CUSTOM SEARCH

WHETHER MARRIAGE WITH SCHEDULE TRIBE CONFERS CASE STATUS OF HUSBAND AND ENTITLED FOR RESERVATION? NO

Court in N.E. Horo vs. Smt. Jahan Ara Jaipal Singh , AIR 1972 SC 1840, once a marriage of a male pertaining to a Scheduled Tribe with a female pertaining to a non Scheduled Tribe was approved or sanctioned by the concerned Panchayat they became members of the community and even if a female is not a member of a tribe by virtue of birth, but she had been married to a tribal after due observance of all formalities and after obtaining the approval of the elders of the tribe, she would belong to the tribal community to which her husband belongs on the analogy of the wife taking the domicile of the husband. …… The information contained in authoritative books dealing with Munda Customary Law and the evidence of witnesses who had made special research in the matter, show that : (a) The Mundas are endogamous and intermarriage with non-Mundas is normally prohibited; (b) A Munda male along with his family, on marrying a non-Munda girl, is often excommunicated or outcasted; (c) the rule of endogamy is, however, not so rigid that a Munda cannot marry a non-Munda even after performing special ceremonies; (d) Such marriages have been and are being sanctioned by Parha Panchayat, and (e) Where a Munda male and his family are outcasted for marrying a non-Munda they are readmitted .to the tribe after certain special ceremonies are performed. In the present case, there is no evidence that the deceased husband of the respondent was ex- communicated or outcasted because he had married a non-Munda; on the contrary, the evidence is that the rule of endogamy has not been observed in a rigid or strict form, and that the marriage was accepted as valid and was approved by the Parha Panchayat and the elders of the Tribe. Once the marriage of a Munda male with a non-Munda female is approved or sanctioned by Parha Panchayat they become members ,of the community. The contention that a person can be a Munda by birth alone can be sustained only if the custom of endogamy is established with,out any exception. ……… Munda is one of the specified tribes or tribal communities in the 'Schedule to the Constitution (Schedule Tribes) Order 1952. The term 'tribal community' is of wider connotation than the expression 'tribe'. A "person who, according to the strict custom of a tribe, cannot be regarded ,as a member of that tribe may be regarded as a member of that tribal community. Where a non-Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Pahra Panchayat of that tribe, and the marriage is valid.

Court in Sobha Hymavathi Devi v. Setti Gangadhara Swamy and Others [(2005) 2 SCC 244] “…………Appellant though assigned the caste of her father Murahari Rao, namely, the Sistu Karnam community, had married a tribal belonging to the Bhagatha Community. On the basis of this marriage, it is argued that she must be taken to have acquired membership in the community of her husband and consequently treated as a member of that community. It is in that context that the decision in Horo (supra) was relied on. ………. We have already indicated that there is nothing to show that the marriage of the appellant with Appala Raju was sanctioned or approved by the elders of the Bhagatha Community or the concerned Panchayat or was in tribal form or that the formalities attending such a tribal marriage were observed and the marriage was performed after obtaining the approval of the elders of the tribe. Even otherwise, we have difficulty in accepting the position that a non-tribal who marries a tribal could claim to contest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the legislature to Scheduled Tribe candidates, considered to be deserving of such special protection. To permit a non-tribal under cover of a marriage to contest such a seat would tend to defeat the very object of such a reservation. The decision of this Court in Valsamma Paul (Mrs.) vs. Cochin University and others (1996) 3 SCC 545, supports this view. Neither the fact that a non-backward female married a backward male nor the fact that she was recognized by the community thereafter as a member of the backward community, was held to enable a non- backward to claim reservation in terms of Articles 15(4) or 16(4) of the Constitution.

In Sandhya Thakur v. Vimla Devi Kushwah and Ors. [JT 2005 (1) SC 556, Court held : "In the light of the decision in Valsamma Paul v. Cochin University and Others (1996) 3 SCC 545 and our decision rendered today in Sobha Hymavathi Devi v. Setti Gangadhara Swamy and Others [(2005) 2 SCC 244], which were heard along with this appeal, it must be held that the appellant, who by birth did not belong to a backward class or community, would not be entitled to contest a seat reserved for a backward class or community, merely on the basis of her marriage to a male of that community"

PROCEDURE FOR ISSUANCE OF CASTE CERTIFICATE:-

The Supreme Court in the decision reported in Kumari Madhuri Patil v. Addl. Commissioner, Tribal Development, (1994) 6 SCC 241 ; (1994 AIR SCW 4116) has issued directions in reference to caste certificates. In the said decision, the Supreme Court was dealing with cancellation of the social certificate issued by the Executive Magistrate. In paragraph 9, the Supreme Court was pleased to point out as follows (Para at, p. 4124 of AIR SCW) :-- "The Union of India and the State Governments have prescribed the procedure and have entrusted duty and responsibility to Revenue Officers of gazatted cadre to issue social statuts certificate, after due verification. It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Castes and Scheduled Tribes by providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in fact disentitled to such status".
"The entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records".
"The caste of the person, as stated earlier, is determined on the basis of the caste of their parents, basically for the reasons that the caste is acquired by birth".
"13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Consitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurcious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earlier and with utmost expedition and promptitute. For that purpose, it is necessary to streamline the procedure for issuance of social statuts certificates, their scrutiny and their approval, which may be the following :
1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educatinal institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namly, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of groups of tribes or tribal communities.
5. Each Directorate should constitute a givilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and eithnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6. The Dirctor concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or "doubtful" or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made with in two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/ parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an approprate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavity duly sworn by the parent/ guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committeed shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post."

