Emerging Threat For “Original” Lists Of Scheduled Castes/Scheduled Tribes Published Under Article 341 Of Constitution

The issue of Scheduled Castes and Scheduled Tribes (SC/ST) inclusion in India has long been a contentious and delicate matter, rooted in the complex interplay of history, politics, and constitutional safeguards. As enshrined in Articles 341 and 342 of the Indian Constitution, the sanctity of these lists is intended to protect the rights of communities that have been marginalised historically.

However, recent developments and actions by state governments have sparked significant debates over the legality of altering/amending these lists, often without adhering to the stringent procedures mandated by the Indian Constitution.

In order to understand the evolving jurisprudence surrounding the SC/ST lists, it is essential to examine the recent judicial pronouncements, the challenges posed by unauthorized inclusions, and their broader ramifications on the original beneficiaries of affirmative action measures. This requires a careful analysis of the constitutional processes, the safeguards in place, and the pressing need to protect the integrity of these lists from unwarranted alterations.

How can the list(s) be altered?

Once the Scheduled Castes and Scheduled Tribes (SC/ST) list is published under a Presidential Order pursuant to Article 341 of the Constitution, its sanctity is preserved by a stringent constitutional process. Only Parliament is empowered to amend these lists, and this authority is exercised with great caution to uphold the rights of historically marginalized communities. State Governments, on the other hand, lack the competence or constitutional authority to either add or remove castes or sub-castes from the list.

Even for Parliament, any modification requires consultation with the Registrar General of India (RGI) and a thorough investigation. Such inclusion is permitted only if anthropological research establishes the presence of an “element of untouchability”—a rigorous safeguard to ensure the integrity of the SC/ST classification.

A. MANIPUR- A CASE STUDY

While the exclusion of a deserving community from the Scheduled Castes or Scheduled Tribes lists is undoubtedly a glaring issue, the inclusion of a non-deserving or less deserving community is equally, if not more, problematic. Such inclusion dilutes the benefits meant for genuinely marginalised groups, undermines the purpose of affirmative action, and creates an imbalance in the socio-political framework. This dilution not only erodes the value of constitutional protections but also breeds resentment and conflict among communities.

The situation that happened in the state of Manipur in 2023-24 is a perfect case that highlights the level of sensitivity with which the Courts and the State ought to deal with granting SC/ST status and if it is dealt with in the wrong manner, the ramifications can be hugely detrimental.

The state of Manipur has three major communities in terms of demographics, namely Meitei, Kuki and Naga. The conflict that happened 2023 was because of the following reasons:

On 27.03.2023, the Manipur High Court passed an order in the case of Shri. Mutum Churamani Meetei v. Union of India & Ors. (WP(C) No. 229 of 2023, directing the State of Manipur to consider including the Meitei community in the Scheduled Tribe list under Article 342 of the Constitution. This order, particularly paragraph 17(iii), was controversial as it contravened constitutional provisions and judicial precedents. The Supreme Court's Constitution Bench in State of Maharashtra v. Milind & Ors. (2001) unequivocally held that courts cannot alter or direct amendments to Presidential Orders concerning Scheduled Castes and Scheduled Tribes, as this power lies solely with Parliament. Additionally, the High Court's directive ignored established procedures requiring detailed socio-economic studies, state recommendations, and approvals from the Registrar General of India and the National Commission for Scheduled Tribes.

The order triggered significant unrest in Manipur, exacerbating ethnic tensions between the Meitei community and the existing Scheduled Tribe groups, such as the Kukis and Nagas, who viewed the move as a threat to their rights and resources. The resulting unrest disrupted social harmony and amplified demands for judicial restraint.

Recognizing these issues, the Manipur High Court reviewed the matter and reversed its directive, specifically deleting paragraph 17(iii) from its earlier judgment. The review judgment cited procedural lapses and emphasized that the earlier order violated constitutional principles by overstepping judicial authority.

