IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6165 of 2003 For Approval and Signature: HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- SAMASTA GUJARAT RAJYA MOCHI SAMAJ Versus UNION OF INDIA THRO' SECRETARY -------------------------------------------------------------- Appearance: DR. RAJEEV DHAVAN, SENIOR ADVOCATE WITH MR. SHALIN MEHTA, ADVOCATE for the Petitioner - Trust MR. RAJU RAMCHANDRAN - ADDITIONAL SOLICITOR GENERAL for the Attorney General of India MR. KAMAL TRIVEDI, ADDL. ADVOCATE GENERAL WITH MR.SATYEN THAKKAR, ADDL. CENTRAL GOVT. STANDING COUNSEL for the Respondent Nos.1 and 4 MR.S.N.SHELAT, ADVOCATE GENERAL WITH MS.MANISHA LUVKUMAR, A.G.P. WITH MS. SHRUTI D. TRIVEDI, A.G.P. for the Respondent Nos.2 and 3 MR.PURVISH MALKAN, ADVOCATE for MR.JITENDRA MALKAN, ADVOCATE, for the Respondent No.5 MR.S.V.PARMAR, ADVOCATE with MS.PREETI S. PARMAR, ADVOCATE for the Respondents Nos.6, 7, 8 and 12 MR.MUKTESH V. PATEL, ADVOCATE for the Respondent No.9 MR.S.V.BACHANI, ADVOCATE for the Respondent No.10 MR.D.P.JOSHI, ADVOCATE for the Respondent No.11 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA Date of decision: 05/02/2004 ORAL JUDGEMENT :: CONTENTS :: * Brief facts and pleadings : Paragraphs 2 to 5 * Arguments and citations : Paragraphs 6 to 12 * Reasoning : Paragraphs 13 to 27 * Conclusions : Paragraph 28 * Final Order : Paragraphs 29 & 30 (Per : HON'BLE MR.JUSTICE R.K.ABICHANDANI for the Court) 1. The petitioner seeks to challenge the validity of the Constitution (Scheduled Castes) Orders (Second Amendment) Act, 2002, to the extent that it excludes `Mochis' outside Dangs district and Umargaon Taluka of Valsad district in the State of Gujarat from the Schedule 1 to the Constitution (Scheduled Castes) Order, 1950, on the ground that the provisions excluding them were violative of Articles 14, 16, 19 and 341 of the Constitution of India, and a declaration is sought that Entry 4 in Part IV relating to Gujarat of the Schedule to the Constitution (Scheduled Castes) Order, 1950, as amended by the Constitution (Scheduled Castes) Orders (Second Amendment) Act, 2002, is unconstitutional, null and void to the extent the said Entry 4 de-recognises and de-specifies `Mochis' outside of Dangs district and Umargaon Taluka of Valsad district from the notified list of Scheduled Castes. Brief facts and pleadings : 2. The petitioner is a public trust registered under the provisions of the Bombay Public Trusts Act, 1950, said to be representing the entire Mochi community of Gujarat, as averred in paragraph 2 of the petition. According to the petitioner, in the year 1976, by enactment of the Scheduled Castes & Scheduled Tribes Orders (Amendment) Act, 1976 (hereinafter referred to as `the Amendment Act of 1976', the entire Mochi community of Gujarat was specified as Scheduled Caste by the Parliament by removing the area restriction which was causing great difficulties to the members of this community in the areas where they had not been so specified. The case of the petitioner is that this was done, because, there was no discernible or real difference between the Mochis of Dangs district and Umargaon Taluka of Valsad district on one side, and the Mochis residing elsewhere in Gujarat on the other, as both were following unclean pursuits by working with hides and skins of animals. Since both the groups were socially, economically, educationally and culturally similar, the discrimination was removed by the Parliament. According to the petitioner, as per the findings of the Baxi Commission, the entire Mochi community in the State of Gujarat was a depressed class which ought to have been specified as Scheduled Caste. 2.1 The inclusion of the entire Mochi community in the Schedule 1 to the Constitution (Scheduled Castes) Order, 1950 (hereinafter referred to as `the Order of 1950') by the Amendment Act of 1976, came to be challenged by the Gujarat Dalit Civil & Constitutional Rights Pratipadan Samiti and others, by filing Special Civil Application No.3432 of 1985 on the ground that the said Act was ultra vires Articles 14 and 341(2) of the Constitution. That petition was contested by the State Government by contending that the Baxi Commission, had come to the conclusion that the Mochi community was considered to be very low and had suffered all the disadvantages of having such social status and that the findings of the Baxi Commission showed that Mochi community was required to be recognised by Parliament as Scheduled Caste. 