The Supreme Court ultimately held that the procedure set out above could be fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case may be are not defeated by unscrupulous persons. While it is mandatory for the State Government to constitute a committee as per the directions of the Supreme Court and follow the procedure as laid down, the same committee shall go into the claims of the caste status of those persons who had corrected their caste names from the school records and got a community certificate on that basis. It is admitted that the Government is maintaining a register containing the names of those persons who got the community certificates by claiming changes or corrections in the earlier certificates. All these changes which have been effected have to be reopened for the purpose of verification by the committee referred to above. Accordingly, prayer (d) in the original petition is allowed to the extent that the change of caste in school records by substituting the name of Scheduled Caste in the place of the name of Caste or Community coming under the category of other backward classes in school records are to be verified by the Committee and should be confirmed whether those caste status is genuine or not and issue an order to that effect in respect of a particular candidate to the concerned institution or authority for necessary action. The whole exercise of this verification should be completed within a period of one year from the date of this order.

CASTE IS DETERMINED BY BIRTH AND NOT BY MARRIAGE, ADOPTION, MIGRATION ETC

Kerala Pattika Jathi Samrekshana ... vs State Of Kerala And Ors. AIR 1995 Ker 337 Caste of a person is determined by his birth and further that the caste is considered as a class for the purpose of reservation under Article 16(4) of the Constitution of India. There is absolutely no scope for a change in the status of the cast. A person cannot be allowed to change his caste. It cannot be the choice or an option of an individual to belong to a particular caste. A caste is classified as backward class for the purpose of reservation. Therefore, a person cannot be allowed to change the caste. If so permitted it would be defeating the very purpose for which the classification is made. The adoption, marriage and conversion of faith of individual from one caste to another as permitted by the Law of Adoption or marriage have no relevance for the purpose of claiming the benefit of reservation under Article 16(4) of the Constitution of India. The decision relied upon by the learned counsel for the 8th respondent reported in AIR 1980 Delhi 60 is not a good law in the light of various decisions on the point in issue.
In K. Shantha Kumar v. State of Mysore, 1971 (1) Mys LJ 21 it was held that by adoption the adoptee cannot destroy or nullify the advantage of the environmental conditions of his upbringing for 16 years by his natural parents and claim the benefits of reservation.
Khazan Singh v. Union of India, AIR 1980 Delhi 60. In the said decision it has been held that on adoption the adopted ipso facto acquires the caste of adoptive parents. On adoption as in the case of a birth, the adoptee acquires the caste of the adoptive parents. In the said decision in view of the fact that the adoptive father belongs to Scheduled Caste, the grant of Scheduled Caste certificate to the adoptee accepting adoption as basis was held to be valid.

NO ADDITION OR SUBSTRACTION CAN BE MADE TO PRESIDENTIAL ORDER

The Supreme Court in Srish Kumar Choudhury v. State of Tripura, AIR 1990 SC 991 held Presidential notification regarding entries in the Order is final and it is not open to the Court to make by addition or substraction.
A Constitution Bench of Supreme Court in B. Basavalingappa v. D. Munichimappa, AIR 1865 SC 1269 held that it is not open to anybody to make any modification of the Presidential Order. Court considered the scope of Article 341(1) and (2) (which is in pari materia with Article 342(1) and (2), and held that it is not open to any person to lead evidence to establish that the caste to which he belongs to is the same as and/or part of another caste, which is included in the Constitution (Scheduled Castes) order, it was observed: "It may be accepted that it is not open to make any modification in the Order by producing evidence to show (for example) that though caste A along is mentioned in the Order, caste B is also a part of caste A and therefore must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in the Order [see Aray (Mala Dakkal (Dokkalwar) etc.]. Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B (in the example quoted above) is part of caste A notified in the Order.

On the same lines the Supreme Court in Abhoy Pada Saha v. Sudhir Kumar, AIR 1967 SC 115 and Kishorilal Hons v. Raja Ram Singh, AIR 1972 SC 598 held that there is no scope for interpreting the Presidential Order in a different way.

The Supreme Court itself in Palghat Jilla Thandan Samudhaya ... vs State Of Kerala 1994 SCC (1) 359, JT 1993 (6) 622, (1994) 1 Ker LT 118 has laid down that the State Government is entitled to initiate appropriate proposals for modification in cases where it was satisfied that modifications were necessary and, if after appropriate enquiry, the authorities were satisfied that a medication was required, an amendment could be undertaken as provided by the Constitution. However, the Scheduled Castes Order has to be applied as it stands and no enquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it. No action to modify the plain effect of the Scheduled Castes Order, except as contemplated by Article 341, is valid.

