Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., asked the State Government to file a report in the matter of lack of road to the graveyard for Scheduled Caste people due to which they are forced to pass through the agricultural ground with standing crops.

Petitioner sought a writ of mandamus, directing the respondent to provide pathway/road having access to burial ground from the villages where Adi Dravidar people have been residing so as to enable them to tale the dead bodies to the burial ground peacefully within the time stipulated by this Court.

Decision

“We have to hang our head in shame for having ill-treated and discriminated the Scheduled Caste people for centuries together.”

Bench added that since the Scheduled Caste people were not properly treated and offences committed against members of SCs and STs and rehabilitating the victims, the Centre passed the ‘The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989’, to give the dignity to prevent the crimes against members of Scheduled Castes and Schedule Tribes.

Even though the above stated Act was passed, yet the SC-ST people are not getting treated properly and offences are continuing.

In the instant case, a newspaper report published that there is a lack of road to graveyard forced Scheduled Caste people to pass through agriculture fields with standing crops.

Since no road facility has been provided to these people, they were compelled to carry the dead body through the fields with standing crops and put them to unnecessary trouble and untold hardships.

In light of the above, the Court stated that

Not only living persons but also dead bodies should be given dignity. The Scheduled Caste people should have roads to graveyards.

Court in view of the above opined that the issue reported is taken as a suo motu public interest litigation.

Respondents are directed to file a report with regard to the following queries:
(a) How many Scheduled Caste Habitations are located in the State of Tamil Nadu?
(b) Whether all the Scheduled Caste Habitations have got drinking water facilities, street lights and toilet facilities as well as roads to the graveyards?
(c) How many Habitations do not have roads to graveyards?
(d) What are all the steps taken, including the acquiring of lands for laying of roads for graveyards?
(e) By what time, all the Schedule Castes Habitations would be provided with water facilities, street lights toilet facilities as well as pathways to the graveyards?

[Registrar (Judicial) v. Secy. to Government; Suo Motu WP (MD) No. 19594 of 2020; decided on 21-12-2020]

Case BriefsSupreme Court

Supreme Court: In a case where the Bombay High Court declared that tribe “Gowari” is a part of Scheduled Tribe “Gond Gowari” thereby leading to several people taking benefit of Scheduled Tribes for admissions and employment, the bench of Ashok Bhushan*, R. Subhash Reddy and MR Shah, JJ has held that

“the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950.”

The Court, however, directed that the admission taken and employment secured by the members of ‘Gowari’ community on the basis of Scheduled Tribe certificate granted to them between 14.08.2018 till date, as a result of the High Court’s decision, shall not be affected and they shall be allowed to retain the benefit of Scheduled Tribe obtained by them.

“However, the above Scheduled Tribe candidates shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of Scheduled Tribe certificate given to the ‘Gowari’ Community obtained between 14.08.2018 and this day.”

On 14.08.2018, Bombay High Court, Nagpur Bench had declared that tribe ‘Gowari’ was a part of Scheduled Tribe ‘Gond Gowari’ and that ‘Gond Gowari’ shown as item No.28 in Entry 18 of Scheduled Tribes Order, 1950, is not a sub-tribe of ‘Gond’.

On declaration that “Gond Gowari” is not a sub-tribe of “Gond”

The validity of caste certificate to ‘Gond Gowari’ has to be tested on the basis of affinity test as specified in the Government Resolution dated 24.04.1985. The Government of State of Maharashtra, Tribal Development Department has issued G.R. dated 24.04.1985 where the State Government has referred to “Gond Gowari” as small sub-Tribe of Gond and non-Scheduled Tribe caste was referred as Gowari.

“As per Article 342(1), tribes or tribal communities or parts or groups within tribes or tribal communities shall for the purposes of the Constitution be deemed to be Scheduled Tribes. There has to be some purposes for joining number of tribes together in one entry, but with regard to ‘Gond Gowari’ the affinity is more than apparent with ‘Gond’.”

The expression ‘Gond Gowari’ clearly expresses that the community ‘Gond Gowari’ has to do with tribe ‘Gond’. The entry of ‘Gond Gowari’ in Scheduled Tribes Order 1950 was as a sub-tribe of ‘Gond’ which is clear from a report of the Backward Classes Commission, 1955. When the inclusion of the entry ‘Gond Gowari’ was as (subtribe of Gond), its affinity with ‘Gond’ cannot be ignored on any basis.

