JUDGEMENT SUMMARY:
Sunil Kumar Rai&Ors. vs State Of Bihar & Ors.
DATE OF JUDGEMENT:
21st February 2022
JUDGES:
K. M. Joseph, J.
H. Roy, J
PARTIES:
Sunil Kumar Rai & Ors. (Petitioners)
State Of U.P. & Anr. (Respondent)
SUBJECT
The Notification of the State of Bihar which considered the Lohar Community as a member of the Scheduled Tribe and issued the relevant certificate was challenged before the Supreme Court. The Notification was issued in 2016 and the petition was filed 5 years after the issuance of the impugned Notification. The Supreme had observed that when a violation of Fundamental Rights was at stake, the delay by itself would not be used as a weapon to Veto the action under Article 32.
AN OVERVIEW
- In Bihar, the “Lohar” community was not entitled to be treated as a member of Scheduled Tribe member and since 1970, were contemplated as members of Other Backward Class (OBC).
- In 1976, the “Lohar” community was placed under Scheduled Tribe in the Constitution Scheduled Caste and Scheduled Tribe order amendment Act which was issued by the President. However, the position of Lohars had remained unchanged.
- In the Constitution Scheduled Tribe order Amendment Act, 2006 (Act of 2006) has also enlisted the “Lohar” community under Scheduled Tribe. When the said act was repealed, the Respondent-State had issued the notification for the recognition of “Lohar” as Scheduled Tribe and had started issuing the relevant certificates.
- Under the provisions of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities Act), 1989 (Act of 1989) the proceedings against the petitioners, who belonged to the Lohar community, were initiated. They were constrained to seek anticipatory bail in which Petitioner Nos.2 and 4 were unsuccessful.
- The petitioners had challenged the constitutionality and legality of the impugned notificationand had sought the following reliefs:
- Issuance of the appropriate writ, order, or direction like certiorari to quash the impugned notification.
- To direct the Government of Bihar to compensate the petitioners through the issuance of the appropriate writ, order, or direction.
- Passage of other orders which were deemed to be fit in consideration of the facts and circumstances of the case.
IMPORTANT PROVISIONS
Constitution
- Article 32- Outlines the remedies for the enforcement of Fundamental Rights
- Article 342- Provides for the manner of the recognition of the members of the Scheduled Tribe
- Section 348- Outline the language that will be used in the Supreme Court and the High Courts and for Acts, Bills, etc
Official Languages Act 1963
- Section 3- Provides for the continuance of English language for official purposes of the Union and use in Parliament
- Section 5- Authorises Hindi translation of Central Acts
ISSUES
- Whether the petition should be entertained by the Supreme Court?
- Whether the petitioners were not entitled to seek remedy under Article 32 of the Constitution due to the considerable delay?
- Whether “Lohar” was Scheduled Tribe under the Presidential Order?
- Whether the community which was not in the Scheduled Tribe list of the Presidential Order could be entitled to get the status of a Scheduled Tribe?
- Whether the Hindi version would prevail when the conflict between the Hindi and English version arose?
ANALYSIS OF THE JUDGMENT
1. The Act of 1989 had laid stringent conditions for granting bail and the provision of anticipatory bail was not permitted even by the Code of Criminal Procedure. If the provisions of the Article were applied to a person who was disentitled in the category of Scheduled Tribes, the right of the person would be directly impinged upon. It was concluded that the implication of the impugned Notification was deep and had affected the rights of the citizens adversely.
2. Article 32 of the Constitution provided the right to approach the Supreme Court for the enforcement of the Fundamental Rights enshrined in the Constitution. The framers of the Constitution had opined that the right to approach the Supreme Court in case of violation of Fundamental Rights was required to be declared beyond the reach of Parliament and was thus, placed under the judicial review. The sole basis under which the Court could refuse to entertain a petition under Article 32 was the exercise of self-restraint by the Court taking into consideration the interest of justice.