UNDESERVED CANDIDATES CLAIMING RESERVATION WITH BOGUS CERTIFICATES SHOULD BE DEALT STERNLY – ITS FRAUD ON CONSTITUTION:-

There were number of cases in which undeserved candidates occupied the posts of deserved candidates in the reserved quota meant for them by producing bogus/false community certificates. In such a situation the deserving candidate is pushed out of the queue and the constitutional guarantee reserving posts for the deserving candidate is frustrated. The Hon'ble Supreme Court of India in a decision reported in AIR 2007 SC 2223 - Geeta vs. State of M.P & amp; Prs., has deprecated such kind of practice and held that it must be stopped with a strong hand.

In State of Maharashtra and others vs. Ravi Prakash Babulasing Parmar and others reported in AIR 2007 SC 295, the Hon'ble Supreme Court of India held that if and when a person takes an undue advantage of the said beneficent provision of the said Constitution by obtaining benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays fraud on the society but in effect and substance, plays a fraud on the Constitution.

WHETHER A PERSON CONVERTED TO BUDDHISM CAN USE HIS RESERVATION CRITERIA – IF HE IS EDUCATED HIS OPEN ASSERTION IS IMPORTANT TO MAKE HIM DISABLE TO GET RESERVATION BENEFITS 1975 SC

In Ganpat v. Presiding Officer, 1975 AIR 420, 1975 SCR (2) 923 , the election of the respondent to the reserved seat was challenged on the ground that he was a Buddhist and not a Hindu and hence was not a member of the Scheduled Caste. Finding that some of the members of the Scheduled Caste change their religion to remove the indignity of being branded as untouchables, the Supreme Court held (at pages 424 and 425) : "We have evidence in this case that people who claim themselves to have become Buddhists have taken advantage of scholarships and other facilities granted by Government to members of Scheduled Castes. Whether such concession to members of Scheduled Castes should also be extended to members of those castes who have changed their religion is a different question. Whether the Scheduled Castes Order should also describe such persons as members of the Scheduled Castes is very relevant to the present question......"
13 ......... it is difficult to say from a man's attitude in respect of certain questions whether he is a Hindu or a Buddhist. Religion is essentially a highly personal matter and there the open assertion by a person especially an educated member of the society about the religion he professes should be given considerable weight over the interested testimony of others based on stray instances. We would therefore, in agreement with the High Court hold that the respondents 2, 6 and 9 are not Buddhists but continue to be members of the Scheduled Castes."
The Supreme Court further held that Hinduism is so tolerant and Hindu religious practices so varied and eclectic that one would find it difficult to say whether one is practising or professing the Hindu religion or not. It ruled that the fact that a born Hindu goes to a Buddhist temple or a Church or Durgah cannot be said to show that he is no more a Hindu unless it is clearly proved that he has changed his religion from Hinduism to some other religion. It was for want of such evidence, the Supreme Court held that the respondents before it were continuing as members of the Scheduled Castes and were not Buddhists.

(1) The second respondent was a well known Doctor in Nagpur, the appellant belonged to Nagpur and they belonged to scheduled castes before the second respondent's alleged conversion to Buddhism. And yet, the appellant has not given the date, the place or the circumstances under which the second respondent became a convert to Buddhism. Nor did the appellant object at the time of the scrutiny of the nomination papers. that the second respondent was not a member of the scheduled caste.
(2) The second respondent was born a Hindu and was married according to Hindu rites. He went to England on a Government scholarship given to members of scheduled castes to study Medicine. If he was not a member of a scheduled caste he had run a risk of prosecution when he so claimed for getting the scholarship, and also ran a similar risk for perjury in the present case.
(3) Merely because the nieces of the second respondent were married according to Buddhist rites, the invitation for their marriage was in the Buddhist form, the second respondent's name was printed as one of those joining in the invitation, at the time of the marriage the pictures of Dr. Ambedkar and the Buddha were garlanded, and a Buddhist Bhiku officiated at the marriage, It could not be held that the second respondent was a Buddhist.
(a) The evidence shows that there is very little difference between a wedding according to Buddhist rites and one according to Hindu rites. Moreover, Buddhist's rites are followed even where one of the parties to the marriage is a non-Buddhist, and there is no evidence that the Hindu partner does not continue to profess Hinduism thereafter.
(b) The names of brothers are included in wedding invitations under the lead "With best compliments of", very often without their permission.
(c) The picture of Dr. Ambedkar might have been garlanded because he was held in great veneration by the Scheduled castes. Therefore, merely because of the garlanding and the Buddhist Bhiku officiating at the marriage. the wedding could not be considered to be according to Buddhist rites.
(4) When one is born a Hindu the fact that he goes to a Buddhist temple or a Church or Durga cannot be said to show that he is no more a Hindu and that he had changed his religion.
(5) Also, from the fact that Dr. and Mrs. Ambedkar and a large number of people openly got themselves converted to Buddhism it does not follow that all the members of the scheduled castes followed in their foot steps.
(6) Religion is essentially a highly personal matter and Hinduism is so tolerant and Hindu religious practices so varied and eclectic that one would find it difficult to say whether a person is practising or professing Hindu religion or not In such a matter, the open assertion by a person, especially in educated member of society. about the religion he professes should be given considerable weight over the interested testimony of others based upon stray instances.