B. THE DISTINCTION BETWEEN SUB-CLASSIFICATION AND AMENDING THE SC/ST LIST

The Supreme Court in State of Punjab v. Davinder Singh (2024 SCC OnLine SC 1860), upheld the constitutionality of sub-classification for states and the centre within the Scheduled Caste and Scheduled Tribe categories, but a state cannot include or exclude any caste from the list.

There exists a big difference between sub-classification and changing the list. The difference between sub-classification and the inclusion or exclusion of communities from SC/ST status lies in their purpose, scope, and constitutional basis. Sub-classification refers to dividing the Scheduled Castes or Scheduled Tribes into smaller groups within the already recognized lists to ensure more equitable distribution of benefits, such as reservations. This process does not alter the original Presidential Order issued under Articles 341 and 342 of the Constitution but rather reorganizes the groups internally to address disparities in accessing affirmative action measures. On the other hand, including or excluding communities from SC/ST status involves altering the original list of Scheduled Castes and Scheduled Tribes notified under a Presidential Order. This is a far more significant constitutional action, as it changes the composition of the list itself. Such modifications require Parliamentary approval and rigorous scrutiny, including anthropological studies and consultations with the Registrar General of India, to preserve the integrity and purpose of the lists. Importantly, while sub-classification aims to enhance equity among the listed groups, the inclusion or exclusion of communities redefines who qualifies for these fundamental protections, making it a highly sensitive and constitutionally controlled process.

The unconstitutional inclusion of OBC and other groups by states into the SC/ST lists undermines the sanctity of these lists and violates constitutional provisions. Such actions create profound and irreparable challenges, diminishing the rights and entitlements of the “original” Scheduled Castes and Scheduled Tribes and further disadvantaging the communities these protections were specifically intended to uplift.

C. CORE ISSUE

The issue of various groups, communities, and individuals seeking inclusion in the lists of Scheduled Castes (SCs) and Scheduled Tribes (STs) under Article 341 and Article 342 of the Indian Constitution has been an extremely contentious, nuanced and complex matter.

These constitutional provisions allow the President of India the power to notify the communities or groups that are considered SCs and STs based on social and economic backwardness, thereby entitling them to specific affirmative action measures such as reservations in education, employment, and political representation. The growing demand for SC status is unexpected, as being included among those facing real challenges also carries the stigma of untouchability or meeting the ideal criteria of the original list, yet for various reasons, they were not included in the list created in 1950.

Perhaps, it could be that the increase in demand influences the SC/ST communities to receive additional affirmative measures, such as the protection provided by the SCs/STs (Prevention of Atrocities) Act of 1989, Reservation in Parliament and State Elections, Fellowship Programs, Land Rights Policy, and similar initiatives.

In recent years, as well as in some past instances, certain state governments have, in blatant violation of due process, arbitrarily included OBCs and other castes in the lists of Scheduled Castes (SCs) and Scheduled Tribes (STs) under Article 341 of the Indian Constitution.

Accordingly, there are a few notifications as follows in Table 1, wherein the state government incorporated certain castes into the Scheduled Castes and Schedule Tribe list and removed them from the Extremely Backward Caste ("EBC") list.

D. The Constant views of the Supreme Court of India

The Majority opinion overruled the E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394, wherein, it was held that SCs cannot be further classified for the purpose of reservation because they constitute an internally homogenous class by virtue of their inclusion in the Presidential list and thus, as a class, groups within the SCs cannot be treated differently and any further classification and consequent preferential treatment were held to violate Article 14.

However, the judgment of State of Punjab v Davinder Singh (2024 SCC OnLine SC 1860), a seven-judge Supreme Court bench, affirmed the constitutionality of sub-classification by the State and Centre, both in the Scheduled Caste and Scheduled Tribe categories, but a state cannot borrow, include or exclude any caste from the list prepared by the parliament.

In sum, a state must rely on the Scheduled Castes/Schedule Tribe list which is released following the Presidential Order after receiving Parliament's approval. Therefore, clarity is required since two known petitions are pending before the high courts and the case has been admitted on the base of E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394. For Inclusion and exclusion, the Supreme Court has reiterated time and time again that any change must follow the constitutional process (Presidential notification and parliamentary approval) since 1965.

