IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4878 of 2010 1. RAM KUMAR JHA, ADVOCATE, S/O LATE BUNNI JHA PRACTISING IN THE HIGH COURT AT PATNA, RESIDING IN 13, MITHILA COLONY, INDRAPURI, PATNA-800024. -------------Petitioner in person Versus 1. UNION OF INDIA REPRESENTED THROUGH THE SECRETARY TO THE GOVT. OF INDIA, DEPARTMENT OF PERSONNEL AND PUBLIC GRIEVANCES, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110001. 2. THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF WELFARE, SHASTRI BHAWAN, NEW DELHI-110001. 3. THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF LAW AND JUSTICE, LEGISLATIVE DEPARTMENT, NEW DELHI- 110001. ------------ Respondents 1st Party 4. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, SECRETARIAT, PATNA (BIHAR). -------------Respondent 2nd Party ----------- For the Petitioner :- In Person For the Respondents :- Siddhartha Prasad, AC to AAG-9 PRESENT : Hon’ble the Chief Justice Hon’ble Mr. Justice Mihir Kumar Jha O R D E R (19/05/2010) As per Mihir Kumar Jha, J. Heard Mr. Ram Kumar Jha in person and Mr. Siddhartha Prasad, learned Counsel for the State. 2. The prayer in this writ petition reads as follows:- “That this Writ petition is filed to declare the constitution (Scheduled castes) order, 1950 (C.O. 19) published with the Ministry of law Notification No. SRO. 385 dated the 10th August, 2 1950 gazette of India, Extra ordinary 1950, section 3 page 163, the substance of which is contained in Annexure-2 and the constitution (Scheduled Tribes) Order, 1950 (C.O.22) published with the Ministry of law Notification no.-S.R.O. 510 dated 6th September, 1950 gazette of India extra ordinary, 1950 Pt11 section 3 P. 597, substance of which is contained in Annexure-3 for the purpose of Article 341 (1) and 342(1) respectively of the constitution, ultravires, illegal and inoperative being repugnant to the provisions of Article 17 of the constitution, which abolished “untouchability” and forbade its practices in any form.” 3. Mr. Jha , a lawyer by profession, has claimed in paragraph no.2 of the writ petition he is also an active social worker committed to activities in the field of social welfare. 4. His whole grievance as projected in the aforesaid prayer and emphasized course of his submissions gets better reflected in the averments made by him in paragraph no.2 of the writ petition wherein he says that he “is by caste Brahmin and his sons could not be able to get jobs under the govt. of Bihar and/or central Government due to reservations made to the Scheduled Castes and Scheduled Tribes and is likely to be affected in future as his grandsons are not to be appointed under the Government for the said reason.” 5. It would, therefore, be manifest that the primal challenge of the petitioner to the power vested in the President of India under Article 341 & 342 of the Constitution of India as with regard to specifying the 3 castes, races or tribes to be included as scheduled castes and scheduled tribes for the purpose of the Constitution of India is based on his personal experience. In fact, when the petitioner has assailed the two presidential notifications, the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950 on the ground of its being violative of the provisions of Article 17 of the Constitution of India, it would be apt to first take into account the provision of Article 17 of the Constitution, which reads as follows:- “17. Abolition of untouchability. – “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.” 6. Though it would amount to actually pre-judging the issues raised in this writ petition without noticing the provision of Article 341 & 342 of the Constitution but then at the outset, it must be indicated as a prelude that in Part XVI of the Constitution of India under the heading “Special provisions relating to certain classes”, Articles 341 and 342 have been incorporated with an object to recognize the scheduled castes and scheduled tribes as a certain class for whom special provisions have been made in the Constitution. Thus, before noticing the provisions of Articles 341 & 342, it would be relevant to take note of that Article 330 which provides for reservation of seats for scheduled castes and 4 scheduled tribes in the House of the People (Lok Sabha). Article 331 similarly provides for representation of Anglo-Indian community in the House of People (Lok Sabha). Likewise in Article 332 provisions has been made for reservation of seats for scheduled castes and scheduled tribes in the Legislative Assembly of the States and Article 333 ensures representation of Anglo-Indian community in the Legislative Assemblies of the States. It is in this context that we may also take note of the provisions of Article 334 laying down the time span for reservation of seats and special representation. The framers of the Constitution in fact by providing special provisions for claims of scheduled castes and scheduled tribes to services and posts under Article 335 and for Anglo-Indian community in certain services under Article 336 as well as special provision with respect to the educational grants for the benefit of Anglo-Indian community had envisaged to uplift the downtrodden for their being given the true and perfect meaning of "Equality" as has been incorporated in the solemn declaration of the "People of India" in the preamble of Constitution. It is in this backdrop that under Article 338 of the Constitution a provision has been made for National Commission for Scheduled Castes. Article 339 postulates control of the Union over the administration of scheduled areas and the welfare of the scheduled tribes under Article 339. 