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      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 nor to make any recommendations in that regard.
      
      5.1	In  the  sur-rejoinder  filed  on  behalf  of the
      respondent No.1 - Union of India, it has been stated that
      the  National  Commission  for   Scheduled   Castes   and
      Scheduled   Tribes  had  discussed  the  issue  regarding
      re-imposition of area restriction for the Mochi community
      of Gujarat in the  list  of  Scheduled  Castes  in  their
      meeting  held  on  14-1-2000 and the Commission concurred
      with the State Government's  proposal  to  re-impose  the
      area  restriction  in  the  case  of  Mochi  community of
      Gujarat in the list of Scheduled  Castes  as  it  existed
      before 1976  i.e.    Mochi  community  in  Gujarat may be
      treated as Scheduled Caste only  in  Dangs  district  and
      Umargaon Taluka  of  Valsad  district.   Relying upon the
      decision of the Supreme Court in  Pankaj  Kumar  Saha  v.
      The Sub-Divisional Officer, Islampur and others, reported
      in 1996  (JT)  200  and  State of Maharashtra v.  Milind,
      reported in AIR 2001 SC 393,  it  is  contended  that  no
      inquiry  is at all permissible and no evidence can be let
      in for establishing that a particular caste  or  part  or
      group  within  caste or tribe is included in Presidential
      Order if they are not expressly included in it.    It  is
      also  contended  that in view of this settled position of
      law, the petitioner  is  not  justified  in  seeking  the
      production of  the  records,  etc.   for ascertaining the
      steps followed by the Commission as well as the Registrar
      General of India, once the Parliament has considered  and
      passed  the  Bill  after  the  said proposal had obtained
      sanctions /  concurrences  at  various  stages.    It  is
      pointed  out  that,  in  the  letters  received  from the
      Government of Gujarat on 11-5-77,  in  October  1981,  on
      14-5-1982,  22-8-1990 and 30-7-2001, repeated requests of
      were made for re-imposition of area restriction  in  case
      of Mochi  community  in  Gujarat.    The  proposal of the
      Gujarat Government was sent to the Registrar  General  of
      India  and  the  National commission for Scheduled Castes
      and Scheduled  Tribes  for  their  comments  as  per  the
      approved  modalities,  and  both the organizations agreed
      with the recommendations of the Government of Gujarat for
      the imposition of the area restriction  in  the  case  of
      Mochi community.  It is pointed out in paragraph 6 of the
      said   sur-rejoinder   that   the  Amendment  Bill,  2001
      explicitly  provided  that  a  number  of  requests  were
      received   from   the  Government  for  removing  certain
      anomalies in the list.  It is contended that there  is  a
      statutory   presumption   of   due  compliance  with  the
      procedure and the approved modalities and  therefore,  no
      contention can be raised by the petitioner that there was
      no material for including the area restriction in respect
      of Mochi  community.    It  is denied that the modalities
      approved were not in conformity with Articles 338 and 341
      of the Constitution.  It  is  reiterated  that  both  the
      groups  of Mochis are backward, however, the backwardness
      amongst the Mochis of Dangs district and Umargaon  Taluka
      of  Valsad  district  was  associated  with  the  age-old
      practice of untouchability and therefore,  untouchability
      was  considered  as a factor for inclusion in the list of
      Scheduled Castes.
      
      5.2	In the additional affidavit filed  on  behalf  of
      the  Union of India by the Director of Ministry of Social
      Justice & Empowerment, in answer to the grievance of  the
      petitioner  that  no  exercise / inquiry had preceded the
      enactment of the impugned Amendment Act of 2002, relevant
      correspondence / reports of the  National  Commission  as
      well  as the views of the Registrar General of India were
      produced, at Annexure "I" collectively to that affidavit,
      pointing out that the Registrar  General  of  India  had,
      after   referring   to  the  pros  and  cons,  ultimately
      recommended :     "   Taking   the   circumstances   into
      consideration,  there  would  be no objection to the area
      restriction being re-imposed in this case".  It  is  also
      pointed  out  that, on 31st March 1999, the Government of
      India  forwarded  the  recommendations   of   the   State
      Government  and  the  views  of  the Registrar General of
      India on re-imposition of area restrictions for the Mochi
      community of  Gujarat  to  the  National  Commission  for
      Scheduled   Castes  and  Scheduled  Tribes  inviting  its
      comments  as  required   under   Article   338   of   the
      Constitution of  India.    The  National  Commission  for
      Scheduled Castes / Scheduled Tribes, by its communication
      dated 25-1-2000, informed the Government  of  India  that
      the  issue was discussed in the Commission's meeting held
      on 14-1-2000 and the Commission concurred with the  State
      Government's  proposal  to re-impose the area restriction
      in the case of "Mochi" community of Gujarat in  the  list
      of Scheduled  Castes  as  listed  before 1976 i.e.  Mochi
      community in Gujarat may be treated  as  Scheduled  Caste
      only  in  Dangs  district  and  Umargaon Taluka of Valsad
      district.  Thereafter, the Government of India  sought  a
      clarification by its letter dated 2-7-2001 from the State
      Government,  whether the Mochi community will be included
      in the list of Other Backward Classes (OBC) for the other
      parts of the State, to which, the State Government sent a
      reply on 30-7-2001 that, after having examined the issue,
      the State  Government  had  decided  that  if  the  Mochi
      community  is  excluded from the list of Scheduled Castes
      in Gujarat State,  except  Dangs  district  and  Umargaon
      Taluka  of  Valsad  district, the Mochi community will be
      included in the list of Other Backward Classes (OBC) i.e.
      Socially and Educationally Backward Classes (SEBC) in the
      Gujarat State, except Dangs district and Umargaon  Taluka
      in Valsad   district.     The  Government  requested  for
      restoring the area  restriction  in  the  case  of  Mochi
      community as it existed prior to 1976.  It is pointed out
      that,  by communication dated 27-3-2000 sent by the State
      of Gujarat to the Government of India, it was  stated  in
      paragraph  4  that, till about the re-organisation of the
      States and the creation of a separate State  of  Gujarat,
      Mochi  community  was  considered  as  Scheduled Caste in
      certain specified areas of present Maharashtra State  and
      not in  the  then  Gujarat Division.  The reason for this
      was that, as indicated in the note, people  belonging  to
      Mochi   community   in  Gujarat  were  never  treated  as
      untouchables.  Since untouchability is the criterion  for
      deciding  whether  a particular community belonged to the
      Scheduled Castes or not, Mochis were never considered  as
      Scheduled  Caste  in the areas of the present day Gujarat
      till the time of the re-organisation of the States.    It
      is pointed out from the Report of the National Commission
      for  Scheduled  Castes  and  Scheduled  Tribes,  1993-94,
      attached to this affidavit that, as  per  paragraph  6.67
      thereof,  the  Commission  felt  that the removal of area
      restrictions in respect of certain  castes  /  tribes  in
      different  States  has  done  more  harm  to  the genuine
      Scheduled Castes & Scheduled Tribes  than  providing  any
      relief to  them.  In order to ensure that the benefits of
      reservation and  other  relaxations  /  concessions  made
      available  to  Scheduled  Castes  &  Scheduled Tribes are
      availed of only by genuine members of these groups  which
      were initially so specified in relation to certain areas,
      based on historical and social factors, the Government of
      India  should  review  the whole question to reimpose the
      area restrictions.
      
