Is Affinity Test Integral To Determine Caste Status? Supreme Court Commences Hearing On Reference

The sub-stratum of the appellants’ argument was that though not alien to the process of caste status determination, the affinity test has corroborative value. The Senior Counsels and Counsels appearing on behalf of the appellants, averred that the affinity test is not the litmus test and cannot supplant the documents on record.

Reference

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

The reference order in the batch of petition was taken up, on Wednesday, by a Bench comprising Justice S.K. Kaul, Justice A.S. Oka and Justice Manoj Misra.

Why the reference?

The Shilpa Vishnu Thakur v. State of Maharashtra And Ors., the question before the Full Bench of the Bombay High Court was the standards which have to be applied in determining if an applicant belongs to a designated Scheduled Tribe. The Full Bench was of the opinion 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, inter alia, held that the affinity test ought not to be regarded as 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 there is variation in parameters to be applied by the Scrutiny Committee in determining the correctness 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 appellants

Senior Advocate, Mr. Shekhar Naphade, representative appellants in one of the petitions, at the outset, took the Bench through the reference order. He argued that primary importance ought to be assigned to documentary evidence as is evident from the scheme of the relevant status and rules. Referring to the judgment of the Supreme Court in Kumari Madhuri Patil v. Addl. Commissioner he submitted that it is widely accepted that entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Mr. Naphade referred to Direction 7 in the said judgment to demonstrate that in cases where there is no suspicion in relation to a caste certificate issued by the concerned authority no further action is required to be taken.

“....7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.”

Mr. Naphade also argued that SC & ST (Amendment) Act, 1976, that modified the Presidential Order under the Constitution of India, 1950, though comprehensive, does not define an affinity test.

Justice Oka stated that the statute does not lay down parametrs of enquiry by the Scrutiny Committee.

Agreeing to the same, the Senior Counsel submitted that the statute only contemplates an enquiry, but the Rules deal with pre-constitution documents; validity of the caste certificate of a near relative, vigilance report etc.

He added -

“We are not saying the affinity test is irrelevant, but in our submission it is not the litmus test…In modern times, the affinity test is going to be a very weak test.”

To substantiate the same, he submitted that if a person belonging to the Scheduled Caste and Scheduled Tribe community comes to a city from a remote place, they might lose touch with their culture and ceremonies, which are distinct. In all such cases, testing one’s affinity would not be the most effective in determining caste status.

He argued -

“Statutory scheme says the primary importance is of the documents. If documents satisfy the competent authority and also the scrutiny committee, provide a certificate.”

Justice Kaul enquired, “Your point is that 3 aspects are important for determination of caste. If one does not pass the affinity test, don't reject it as it is possible through other documents or certificates of their relatives to take a view on caste status. Have I understood you correctly?”

Responding in the affirmative, the Senior Counsel submitted -

“…the conclusion that the affinity test is sine qua non is not correct. It runs counter to the scheme.”

It was pointed out that in practice, in the garb of the affinity test, the Scrutiny Committee very frequently rejects caste certificates, depriving the certificate holder the rights recognised by the Constitution.

Justice Kaul was of the opinion that the validity of the caste certificate is made subject to the grant of validity certificate by the Scrutiny Committee, which is merely a second stage of the verification process.

“When the caste certificate is to be issued by the competent authority. Merely it is issued does not make it valid. There is something more. That something more is that it shall be valid subject to verification and grant of validity certificate by Scrutiny committee…purpose of Scrutiny Committee is second line of verification is done.”

The Judge noted that the preventive measures are to be in place to ensure that the people entitled to the benefits are the ones receiving it.

“.....Sometime back the CBI team was constituted. ⅓ of the certificates were fabricated, they said. ⅓ people who were entitled to the benefits were not getting it because people who were not supposed to get it were getting it by fabrication.”

Senior Advocate, Ms. V. Mohona appearing on behalf of some of the appellants submitted that the Apex Court has interpreted the Constitution (Schedule Case) order as ‘when a caste is mentioned in the presidential order then none of the State and/or other authorities can go into an enquiry of caste in those matters.’

Justice Oka reminded the Counsel that the issue in the reference order is very narrow.

“Real issue is whether the affinity test is an integral part of the Scrutiny committee. That is the only issue.”

Ms. Mohona argued that States are issuing Government Orders that are not in compliance with the statute and rules, to deprive the certificate holders of their rights.

Senior Advocate, Mr. Dhruv Mehra emphasized on the importance of documents as the primary form of evidence to establish caste. He argued -

“After the Act and the Rules, they have to go strictly by it. On a plain reading of the Rules, the rule making authority has given primary focus to the documents.…affinity may be corroborative, it is not alien to the exercise, but where it will be warranted is the question.”

He added -

“Affinity test should not be taken to such an extent that we obliterate the documents on record. It cannot supplant. Because this is what is happening. The Scrutiny Committee on the basis of the affinity test is ignoring the documents.”

Justice Oka, pointed out that the affinity test cannot be done away with, since in some cases where the documents are not available the applicants succeed only on the basis of the affinity test.

Senior Advocate, Mr. Sanjay Hegde submitted that the affinity test starts from a place of suspicion. Until and unless there is specific evidence that the documents are suspicious, the affinity test ought not to be undertaken. He argued that even if the documents are suspicious the applicant is required to be put to notice of the same, especially when their Constitutional rights are at stake.

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