5 7. Having so made provisions for scheduled castes and scheduled tribes and Anglo-Indians, the constitution framers under Article 340 of the Constitution have also incorporated a concept of appointment of a Commission to investigate the conditions of backward classes. It is only thereafter that Article 341 and 342 of the Constitution figures in Part XVI where the power of specification of the castes, races or tribes as scheduled castes and scheduled tribes has been vested in the President for its being exercised in the manner prescribed in those two Articles. In this context it is significant to note that Article 366(24) defines for the purpose of Constitution the expression "Scheduled Castes" to mean "such castes, races, or tribes or parts of or groups within such castes, races or tribes as deemed under article 341 to be Scheduled Castes for the purposes of this Constitution." Article 341 reads as follows :- 341. Scheduled Castes. – (1) The President [may with respect to any State [or Union territory], and where it is a State, after consultation with the Governor thereof], by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State [or Union territory, as the case may be]. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. 6 8. Similarly Article 366(25) also defines for the purpose of Constitution the expression "Schedule Tribes" to mean "such tribes or tribunal communities or parts or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this Constitution" Article 342 reads thus : - 342. Scheduled Tribes. – (1) The President [may with respect to any State [or Union territory], and where it is a State, after consultation with the Governor thereof], by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State [or Union territory, as the case may be]. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.” 9. The two impugned notifications, the Constitution (Scheduled Caste) Order, 1950 (Annexure-2) and Constitution (Scheduled Tribe) Order, 1950 (Annexure-3) are therefore only by way of exercise of power of the President specifying the list of the names of castes, races or tribes in relation to the States for its being deemed to be Scheduled Castes/Scheduled Tribes in the territorial jurisdiction of such states for giving effect to various beneficial provisions for the Scheduled Castes and Schedules Tribes defined under Article 366(24) and 366(25) respectively. Both the impugned presidential orders contain state-wise list which have not been produced as a whole in the writ petition by the 7 petitioner who has merely furnished the names of the castes, races or tribes for its being deemed to be Scheduled Caste-Scheduled tribe in the State of Bihar. 10. In the opinion of this Court, such impugned presidential orders by themselves cannot be even remotely be suggested to violate any provision of Article 17 of the Constitution of India, inasmuch as, Article 17 of the Constitution only aims at abolition of untouchability. It would be to naïve on the part of the petitioner, a well educated person as also a practicing advocate and a self-claimed social worker to even equate scheduled castes as untouchables or preparation of list of scheduled castes and scheduled tribes to be perpetuating the concept of untouchability. Article 17 of the Constitution has an altogether different meaning and purpose and infact when it was included in part-III of the Constitution under the heading of Fundamental Rights, the thrust actually was to deviate the society from blind and ritualistic adherence and traditional beliefs. The Apex Court in the case of State of Karnataka Vs. Appa Balu Ingale & Ors. reported in 1995 Suppl (4) SCC 469 while explaining the object of Article 17 of the Constitution has held as follows:- “-------Thus, the disabilities to which Dalits are subjected, have been outlawed and denial thereof offends the right to equality enshrined in Article 14 of the Constitution etc. These provisions also furnish evidence of sociology that Dalits have been 8 denied access to all the public means open to the general public and of public amenities. The practice of untouchability is the root cause for social segregation, denial of opportunities for educational, economic and cultural pursuits; Dalits are subjected to severe discrimination, disabilities, liabilities, prohibitions, restrictions or conditions etc. The scheme in Part III, namely, Fundamental Rights is to remove disabilities to which the Dalits are subjected to and to provide positive rights in their favour and Part IV directive principles fasten duties on the State to render socio-economic and political justice and to protect them from all forms of exploitation and injustice by operation of Article38 and Article 46 of the Constitution. In other words the Constitution charges the State to improve the quality of their life, social, economic and cultural pursuits as part of meaningful right to life guaranteed under Article 21 of the Constitution. The thrust of Article 17 and the Act is to liberate the society from blind and ritualistic adherence and traditional beliefs which lost all legal or moral base. It seeks to establish a new ideal for society – equality to the Dalits, on a par with general public, absence of disabilities, restrictions or prohibitions on grounds of caste or religion, availability of opportunities and a sense of being a participant in the mainstream of national life.