2.2 The Division Bench, by its judgement and order dated 27-11-1987, in the case of Gujarat Dalit Civil & Constitutional Rights Pratipadan Samiti v. Union of India & ors., reported in 29(1) GLR 290, observing that the object and reasons for treating the Mochi community of the whole of Gujarat as Scheduled Caste was to remove the area restriction for a particular community which was otherwise treated differently in different areas in the same State and to remove the hardship that was experienced by the community in social relations between them simply because they resided in different areas of the same State, held that the wisdom of the Parliament in enacting the impugned legislation (Amendment Act of 1976), cannot be questioned since it was made after getting the report of the Commission in consonance with the provisions of Article 341 of the Constitution. Special Leave Petition filed against that decision under Article 136 of the Constitution (Special Leave Petition No. 2151 of 1998) came to be dismissed, as withdrawn. According to the petitioner, right from the date of inclusion of the entire Mochi community in the Schedule to the Order of 1950, there had not been any discernible and real change in the social and cultural status of Mochis outside of Dangs district and Umargaon Taluka of Valsad district, and that most of the Mochis in Gujarat were engaged in the work which was considered to be untouchable. The Parliament, by the impugned Amendment Act of 2002, amended the Constitution (Scheduled Castes) Order, 1950, by amending the Entry 4 of Schedule I and re-imposed area restriction for Mochi community by specifying only Mochis of Dangs district and Umargaon Taluka of Valsad district as Scheduled Caste and thus, despecifying or derecognising Mochis of other areas of Gujarat from the list of Scheduled Castes. Consequent upon the change effected by the impugned Amendment Act of 2002, the resolution dated 18-2-2003 was passed by the Government of Gujarat providing that all certificates of Scheduled Castes issued to the Mochis of such other areas were to be treated as cancelled. According to the petitioner, the impugned provisions cause discrimination amongst those who are similarly situated by imposing unwarranted area restriction and violate the provisions of Articles 14, 15, 16, 19(1)(d) & (e) of the Constitution. 2.3 It was also contended that no exercise of appointing a Commission and considering its recommendation, as was undertaken prior to the Amendment Act of 1976, was undertaken by the Parliament before imposing the area restriction by the impugned Amendment Act of 2002. No Commission was appointed to re-examine the list of Scheduled Castes and without there being any finding of either the National Commission for the Scheduled Castes & Scheduled Tribes or any other Commission that the Mochis of Dangs district and Umargaon Taluka of Valsad district were more depressed than the Mochis elsewhere in Gujarat and without following the procedure laid down in Article 341 of the Constitution, the Parliament had sought to restore the position prevailing in 1950 in respect of Mochis in the State of Gujarat, which amounts to colourable exercise of the legislative power by the Parliament in contravention of Article 341(2) of the Constitution. 3. The Union of India contested the petition by filing an affidavit-in-reply of the Director, Ministry of Social Justice and Empowerment, Government of India, contending that the petition was not maintainable in view of the ratio laid down in a catena of decisions of the Apex Court to the effect that the Scheduled Castes Order has to be applied as it stands and no inquiry can be held or evidence let in to determine whether or not some particular community falls within it or outside it, and that, no action to modify the plain effect of the Scheduled Castes Order, except as contemplated by Article 341 was valid. Clause (2) of Article 341 does not permit anyone to seek modification of the said Order by leading evidence that the caste / tribe (A) alone is mentioned in the Order but caste / tribe (B) is also a part of caste / tribe (A) and as such, caste / tribe (B) should be deemed to be a Scheduled Caste. It is only the Parliament that is competent to amend the Orders issued under Articles 341(1). It was contended that the Amendment Act of 1976 generally sought to remove the area restrictions, as was evident from the fact that area restrictions of approximately 704 communities in several States, including Gujarat, were sought to be removed save and except such communities where the Joint Select Committee did not recommend removal of area restriction. It is stated that, after the year 1976, consistent efforts were made for comprehensively modifying the list of Scheduled Castes and Scheduled Tribes pursuant to the proposals received from various State Governments from time to time, and the matter was considered by a Group of Ministers during the period from 1986 to 1988. After the Amendment Act of 1976, the respondent No.1 Union of India had received various representations from the State of Gujarat to the effect that the Mochi community in the State, except Dangs district and Umargaon Taluka of Valsad district was never suffering