'Lohar Is Not Same As Lohara': Supreme Court Quashes Bihar Govt. Notification That Approved Issuance Of Scheduled Tribe Caste Certificates To Lohar Community

The Supreme Court quashed a notifications issued by Bihar Government that approved issuance of Scheduled Tribe Caste certificate to Lohar community.

"Lohar is not same as Lohara. Including Lohars alongside 'Lohara' is clearly illegal and arbitrary", the bench comprising Justices KM Joseph and Hrishikesh Roy observed.

The court noted that Lohars were not included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the OBCs in the State of Bihar.  It said that a person entitled to be treated as a member of Scheduled Tribe under Article 342, cannot be treated on par with a person who is brought in by an incompetent Body, viz., the State.

The court clarified that Lohara will continue to get the benefit vouchsafed for them under the Presidential Order.

Sunil Kumar Rai and others had approached the Apex Court challenging the notification issued by Bihar Government. They contended that the Lohar community in Bihar is not entitled to be treated as members of the Scheduled Tribe. They also submitted that, relying upon these certificates which were issued, proceedings have been initiated against them under the provisions of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities Act), 1989. In response, the State raised a technical objection that there is a delay of about five years in seeking protection under Article 32 of the Constitution as the impugned Notification was issued in the year 2016.

The bench, rejecting the preliminary objection, observed that the delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake.

The court then referred to judgments viz. Prabhat Kumar Sharma Vs. Union Public Service Commission And Others (2006) 10 SCC 587, Nityanand Sharma and Another vs. State of Bihar and Ors. (1996) 3 SCC 576,  Vinay Prakash and Others vs. State of Bihar and Others 1997 (3) SCC 406, and noted that the Court has categorically ruled that Lohars were not members of the Scheduled Tribe and they were members of the OBC in the State of Bihar. The bench observed:

"We are deeply anguished by the state of affairs which has been brought to our notice through the contents of the petition under Article 32. This is not a matter which has not engaged the attention of this Court, which as we have noticed has dealt with the issue on as many as three occasions. It has been clearly and unequivocally declared that Lohars are not members of the Scheduled Tribe and they are members of the OBCs. Under the principle of separation of powers, in the manner we have it under the Constitution, it becomes the duty and the right of the Courts to settle disputes. The Constitution, no doubt, has given powers  to the other organs of the State. When it comes to taking decisions which affect the rights of the citizens, it is the paramount duty of the Executive to enquire carefully about the implications of its decisions. At the very minimum, it must equip itself with the law which is laid down by the Courts and find out whether the decision will occasion a breach of law declared by the highest Court of the land. This is a case where we have noticed an unbroken line of reasoning and decisions as noticed in the three judgments which we have referred to. This Court has also pronounced on the aspect of the English language prevailing over the Hindi version, if there is a conflict."

While allowing the writ petition, the bench observed:

We cannot at all, approve this approach which at the very minimum betrays total non-application of mind which, in turn, leads to an inference that it has been arrived in an arbitrary manner. Thus, it attracts the wrath of Article 14 of the Constitution. This, in turn, justifies the approach of the 24 petitioners under Article 32 of the Constitution.

The court also directed the state to pay costs of Rupees Five Lakhs to the petitioners.

Headnotes

Summary : Writ Petition Challenging Bihar Government notification approving issuance of caste certificate to Lohar community - Allowed -  Lohars were not included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the OBCs in the State of Bihar - Lohar is not same as Lohara. Including Lohars alongside 'Lohara' is clearly illegal and arbitrary - State to pay costs of Rs. 5 Lakhs to the petitioners.

 Constitution of India, 1950 - Article 32 - Delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake. (Para 9)

Constitution of India, 1950 - Article 32 - The court has power of grant of compensation in the case of violation of Fundamental Rights. (Para 29)

Constitution of India, 1950 - Article 32 - Ordinarily, the Court may insist on a cause of action and therefore, a person must be an aggrieved party to maintain a challenge - A person cannot be said to be aggrieved merely upon the issuance of an instrument or of a law by itself. In fact, the Court may refuse to examine the legality or the validity of a law or order on the basis that he may have no locus standi or that he is not an aggrieved person. No doubt, the Courts have recognized challenge to even a legislation at the hands of a public interest litigant. (Para 9)

Constitution of India, 1950 - Article 32 - In a given case, the Court may refuse to entertain a petition under Article 32 of the Constitution is solely a part of self-restraint which is exercised by the Court having regard to various considerations which are germane to the interest of justice as also the appropriateness of the Court to interfere in a particular case. The right under Article 32 of the Constitution remains a Fundamental Right and it is always open to a person complaining of violation of Fundamental Rights to approach this Court. This is subject to the power of the Court to relegate the party to other proceedings. (Para 7)

Constitution of India, 1950 - Article 14 - Right to equality. The right against unfair State action is part of Article 14. Unequals being treated equally is tabooed under Article 14 of the Constitution. (Para 8)

Constitution of India, 1950 - Article 21 - While liberty is a dynamic concept capable of encompassing within it a variety of Rights, the irreducible minimum and at the very core of liberty, is freedom from unjustifiable custody. (Para 8)

Constitution of India, 1950 - Article 342 - Scheme - Manner in which the members of the Scheduled Tribe are to be recognised - Power with the President after consultation with the State to specify the Tribes which are to be treated as Scheduled Tribes in that State or the Union Territory as the case may be. Parliament is empowered to include or exclude from the list. (Para 12)

Constitution of India, 1950 - Article 342 - A person entitled to be treated as a member of Scheduled Tribe under Article 342, cannot be treated on par with a person who is brought in by an incompetent Body, viz., the State in the manner done.  (Para 8)

Constitution of India, 1950 - Article 141 - Executive Decisions -  When it comes to taking decisions which affect the rights of the citizens, it is the paramount duty of the Executive to enquire carefully about the implications of its decisions. At the very minimum, it must equip itself with the law which is laid down by the Courts and find out whether the decision will occasion a breach of law declared by the highest Court of the land - Respect for the decisions of the Courts holding the field are the very core of Rule of Law. Disregard or neglecting the position at law expounded by the Courts would spell doom for a country which is governed by the Rule of Law (Para 22, 23)

Case : Sunil Kumar Rai vs State of Bihar | WPC 1052 OF 2021 | 21 Feb 2022

Citation: 2022 LiveLaw (SC) 219 

Coram: Justices KM Joseph and Hrishikesh Roy

Counsel: Adv S K Rai for the petitioners, Sr. Adv Ranjeet Kumar, Adv Azmat Hayat Amanullah for state

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