"Only Parliament Can Include A Caste In The SC List": Allahabad HC Quashes UP Govt Orders Notifying 17 OBCs As Scheduled Castes

In a significant order, the Allahabad High Court has quashed the orders of the Uttar Pradesh Government recognizing or acknowledging 17 Other Backward Classes sub-castes as Scheduled Castes. The Court said that this exercise could have been undertaken only by way of parliamentary law.

"The provisions of Article 341 of the Constitution do not leave any scope for including any Caste or Group to the list of Scheduled Caste in a State provided by the Constitution (Scheduled Castes) Order, 1950, except by law made by Parliament," the Bench of Chief Justice Rajesh Bindal and Justice J. J. Munir held.

The castes which the UP government had intended to include in the SC category were - Majhwar, Kahar, Kashyap, Kevat, Mallah, Nishad, Kumhar, Prajapati, Dheevar, Bind, Bhar, Rajbhar, Dhiman, Batham, Turha, Godia, Manjhi and Machua.

The case before the Court

Essentially, the bench was dealing with a writ plea filed by Dr. B.R. Ambedker Granthalaya Evam Jan Kalyan Samiti, Gorakhpur challenging two Government Orders issued in 2016 [21st December and 22nd December], whereby members of certain 'Other Backward Castes' were sought to be declared as Scheduled Castes. The petitioner had argued that only the Parliament of the country has the right to include any caste in the SC list as per the provision under Article 341 of the Constitution.

Additionally, another writ plea was moved by one Gorakh Prasad, challenging the subsequent Government Order issued by the State in 2019 [June 24] to the same effect.

It was argued on behalf of the petitioners that the list of Scheduled Castes was prepared by the President of India and only the Parliament has the right to make any changes to the same and that the states have no right to amend it in any way.

Court's observations

As far as the order dated 21st December 2016 was concerned, the Court noted that it did not add or introduce any caste as a Scheduled Caste to the Constitution (Scheduled Castes) Order, 1950 issued by the President of India in the exercise of powers under Article 341 of the Constitution.

The Court observed that the 21st December order only says that the members of the Caste Majhwar, whose Entry Number is 53 in the Scheduled Castes Order should be issued the necessary certificates after verification of their status, therefore, the Court did not find any illegality with that order.

However, with regard to the 22nd December order, the Court observed that it clearly recognized 17 Other Backward Classes as Scheduled Castes in the name of clarification.

The Court emphasized that the order of the UP Govt recognizing 17 Castes, that were otherwise in the category of O.B.C., as Scheduled Castes in the State of Uttar Pradesh was not proper as it is impermissible for a state government to undertake such an exercise in view of the provisions of Article 341 of the Constitution.

"The Constitution (Scheduled Castes) Order, 1950 alone can specify which castes, races or tribes or groups within castes, races or tribes, shall be regarded as Scheduled Castes under the Constitution, in relation to a particular State or a Union Territory. The Constitution (Scheduled Castes) Order has to be made by the President of India. Under Article 341(2), any change to the list of Scheduled Castes specified in the President's order can only be made by Parliament by law. A parliamentary law alone can include in or exclude from the list of the Constitution (Scheduled Castes) Order, 1950, as amended in 1976, a particular caste. The order to be made by the President, which has been described under Article 341 as a notification is insulated from any kind of variation by a subsequent notification, even by the President. The only variation that can be done is by a parliamentary enactment, not otherwise," the Court held.

The Court also relied upon the Judgment of the Apex Court in the case of STATE OF MAHARASHTRA vs. KESHAO VISHWANATH SONONE [CIVIL APPEAL NO. 4096 of 2020], wherein it was held that the power to include or exclude, amend or alter the Presidential Order is expressly and exclusively conferred on and vested with the Parliament and Courts cannot and should not extend jurisdiction to deal with the question as to whether a particular caste or sub-caste or group or part of a tribe is included in any one of the entries mentioned in the Presidential Order.

In this view of the matter, the orders dated December 22, 2016, and June 24, 2019, were quashed and the writ petition was allowed.

Case title - Dr. B.R. Ambedker Granthalaya Evam Jan Kalyan v. State of U.P. and others [PUBLIC INTEREST LITIGATION (PIL) No. - 2129 of 2017]

Case Citation: 2022 LiveLaw (AB) 412

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