On tribe ‘Gowari’ being declared a part of Scheduled Tribe ‘Gond Gowari’

When the State has expressly written to the Government of India on 06.11.1981 that ‘Gowari’ community does not fulfill the criteria of Scheduled Tribe and thereafter after 1984, several studies were conducted by Tribal department in State of Maharashtra including report dated 12.05.2006 which reaffirms that ‘Gond Gowari’ and ‘Gowari’ are distinct community and ‘Gowari’ is not Scheduled Tribe, the High Court could not have observed that it accepts the view of the Central and State Government that ‘Gowari’ community be included in the Scheduled Tribe Order

Further, the recommendation to include Gowari as a separate Scheduled Tribe was forwarded by the State of Maharashtra in the year 1979 which was withdrawn in 1981 and after 1981 the State’s stand has been that “Gond Gowari” and “Gowari” are two separate castes and Gowari is not entitled for the benefit of Scheduled Tribe certificate.

On extinction of tribe “Gond Gowari” prior to 1911 and only “Gowari” existed

The High Court itself in its judgment noticed and found the mention of “Gond Gowari” in Census of 1891 and 1901. However, the basis of Census in 1911 was changed, and classification was made on the basis of traditional occupation in which group IV was of Forest and Hill Tribes and Group V was of Graziers and Dairymen. The figures of 1911, 1921 and 1931 showed that in Group V Graziers and Dairymen, there was mention of Gowari.

However, mere fact that in Censuses of 1911, 1921 and 1931 figures were given only of Group V, i.e., Graziers and Dairymen and there was no mention of “Gond Gowari” cannot lead to conclusion that “Gond Gowari” have become extinct before 1911.

“A Scheduled Tribe which admittedly was in existence and had a distinct identity shall not be treated to have become extinct merely because the basis of Census has been changed in the subsequent years. The benefit given to a Scheduled Tribe cannot be taken away on the basis of figures given in Census operation only.”

The inclusion of sub-Tribe as “Gond Gowari” in the Constitution (Scheduled Tribes) Order, 1950 was on 29.10.1956 when sub-Tribe “Gond Gowari” was included in the Scheduled Tribe list it has to be presumed that the said inclusion was after consultation with the State and after considering the relevant materials. The High Court could not have questioned the inclusion of the Scheduled Tribe “Gond Gowari” in the Constitution (Scheduled Tribes) Order, 1950.

Further, when before the High Court Scheduled Tribe certificates of “Gond Gowari” were filed in large number and there were documents to support by the revenue entries some of which are prior to 1950 and which certificates were sought to be quashed in the writ petition, the existence of Scheduled Tribe “Gond Gowari” was very much found.

“The Caste Scrutiny Committee having validated the said certificates it was not open for the High Court to say that Scheduled Tribe “Gond Gowari” became extinct prior to 1911.”

The Court, hence, concluded that none of the reasons given by the High Court are sustainable to hold that ‘Gowari’ are entitled to Scheduled Tribes Certificate of ‘Gond Gowari’.

“The entire basis of the judgment of the High Court that tribe ‘Gond Gowari’ was completely extinct before 1911 having been found to be flawed, the entire basis of judgment is knocked out.”

[State of Maharshtra v. Keshao Vishwanath Sonone,  2020 SCC OnLine SC 1040, decided on 18.12.2020]


*Justice Ashok Bhushan has penned this judgment

Counsels heard

For State of Maharashtra: Senior Advocate Shyam Divan and advocate Ravindra Keshavrao Adsure,

For Union of India: Additional Solicitor General Sanjay Jain

For Zanaklal Bhaisaku Mangar: Senior Advocate C.U. Singh,

For Respondents: Senior Advocate Mukul Rohatgi and Advocate Bansuri Swaraj

Case BriefsHigh Courts

Bombay High Court: A Division Bench of V.G. Bisht and S.S. Shinde, JJ. allowed a writ petition by quashing and setting aside the order passed by Scheduled Caste, Scheduled Tribe, De- notified Tribe (Vimukt Jatis), Nomadic Tribe, Other Backward Class and Special Backward Class Category Caste Scrutiny Committee No. 1, Solapur, by which petitioner’s claim of belonging to Muslim-Mulani (OBC-340) was invalidated.

In the present case, petitioner challenged the legality, validity and propriety of impugned Judgment passed by respondent 2 – Scheduled Caste, Scheduled Tribe, De-notified Tribe (Vimukt Jatis), Nomadic Tribe, OBC and Special Backward Class Category Caste Scrutiny Committee No. 1, Solapur that invalidated the caste claim of petitioner as belonging to Mulani (OBC).

Petitioner was appointed as Assistant Teacher on the post reserved for OBC Category which had been duly approved by Education Officer (Primary) Solapur. The appointment was on reserved post for OBC Category. Respondent 1 forwarded her caste certificate for verification to Respondent 2 — Caste Scrutiny Committee.

The above-stated committee referred the matter to the Vigilance Cell for verification. Vigilance Officer recommended to the committee that the Petitioner is entitled to get the caste certificate to the effect that the Petitioner belongs to Mulani caste.