FRAUD AND INFLUENCE IN OBTAINING CASTE CERTIFICATES – WOULD VITIATE EVERY THING

:-
In Kumari Madhuri Patil v. Additional Commissioner 1995 AIR 94, 1994 SCC (6) 241 , it was held that the entries in school records would be an important factor, in the matter of determining the social status. It was also pointed out that fraud, if played, in securing admission against reserved category, would vitiate everything.
In Shobha Hymavathi Devi v. Setti Gangadhara Swamy AIR 2005 SC 800, it was held that if a caste certificate is obtained by exerting influence, such a certification does not bind the Court, hearing an Election Petition.

CONVERSION AMOUNTS TO LOSS OF ORIGINAL CASTE

Kailash Sonkar vs Smt. Maya Devi 1984 AIR 600, 1984 SCR (2) 176 A caste to which a Hindu belongs is essentially determined by birth and if a Hindu is converted to Christianity or any other religion which does not recognise caste, the conversion amounts to a loss of the said caste. In considering whether on conversion the loss of the caste is absolute, irrevocable so as not to revive under any circumstance the guiding principles are: (a) Where a person belonging to a scheduled caste in converted to Christianity or Islam, the same involves loss of the caste unless the religion to which he is converted is liberal enough to permit the convertee to retain his caste or the family laws by which he was originally governed. There are a number of cases where members belonging to a particular caste having been converted to Christianity or even to Islam retained their caste or family laws and despite the new order they were permitted to be governed by their old laws. But this can happen only if the new religion is liberal and tolerant enough to permit such a course of action, and (b) In all other cases, conversion to Christianity or Islam or any other religion which does not accept the caste system and insists on relinquishing the caste, there is a loss of caste on conversion.
The norms and conditions under which a caste could revive on reconversion to the old religion as laid down by the authorities of the High Courts and this Court are: (1) where the convertee exhibits by his actions and behaviour his clear intention of abjuring the new religion on his own volition without any persuasion and is not motivated by any benefit or gain, (2) where the community of the old order to which the convertee originally belonged is gracious enough to admit him to the original caste either expressly or by necessary intendment, and (3) Rules of the new Order in permitting the convertee to join the new caste. Unless the aforesaid conditions are fulfilled the loss of caste on conversion is complete and cannot he revived. But having regard to the present set-up and the circumstances prevailing in our modern society, it will be difficult to insist on the second condition, viz., the insistence on the members of the community of the caste to admit the convertee on reconversion to the original caste because such a course of action may lead to dangerous consequence and ill- concieved exploitation.