      5.3	The petitioner, in its rejoinders, has maintained
      its stand taken in the petition considering the averments
      made   by   the   authorities   in   their   replies  and
      sur-rejoinders.
      
      5.4	The respondent No.10, by affidavit-in-reply dated
      21st July 2003, has supported the petitioner's case.  The
      other respondents have opposed the petition and in  their
      affidavits,  they have raised various contentions besides
      the contentions raised on behalf of the respondents  Nos.
      1,  2  and  3  and  have also elaborately delved into the
      justification  of   imposition   of   area   restriction,
      contending  that,  the  Mochi  caste,  even  as  per  the
      inclusion under the Amendment Act of 1976, had  reference
      only  to  Mochis of Dangs district and Umargaon Taluka on
      the principle of affinity.  These  affidavits  have  been
      extensively   referred   to   by   the   learned  counsel
      representing those respondents and it will be unnecessary
      to re-produce their contents.
      
      Arguments and Citations :
      
      6.	It has  been  contended  by  the  learned  Senior
      Counsel  appearing  on  behalf of the petitioner that the
      legislative power of the Parliament under Article  341(2)
      of  the  Constitution  is  of  special  nature  hedged by
      special limits and considerations, and is not  a  plenary
      power.   When the Constitution reposes on any authority a
      special obligation, then  it  constitutes  power  coupled
      with duty.  The scope of judicial review in such cases is
      wider  than  what  is  available  in  the  context of the
      plenary legislation enacted by the Parliament.    It  was
      contended  that  the  aspect of judicial review of an Act
      enacted under Article 341(2) is quite different from  the
      question   of   considering  whether  a  section  of  the
      community falls within a notified scheduled  caste  which
      was like  the  process of blood grouping.  Therefore, the
      decisions  of  the  Apex  Court  laying  down  that   the
      inclusion  in  or  exclusion  from  the list of Scheduled
      Castes cannot be  ordered,  are  not  applicable  to  the
      nature  of challenge raised against the constitutionality
      of the impugned Amendment Act of 2002.    It  was  argued
      that  the  Supreme  court  in  those  cases never decided
      whether judicial review will lie, under  Article  14,  of
      the  Amendment Act passed by the Parliament under Article
      341(2), and that the cases decided by the  Supreme  Court
      were mostly  election  cases.   It was submitted that the
      extent of judicial review was wider in the context of the
      provisions of law made under Article 341(2)  and  it  was
      required  to  be considered whether the duty sought to be
      imposed was duly discharged.  It was submitted  that  the
      test laid down by the Apex Court in Barium Chemicals case
      (reported in AIR 1967 SC 295), for adjudging the validity
      of  administrative  action, was required to be applied in
      the present case.  It was submitted that, when direct and
      inevitable effect is on the fundamental  rights,  it  was
      not  enough  to  examine  whether  the  law  was facially
      correct, and special scrutiny was called for to find  out
      as  to  how  discerningly  the matter was examined by the
      concerned authority.    It  was  submitted  that  special
      powers require special considerations and majoritarianism
      is not  the answer in such cases.  Moreover, exclusion of
      a community, which is placed in  the  list  of  Scheduled
      Castes, will require a still greater scrutiny to find out
      whether  requirements  for  exclusion  are  met  and  the
      doctrine of proportionality is  not  violated.    It  was
      submitted   that,   prima   facie,   exclusion   requires
      justification  and   such   justification   has   to   be
      reasonable.    The   justification   should  be  anterior
      justification and there should be meaningful exercise  of
      powers in  that  context.   It was submitted that, in the
      present case, the question of social inequality of  Mochi
      caste was not addressed to by the State Government and it
      acted  only  as  a post office by sending the proposal to
      the Government of India.  It  was  contended  that  there
      were  no changed circumstances after the Amendment Act of
      1976 justifying reimposition of the area restriction  and
      mere   letters   darted   by  the  State  Government,  by
      themselves,  cannot  be  described   as   a   change   in
      circumstances.   It  was  also  submitted  that,  in  the
      affidavits, the respondent No.1 had described  Mochis  of
      other  areas  as equally backward and no material existed
      to show that any inquiry was made by the State Government
      indicative of any changed circumstances.    It  was  also
      submitted  that  there was nothing to show that there was
      any meaningful consultation with the Commission.  It  was
      then argued that the provisions of the impugned Amendment
      Act  were  discriminatory  in  effect and since law under
      Article 341 was a `law' within the Article 13(2), bar  of
      Section  341 was not a "judicial hands off", but was only
      for a limited purpose and  must  be  construed  as  such.
      Moreover,  the  purpose  of Article 341 and its amplitude
      were to be  read  alongwith  Articles  15,  16,  38,  46,
      243(D), 243(T)  and  Part  16  of the Constitution.  When
      read in this  light,  the  power  under  Article  341  is
      intended  to  achieve  the  constitutional  objective  as
      contra-distinguished from  mere  public  policy.      The
      constitutional  objective  is  to achieve a comprehensive
      social equality which itself was a part of  equality  and
      not an  exception  to  it.  Since the power under Article
      341 was coupled with duty, a  strict  scrutiny  test  was
      required  to  ensure  whether  in exercise of this power,
      there was an adequate mechanism in order to  examine  the
      issue  of  equality,  and  whether  the substantive issue
      pertaining to  equal  /  unequal  status  were  properly,
      adequately and meaningfully addressed.
      