----------” 11. It thus becomes clear that by providing Article 17 in the Constitution, the Constitution framers had sought to establish a new and ideal society, inasmuch as, the disability to which Dalits were subjected have been sought to be outlodged inasmuch as subjecting them to such disabilities by itself would be violative of fundamental rights under Part- III or directive principles in Part-IV of the Constitution. This Court, therefore, would fail to understand as to how the impugned presidential 9 orders with regard to identification and specification of the scheduled castes and scheduled tribes for each of the State can be held to be in teeth of the provisions under Article 17 of the Constitution of India so as to their being declared ultra-vires. 12. In the opinion of this Court, Article 17 which is part of the Fundamental Right guaranteed to the every citizen of India, is in no way at loggerheads with the provisions in Article 341 & 342 which only provide for laying down special provision relating to certain class. A conjoint reading of the provision of Constitution of India in fact would make it abundantly clear that when the people of India took a pledge in the preamble of the Constitution of India reading as follows :- “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the [unity and integrity of the Nation]; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.” a conscious attempt was made by the framers of the Constitution to guarantee Justice, Liberty, Equality and Fraternity to all its citizen irrespective of their caste, creed or sex 10 which in its fold also included such class of people who prior to independence of this country were not allowed to be assimilated in the social mileau on account of old dogmatic and ritualistic beliefs. 13. The fundamental rights guaranteed under part-III to every citizen had therefore sought to achieve those avowed goals for securing Justice Liberty Equality and Fraternity which are the four minimum requirements for achieving the goal of dignified life for any human. Thus, when untouchability was sought to be abolished, the earlier Dalit class which for countless period of time had been invariably denied Justice, Liberty, Equality and fraternity in ancient and midaeval India, was sought to be identified and that is how, this Court, would read Article 341 and 342 under Part XVI of the Constitution by way of making provision of those special class of people. A painful historical fact cannot be altogether obliterated that in this country even till independence in 1947 there were millions of such people who were treated as untouchables and they were required to be brought into the mainstream in post independence India because for them also there were the same Fundamental Rights including one under Article 14 ensuring Right to Equality. Thus, viewed from this angle, when a power has been vested in the President of India under Article 341 and 342 to specify the names of the caste, races or tribes as Scheduled Caste or Scheduled 11 Tribe, it cannot be even remotely said that the same runs contrary to the spirit muchless in teeth of the provisions made under Article 17 of the Constitution of India. We may in this context gainfully refer to a judgment of Madras High Court in the case of Pavadai Gounder & Ors. Vs. State of Madras & Anr. reported in AIR 1973 Madrass 458 wherein it was held that the use of word of Harijan historically associated with disability, any State act which aims at the improvement of the condition of their living, e.g. the provision for the acquisition of land to construct a colony for them is not violative of Article 17 on the ground that it would result in their seclusion and/or amount to protracting untouchability. 14. This Court would not like to go into the intricacies of the petitioner being a Brahmin by caste and his sons and grandsons not being able to get job in Government may on account of the presidential orders issued under Article 341 and 342, inasmuch as, under Article 16 of the Constitution ensuring equality of opportunity in the matters of public employment and prohibiting discrimination on the ground of religion, race, caste, sex, descent, place of birth, residence or any of them, there is a specific provision under Article 16(4) of the Constitution enabling the State to make any provision for the reservation of appointment or posts in favour of any backward class of citizen which, in the opinion of the State, is not adequately represented in the services 12 under the State. This provision under Section 16(4) if read with the provision of Article 15(3) (4) & (5) while carving out a class for an otherwise complete prohibition of discrimination on the ground of religion, caste, sex or place of working by themselves would be a complete answer to the misconceived notion of the petitioner that the provision for reservation for scheduled castes and scheduled tribe in public employment or otherwise in any other sphere flow from the provisions of Article 341 & 342 of the Constitution. 15. We may infact only appreciate the foresightedness of the framers of the Constitution who had not only made provisions for reservation in favour of the scheduled castes and scheduled tribes but also for weaker sex i.e. the women and the future generation i.e. the children. In fact, when the Constitution has itself envisaged for making special provision for advancement of any socially and educationally backward class of citizen and for the scheduled castes and scheduled tribes, it would be wholly illogical to misconstrue the provisions of two impugned presidential orders. 