from disability of untouchability, and that, this community was far advanced as compared to the other Scheduled Castes community in the State. In the year 1993, an Advisory Committee was also set up for considering comprehensive modifications in the list of Scheduled Castes and Scheduled Tribes pursuant to the proposals received by the Government for modification of the list of Scheduled Castes in various States as well as Union Territories. The Government of India, in June 1999, had approved and finalized the modalities for deciding inclusion, exclusion and / or other modifications in the list of Scheduled Castes and Scheduled Tribes which involved adherence to the following steps : (A) The proposal is first recommended by the concerned State Government / Union Territory Administration. (B) The proposal is then recommended by the Registrar General of India (RGI) (Census Commissioner). (C) the proposal is then further required to be recommended by the National Commission for Scheduled Castes & Scheduled Tribes (NCSCST). (D) After the proposal is recommended by the above three agencies, it is sent for inter-ministerial consultation and then placed before the cabinet. (E) After the Government approves it, the proposal is put up in the form of a Bill in the Parliament for consideration and passing. (The modalities as revised on 25-6-2002 are at Anenxure "I" to this affidavit-in-reply.). The Constitution (Scheduled Castes) Orders (Amendment) Bill, 2002 before being passed by the Parliament was referred by the Honourable Speaker, Lok Sabha to the Standing Committee on Labour and Welfare for examination and report on 31-8-2001, and the Standing Committee of the Parliament after deliberating on the said issue subsequently gave its report and agreed to the proposals as contained in the Bill in its entirety. The Bill was passed and it received Presidential assent on 17-12-2002. According to the Government of India, on account of changed circumstances after 1976 and additional material including the subsequent proposals as received from the State Governments, the Parliament is not inhibited from exercising the power as envisaged under Article 341(2) of the Constitution, and that the modification done by the Amendment Act of 2002 was justified in view of the proposals received by the respondent No.1 from the State of Gujarat (as per Annexure II collectively. to the affidavit-in-reply), for conferring the Scheduled caste status on the Mochi community of Dangs district and Umargaon Taluka of Valsad district. Therefore, the question of the Amendment Act of 2002 being in contravention of the earlier decision of the High Court rendered in the context of the Amendment Act of 1976 did not arise. It is contended that, in a given set of circumstances, the Parliament would be justified in recognizing the Scheduled Caste status for a particular community or a group within a particular community within a particular State, and that the concept of area restriction for particular Scheduled Castes of particular States has been recognized and has been in existence ever since past 53 years since the promulgation of the Constitution (Scheduled Castes) Order, 1950 and is not a new concept introduced by the Amendment Act of 2002. From the Statement of Objects and Reasons to the Constitution Scheduled Castes Orders (Amendment) Bill 2001, it is pointed out that the request of the State Governments for removing anomalies in the list were considered and the requests were processed as per the modalities approved by the Cabinet Committee on the Scheduled Castes, the Scheduled Tribes and Minorities on 15th June 1999, and after consultation with the State Governments / Union Territory Administrations, the Registrar General of India and the National Commission for the Scheduled Castes and the Scheduled Tribes, the list of Scheduled Castes was proposed to be amended for 18 States and Union Territory Administrations in respect of 81 communities. It is stated that, thus, the Amendment Act of 2002 was enacted after an elaborate inquiry and recommendation of the State Government and after due adherence to the modalities culminating in the final assent of the President and the same cannot, therefore, be questioned before the High Court in view of the well settled law. It is contended in paragraph 6(C) that it is only after a detailed examination of the relevant aspects, such as, social, economic, educational backwardness as well as the traditional practice of untouchability as prevailing in the various regions at various levels that the said area restriction was re-imposed by the Parliament and brought into force with the assent of the President. It is admitted that both the groups of Mochis were equally backward, but contended that the fine line of distinction between the two groups was that though the entire Mochi community had