      6.1	The  learned   advocate   on   record   for   the
      petitioner,  in  reply, supplemented the arguments of the
      learned Senior counsel,  by  contending  that  the  duty,
      while  exercising  the power under Article 341(2), was to
      ensure that there was an objective determination  of  the
      social  conditions  of  the caste before its inclusion or
      exclusion was  done.     This   exercise   of   objective
      determination  is  mandatory  for  the  observance of the
      golden principle underlying scheduling, that the eligible
      must get  and  the  underserving  excluded.    For   this
      purpose,  evidence  was  required  to be collected for an
      objective determination, and, then, there  would  be  the
      question  of  applying  the criteria for inclusion in the
      list of Scheduled Castes.  Such an exercise was  anterior
      to  the  proceedings  in  the  Parliament  and therefore,
      Article 122 of the Constitution had  no  play.    If  the
      exercise is missed, the duty is sacrified at the altar of
      power  and  the  exercise of power under Article 341 (2),
      without reference to the duty, becomes bad.   When  there
      is  no  prior  objective determination, there is no basis
      for exercising power under Article 341(2) and the  Courts
      can  always scrutinise whether an objective determination
      of social conditions of a caste has  taken  place  before
      any recommendation  of inclusion / exclusion is made.  If
      on such scrutiny the Court  concluded  that  it  was  not
      there, then the Court can hold that the Parliament had no
      basis  for  exercising  that power and the enactment was,
      therefore, arbitrary.    It  was  also   submitted   that
      historical  facts  could  not  have  been relied upon for
      enacting  the  Amendment  Act  of  2002,   because,   the
      Parliament  was  presumed  to  have known their existence
      even when the Amendment Act of 1976 was  passed  on  27th
      July 1977.  Moreover, the letters written after 27th July
      1977  by  the  State Government cannot come to the aid of
      the Union of India, because, they do not  amount  to  any
      changed circumstances.    No material to show any changed
      circumstances is brought on  record  and  therefore,  the
      impugned  Amendment Act of 2002 was an arbitrary exercise
      of power, violating the fundamental rights of the members
      of the Mochi community guaranteed by Article  14  of  the
      Constitution of India.
      
      6.2	In support of the above contentions, reliance has
      been  placed  by  the  learned  Senior  Counsel  for  the
      petitioner on the following decisions :
      
      
      [a] The   decision  of  the  Supreme  Court  in  H.H.
              Maharajadhiraja Madhav  Rao  Jivaji  Rao  Scindia
              Bahadur v.   Union of India, reported in AIR 1971
              SC 530, was cited to point out that, in paragraph
              115 of the judgement, the  Supreme  Court,  while
              considering   the  analogous  provisions  in  the
              Constitution  conferring  upon  the  President  a
              power  coupled  with  a  duty,  has  referred  to
              Articles 341 and 342 to specify scheduled  castes
              and scheduled tribes, and it was observed that if
              power  to  declare certain classes of citizens as
              belonging  to  Scheduled  Castes  and   Scheduled
              Tribes  includes  power  to  withdraw declaration
              without substituting  a  fresh  declaration,  the
              President  will  be destroying the constitutional
              scheme.  The power to specify may carry  with  it
              the  power  to withdraw specifications, but it is
              coupled with a duty to specify in a manner  which
              makes  the  constitutional  provisions operative.
              This would  mean  that  when  there  is  a  power
              conferred  to specify the Scheduled Castes in the
              context  of   the   other   provisions   of   the
              Constitution,  such as, Articles 330 and 332, the
              President  cannot  refuse  to  specify  Scheduled
              Castes,  because,  there  is a duty to specify in
              the  context  of  the  other  provisions  of  the
              Constitution  which  can  operate  only  when the
              Scheduled Castes are  specified  apart  from  the
              benefits which may be extended by virtue of other
              constitutional   provisions   to  those  who  are
              included in the Scheduled Castes.
      
      [b] Reliance  was  placed  on  the  decision  of  the
              Supreme  Court  in  Commissioner  of  Police   v.
              Gordhandas Bhanji, reported in AIR 1952 SC 16, to
              point  out  that,  in paragraphs 27 and 28 of the
              judgement, the Supreme Court, after referring  to
              the observations  of  Earl  Cairns  L.C.   in the
              House of Lords in  Julius  v.    Lord  Bishop  of
              Oxford, (1880)   5  A.C.    214,  held  that  the
              discretion vested in the Commissioner  of  Police
              under  Rule  250  had been conferred upon him for
              public reasons involving the convenience, safety,
              morality and welfare of the public at large.   An
              enabling  power of this kind conferred for public
              reasons and for the public benefit  was,  in  the
              opinion  of  the  Court,  coupled  with a duty to
              exercise it when the circumstances so demand.
      