Caste Scrutiny Committee issued a show-cause notice to the petitioner alleging that all the documents produced by the petitioner show that the petitioner belongs to Muslim caste and not Mulani caste. The committee by its impugned order rejected the caste claim of the petitioner. Hence, the petition was filed.

Decision

Division Bench stated that it is required to be noted that in spite of Vigilance Cell Reports in favour of the petitioner, Committee in the impugned decision observed that since the committee is not agreeing to vigilance cell reports, therefore, said report is kept out of consideration. But the bench in view of the stated held that findings of the Committee are unacceptable for the reason that when such vigilance cell’s report is their the Committee is bound to consider the same and there is no reason to disbelieve the same.

The matter is remanded back to respondent 2 for de novo consideration.[Kumari Shaikh Shashim Mhamulal v. State of Maharashtra, 2020 SCC OnLine Bom 383 , decided on 09-03-2020]

Case BriefsSupreme Court

Supreme Court: Holding that the Court should not have encroached upon the field reserved for the legislature, the 3-judge bench has partially set aside the 2-judge verdict in Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018. The 3-jduge bench of Arun Mishra, MR Shah and BR Gavai, JJ has held that some portions of the said verdict were 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.

The guidelines laid down in the March, 2018 verdict were:

(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.

(iii) arrest of a public servant can only be after approval of the appointing authority and of a non-public 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 the direction of the Court will be actionable by way of disciplinary action as well as contempt.

Challenging the said verdict, the Union of India argued that 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 member of Scheduled Castes and Scheduled Tribes. It submitted,

“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.”

Accepting the contention, the Court held that 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.”

It further said that 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.

Considering the plight of the members of the Scheduled Castes and Scheduled Tribes, the Court said that the 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. It said,

“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.”

The Court also noticed that 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. It said that the 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.”

The Court, hence, held,

“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.”

[Union of India v. State of Maharashtra, 2019 SCC OnLine SC 1279, decided on 01.10.2019]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ. contemplated an appeal where the appellant had been convicted and sentenced under Sections 363 and 376 of Penal Code, 1860 and Section 3(2)(v) of SC/ST Act i.e. commission of any offence under the IPC punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine.

Minimal facts relevant for proper appreciation of the case are that one Asha Bhai lodged an FIR against the appellant for alleged rape and kidnapping of the minor granddaughter of the complainant. Complainant, victim and the appellant were travelling to Ahmedabad when the appellant alleged drugged Asha and when he regained her consciousness there was no trace of the minor victim and the appellant. Subsequently, an investigation was conducted and charge-sheet was filed. Appellant was charged under various Sections of IPC and under Section 3(1) (xii) of SC/ST (Prevention of Atrocities) Act. As the charge under SC\ST Act was added the case was duly transferred to the Special Judge for trial. After the trial, the Judge convicted the appellant, hence the instant appeal was preferred.

The counsel for the appellant, Pradeep Shah, submitted that judgment passed by the trial court was bad in the eyes of law. He urged that there was no allegation of any of the prosecution witnesses that the accused kidnapped or subjected the victim to rape with the intention of committing offence on a member of the Scheduled Caste community. He further argued that the conviction of the accused of the offence under Section 3(2)(v) of the SC/ST Act was prima facie illegal. It was further submitted that the victim was not a minor and there was no proper evidence to prove otherwise. It was contended that the alleged victim resided with her own will and never protested hence the physical relation was consensual and no case of rape was to be made.

Learned Public Prosecutor, N.S. Bhati vehemently and fervently opposed the submissions advanced by the appellant. He urged that the victim had given cogent testimony at the trial stating that she was a minor on the date of the incident. The accused lured her away on the premise that he would get her father released from prison. Entertaining this bonafide belief, she accompanied the accused and her grandfather for going to Ahmedabad. The accused gave a slip to her grandfather and forced her to board a train. She was taken to Mahsana where she was kept in a house which is at an isolated place. There, the accused repeatedly subjected her to sexual intercourse. It was further submitted that the medical report pointed towards the alleged rape and the age of the minor was also confirmed accordingly.

The Court, gave thoughtful consideration to the arguments of the parties and observed that “Prima facie, from the evidence available on record, it is duly established and we are fully satisfied that the accused committed the offence under Sections 363 & 376 IPC not because he wanted to sexually assault a member of the scheduled caste community but these offences were perpetrated by the accused in order to satisfy his carnal desires.”

