or even of converting what was once a Shiva temple into a Buddhist temple. In our opinion, this would be the strongest circumstances corroborating the evidence of eye-witnesses regarding the conversion of respondent No. 1 to Buddhism.

12. It is contended on behalf of respondent No. 1 that there is a register of persons who had been converted to Buddhism and that the first respondent’s name does not appear there it is true that. R.W. 5 Waman Godbole speaks of some register but his evidence clearly shows that the register is not regularly maintained nor are the signatures of persons who had been converted taken according to the dates of conversion. There is nothing to show that it was obligatory on every person who had been converted to sign in the registeR. Moreover, a signature in such a register would at best be only a piece of evidence of the fact of conversion and nothing more. Absence of a person’s signature in the register would not necessarily negative his being at all converted a Buddhism. Then it is said that only a Bhikku is entitled to convert non-Buddhists to Buddhism. There is abundant evidence on record that at the conversion ceremony held on October 14, 1956 DR. Ambedkar had told the new Buddhists that any one who had become a Buddhist could admit others to the fold of Buddhism. Apart from that we have been shown no authority to the effect that a person cannot become a Buddhist unless he is converted to Buddhism by a Bhikku. Buddism was in essence also a protest against orthodoxy and the power of the priesthood. It would, therefore, be strange to say that for a non Buddhist to become a Buddhist strict compliance with rituals is necessary. It is in evidence that at every conversion three vows had been repeated thrice. Five precepts had also to be repeated by those who offered themselves for conversion. This was exactly what was done by DR. Ambedkar, his wife and others at the mass meeting on October 14, 1956 and it is not suggested that what they did was inadequate and so they cannot be deemed to have embraced Buddhism from that date. It is, therefore, futile to say that others who went through the same procedure had not become Buddhists merely because no Bhikku had officiated at the function.

13. What cl. (3) of the Constitution (Scheduled Castes) Order, 1950 contemplates is that for a person to be treated as one belonging to a Scheduled Caste within the meaning of that order he must be one who professes either Hindu or Sikh religion. The High Court following its earlier decision in Narayan Waktu vs. Panjabrao, AIR 1958 Bom 296 has said that the meaning of the phrase “professes a religion” in the aforementioned provision is “ to enter publicly into a religious state” and that for this purpose a mere declaration by a person that he has ceased to belong to a particular religion and embraced another religion would not be sufficient. The meanings of the word “profess” have been given thus in Webster’s New World dictionary:

“to avow publicly to make an open declaration of …. to declare one’s belief in:as to profess Christ. To accept into a religious ordeR.” The meanings given in the Shorter Oxford Dictionary are more or less the same. It seems to us that the meaning” to declare one’s belief in:as to profess Christ” is one which we have to bear in mind while construing the aforesaid order because it is this which bears upon religious belief and consequently also upon a change in religious belief. It would thus follow that a declaration of one’s belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious. The word “profess” in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu (or the Sikh) religion. Where, therefore, a person say , on the contrary that he has ceased to be a Hindu he cannot derive any benefit from that OrdeR.

14. Finally it is argued that the word Hindu is comprehensive enough to include a Buddhist and in this connection our attention is invited to Explanation 11 to cl. (2) of Art. 25 of the Constitution. Clause (1) of Art. 25 recognises, amongst other things, freedom to practise and, propagate religion. Sub-clause (b) of cl. (2) runs thus:.

“Nothing in this article shall affect the operation of any existing law or prevent the State from making any, law .

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(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”

Explnation 11 read; thus:

“In sub-clause (b) of cluase (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.” )

The definition of Hindu is expanded for the special purposes of sub-cl. (b) of cl. (2) of Art. 25 and for no otheR. Paragraph 3 of the Constitution (Scheduled Castes) Order reads thus:

“Notwithstanding anything contained in paragraph 2, no person who profess a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste”.

If it was intended that the word “Hindu” used in this paragraph should have a wide meaning similar to that in Explanation II just quoted there would have been no need to make a mention of the Sikh religion. From the fact that a special mention is made of the Sikh religion it would follow that the word “Hindu” is used in the narrower sense of the orthodox Hindu religion which recognises castes and contains injuctions based on caste distinctions.

15. For the foregoing reasons we are satisfied that respondent No. 1 had ceased to be a Hindu at the date of his nomination and that consequently he was ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes. In the circumstances the Tribunal was right in setting aside his election. Accordingly we allow the appeal, set aside the judgment of the High Court and restore that of the Tribunal Costs throughout will be borne by respondent No. 1.