      [c] The decision of the Supreme  Court  in  State  of
              Maharashtra v.    Milind  and others, reported in
              AIR 2001 SC 393, was cited with a view  to  point
              out  that  the ratio of the decision as reflected
              in paragraphs 27 and 35  of  the  judgement,  was
              that  no  enquiry  is permissible and no evidence
              can be let in, to find out and decide that if any
              tribe or tribal community or  part  of  or  group
              within  any tribe or tribal community is included
              within the scope and  meaning  of  the  concerned
              Entry in the Presidential Order when it is not so
              expressly  or specifically included, and that the
              decision did not lay down that no  constitutional
              challenge  can  be  raised  against  the law made
              under Article 341(2).
      
      [d] The decision of the Supreme  Court  in  Shri  Ram
              Krishna Dalmia  v.    Shri Justice S.R.Tendolkar,
              reported in AIR 1958 SC 538, was  cited  for  the
              proposition  that Article 14 protects all persons
              from discrimination by the legislative as well as
              by the executive organs  of  the  State  and  the
              `law'  as defined in Article 13 would include any
              notification or order.  Therefore, it is open  to
              a    person    aggrieved    to    question    the
              constitutionality of a notification.
      
      [e] The decision of the Supreme  Court  in  State  of
              Rajasthan v.  Rao Manohar Singhi, reported in AIR
              1954  SC  297,  was  cited  to point out that the
              Supreme Court, while holding that Section  8A  of
              the   United   State   of   Rajasthan   Jagirdars
              (Abolition of Powers) Ordinance (27 of 1948)  was
              in  clear contravention of the respondent's right
              under Article 14 of the Constitution and must  be
              declared  void,  observed  that there was no real
              and substantial distinction why the Jagirdars  of
              a  particular  area should continue to be treated
              with inequality as compared with the Jagirdars in
              another area of Rajasthan, and no rational  basis
              for  any  classification  or  differentiation had
              been made out.
      
      [f] The decision of the  Supreme  Court  in  Karimbil
              Kunhikoman v.    State of Kerala, reported in AIR
              1962  SC  723,  was  cited  for  the  proposition
              reflected  in  paragraph 24 of the judgement that
              the discriminatory nature of the provision has to
              be judged from the results that follow  from  it.
              It  was held that the results which followed from
              the double provision as to ceiling under  Section
              58  of  the  Kerala  Agrarian Relations Act, 1961
              fixing   the   ceiling   were   in    two    ways
              discriminatory.  The ceiling was fixed in Section
              58  by a double standard and over and above that,
              the  family  had   been   given   an   artificial
              definition   which  did  not  correspond  with  a
              natural family as known to personal law.
      
      [g] The   decision  of  the  Supreme  Court  in  Col.
              A.S.Iyer v.  V.  Balasubramanyam, reported in AIR
              1980 SC 452, was cited  to  point  out  that,  in
              paragraph 57 of the judgement, after referring to
              the observations of Justice Subba Rao in Lachhman
              Das v.  State of Punjab, [(1962) 2 SCR 353], that
              the   doctrine   of  classification  was  only  a
              subsidiary rule  evolved  by  courts  to  give  a
              practical  content  to  the said doctrine and the
              observations of Justice Bose in Bidi  Supply  Co.
              case,  [1956 SCR 267], to the effect that Article
              14 sets out an attitude of mind, a way  of  life,
              rather  than  a  precise  rule  of  law,  and  it
              embodied a general awareness in the consciousness
              of the people at large of something  that  exists
              and which is very real but which cannot be pinned
              down  to any precise analysis of fact save to say
              in a given case that it falls this  side  of  the
              line  or  that, proceeded to observe in paragraph
              58 that the constitutional goal was to break down
              inequalities  steadily  between  man   and   man,
              whether based on status or talent.  Masses of men
              have  suffered  so  long from social suppressions
              and environmental inhibitions and to deliver them
              out of such stratification and petrification came
              the message of social justice, blowing like winds
              of change, with a accent on distributive  justice
              ensured by the rule of real equal opportunity.
      
      [h] The  decision  of  the  Supreme  Court  in  Indra
              Sawhney v.    Union  of  India,  reported in 1992
              Supp.  (3) SCC 217, was cited to point out  that,
              in  paragraph  642  of  the  judgement, the Court
              observed that the doctrine of equality  had  many
              facets,  and that it is a dynamic and an evolving
              concept.  Its main facets, were  referred  to  in
              the  preamble  and  Articles  14  to 18 under the
              sub-heading "Right to equality" and the goal  was
              "equality   of   status   and   of  opportunity".
              Articles 14 to 18 must be understood  not  merely
              with  reference  to what they say but also in the
              light  of  the  several  Articles  in   Part   IV
              (Directive Principles   of  State  Policy).    In
              paragraph 764 of the judgement, the Supreme Court
              referred to its earlier decision  in  which  E.S.
              Venkataramiah, J.   opined that an examination of
              the question in  the  background  of  the  Indian
              social   conditions  shows  that  the  expression
              "backward  classes"  used  in  the   Constitution
              referred   only   to   those  who  were  born  in
              particular caste, or  who  belong  to  particular
              races  or  tribes  or  religious minorities which
              were backward.    It  will  be  seen   that,   in
              paragraph 855 of the judgement, the Supreme Court
              observed   that   the   directions  made  in  the
              judgement  for  constitution   of   a   permanent
              Commission     to     examine    complaints    of
              over-inclusion or  under-inclusion  obviated  the
              need of any such scrutiny by the Court.
      
      [i] The  decision  of  the  Supreme  Court  in  Indra
              Sawhney v.  Union of India, reported  in  (2000)1
              SCC  168,  was cited for the proposition that the
              inclusion of castes in Backward Classes cannot be
              done mechanically or  without  adequate  relevant
              data, nor can it be done for extraneous reasons.
      
      [j] The decision of the Supreme  Court  in  Union  of
              India v.  G.  Ganayutham, reported in (1997)7 SCC
              463, was cited to point out that, in paragraph 22
              of  the  judgement,  it was held that the statute
              can be struck down if the restrictions imposed by
              it  are  disproportionate  or  excessive   having
              regard to the purpose of the statute and that the
              Court can go into the question whether there is a
              proper balancing of the fundamental right and the
              restriction imposed.
      
