Why The Bombay High Court Refused Scheduled Tribe Status To Approximately 1.5 Crore Dhangars Or Shepherd Community In Maharashtra?

On Friday in a setback for approximately 1.5 crore people of the Dhangar (shepherd) community in Maharashtra, the Bombay High Court dismissed pleas seeking Scheduled Tribe (ST) status for the community.

A division bench comprising Justices Gautam Patel and Kamal Khata dismissed a clutch of petitions with the Maharani Ahiliya Devi Samaj Prabodhan Manch a Charitable Trust as the lead petitioner.

It was the petitioner's case that owing to a typographical error in Maharashtra (then Bombay), the ST status was accorded to a non-existent 'Dhangad' community in Presidential orders from the 1950s.

They cited affidavits from a certain “Khillare” family in 2023 - sole beneficiaries of the Dhangad status - admitting they belonged to the Dhangar community, not Dhangad community, and caste certificates were wrongly issued to their ancestors.

However, the court pointed out several loopholes in Khillare's affidavit and held the Dhangad community was not a zero- member or non-existent community when it was added to the list of ST through presidential orders in the 1950s.

“All we are told by the 3^rd generation Khillares that the 1^st and 2^nd generation Khillares were under some wrong belief. We do not know how a grandson can say that his grandfather was under a mistaken belief about an entry he made in his school leaving certificate.”

Citing Articles 341 and 342 of the Constitution, which authorised the President to declare certain castes and classes as Scheduled Castes in a state, the court held that the President's Orders are sacrosanct and can be altered only by the parliament.

Based on the 1964 Supreme Court decision in B Basavalingappa vs D Munichinnappa – the court held that it is only when an entry in the PO turns out to be a zero-member community or non-existent, can a constitutional court analyse the issue to realise the true intent behind the Presidential Order entry.

“What we are being asked to do is to take evidence whether the class was or was not empty. That is not an endeavor that is permissible in our reading of Basavalingappa,” the court said.

Canvassing the magnanimity of the issue the bench noted the Dhangar community in Maharashtra is classified as a Nomadic Tribe Caste with 3.5% reservation and the Dhangad community is wrapped into a 7% ST reservation.

If included in the ST reservation, of which Dhangad is a component, the benefit to Dhangar doubles to 7% with ramifications in every segment of public life including education to employment and in elections, the bench noted.

The bench underscored the changing stance of the state government. It further noted how the Killare family's disavowment and a caste scrutiny committee's notice to them with regard to some rewriting in the school leaving certificates were being cited to show there was sufficient ground to review the presidential order.

“There is no question today of the looking at the Khillare family's affidavits or disavowments, or the assumption of review jurisdiction by the scrutiny committees. It is difficult to understand how a 2023 affidavit by any member of the Khillare family, or a 2023 caste scrutiny committee show cause notice can now seek to dislodge school leaving certificates of 1952, 53.”

The bench found it impermissible to determine the existence of “zero-class” by taking evidence.

“If this is allowed there will never be an end to a reopening the correctness of every entry in the presidential order. We do not believe that is a sound or reliable approach in a matter such as this.”

Relying on several SC judgements, the court highlighted their ratios;

1. There can be no inclusion or exclusion (in the Presidential Order) except by an order of parliament and no modification is possible once the list is made.
2. Synonyms cannot be gone into. (Nityanand Sharma vs State of Bihar)
3. No enquires about subcastes are permissible. (Bhayalal)
4. No enquires are possible for modification of list.
5. Glossaries are not to be considered by the High Court (Parshuram & Others vs State of MP)
6. No additions or subtractions can be made by the court. (Shirish Kumar Chaudhry vs State of Tripura)
7. And the court cannot expand jurisdiction, tinker with the order, make amendments to constitutional order, exclude items from it or take evidence to interpret the entries.

“In a country as diverse as ours,” the bench said, every law creates and a set of obligations and duties.

“This is necessary so that further adjustment can be made for entitlements, benefits, reservations and various forms and manifestations of affirmative action. If these entries (of the presidential order) are to be constantly modified and changed, there will be resultantly only chaos in the administration. No person will know whether a benefit available today is liable to be taken away by a judicial fiat tomorrow. That person will not even know when this unfortunate event will happen or what are the consequences likely to be.”

The Khillare family was classic case, “As we have seen their affidavit show their caste certificates are not recent, validity certificates are not recent, only their disvowament was recent. It is entirely unclear to us what is to be done of all the advantages that they may well have received within that time. It is very easy for these persons to say they will face prosecution.”

If a person has received benefit on a certain basis then somebody else has been denied that benefit. This is not a case where there is no sufferer as a result of somebody accepting a benefit under a particular class or category, the court said.

The bench noted how the family had relied on the same documents to get their cate certificates which they now disown. “But these killare affidavits themselves prove that the class was not empty.”