CASTE HISTORY IN KARNATAKA AS DISCLOSED IN SUPREME COURT DECISION

The Hon'ble Supreme Court in the decision reported in K.C. Vasanth Kumar v. State of Karnataka, 1985 SCC 714 : (AIR 1985 SC 1495), In the pre-independent period, the former princely State of Mysore which now forms part of the State of Karnataka is one of the earliest States in the country in which the system of reservation for backward classes in public services was introduced. In 1918, the Government of His Highness the Maharaja of Mysore appointed a committee under the chairmanship Or Sir Leslie C. Miller, Chief, Justice of the Chief Court of Mysore to investigate and report on the problem of backward classes. The questions referred to that Committee were (i) changes needed in the then existing rules of recruitment to the public services; (ii) special facilities to encourage higher and professional education among the members of backward classes and (iii) any other special measures which might be taken to increase the representation of backward communities in the public service without materially affecting the efficiency, due regard being paid also to the general good accruing to the State by a wider diffusion of education and feeling of increased status which will thereby be produced in the backward communities. The expressions 'backward classes' and 'backward communities, were used almost interchangeably and that the contained in Article 335 of the Constitution that any reservation made should not impair efficiency was anticipated more than three decades before the Constitution was enacted. The committee submitted its report in 1921 containing its opinion that all communities in the State other than Brahmins should be understood as backward communities regarding whom it made certain recommendations. The Government orders issued on the basis of the Report continued to be in force till 1956 i.e. there organisation of States which brought together five integrating A units- the former State of Mysore (including Bellary District), Coorg, four districts of Bombay, certain portions of the State of Hyderabad and the district of Sough Kanara and the Kollegal Taluk which formerly formed part of the State of Madras. There were different lists of backward communities in the five integrating units and they were allowed to continue for sometime even after the reorganisation of States.
In order to bring about uniformity the State Government issued a notification containing the list of backward classes for the purpose of Article 15(4) of the Constitution at the beginning of 1959. The validity of that notification and of another notification issued thereafter on the same topic which according to the State Government had treated all persons except Brahmins, Banias and Kayasthas as backward communities was challenged before the High Court of Mysore in Rama Krishna Singh v. State of Mysore, AIR 1950 Mysore 338. The two notifications were struck down by the High Court holding (a) in as much as the impugned notifications contained list of backward classes including 55 per cent of the population of the State and all Hindu communities other than Brahmins, Banias and Kayasthas and all other non-Hindu communities in the State except Anglo- Indians and Parsees had been treated as backward classes it resulted more in a discrimination against the few excluded communities consisting of about 5 per cent of the total population rather than making provision for socially and educationally backward classes; (b) making provision for communities which were slightly backward to the so called forward communities did not amount to making provision for the communities which really needed protection under Article (15(4) of the Constitution; (c) socially and educationally backward classes can in some cases be determined on the basis of castes.
Therefore, the State Government constituted a Committee on January 8, 1960 under the Chairmanship of Dr R. Nagan Gowda for the purpose of determining the criteria for the classification of backward classes in the State with the following tern s of reference: (i) to suggest the criteria to be adopted in determining which sections of the people in the State should be treated as socially and educationally backward and (ii) to suggest the exact manner in which the criteria thus indicated should be followed to enable the State Government to determine the persons who should secure such preference as may be determined by Government in respect of admissions to technical institutions and appointment to Government services. The said committee submitted its Interim Report on February 19, 1960. On the basis of the Interim Report of the Committee, the State Government passed an order dated June 9, 1960 regarding admissions to professional and technical institutions reserving 22 per cent of seats for backward classes, 15 per cent for Scheduled Castes and 3 per cent for Scheduled Tribes and the remaining 60 percent of seats were allowed to be filled upon the basis of merit. The order of the Government was challenged before the High Court of Mysore in S.A. Partha & Ors. v. The State of Mysore & Ors. A.J.R. 1961 Mys. 220. The High Court found that the direction contained in the Government order to the effect that if any seat or seats reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes remained unfilled, the same shall be filled by candidates A of other backward classes was unconstitutional. It also gave some directions regarding the manner in which the calculation of the quota of reservation be made. Thereafter the Final Report was submitted by the Nagan Gowda Committee on May 16, 1961. After taking into consideration the recommendations made in the said Report, the State Government issued an order for the purpose of Article 15 (4) of the Constitution on July 10, 1961. By that order, the State Government specified 81 classes of people as backward classes and 135 classes of people as more backward classes and reserved 30 percent of seat- professional and technical institutions for backward and more backward classes. 15 per cent and 3 per cent of the seats were reserved for Scheduled Castes and Scheduled Tribes respectively and the remaining 52 per cent of the seats were allowed to be filled up on merit. This order was challenged before the Supreme Court under Article 32 of the Constitutions in M. R. Balaji & Ors v. State of Mysore [1963] Supp. 1 SCR 439.
In this land mark decision of the Supreme Court, the meaning of the term "socially and educationally backward classes" appearing in Article 15(4) was explained as "The backwardness under Article 15(4) must be social and educational. It is not either social or educational but it is both social and educational." After explaining as to how social and educational backwardness has to be determined, and the question of determination of the classes which were educationally backward, the court held that the inclusion of the members of the Lingayat community in the list of backward classes was erroneous. On the question of extent of reservation that can be made the Court held that speaking generally and in a broad way, a special provision should be less then 50 per cent; how much less than 50 per cent should depend upon the relevant prevailing circumstances in each case." and thus allowed the petition.
Thereafter, the Government passed another order dated July 26, 1963 which directed that 30 per cent of the seats in professional and technical colleges and institutions should be reserved for backward classes as defined in that order and that 18 per cent of the seats should be reserved for the Scheduled Castes and Scheduled Tribes. The criteria laid down in that order for determining social and economic backwardness were two-fold-income and occupation. It stated that those who followed occupations of agriculture, petty business, inferior service, crafts or other occupations involving manual labour and whose family income was less than Rs. 1,200 per annum were to be treated as belonging to backward classes. This order was questioned before the High Court in D.G. Viswanath v. Government of Mysore & Ors. A.l.R. 1964 Mys. 132 by some petitioners on various grounds. The High Court dismissed the petitions observing that the determination of the backward classes without reference to caste altogether was not correct and it expressed the hope that the State would make a more appropriate classification lest its bonafides should be questioned. In the appeal filed against this judgment in R. Chitralekha & H. Anr. v State of Mysore & Ors [196416 SCR 368 the Supreme Court explained the inconsistency between the High Court judgment with the decision in Balaji's case and observed that "Two principles stand out prominently from Balaji, namely, (i) the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness; and (ii) though it is a relevant A factor to determine the social backwardness of class of citizens, it cannot be the sole or dominant test in that behalf-casts is only a relevant circumstance in ascertaining the backwardness of a class and there is nothing in the judgment of the Supreme Court which precludes the authority concerned from determining the social backwardness of a group of citizens if it can do so without reference to caste." While this Court has not excluded caste from ascertaining the backwardness of a class of citizens, it has not made it one of compelling circumstances, affording a basis for the ascertainment of backwardness of a class.
Thereafter the State Government appointed the Karnataka Backward Classes Commission under the Chairmanship of Sri L.G. Havanur which after an elaborate enquiry submitted its report in four massive volumes on November 19,1975. The Commission recommended that person belonging to backward classes for purposes of Article 15(4) of the Constitution should be divided into three groups-(a) backward communities consisting of 15 castes (b) backward castes consisting of 128 castes and (c) backward tribes consisting of 62 tribes. For purposes of Article 16(4) of the Constitution, the Commission divided the backward classes into (a) backward communities consisting of 9 castes(b) backward castes consisting of 115 castes and (c) backward tribes consisting of 61 tribes. According to the Commission, backward communities were those castes whose student average of students passing SSLC examination in 1972 per thousand of population was below the State average (which was 1.69 per thousand) but above 50 per cent of the State average and backward castes and backward tribes were those castes and tribes whose student average was below 50 per cent of the State average except in the case of Dombars and Voddars and those who were Nomadic and de-notified tribes. The total population of these backward classes (other than Scheduled Castes and Scheduled Tribes), according to the Commission, was about 45 per cent of total population of the State. The difference between the two lists-one under Article 15(4) and the other under Article 16(4) of the Constitution was due to the exclusion of certain communities, castes and tribes which were socially and educationally backward but which had adequate representation in the services from the list prepared for the purpose of Article 16(4). The Commission recommended both for purposes of Article 15(4) and Article 16(4) the percentage of reservations: (i) Backward communities 16 per cent; (ii) Backward Castes 10 per cent; and (iii) Backward Tribes 6 per cent and total 32 per cent. The reservation of 32 per cent along with 18 per cent reserved for Scheduled Casts and Scheduled Tribes together amounted to 50 per cent of the total seats or posts, as the case may be. The Commission further recommended if seats/posts remained unfilled in the quota allotted to backward tribes, they should be made over to backward communities and backward castes Similarly if seats/posts remain unfilled in the quota allotted to backward castes, they should be made over to backward communities and backward tribes If, however, seats/posts remain unfilled in the quota allotted to any of those three categories, they should be made over to Scheduled Castes and Scheduled Tribes. In the event of seats/posts remaining unfilled by any of these categories they should be transferred to the general pool.