      [k] The decision of the Supreme Court in M/s Teri Oat
              Estates (P) Ltd.   v.  U.P.  Chandigarh, reported
              in 2003 (10) SCALE 1016, was cited to  point  out
              that,  in  paragraph  47  of  the  judgement, the
              Supreme Court approvingly referred to  the  ratio
              of the  decision  in  State of Madras v.  V.G.Row
              (AIR 1952 SC 196) to the effect that the test  of
              reasonableness,  wherever  prescribed,  should be
              applied to each individual statute impugned,  and
              no   abstract  standard  or  general  pattern  of
              reasonableness can be laid down as applicable  to
              all cases.    The  nature of the right alleged to
              have been infringed, the  underlying  purpose  of
              the  restrictions imposed, the extent and urgency
              of the evil sought to be  remedied  thereby,  the
              disproportion  of  the imposition, the prevailing
              conditions at the time should all enter into  the
              judicial verdict.
      
      7.	The  learned  counsel  "representing" the learned
      Attorney General contended that the expression "Scheduled
      Castes"  was  defined   in   Article   366(24)   of   the
      Constitution   and  the  List  of  the  Scheduled  Castes
      published by notification of the President was a part  of
      that  definition and that the impugned Amendment Act only
      made a change in the definition of the  Scheduled  Castes
      by  excluding  the  Mochis in Gujarat of areas other than
      the areas of Dangs district and Umargam Taluka of  Valsad
      district.  The purpose of specifying the Scheduled Castes
      in  the  List by a Presidential notification issued under
      Article 341(1) was  merely  to  indicate  the  categories
      eligible for affirmative action and no more.  There is no
      right  to such affirmative action which can be claimed by
      the petitioner.  It was submitted that Articles 15(4) and
      16(4) were enabling provisions and no writ  will  lie  at
      the   instance  of  anyone  for  claiming  the  benefits,
      because, no semblance of right lies in a  person  who  is
      not in  List  of Scheduled Castes.  Also, when protective
      discrimination under Article 15(4) and 16(4) are  aspects
      of  the  right to equality under Article 14, it cannot be
      again pressed into service for a claim to be  chosen  for
      protective discrimination.    It was then contended that,
      assuming  that  Article  14  was  available   for   their
      challenge to the petitioner, the question of inclusion in
      or  exclusion from the List of Scheduled Castes would not
      be gone into by the Constitutional  Court,  because,  the
      question did  not  have  an adjudicatory disposition.  He
      reminded us that the constitutional rights are  not  only
      protected  by the Courts, but they are protected by other
      organs also.    The  National  Commission  created  under
      Article 338 was specifically charged with such functions.
      Moreover,  the  State, by prescribing the modalities, had
      bound itself to have any proposal sanctioned or agreed to
      by three different bodies, namely, the State  Government,
      the   Registrar   General   of  India  and  the  National
      Commission for Scheduled  Castes  and  Scheduled  Tribes.
      This  exercise  having  been  done  in  the  consultative
      process, no further scrutiny was necessary or called  for
      by the  Court.   It was submitted that the constitutional
      body namely, the  National  Commission,  in  its  reports
      (paragraph  12  of Report of 1986 - 87 and paragraph 6.67
      of the Report of 1993-94) had taken a view in  favour  of
      the  area  restriction  in respect of the said community.
      The National Commission had expressed  its  views  firmly
      formulated and crystallized in their communication to the
      Government  of India in respect of the impugned Amendment
      Act.  It was further submitted  that  the  distinguishing
      feature for inclusion in the list of Scheduled Castes was
      the taint  of  untouchability.    Though  all Mochis were
      equally backward, socially and educationally, it was  the
      backwardness  in  case  of  those  in  Dangs district and
      Umargam Taluka of Valsad district, which was flowing from
      the  taint   of   untouchability   and   therefore,   the
      distinction  between  these two classes was justified and
      based on a rational criteria having nexus with the object
      sought to be achieved by the provisions  of  Article  341
      and  other  provisions of the Constitution having bearing
      on the claims of  persons  belonging  to  such  Scheduled
      Castes.   It  was submitted that soon after the Amendment
      Act of 1976, the issue regarding  re-imposition  of  area
      restriction  was  raised,  and  in  fact  was the subject
      matter of the Amendment Bill of 1978, which  came  to  be
      lapsed.
      
      7.1	In   support  of  his  contentions,  the  learned
      counsel placed reliance on the following decisions :
      
      
      [a] The decision of the Supreme  Court  in  State  of
              Maharashtra v.    Milind, reported in (2001)1 SCC
              4,  was  cited  for  the  proposition  that   the
              Parliament  alone  is competent by law to include
              in or exclude a caste / tribe from  the  list  of
              Scheduled  Castes  and Scheduled Tribes specified
              in notifications issued under clause (1)  of  the
              Articles 341   and   342.      The  President  is
              authorized to limit the notification to parts  or
              groups within the caste or tribe depending on the
              educational and social backwardness.  It was held
              that:   "It  is  permissible  that  only parts or
              groups within them be specified  and  further  to
              specify  castes  or tribes thereof in relation to
              parts of the State and not to the entire State on
              being satisfied that it was necessary  to  do  so
              having   regard   to   social   and   educational
              backwardness." The Supreme Court held  that:    "
              ....   no  inquiry is permissible and no evidence
              can be let in for establishing that a  particular
              caste  or part or group within tribes or tribe is
              included in Presidential Order if  they  are  not
              expressly included  in  the  Order.    Since  any
              exercise or attempt  to  amend  the  Presidential
              Order   except  as  provided  in  clause  (2)  of
              Articles 341 and 342 would be futile, holding any
              inquiry or letting in any evidence in that regard
              is neither permissible nor useful."
              