The five judges Bench of the Supreme Court of India in the case of Bhaiyalal v. Harikishan Singh [AIR 1965 SC 1557] held that the President, in specifying a caste, race or tribe, has expressly been authorised to limit the notification to parts of or groups within the caste, race or tribe. It must mean that after examining the social and educational backwardness of a caste, race or tribe, the President may conclude that not the whole caste, race or tribe, but parts of or groups within them should be specified as Scheduled Caste or Scheduled Tribe. Notification issued under Article 341(1) after an elaborate enquiry in consultation with the Governor and reaching a conclusion specifying a particular caste, race or tribe with reference to different areas in the State is conclusive. The court observed: -

“The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belonged to Dohar Caste which is a sub- caste of the Chamar caste cannot be accepted. An enquiry of this kind would not be permissible having regard to the provisions contained in Art. 341 of the Constitution.”

The same view was subsequently reiterated in B. Basavalingappa v. D. Munichinnappa [AIR 1965 SC 1269] wherein the Supreme Court has stated the following:

“(ii)In specifying castes, races or tribes under Art. 341 of the Constitution, the President has been expressly authorised to limit the notification to parts of or groups within the castes, 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 the parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification.”

The Supreme Court has also repeatedly held that the High Court could not have entertained the claim of a caste that is declared a Scheduled Tribe, nor could the High Court have taken evidence to adjudicate on the claim. It observed that it has to be presumed that the inclusion of a Caste/Tribe in Schedules in 1956 was done after consultation with the State Governments and after considering relevant materials. The five judges' bench of the Supreme Court again affirms in the case of State of Maharashtra vs Milind & Ors, [(2001) 1 SCC 4] that

“The laudable object of Articles 341 and 342 of the Constitution of India is to provide additional protection to the members of the Scheduled Castes and Scheduled Tribes having regard to social and educational backwardness from which they have been suffering since a considerable length of time. The words 'caste' or 'tribes' in the expression 'Scheduled G Castes' and 'Scheduled Tribes, are not used in the ordinary sense of the terms but are used in the sense of the definitions contained in Articles 366(24) and 366(25). Therefore, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the President's Order issued under Articles 341 and 342 for the purpose of the Constitution.”

It observed that it has to be presumed that the inclusion of a Caste/Tribe in Schedules in 1956 was done after consultation with the State Governments and after considering relevant materials. The Supreme Court has also clarified that there is no conflict in the ratio of the Constitution Bench judgments in the B. Basavalingappa Case (Supra) and the Milind Case [(2001) 1 SCC 4]; instead, the ratio of the B. Basavalingappa Case has been reiterated by the subsequent two Constitution Benches in the Bhaiya Lal Case and the Milind Case.

Also, in The State of Maharashtra v. Keshao Vishwanath Sonone [(2021) 13 SCC 336], the Supreme Court ruled that it cannot order Judicial intervention that affects the alteration in, by inclusion, substitution, or exclusion of any caste or tribe. It ruled that:

“The Court cannot declare synonyms of Scheduled Castes or Scheduled Tribes or parts or groups thereof mentioned in the Order/Act as being covered by the same.”

If any state does that, such an action of the state will not have constitutional sanction. This Supreme Court has, in Sunil Kumar Rai v. State of Bihar [2022 SCC OnLine SC 232], held that the State Government has no basis to take it upon itself to issue a notification that approves the awarding of Scheduled Tribe Certificates to a community that was not included in the list. Parliament is empowered in sub-Article (2) to include or exclude from the list. Imposing 5 lakhs cost on the state, this Court observed: –

“The question is whether a person who is not a Scheduled Tribe under the Presidential notification is entitled to get the status of a Scheduled Tribe. The Presidential notification was unequivocal. It is clear that if a Presidential notification does not contain any specific class or tribe or a part thereof, then as held by this Court, it would be for Parliament to make necessary amendments in Article 342(2) of the Constitution. It is not for the executive Government but for the Court to interpret the rules and construe as to whether a particular caste or a tribe or a part or section thereof is entitled to claim the status of Scheduled Tribes.”