been given the status of backward class, the Scheduled Caste status had been conferred only on Mochis of Dangs district and Umargaon Taluka of Valsad district. As regards the Baxi Commission Report, it was contended that it was only an exercise undertaken by the State Government prior to the Amendment Act of 1976. The State Government, had subsequent to that Amendment, made numerous proposals to the respondent No.1 for modification of the entry by re-introducing the area restriction as it prevailed prior to the Amendment Act of 1976. It is contended that the Parliament was empowered to modify the list of Scheduled Castes despite the Baxi Commission report if on account of the subsequent changed circumstances, the modification was necessitated and that the Mochi community was not entitled to seek the status as Scheduled Castes perpetually. 3.1 The modalities for deciding inclusion and exclusion in the list of Scheduled Castes and Scheduled Tribes are annexed at Annexure I to the affidavit-in-reply, as per which it is required that the proposals are to be processed by referring the cases favoured by both the State Governments and Registrar General of India, in their most recent reports, to the National Commission for Scheduled Castes and Scheduled Tribes for their opinion and the Commission, while examining these cases is required to associate through panels or other means, expert individuals, organizations and institutions in the fields of anthropology, ethnography and other social sciences, in addition to the State Governments, R.G.I. and the Anthropological Survey of India, on a regional basis. They may also consider holding public hearings in areas relevant to the claims under examination. It was made clear that these guidelines may not be binding on the Commission, but may be suggested in the interest of fuller examination of the cases. The claims for inclusion or exclusion or other modifications that neither the R.G.I. nor the concerned State Governments have supported were not to be referred to the National Commission and were required to be rejected at the level of the Ministers for Social Justice and Empowerment. 4. The State of Gujarat and the Director of Social Welfare Department, Government of Gujarat (respondents Nos. 2 and 3) have, in their affidavit-in-reply, contended that Mochi community is found in almost all districts in Gujarat, and the people "who are engaged in the trade or manufacturing of footwear" are called Mochi. Their occupation is to make shoes by hands from hides. The manufacturing of shoes is done by using processed hides and by purchasing raw hides and after processing them. It is pointed out that the Government of erstwhile Bombay State constituted a Committee on 5th November 1928, under the Chairmanship of Shri O.H.B.Starte and other members, including Dr.B.R.Ambedkar, for the purpose of inquiring into the educational, economic and social conditions of the depressed classes, "untouchables" and of the aboriginal tribes, in the Presidency and recommend measures for their upliftment. On the basis of the report of that Committee, the Mochi community residing in the Gujarat area of Bombay Presidency was not specified as Scheduled Caste in the list prepared by the Government of India in 1935 and attached to the Orders-in-Council issued under the Government of India Act, 1935, which was referred to as the Government of India (Scheduled Castes) Order, 1936. In that report, at entry No.31, it was mentioned that "Mochis" were being treated as untouchables except in the State of Gujarat. Further, "Mochi" caste was included at entry No.59 in the list of Other Backward Class in Schedule No.3 by stating that it was "touchable" in Gujarat and "untouchable" elsewhere. It is also pointed out that the Committee constituted by the erstwhile Bombay Government to survey the industry of skinning and tanning the hides in Bombay State by resolution dated 28-5-1959, in its report stated that, in Gujarat region, the Mochis are engaged in leather products and that they are not "untouchables" in Gujarat. In the year 1960, on bifurcation of bilingual State of Maharashtra and Gujarat, the Umargaon Taluka and Dangs district became parts of State of Gujarat and since these were amongst the 14 districts in the entire State of Bombay wherein Mochi community was specified as Scheduled Caste, as per the Order of 1950, the Mochi community residing in these two areas continued in the list of Scheduled Castes in Gujarat. The erstwhile Saurashtra Backward Class Board, Bombay State, Rajkot, after conducting a comprehensive research study of the Backward communities of Saurashtra, mentioned in their report, that : "Audichya Brahmins were the gor or priest of the Mochis who were invited by them to solemnise marriages. The Brahmins seek and receive gifts etc. from them in places like Kundala, Gadhada, Kutiyana etc." In 1976, the Government of Gujarat had constituted a Socially and Educationally Backward Class Commission under the Chairmanship of Hon'ble Mr. Justice A.R.Bakshi to make necessary recommendations after examining the socially and educationally backward class of people of Gujarat other than those belonging to the Scheduled Castes and Scheduled Tribes. The Baxi Commission, in its report submitted on 27-2-1976, stated that the social status of Mochi community appeared to be a little higher than that of Harijans. 