      [b] The  decision  of  the  Supreme   Court   in   B.
              Basavalingappa v.  D.  Munichinnappa, reported in
              AIR  1965  SC 1269, was cited for the proposition
              that it is not open to make any  modification  in
              the  Order  by  producing  evidence  to show (for
              example) that though caste A alone  is  mentioned
              in  the  Order, caste B is also a part of caste A
              and, therefore, must be deemed to be included  in
              caste A.      The   Court  held  that,  generally
              speaking, it would not be open to any  person  to
              lead  evidence  to establish that caste B is part
              of caste A notified in the Order.
      
      [c] The decision of the Supreme Court in Srish  Kumar
              Choudhury v.   State of Tripura, reported in 1990
              (Supp)  SCC  220,  was  referred   to   for   the
              proposition  that the entries in the Presidential
              Order have to be taken as final and the scope  of
              enquiry and admissibility of evidence is confined
              within  the  limitations indicated in the earlier
              decisions of the Court.  (See paragraph 16 of the
              judgement).
      
      [d] The decision of  the  Supreme  Court  in  Palghat
              Jilla  Thandan  Samudhaya  Samrakshna  Samithi v.
              State of Kerala, reported in (1994)1 SCC 359, was
              cited for  the  proposition  that  the  Scheduled
              castes  Order  has to be applied as it stands and
              no enquiry can be held  or  evidence  let  in  to
              determine   whether   or   not   some  particular
              community falls within it  or  outside  it.    No
              action   to   modify  the  plain  effect  of  the
              Scheduled Castes Order, except as contemplated by
              Article 341, is valid.  It was held  that  it  is
              not  open  to  the  State  Government  or for the
              Supreme Court to inquire into the correctness  of
              what  is  stated in the report that has been made
              thereon or to utilize the report to,  in  effect,
              modify the   Scheduled   Castes   Order.     (See
              paragraphs 18 and 21 of the judgement).
      
      [e] The decision of the Supreme Court in  Ajit  Singh
              v.  State of Punjab, reported in (1999)7 SCC 209,
              was  cited for pointing out that, in paragraph 32
              of the judgement, the Supreme Court held that  if
              the State is of the opinion that in the interests
              of  efficiency  of administration, reservation or
              relaxation in marks is not appropriate,  then  it
              will  not be permissible for the Court to issue a
              mandamus   to   provide   for   reservation    or
              relaxation.   It  was  held that the decisions in
              Jagannathan case, [(1986) 2 SCC 679], and Kuldeep
              Singh case, [(1997) 9 SCC 199],  holding  that  a
              mandamus  can  be  issued  either  to provide for
              reservation or for relaxation was not correct and
              the  view  expressed  therein  ran   counter   to
              judgements  of  earlier  Constitution  Benches in
              C.A.Rajendran v.  Union of India,  [AIR  1968  SC
              507], and   M.R.Balaji   v.    State  of  Mysore,
              reported in [AIR 1963 SC 649], that Article 16(4)
              confers a  discretion  and  did  not  create  any
              constitutional  duty or obligation which could be
              enforced by issuing a writ of mandamus.
      
      8.	The    learned   Additional   Advocate   General,
      appearing for the  respondent  No.1  -  Union  of  India,
      adopting  the  arguments of learned advocate representing
      the learned  Attorney  General,  further  submitted  that
      series  of  proposals, representations and letters, which
      are brought on record, received by  the  Union  of  India
      after  the  Amendment  Act  of  1976, constituted changed
      circumstances.  It was submitted that, on  the  basis  of
      the communications received by the Union of India, a Bill
      seeking  to  re-impose  area restriction specifying Mochi
      community as Scheduled Caste only in Dangs  district  and
      Umargaon  Taluka  of  Valsad  district  was introduced in
      1978.  However, since  the  Joint  Select  Committee,  to
      which   it  was  referred,  ceased  to  exist  after  the
      dissolution of the Fifth Lok  Sabha  in  1979,  the  Bill
      could not  be  passed.    It was submitted that, even the
      National Commission for Scheduled  Castes  and  Scheduled
      Tribes,  in its Third Report (1980 - 1981) as well as the
      Registrar General of India, in his  letter  addressed  to
      the   Central  Government  on  8-3-1981,  and  the  State
      Government  in   its   letter   dated   20-10-1981,   had
      recommended re-imposition  of  the area restriction.  The
      Commissioner for Scheduled Castes & Scheduled Tribes,  in
      his  Twenty-Eighth  Report  (1986 - 1987), reiterated the
      earlier  recommendations  for   re-imposition   of   area
      restriction in  the State in case of Mochi community.  It
      was pointed out that, even in  the  affidavit  which  was
      filed  before the Supreme court in Special Leave Petition
      (Civil) No.  2151 of 1988 on 13-12-1988, a copy of  which
      is  on  record,  it  was stated that the Amendment Act of
      1976 removing area  restriction  in  Gujarat  was  passed
      since   the   Gujarat  Government  did  not  furnish  any
      suggestions or  objections.    In  the  report  of   Shri
      B.D.Sharma,   Commissioner   for   Scheduled  Castes  and
      Scheduled Tribes, to  the  President  of  India  sent  on
      23-11-1988,   a   copy   of   which  is  on  record,  the
      Commissioner   recommended    re-imposition    of    area
      restriction  in  the  State  in  case  of Mochi community
      since,  in  1976,  an  adhoc  decision  to  remove   this
      restriction was  taken.   It was further pointed out that
      the  National  Commission  for   Scheduled   Castes   and
      Scheduled  Tribes,  in its Second Annual Report (1993-94)
      recommended re-imposition  of  area  restriction  in  the
      State in case of Mochi community.  It was argued that, in
      June 1999, the Government of India approved and finalized
      the  modalities  for deciding the inclusion and exclusion
      etc.  in  the  Orders  specifying  Scheduled  Castes  and
      Scheduled Tribes.    The Central Government had requested
      for the views on  the  State  Government's  proposal,  by
      communication  dated  31st  March  1999  and the National
      Commission had conveyed its concurrence on  25-1-2000  to
      the   Central   Government   in   respect  of  the  State
      Government's   proposal   for   re-imposition   of   area
      restriction in  case  of  Mochi  community.    The  State
      Government wrote to the  Central  Government  a  detailed
      letter on 27-3-2000, referring to an exhaustive note sent
      to  the Central Government justifying the urgent need for
      re-imposition of the area restriction  in  the  State  of
      Gujarat in   case   of  Mochi  community.    The  Central
      Government,   thereafter,   sought    clarification    on
      27-10-2001  from  the  State  Government as to whether on
      re-imposition of area restriction, other Mochis  will  be
      included in  the  list  of O.B.C.  for the other parts of
      the State.  The State  Government,  on  30th  July  2001,
      responded  that  except  Mochis  of  Dangs  district  and
      Umargaon Taluka of Valsad district, the  Mochi  community
      of  the  State  will  be  included  in the list of O.B.C.
      According to the  learned  Additional  Advocate  General,
      both  these  events  took  place after the Amendment Act,
      1976 and it was open  for  the  Parliament  to  make  the
      Amendment  Act  of  2002  by imposing area restriction in
      respect of Mochi community for inclusion in the  list  of
      Scheduled Castes.    It  was  submitted  that there was a
      presumption in  favour  of  the  constitutionality  of  a
      statute which may not be lightly disturbed.
      