Thus, there is a settled position of law and as law laid down by the Supreme Court of India in the cases of Bhaiyalal v. Harikishan Singh [AIR 1965 SC 1557], B. Basavalingappa v. D. Munichinnappa [AIR 1965 SC 1269], Nityanand Sharma v. State of Bihar [(1996) 3 SCC 567], State of Maharashtra vs Milind & Ors, [(2001) 1 SCC 4], SUNK KUMAR RAI & ORS. Vs THE STATE OF BIHAR & ORS., W.P. (C) NO. 1052 OF 2021 dated 21.02.2023 and DR. BHIM RAO AMBEDKAR VICHAR MANCH BIHAR, PATNA VERSUS THE STATE OF BIHAR & ORS., CIVIL APPEAL N0.18802 OF 2017 dated 15.07.2024 and UNION OF INDIA & ORS. Vs ROHIT NANDAN, CIVIL APPEAL NO(S). 14394 OF 2024 that the state can't include or exclude, synonyms, tinker or temper the lists of Scheduled Castes (SCs) and Scheduled Tribes (STs) under Article 341 and Article 342 of the Indian Constitution.

E. Inclusion of Pasmanda Muslims and Dalit Christians Under the List

There is currently a pending petition before the Supreme Court of India concerning broader issues in Civil Appeal Nos. 329-330 of 2004 (Ghazi Saaduddin v. State of Maharashtra through Secretary & Ors.). The primary question in this case is the constitutional validity of granting reservations to communities based on religion, especially concerning Muslims and their socio-economic disadvantages in light of such sensitive perceptions.

To examine the legality and constitutionality of these requests, on 29 October 2004, the UPA government established the Minorities National Commission for Religious and Linguistic Minorities, led by Ranganathan Misra, a former Chief Justice of India. The commission recommends that 'the Constitution of India does not restrict the Scheduled Castes class to any select religion. However, the Supreme Court made it clear that in two cases, reservation can't be based on religion. This debate has to be solved by the Supreme Court of India since the list will be enhanced if minorities will be added and the percentage of reservation will same. However, one^[1] important intervention is there in a recent article argued that including minorities in the SC list is against the framers of the constitution of India: -

'''[C]lose re-examination of the CA (“Constituent Assembly”) Debates in the context of minority rights and SC/ST reservations has demonstrated clearly that since its conception in colonial India, accepted by the constitution-makers of post-colonial India, the SC list has never been envisioned.”'

F. UNCURABLE DISEASE AND VENTILATOR JUSTICE

There might be some valid individuals who bear the stigma of untouchability or fulfil the original list's ideal criteria, but for different reasons, they were excluded from the list established in 1950. However, the process of inclusion relies solely on parliament and thorough anthropological, and technical research; it cannot be determined mechanically or through any political influence. Due process is crucial in the Indian parliamentary democracy. The question arises: what would happen if a state unlawfully added a case to the list and, after several years, the court nullified the notification? The subsequent inquiries have emerged:

1. What would be the outcome if an FIR is filed under the SC and ST Act and the court cancels the notification? If a person experienced custody due to that FIR, what compensation would be provided for the wrongful accusation?
2. Which caste might be illicitly included if they participate in MP, MLA, and Panchayat Elections based on that SC certificate?
3. What will happen to future job holders from illegally included castes who were appointed or qualified based on fraudulent SC certificates? And will the consequences of obtaining a promotion be based on the fraudulent certificate?
4. Is the state allowed to be pardoned for engaging in such motivated illegal actions that violate the Constitution?
5. A significant question still exists regarding what compensation will be provided to the original SC/ST individuals if the numerous jobs have been occupied by the illegal SC/ST holders? Should the individuals with “illegal certificate” benefits be reinstated into the Scheduled Castes Quota, and can all such members be accommodated?