4.1 It is contended that the Notification of the Amendment Act of 1976 came as a set back to the people of Scheduled Castes in entire State of Gujarat and many representations from the members of the Scheduled Castes of Gujarat were received by the Government regarding re-imposition of the area restriction in Gujarat which was prevailing before 1976 so that the benefits that were provided to the Scheduled Castes were not siphoned off by those relatively better of sections of the society who were not suffering from the practice of untouchability. After considering these representations, the Government of Gujarat proposed to the Government of India to reimpose the area restrictions under the communication dated 11th May 1977 alongwith the Report of the Director, on such representations, as per Annexure R-I collectively to the said affidavit-in-reply. The State Government strongly recommended to the Government of India to impose area restrictions, as per communications produced at Anenxure R-II collectively to the said affidavit-in-reply. It is also pointed out that the National Commission for Scheduled Castes and Scheduled Tribes made recommendations in the year 1980-81 in which it was stated that, according to the information made available to the Commission, the Government of Gujarat had proposed to the Government of India, in October 1977, the restoration of position of the "Mochi" community in the list of Scheduled Castes of Gujarat State, which obtained prior to enforcement of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, that is, the "Mochi" community be recognized as a Scheduled Caste only in the Dangs district and Umargaon Taluka of Valsad district and not in the entire State. The Commission reiterated this in its reports in the years 1986-87 and 1993-94. It is contended that the Constitution (Scheduled Castes) Order (Second Amendment) Act, 2002 does not violate any constitutional provisions, and that, under Article 366(24), a deeming fiction is created and once the Parliament had decided to exclude in the notification any caste as scheduled caste, the same cannot be questioned in the Court of law. it is the President who has been authorized to limit and specify, castes, races or tribes and may well come to the conclusion that not the whole caste, race or tribe, but parts or groups within them should be specified as scheduled caste. It is urged that thus, the wisdom of Parliament in making the Amendment Act cannot be subjected to any further interpretation, as extensive exercise had been undertaken by the Parliament and after considering several reports, the impugned Act was passed. It is also contended that, having regard to the recommendations by various Commissions, the "Mochi" community was brought under the category of socially and educationally backward class by resolution dated 27-5-2003 and therefore, the "Mochi" community residing in the rest of the State can avail of benefits intended for such class. 5. In the sur-rejoinder filed on behalf of the respondents Nos. 2 and 3, it has been contended that the Baxi Commission Report neither contains any recommendation to consider the "Mochi" community as a Scheduled Caste, nor does it recommend revocation of area restrictions in respect of Mochi community. In paragraph 3.2 of the said sur-rejoinder, the terms of reference of the Baxi Commission are re-produced for pointing out that it was required to report what section / sections of the castes, races, tribes etc. (other than the Scheduled Castes and Scheduled Tribes) should be treated as socially, educationally and in any other way backward and therefore, deserve the special treatment and grant of special concessions similar to those being granted to the Scheduled Castes and Scheduled Tribes in the State. It is contended that the Mochi community was not considered to be a Scheduled Caste in the State right from 1936 to 1976 and the anomaly arose when the Government of India removed the area restriction vide the Amendment Act of 1976 and as a result, the "Mochi" community was classified as a Scheduled Caste in the entire State. Such anomaly has been rectified through re-imposition of area restriction by the impugned Amendment Act of 2002. It is contended that the Baxi Commission was neither assigned the task of classifying the castes as Scheduled Caste