      8.1	In   support  of  his  contentions,  the  learned
      Additional Advocate General  relied  upon  the  following
      decisions :
      
      
      [a] The  decision  of  the  Supreme Court in Union of
              India v.  Elphinstone Spinning  and  Weaving  Co.
              Ltd.,  reported  in AIR 2001 SC 724, was cited to
              point out that, in paragraph 9 of the  judgement,
              it  has  been held that a statute is construed so
              as to make it effective and operative, and  that,
              there   is   always   a   presumption   that  the
              legislature does not exceed its jurisdiction  and
              the  burden  of establishing that the legislature
              has transgressed constitutional mandates such as,
              those relating to fundamental rights is always on
              the person who challenges its vires.   Unless  it
              becomes  clear  beyond  reasonable doubt that the
              legislation in question transgresses  the  limits
              laid down by the organic law of the Constitution,
              it   must   be  allowed  to  stand  as  the  true
              expression of the national will.  It was observed
              that, once a statute leaves Parliament House, the
              Court is the only authentic voice which may  echo
              the Parliament.    The  Court  will  do this by a
              reference to the  language  of  the  statute  and
              other permissible  aid.   It was held that no Act
              of Parliament may be struck down because  of  the
              understanding      or     misunderstanding     of
              parliamentary   intention   by   the    executive
              Government  or  because  their  spokesmen  do not
              bring out relevant circumstances but  indulge  in
              empty and self-defeating affidavits.
      
      [b] The  decision  of  the  Supreme Court in State of
              Maharashtra v.  Milind, reported in AIR  2001  SC
              393,  was  cited  for  the  proposition  that the
              Scheduled Tribes Order must be read as it is, and
              that it is not even permissible  to  say  that  a
              tribe,  sub-tribe,  part or group of any tribe or
              tribal  community  is  synonymous  to   the   one
              mentioned  in  the Scheduled Tribes Order if they
              are not so specifically mentioned in it.   It  is
              also  not  at all permissible to hold any enquiry
              or let in any evidence to decide or declare  that
              any tribe or tribal community or part of or group
              within  any tribe or tribal community is included
              in  the  general  name  even  though  it  is  not
              specifically  mentioned in the concerned entry in
              the Constitution (Scheduled Tribes) Order,  1950.
              (See paragraph 35 of the judgement).
      
      [c] The  decision  of  the  Supreme  Court  in Satish
              Chandra v.  Union of India, reported in AIR  1995
              SC  138,  was cited to point out that it was held
              in paragraph 5 of the judgement, while  repelling
              the  contention  that  the  Parliament itself had
              once made an  experiment  with  establishment  of
              such a Board earlier by enacting Amendment Act of
              1963, that  :  "The failure of the experiment may
              not be treated sufficient by the  Parliament  not
              to try  again.    In any case, this is a question
              relatable to the wisdom of the  Parliament  which
              is  not  amenable  to examination by a Court when
              seized  with   the   constitutionality   of   the
              provision."
      
      [d] The  decision  of  the  Supreme  Court  in  Delhi
              Science Forum v.  Union of India, reported in AIR
              1996 SC 1356, was cited for the proposition  that
              policies   which   have   been   adopted  by  the
              Parliament cannot be tested in Court of Law.   It
              was held in paragraph 5 of the judgement that the
              Courts  have  their  limitations  - because these
              issues rest with the policy makers for the nation
              and no direction can be given or is expected from
              the  Courts  unless   while   implementing   such
              policies,  there  is violation or infringement of
              any of the Constitutional or statutory provision.
      
      [f] The  decision  of  the  Supreme  Court  in Rustom
              Cavasjee Cooper v.  Union of India,  reported  in
              1970  (1)  SCC 248, was cited for the proposition
              as reflected from paragraph 63 of  the  judgement
              that,  it  was  not for the Court to consider the
              relative  merits  of  the   different   political
              theories or economic policies.  The Court has the
              power  to strike down a law on the ground of want
              of authority, but  the  Court  will  not  sit  in
              appeal  over  the  policy  of  the  Parliament in
              enacting a law.
      
      [g] The decision of a Division Bench of this Court in
              Gujarat  Dalit  Civil  &  Constitutional   Rights
              Pratipadan Samiti,  v.   Union of India, reported
              in XXIX (1) G.L.R.  290, which has  been  heavily
              relied upon by the petitioner, was referred to in
              order  to  point out that, in paragraph 16 of the
              judgement,  it  was  clearly   noted   that   the
              Government  of Gujarat, subsequent to the passing
              of the Scheduled Castes Scheduled  Tribes  Orders
              (Amendment)   Act,   1976   represented   to  the
              Government of India stating that the  removal  of
              area  restriction  in the case of Mochi community
              was not  justified  because  this  community  had
              never suffered from any disability arising out of
              the  practice  of  untouchability  in any part of
              Gujarat State,  except  the  Dangs  district  and
              Umergaon Taluka of the Valsad district.
      