After considering the said Report, the State Government issued an order A dated February 22,1977 whereunder it listed the Backward communities. Backward Castes and Backward Tribes who shall be treated as Backward classes for purposes of Articles 15(4) and 16(4) of the Constitution of India. The order clarified, (a) that only such citizens of these Backward Classes whose family income per annum from all sources if Rs. 8000 (Eight thou sands only) and below shall be entitled to special treatment under these Articles and (b) that five categories, namely; an actual cultivator, an artisan, a petty businessman, one holding an appointment either in Government service or corresponding services under private employment including casual labour; and any person self employed or engaged in any occupation involving manual labour" of citizens shall be considered as a special group such citizens of this special group whose family income is Rs. 4,800 (Rupees four thousand and eight hundred only) and below per annum shall be eligible for special treatment under the two Articles. The order further noted that (i) Family income means income of the citizen and his parents and if either of the parents is dead, his legal guardian; and (b) to fix the reservation for purposes of Articles 15(4) and 16(4) of the Constitution in respect of the Backward classes and the special group of citizens at 40 per cent, the allocation being -Backward Communities (20 per cent), Backward castes (10 per cent, Backward Tribes (5 per cent), and special group (5 per cent). In the list of backward communities mentioned in the Government order, the State Government included ' Muslims' thus making a total of 16 backward communities. In the list of backward castes there were 129 castes including converts into Christianity from Scheduled Castes/Scheduled Tribes upto second generation and 62 Scheduled Tribes. The reservation for backward classes was 40 percent and taken along with 18 per cent for Scheduled Castes and Scheduled Tribes, the total reservation of seats/posts came to 58 per cent leaving only 42 per cent for merit pool.
The Government order dated February 22, 1977 and another notification dated March 4, 1977 issued for purposes of Article 16(4) had also been challenged in a number of writ petitions filed under Article 226 of the Constitution before the High Court of Karnataka in S Somashekarappa & Ors. v State of Karnataka & Ors (Writ Petition No 43;1 of 1977 and connected writ petition disposed of on April 9, 1979). Allowing the petitions; the High Court quashed (i) the inclusion of `Arasu' community in the list of 'Backward Communities' both for purposes of Article 15(4) and Article 16(4); (ii) the inclusion of the (a) Balija (b) Devadiga (c) Ganiga (d) Nayinda (e) Rajput and (f) Satani in the list of backward communities and the inclusion of (a) Banna (b) Gurkha (c) Jat (d) Konga (e) Kotari (f) Koyava (g) Malayali (h) Maniyanani or (Muniyani) (i) Padatti (j) Padiyar (k) Pandavakul (l) Raval and (m) Rawat in the list of backward classes for purposes of Article 16(4) of the Constitution; and (iii) reservation of 20 percent made for Backward communities in the State Civil Services under Article 16(4), reserving liberty to the State Government to determine the extent of reservation in accordance with law. The classification and reservation in other respects was upheld. Special Leave Petitions (Civil) No. 6656 of 1979 and 985411979 are filed against the said Judgment of the High Court under Article ] 36 of the Constitution.
After the said judgment of the High Court, by an order dated May 1, 1979, the reservation for backward communities was reduced to 18 per cent A for purposes of Article 16(4). By an order dated June 27, 1979, the State Government modified the Government order dated February 22, 1977 by increasing the reservation for 'Special Group' from 5 per cent to 15 per cent both for purposes of Article 15(4) and Article 16(4) of the Constitution. Thus as on date, the total reservation for purposes of Article 15(4) is 68 per cent and for purposes of Article 16(4) is 66 per cent. There are only 32 per cent seats in professional and technical colleges and 34 per cent posts in Government services which can be filled up on the basis of merit. These writ petitions filed under Article 32 of the Constitution of India, seek to challenge the Constitutional validity of the State Government orders dated February 22,1977 as modified by the Government orders dated May ],1979 and June 27,1979.