These are some complex and uncurable situations created by the state. The Supreme Court of India also find difficulties to solve and cure these problems. In the case of Sunil Kumar Rai v. State of Bihar [2022 SCC OnLine SC 232], the court directed to pay the cost of 5 lakhs for illegally registering of FIR and quashed all criminal registered under SC and ST act, stating the following

“31…We direct that the respondent No. 1 shall pay costs in the sum of Rs. 5,00,000/- (Rupees Five Lakhs) which shall be done within a period of one month from today and the respondent shall produce proof of the payment of the costs by production of the receipt of the same within a period of six weeks from today…”

After the complications, there could be more than one lakh, according to data being prepared by the State of Bihar. As instructed by the Indian Supreme Court, that may be advertised shortly. Recently supreme court felt same problems while dealing of the case of DR. BHIM RAO AMBEDKAR VICHAR MANCH BIHAR, PATNA VERSUS THE STATE OF BIHAR & ORS., CIVIL APPEAL N0.18802 OF 2017 dated 15.07.2024 and UNION OF INDIA & ORS. Vs ROHIT NANDAN, CIVIL APPEAL NO(S). 14394 OF 2024.

“The State cannot be pardoned for the mischief done by it. Depriving the members of the Scheduled Castes covered by the lists under Article 341 of the Constitution is a serious issue. Any person not deserving and not covered by such list if extended such benefit for deliberate and mischievous reasons by the State, cannot take away the benefit of the members of the Scheduled Castes. Such appointments would under law on the findings recorded would be liable to be set aside.”

Thus, the Supreme Court of India also stated the following:

“directed be returned to the Scheduled Castes Quota and all such members of the “Tanti-Tantwa” community, who have been extended such benefit may be accommodated under their original category of Extremely Backward Classes, for which the State may take appropriate measures.”

However, the case of K. Nirmala v. Canara Bank, 2024 INSC 634, wherein the illegal certificate holders were granted protection despite the State Government notification treating them as members belonging to Scheduled Caste and Scheduled Tribe was withdrawn by the State Government after the decision of the Supreme exercising equity jurisdiction stands on a different footing and they can be distinguished on facts. Noting that long-standing appointments continued over a period of time, because of which the court felt, on equitable considerations, not to disturb the employment of the appellants therein.” But the promotion has been declined by the supreme court to the illegal certificate holder, the court noted in the judgement of UNION OF INDIA & ORS. Vs ROHIT NANDAN, CIVIL APPEAL NO(S). 14394 OF 2024

“15….. In view of the clear position of law, coupled with lack of equities based on the facts and circumstances of the case, we cannot direct continuation of the respondent on the basis of the illegal certification as Scheduled Caste.”

Thus, the illegal exercise of state, even can't be cured by the Supreme Court even using Article 142 of the constitution of India. In the case of High Court Bar Association, Allahabad vs State of U.P. & Ors., CRIMINAL APPEAL NO.3589 OF 2023 and Supreme Court Bar Association and Union of India, [1998] 2. S.C.R., the five-judge bench of the Supreme Court, held that Article 142 Doesn't Empower the Court to Ignore the Substantive Rights of Litigants, and there is legitimate right of original schedule caste. In the case of Chairman and Managing Director, Food Corporation of India and Ors. vs. Jagdish Balaram Bahira & Ors., (2017) 8 SCC 670 Powers vested in this Hon'ble Court vide Article 142 of the Constitution of India is also limited.

Hon'ble Court to exercise its powers under Article 142 to retain the appointments and promotions wrongly done under and by virtue of the impugned resolution dated 01.07.2015. However, the Supreme Court was perused with this Hon'ble Court's judgement in Chairman and Managing Director, Food Corporation of India and Ors. vs. Jagdish Balaram Bahira & Ors., (2017) 8 SCC 670 wherein the following question was raised before this Hon'ble Court:

“The present batch of cases then raises the fundamental issue as to whether such equities are sustainable at law and, if so, the limits that define the jurisdiction of the court to protect individuals who have secured access to the benefit of reservation in spite of the fact that they do not belong to the caste, tribe or class for whom reservation is intended”.