3. The State had put forth the argument that the case of personal feud or personal enmity was at stake in the current petition. However, the Court was concerned only with the legal and constitutional aspects arising from the petition. The Court was required to check the constitutionality and legality of impugned Notification and grant relief to the petitioner.
4. Challenges to legislation were considered to be public interest ligations where an aggrieved party maintained the challenge and the court insisted on a cause of action. It was noted that upon mere issuance of an instrument or legislation, a person does not become the aggrieved party. The Court would refuse to entertain the cases relating to the validity of a law or order if the petitioner did not have locus standi and they were not the aggrieved party.
5. The case put forth by the petitioners was regarding the breach of their fundamental rights in Articles 14 and 21 of the Constitution. In Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors., the Supreme Court had held that fundamental rights should not be waivered and upon the violations of the fundamental right to life and personal liberty, mere delay or laches would not be sufficient to bar the petitioner for seeking protection.
6. In Prabhat Kumar Sharma Vs. Union Public Service Commission And Ors., the Court had observed the following:
a. The “Lohara” tribe was mentioned as Scheduled Tribe for the State of Bihar in the Constitution (Scheduled Tribes) Order, 1950 which was introduced in the exercise of powers conferred under Article 342(a) of the Constitution.
b. The Kaka Kalelkar Commission which was a Backward Classes Commission produced reports which came into force in 1956. The following were the recommendation of the Report:
i. Additionof “Lohar” in the list of Backward Classes.
ii. Inclusion of the “Lohra” community along with the “Lohara” community enlisted in the Scheduled Tribes Order, 1950.
c. The Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 had incorporated the recommendation of the Commission by enlisting “Lohara” and “Lohra” together in the list of Scheduled Tribe communities.
d. Problem arose in the Hindi version of the Order where the Hindi translations of “Lohara” and “Lohar” were identical and the “Lohar” community started claiming themselves to be members of a Scheduled Tribe.
e. In Shambhoo Nath v. Union of India, the Court had not taken into notice the discrepancy between the English and the Hindi translation of the Scheduled Tribes Order and held that since “Lohar” was mentioned in the Hindi version of the Order, the community were to be treated as members of the Scheduled Tribe. It was held that the decision might not be taken as a precedent.
7. In Nityanand Sharma and Anr. vs. State of Bihar and Ors., it was noted that in Bihar, “Lohra” and “Loharas” were different from “Lohar”. It was observed that in the Shambhoo Nath case, the English version of the Order was not verified and just the Hindi version of the Order was considered which led to Court mistaking facts and the decision was thus, erroneous. The Court, therefore, held that the “Lohar” was Other Backward Class and not Scheduled Tribes and the community should not be granted the same status as that of “Lohara” or “Lohra”
8. In Vinay Prakash and Ors vs. State of Bihar and Ors, it was held that the Presidential notifications were unequivocal and the required amendments to the same were to be made by the Parliament under Article 342(2) of the Constitution. It was for the Court to interpret the rules present in the Presidential notifications and construe as to whether a particular caste or a tribe or a part or section was entitled to claim the status of Scheduled Tribes.
9. In the Prabhat Kumar Sharma case, it was noted that after the enactment of the Official Languages Act, when there arose ambiguity between Hindi and English versions, the Hindi version would be considered as authoritative text and would prevail. However, Article 348 of the Constitution provided that for Acts of Parliament and amendments to Parliamentary Acts, the English version would be the authoritative text. From the conjoint reading of Article 348 of the Constitution and Sections 3 and 5 of the Official Languages Act, it was inferred that English had continued to remain the authoritative text for the Acts of Parliament.
CONCLUSION
The Supreme Court through precedents had established that ab initio, Lohars were not the members of the Scheduled Tribe and were included as members of the OBCs in the State of Bihar. It was stated that the inclusion of “Lohar” alongside “Lohara” in the list of Scheduled Tribe was illegal and arbitrary. The petition was allowed and the impugned Notification was quashed qua “Lohar” community. The proceedings against the Petitioner were not quashed; however, the Respondent State was directed to pay them monetary compensation of Rs.5,00,000/- within a month from the date of the judgment.
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