SCHEDULED CASTE CAN GET THE BENEFITS FROM THE STATE OF ORIGIN AND NOT TO THE STATE OF MIGRATION

Action Committee v. Union of India, (1994) 5 SCC 244: (1994 AIR SCW 3305) wherein it was held by the Supreme Court that "a Scheduled Caste can get the benefits from the state of origin and not to the state of migration." Thandans of the erstwhile Malabar were not scheduled castes prior to the amendment to the Scheduled Caste Order in 1976."

ADMISSION TO CASTE IS A PAST HISTROY NOT RELEVANT NOW

Roopa Ravindra Kankanawadi vs Commissioner, Hubli-Dharwar ILR 1986 KAR 88 Thus the basis of recognising a person as belonging to a caste was heredity. But it appears that a custom or usage came into force according to which a caste could admit a person not belonging to it by birth to its fold, as pointed out by the Supreme Court in Rajagopal's case, . This means admission by the caste is a condition precedent for a person not belonging to that caste, to be treated as a member of that caste. It follows that a caste could admit or refuse to admit a person into its fold. But all this, in my opinion, is past history, as it is a matter of common knowledge, that caste panchayats have become extinct or at any rate ineffective in villages and are not in existence in towns and cities, therefore, has no relevance to the Hindu society as it exists to-day and more so after the commencement of the Constitution.

COURT CANNOT DECIDE THE CASTE STATUS WITH SYNONYMOUS NAMES

G.P. Srinivas vs K. Halappa And Ors. 2003 (6) KarLJ 347 If the Legislature had chosen not to specify 'Namadhari Kunchitigar' as one of the castes falling under Backward Class 'A' group for purposes of reservation of seats to them, it is to be seen whether any one can be permitted to persuade the Court to accept that "Namadhari Kunchitigar" is no other than "Namadhari" caste. A lot of deliberation takes place before the Legislature decides about the castes that should go under the different groups classified as BCM and this decision once taken by the Legislature is without doubt, immune from challenge under Article 243-O(a) of the Constitution. Now, when the petitioners submit before the Court that they belong to Namadhari Kunchitiga which is not classified as one of the castes coming under Group 'A' and still claim that they are entitled to contest the seat reserved for Group 'A' on the ground that Namadhari Kunchitiga caste and Namadhari caste are one and the same, it tantamounts to challenging the very classification made by the Legislature in exercise of its powers under Article 243-K of the Constitution as Kunchitiga Namadhari caste is not equated with Namadhari caste by the Legislature while issuing the notification. Something that cannot be done in law directly is not permitted to be done indirectly too.

In Srish Kumar Choudhury v. State of Tripura, 1990 AIR 991, 1990 SCR (1) 576 , the Supreme Court held that the entries in the Presidential Order have to be taken as final and the scope of enquiry and admissibility of evidence is confined to showing what an entry in the Presidential Order is intended to mean. It is not open to the Court to make any addition or subtraction from the Presidential Order.

In Pankaj Kumar Saha v. Sub-Divisional Officer, 1996 AIR 1728, JT 1996 (3) 200 the Supreme Court held that the Court is devoid of power to include in or exclude from or substitute or declare synonymous to be a Scheduled Caste or Scheduled Tribe. The Courts would only look into the notification issued by the President to see whether the name finds place in the notification? In the absence of any caste in the Presidential notification the certificate issued to such person is clearly unconstitutional and a fraud on the Constitution and such person cannot be considered to belong to Scheduled Caste.