The Court further relied on the judgment in, Masumsha Hasanasha Musalman v. State of Maharashtra, (2000) 3 SCC 557, where the Supreme Court in a similar case opined that, the case was not designated against the SC/ST community specifically. Hence the Court opined that the finding recorded by the trial court whereby the accused was held liable for the offence under Section 3(2)(v) of the SC/ST Act and was sentenced to life imprisonment on this count is ex-facie illegal and contrary to record. Hence, the Court set aside the impugned judgment to that extent. Further, it observed that the remaining Judgment of the trial court was legal. Thus the appeal was allowed partly.[Kesa Bhai v. State of Rajasthan, 2019 SCC OnLine Raj 1403, decided on 02-07-2019]

Case BriefsHigh Courts

Orissa High Court: The Bench of Dr A.K. Rath, J., allowed the writ petition which revolved around the issue of ascertaining as to whether the caste ‘Raj Gond’ is synonymous to ‘Gond’ as was mentioned in the Record of Rights (ROR).

The facts were that opposite party 1 and 2 filed an application under Section 23 of the Orissa Land Reforms Act, 1960 (“OLR Act”) before the Sub-Collector to declare a sale deed void and restore possession. The Contention was that they were scheduled tribe persons. They belonged to caste ‘Gond’. The father of opposite party 1 and 2 had transferred the land in favor of the predecessor-in-interest of the petitioners without obtaining permission from the Revenue Officer under Section 22 of the Orissa Land Reforms Act, 1960.

The petitioners (herein Opposite Party 1 and 2) contended that they were Raj Gond by caste. They did not belong to caste ‘Gond’ thus no permission was required for alienation of the land. Their vendor, the father was a literate person and in the sale deed, he described his caste as ‘Raj Gond’. In the course of hearing, opposite party 1 and 2 stated that they belonged to ‘Gond’ by caste but in the ROR, their caste was mentioned as ‘Raj Gond’. Their father was the zamindar of Loisingha. In 1936 settlement, he was bestowed with the title of “Raja”. After 1936 settlement; he used to write Raja before their caste, though he belonged to ‘Gond’ caste. The opposite party No. 3 came to hold that the caste of opposite party 1 and 2 was ‘Gond’, not ‘Raj Gond’. They were scheduled tribe persons and no permission was accorded by the authority thus the deed was a void one. Accordingly, the possession was restored to them and a writ of delivery of possession of the same was issued. The petitioners then filed an appeal before the Additional District Magistrate, Balangir. The appellate authority held that in the sale deed, caste was mentioned as ‘Raj Gond’. No authority could interpret ‘Raj Gond’ as ‘Chief Gonds’ or synonymous to ‘Gond’ thus no permission under Section 22 of the OLR Act was necessary for alienation of land. The appeal was thus allowed. Mrs Sahoo, the Advocate for the petitioners, submitted that the father was not a scheduled tribe person. Thus permission under Section 22 of the OLR Act was not a sine qua non for alienation of the land.

High Court held that no roving inquiry is permissible to ascertain as to whether the caste ‘Raj Gond’ is synonymous to ‘Gond’. Section 22 and Section 23 of the OLR Act would not come into play. The impugned order was thus quashed and the writ application was allowed. [Belmati Pradhan v. Jaya Krushna Singh Rai, 2019 SCC OnLine Ori 144, decided on 29-03-2019]

Case BriefsSupreme Court

Supreme Court: Acknowledging the abuse of law of arrest in cases under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Atrocities Act), the bench of AK Goel and UU Lalit, JJ said that the legislature never intended to use the Atrocities Act as an instrument to blackmail or to wreak personal vengeance nor was it intended to deter public servants from performing their bona fide duties. It was, hence, held that unless exclusion of anticipatory bail is limited to genuine cases and inapplicable to cases where there is no prima facie case was made out, there will be no protection available to innocent citizens.

The Court said:

“the Act cannot be converted into a charter for exploitation or oppression by any unscrupulous person or by police for extraneous reasons against other citizens as has been found on several occasions. … Any harassment of an innocent citizen, irrespective of caste or religion, is against the guarantee of the Constitution.”

Background:

The Court was hearing an appeal against the order of the Bombay High Court where it was held that no public servant or reviewing authority need to apprehend any action by way of false or frivolous prosecution, but the penal provisions of the Atrocities Act could not be faulted merely because of possibility of abuse. In the present matter, certain adverse remarks were recorded under the Atrocities Act against the appellant who was serving as the Director of Technical Education in the State of Maharashtra at the relevant time. Apart from the facts of the present appeal, it was brought to the Court’s notice that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes.

Conclusion:

The Court held:

“an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. The law has to be interpreted accordingly.”

Holding that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny, the Court issued the following directions:

  • 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 non-public 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.
  • 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.
  • any violation of the direction of the Court will be actionable by way of disciplinary action as well as contempt.

[Dr Subhash Kashinath Mahajan v. State of Maharashtra, 2018 SCC OnLine SC 243, decided on 20.03.2018]