16. In the aforesaid background, the reliance placed by the petitioner on the judgment of the Apex Court in the case of The State of Madras Vs. Sm. Champakam Dorairajan & Anr. reported in AIR 1951 SC 226 is also wholly misconceived, inasmuch as, in that case an issue with regard 13 to the breach of fundamental right of the petitioners to get admission in to educational institution maintained by the State was sought to be assailed on the ground of reservation of discretionary allotment by the State and apportionment between the four distinct group of districts. The Apex Court in that context had held that the classification made in the Government Order is opposed to the Constitution but even then it was held therein that so long as there is no infringement of Fundamental Right as conferred by Part-III of the Constitution, there can be no objection to the State acting accordance with the directive principles set out in Part- IV to the legislative and executive powers and limitation conferred on the State under different provisions of the Constitution. One would fail to see the applicability of the ratio of the judgment of the Apex Court in the case of Champakam (supra) as with regard to the provisions made for scheduled castes and scheduled tribes either in the matter of their admission in educational institution or their employment in public service. One must however also take into account that the aforesaid judgment of the Champakam (supra) was rendered by the Apex Court on 9.4.1951 at a point of time when Article 15 did not contain its Clause(4). Infact it was by a fall out of the judgment of Apex Court in the aforesaid case of Champakam (supra) that the Parliament by the Constitution (First Amendment) Act, 1951 had made an addition by 14 inserting Clause(4) in Article 15 of the Constitution which reads as follows :- “15(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.” 17. The aforesaid object of the amendment in the Constitution was in fact to override the decision of the Apex Court in the case of Champakam (supra) case. In fact, misplaced reliance of Champakam (supra) case in view of subsequent ammendment in the Constitution by way of insertion of Article 15(4) gets further whittled down and in fact obliterated on account of a further amendment in Article 15 by inserting sub-clause 5 by the Constitution (Ninety Third Amendment) Act, 2005, which reads as follows:- “15(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.” 18. Judged in this background, it would be difficult for this Court to hold that the two presidential orders are in teeth of Article 17 of 15 the Constitution and is ultra-vires. As the things stand today, it is only with a view to achieve the object of securing benefits of reservation for the Scheduled Castes and Scheduled Tribes in terms of different beneficial provisions in the Constitution of India that there was/is always a requirement for laying down and specifying as to who amongst the people were/are scheduled castes and scheduled tribes and that is how, the Presidential Orders issued way back in the year 1950 itself have remained sacrosanct till date, with time to time addition therein. 19. This Court in fact is amazed that the petitioner, an advocate appearing in person, seeks to draw strength from the ratio of the judgment of the Apex Court in the case of Kishorilal Hans Vs. Raja Ram Singh & Ors. reported in AIR 1972 SC 598 wherein the only question involved was as to whether the candidate contesting election to a constituency reserved for scheduled caste had fulfilled the condition precedent, namely, caste of the candidate must be recognized as scheduled castes in the constituency in which his name is entered in electoral role. The ratio of Kishorilal Hans (supra) in fact far from supporting the petitioner would go against him, inasmuch as, all that is said therein is that the person claiming benefit of scheduled castes in a particular area must have been declared to be scheduled castes under the presidential order. 16 20. For the same reason, the reliance placed by the learned counsel for the petitioner on the judgment of the Apex Court in the case of Marri Chandra Shekhar Rao Vs. The Dean, Seth G.S. Medical College & Ors. reported in 1990(3) All India Service Law Journal 18 is of no avail for assailing the two impugned presidential orders. The ratio of that judgment also is that a person recognized as a scheduled tribe in the State of his origin and birth would not necessarily continue to have the benefit or privilege or rights in his subsequent migrated state inasmuch as the petitioner in that case was a member of scheduled tribes of Andhra Pradesh though he was living in Maharashtra for ten years and therefore when he had sought privilege of scheduled tribe in the State of Maharashtra where his community was not included as a scheduled tribe in the presidential order, the Apex Court in that case had held that no such privilege could be enjoyed by the said petitioner in other State. One would fail to appreciate as to how that would by itself give a death blow to the presidential orders. Inclusion or exclusion of a particular caste, race or tribe in the presidential orders or its applicability