Is Affinity Test Integral To Determine Caste Status? Supreme Court Reserves Judgment

Yesterday, the petitioners had argued that the affinity test conducted in the caste determination process is only a corroborative exercise and is not the sine qua non for caste assessment. It was averred that the affinity test is not a litmus test; at best it can supplement the documentary evidence, but never supplant it. On Thursday, the State of Maharashtra commenced with its counter arguments. The sheet-anchor of the submission made by the State was that the affinity test should not be made only a corroborative exercise. It was argued that the Scrutiny Committee ought to be given some discretion in rejecting or accepting the caste certificates.

Reference

In March, 2022, observing that two judgments rendered by the Division Bench of the Apex Court had set out different parameters for the verification of caste certificates, a Division Bench comprising Justices Hemant Gupta and V. Ramasubramanian referred the issue to be decided authoritatively by a Three Judge Bench. The issue framed by the Division Bench was as under -

“The question as to whether what should be the parameters available to the Scrutiny Committee for verification of caste certificate is a matter of importance arising out of interpretation of the Act and the Rule framed therein.”

A Three Judge Bench comprising Justice S.K. Kaul, Justice A.S. Oka and Justice Manoj Misra took up the reference, heard the parties and reserved judgment.

Why the reference?

In Shilpa Vishnu Thakur v. State of Maharashtra And Ors., the question before the Full Bench of the Bombay High Court was regarding the standards which have to be applied in determining if an applicant belongs to a designated Scheduled Tribe. The Full Bench opined that the kinship and affinity to a tribe are vital in determining the correctness of the claim. Therefore, while determining whether a person genuinely belongs to a designated Scheduled Tribe, the Scrutiny Committee ought to consider all material evidence including the satisfaction of the affinity test.

The Apex Court while deciding Vijakumar v. State of Maharashtra And Ors. (2010) 14 SCC 489, had referred to the decision of the Full Bench of the Bombay High Court in Shilpa Vishnu Thakur (supra). However, later, in Anand v. Committee for Scrutiny and Verification of Tribe Claims And Ors. (2012) 1 SCC 113, the Apex Court, without referring to the Full Bench decision or the judgment in Vijakumar (supra), independently, set out parameters that are to be considered while deciding on the genuineness of the caste certificate. It also held that the affinity test is not the litmus test in establishing the link of the applicant with Scheduled Tribe and should not be the sole criteria to reject claims. However, the Supreme Court was of the view that the affinity test may be used to corroborate the documentary evidence. Considering the variation in parameters to be applied by the Scrutiny Committee in determining the validity of the caste certificate as reflected in the above-mentioned judgements of co-ordinates Benches, the Division Bench thought it fit to refer the issue to a larger Bench.

Arguments made by the State

Before Senior Advocate, Mr. Shyam Divan appearing on behalf of the State of Maharashtra commenced with his submissions, Justice Oka, precisely, set out the issue that the Bench expected the Senior Counsel to address. He asked Mr. Divan:

“Affinity test will come into the picture only when reference is made by the Scrutiny Committee to the Vigilance cell….If there is no requirement to refer it to the Vigilance cell then there is no occasion for this affinity test. Right? That is the question.”

The Judge was of the opinion that even though the judgment of the Full Bench of the Bombay High Court had stated that the affinity test comes into play at the stage when the Scrutiny Committee has referred a matter to the Vigilance cell, it is being interpreted as if the Court meant that even the Scrutiny Committee had to conduct the affinity test.

In this regard, Justice Kaul noted -

“The problem arose when the Scrutiny Committee started emphasising on affinity tests even when the documents were available….The judgment was not properly read perhaps.”

Mr. Divan took the Court’s attention to the situation on the ground. He submitted that usually there are two types of cases - one where all the documents are consistent and the other where there is inconsistency in documentary evidence. If there is inconsistency then the Scrutiny Committee refers it to the Vigilance cell. He argued that for a surname like Thakur, which had several variations, even if there is no inconsistency in the documents, it would be well within the purview of the Scrutiny Committee, a quasi-judicial body, to refer and insist on an affinity report.

While arguing the petitioners had raised the contention that due to urbanisation, persons belonging to the Schedule Caste and Scheduled Tribe community migrating to cities might lose touch with their distinct culture over generations. On Thursday, this concern was put before the Senior Counsel for the State by Justice Kaul.

Mr. Divan agreed that there may be such situations, but he also contended that prevention ought to be taken to ensure that only those who are eligible can avail the benefits of the caste certification.

Justice Kaul noted, Mr. Divan had argued that the Scrutiny Committee, which knows that with respect to certain surnames the confusion is more, should be granted discretion so as to prevent eligible candidates from being deprived of their Constitutional rights.

Coming to the importance of the affinity test, the Judge noted, “It is not a litmus test but an important test so far the Vigilance cell is concerned.”

Agreeing to the same, Mr. Divan concluded, “Don't make is only a corroborate exercise, because in cases like Thakur discretion may be left to the Scrutiny Committee, whether to accept the document or not. It cannot be done in a mechanical manner, that is not even our argument.”

[Case Title: Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. State of Maharashtra And Ors. SLP (C) No. 24894 of 2009]