Considering the above issue at hand and taking into account judgements in the cases of Kumari Madhuri Patil, Milind among others, the Supreme Court held that:

“Administrative circulars and government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles. Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No government resolution or circular can override constitutional or statutory norms. The principle that the Government is bound by its own circulars is well settled but it cannot apply in a situation such as the present. Protecting the services of a candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, government circulars or resolutions cannot operate to their detriment.”

Furthermore, this Hon'ble Court finally concluded and held that:

“Though the power of the Supreme Court under Article 142 of the Constitution is a constitutional power vested in the court for rendering complete justice and is a power which is couched in wide terms, the exercise of the jurisdiction must have due regard to legislative mandate, where law such as Maharashtra Act 23 of 2001 holds the field.”

Thus, these problems can't be cured under article 141 of constitution of India.

SHOULD THE SUPREME COURT ISSUE A DIRECTION DECLARING ALL THE ILLEGAL CERTIFICATES CANCELLED?

In considering whether the Supreme Court should issue a direction to cancel all illegal certificates issued under the Scheduled Castes and Scheduled Tribes lists, the Court must balance the constitutional imperative of safeguarding the rights of the genuine beneficiaries with the practical realities of addressing widespread fraud and manipulation. The stakes are high—not just in terms of upholding the integrity of the constitutional provisions, but also in protecting the individuals who may have unknowingly been caught in the web of the State's actions. It is against this backdrop that the Court must carefully examine the legal and moral dimensions of its response to this issue.

The actions of the State cannot be construed as bona fide when they are in direct contravention of the constitutional provisions, nor can such actions be excused or overlooked. The State bears the full responsibility for any misdeeds perpetrated by it. The unlawful deprivation of individuals who are genuinely entitled to the benefits under the lists enumerated in Article 341 of the Constitution—specifically, the original Scheduled Castes—is a matter of grave constitutional concern.

The Court ought to look at the people who got the benefit and had SC/ST certificates issued in their name and whether it would be just to cancel their certificate. While doing so, it is essential that it is comprehended that the individuals are not at fault, but the state and cancellation of the certificates would result in a punishment for the individual and not the State.

Because of the contemporary situation, thousands of FIRs have been wrongfully registered, resulting in innocent citizens being wrongfully incarcerated. Despite these egregious actions, the Supreme Court has directed that the State prepare a comprehensive data set, estimating that the number of affected individuals may exceed one lakh. The Court further instructed that this information be made public shortly. However, can this truly constitute “complete justice”? The provisions of Article 142 of the Constitution, while granting the Supreme Court the power to pass decrees for the enforcement of its orders, do not encompass the full breadth of restitution owed to the affected parties. An apology, in this case, would be grossly inadequate to remedy the injustice inflicted upon the rightful holders of Scheduled Caste and Scheduled Tribe certificates. Whatever justice will be, it will be Ventilator justice.

In light of the urgency and the potential for further violations, the Supreme Court may need to issue binding guidelines to prevent any State from altering, tampering with, or adding to the lists of Scheduled Castes and Scheduled Tribes once they are published pursuant to the Presidential Order under Article 341. Such a list may only be amended by an Act of Parliament. This legal framework is reinforced by precedents such as Ashwini Kumar Upadhyay v. Union of India & Ors., W.P. (C) 1246/2020, where the Supreme Court upheld the prohibition on civil courts from registering suits challenging the ownership and title of places of worship and ordering surveys of disputed religious sites until further orders. In the same manner, the Court may consider further safeguards to ensure the integrity of the Scheduled Castes/Scheduled Tribes lists and prevent future manipulation.

Ultimately, the Court's decision will not only define the integrity of the Scheduled Castes and Scheduled Tribes lists but also shape the broader landscape of justice, where the protection of constitutional rights should never be compromised.

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1. Kumar, A. (2023). Exclusion of Pasmanda Muslims and Dalit Christians from the Scheduled Caste Quota. South Asia Research, 43(2), 192-209. https://doi.org/10.1177/02627280231161000 ↑

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