Constitution Bench in Bhaiyalal v. Harikishan Singh & Ors., [1965] 2 SCR 877 with reference to a scheduled tribe in an election dispute. Gajendragadkar, CJ speaking for the Court said: "It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examina- tion of the social and educational backwardness of the race, caste or tribe justifies such specification. In fact, it is well-known that before a notification is issued under Art. 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State."

A Constitution Bench in the case of B. Basavalingappa v. D. Munichinnappa, [1965] 1 SCR 316 examined the provisions of Art. 341 which contained similar provisions for the scheduled castes with reference to an election dispute. Wanchoo, J. spoke for the Constitu- tion Bench thus: "Clause (1) provides that the President may with respect to any State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of the Constitution be deemed to be Scheduled Castes in relation to that State. The object of this provision obviously is to avoid all disputes as to whether a particular caste is a Scheduled Caste or not and only those castes can be Scheduled Castes which are notified in the Order made by the President under Art. 341 after consultation with the Governor where it relates to such castes in a State. Clause (2) then provides that Par- liament may by law include in or exclude from the list of scheduled castes specified in a notification issued under cl. (1) any caste, race or tribe or part of or group within any caste, race or tribe. The power was thus given to Par- liament to modify the notification made by the President under cl. (1). Further cl. (2) goes on to provide that a notification issued under cl. (1) shall not be varied by any subsequent notification, thus making the notification by the President final for all times except for modification by law as provided by cl. (2). Clearly therefore Art. 341 provides for a notification and for its finality except when altered by Parliament by law ..... Therefore in view of this stringent provision of the Constitution with respect to a notification issued under cl. (1) it is not open to any one to include any caste as coming within the notification on the basis of evidence--Oral or documentary,--if the caste in question does not find specific mention in the terms of the notification ..... It may be accepted that it is not open to make any modification in the Order by producing evidence to show (for example) that though caste A alone is mentioned in the Order, caste B is also a part of caste A and there- fore must be deemed to be included in caste A. It may also be accepted that wherever one caste has another name it has been mentioned in brackets after it in Order. Therefore, generally speaking it would not be open to any person to lead evidence to establish that caste B is part of caste A notified in the Order."

In Kishorilal Hans v. Raja Ram Singh & Ors., [1972] 2 SCR 632 a two-Judge Bench was called upon to decide whether jatav caste not mentioned in the scheduled castes of Datia district of Madhya Pradesh in the Order was included in chamar caste. The Court indicated: "If the matter were res-integra we would have felt a good deal of difficulty in reconciling with the constitutional provisions the scheme followed in the state and the Orders concerned by which some caste has been includes in some districts of the same State and excluded in the other dis- tricts. This Court, however, has in Bhaiyalal v. Harikishan Singh & Ors., supra, made observations repelling the conten- tion that under Art. 341 of the Constitution the President was not authorised to limit the notification to parts of a State ..... In Bhaiyalal's case the appellant's election had been challenged on the ground that he belonged to the Dohar caste which was not recognised as a scheduled caste for the district in question and so his declaration that he belonged to the Chamar caste which was a Scheduled Caste was improperly and illegally accepted by the Returning Officer. It was held that the plea that though the appellant was not a Chamar as such he could claim the same status by reason of the fact that he belonged to Dohar caste which is a sub- caste of the Chamar caste could not be accepted. An enquiry of that kind would not be permissible having regard to the provisions contained in Art. 341 of the Constitution."

CASTE CERTIFICATES ISSUED WITHOUT MAKING PROPER ENQUIRY AND UNDER THE INFLUENCE OF POLITICIANS – REJECTED

In a decision reported in (2005) 2 SCC 244 (in the case of Sobha Hymavathi Devi Vs. Setti Gangadhara Swamy and Others), the Supreme Court has held:- "11. What remains is the argument based on the certificates allegedly issued under the Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificate Act, 1993. The High Court has not accepted the certificates as binding for the reason that the evidence showed that the certificates were issued based on the influence exercised by the appellant as a member of the Legislative Assembly, one after another, immediately on an application being made and without any due or proper enquiry. We are impressed by the reasons given by the High Court for not acting on these certificates. That apart, a reference to Section 3 of the Act would indicate that a certificate thereunder, insofar as it relates to elections, is confined in its validity to elections to local authorities and cooperative institutions. It does not embrace an election to the Legislative Assembly or to the Parliament. Therefore, in any view of the matter, it cannot be said that the High Court, exercising jurisdiction under the Representation of the People Act in an election petition is precluded from going into the question of status of a candidate or proceeding to make an independent inquiry into that question in spite of the production of a certificate under the Act. At best, such a certificate could be used in evidence and its evidentiary value will have to be assessed in the light of the other evidence let in, in an election petition. Therefore, nothing turns on the factum of a certificate being issued by the authority concerned under the Act of 1993. We are also satisfied as the High Court was satisfied, that no proper inquiry preceded the issuance of such a certificate and such a certificate was issued merely on the say-so of the appellant. We have, therefore, no hesitation in overruling this argument raised on behalf of the appellant."

CASE LAW ON LAND LAWS

KARNATAKA LAND LAWS