      9.	The learned Advocate General  appearing  for  the
      respondents Nos.    2  and 3, adopting the contentions of
      the representative of the learned  Attorney  General  and
      those  raised  on  behalf  of the Union of India, further
      contended that, right from March 1930 till the  Amendment
      Act  of  1976  came  to  be  made,  Mochi  community  was
      specified as Scheduled Caste only in the specified areas.
      He referred to the Report of Starte Commission  of  March
      1930,  Schedule  5  of the Government of India Act, 1935,
      the Constitution Schedule Castes Order,  1950,  Scheduled
      Castes  / Scheduled Tribes Modifications Order, 1956, and
      Bombay Re-organisation Act, 1956, to point out  that  the
      area  restriction  in  respect  of Mochi community always
      existed.  He submitted that this was on the  ground  that
      Mochi  community  of  these  areas  of Dangs district and
      Umargaon Taluka of Valsad district was suffering from the
      disability of the practice of untouchability.    He  also
      pointed  out from the Baxi Commission Report the terms of
      its reference and that, in paragraph  4,  under  sub-head
      `Mochi',  it  was  clearly  mentioned  that  Mochis  were
      considered as Scheduled Caste in the Dangs districts  and
      Umargaon  Taluka  of  Valsad  district,  and that, in the
      former State of  Bombay  as  well  as  in  the  State  of
      Saurashtra,  the  Gujarati  Mochis  were treated as Other
      Backward Classes.
      
      9.1	The learned  Advocate  General  relied  upon  the
      following decisions in support of his contentions :
      
      
      [a] The  decision  of  the  Supreme Court in State of
              Andhra Pradesh v.  McDowell and Co., reported  in
              AIR 1996 SC 1627, was cited to point out that, in
              paragraph  45 of the judgement, the Supreme Court
              held  that  if  an  enactment  is  challenged  as
              violative   of  any  of  the  fundamental  rights
              guaranteed by  Clauses  (a)  to  (g)  of  Article
              19(1),  it can be struck down only if it is found
              not saved by any of the clauses  (2)  to  (6)  of
              Article 19 and no enactment can be struck down by
              just saying that it is arbitrary or unreasonable.
              Some  or other constitutional infirmity has to be
              found before invalidating an Act.   An  enactment
              cannot  be  struck  down on the ground that Court
              thinks if unjustified.  The  Parliament  and  the
              Legislatures,   composed   as  they  are  of  the
              representatives of the people,  are  supposed  to
              know  and be aware of the needs of the people and
              what is good and bad for them.  The Court  cannot
              sit in judgement over their wisdom.
      
      [b] The decision  of the Supreme Court in T.  Venkata
              Reddy v.  State of Andhra  Pradesh,  reported  in
              AIR  1985  SC  724, was cited for the proposition
              that, while the Courts can declare a  statute  as
              unconstitutional     when     it     transgresses
              constitutional limits, they  are  precluded  from
              inquiring  into  the propriety of the exercise of
              the legislative power.  It has to be assumed that
              the legislative discretion is properly exercised.
              The  motive  of  the  legislature  in  passing  a
              statute is  beyond  the  scrutiny of courts.  Nor
              can the courts examine  whether  the  legislature
              had  applied  its  mind  to  the  provisions of a
              statute before  passing  it.     The   propriety,
              expediency and necessity of a legislative act are
              for   the   determination   of   the  legislative
              authority and are not for  determination  by  the
              Courts.   It  was  held  that an Ordinance passed
              under Article 123 or under  Article  213  of  the
              Constitution stands on the same footing.
      
      [c] The decision of the Supreme Court in Gurudevdatta
              VKSSS Maryadit v.  State of Maharashtra, reported
              in   AIR   2001   SC  1980,  was  cited  for  the
              proposition that the action  of  promulgation  of
              Ordinance under Article 123 or 213 is legislative
              in   character,  and  not  an  administrative  or
              executive action.  Being legislative  in  nature,
              it  is subject only to constitutional limitations
              applicable to   an   ordinary   statute.      The
              Ordinance,   if   it   does   not   infringe  the
              constitutional safeguards, cannot be examined nor
              the motive for such  a  promulgation  can  be  in
              question.   The Courts cannot infer a legislative
              malice in passing a statute.
      
      10.	The learned counsel for the respondents Nos.   6,
      7,   8   and  12,  supporting  the  stand  taken  by  the
      respondents authorities further argued that the terms  of
      reference  of  the Baxi Commission were not in respect of
      identifying Scheduled Castes and that the Baxi Commission
      Report was never before the Parliament when  the  earlier
      Amendment Act  of  1976  was made.  It was submitted that
      the decision rendered by the High Court in the context of
      the Amendment Act of 1976 could not  have  precluded  the
      Parliament  from  enacting  the impugned Amendment Act of
      2002 for imposing area restriction for Mochi community as
      it always existed prior to the Amendment Act of 1976,  so
      as  to  exclude  Mochi  caste  of  areas other than Dangs
      district and Umargaon Taluka of Valsad district, because,
      Mochi caste was grouped in Entry 4 with  other  scheduled
      castes  and was required to be construed on the principle
      of affinity.  Therefore, only Mochis  of  Dangs  district
      and  Umargaon  Taluka,  who  were treated as untouchables
      like the other castes grouped under  Entry  4,  who  were
      also treated as untouchables were meant to be included in
      the list.  There was no scope for reading Mochis of other
      areas  in Gujarat who were not treated as untouchables in
      the said Entry.  It was argued that  the  said  challenge
      against   the   Presidential  Order  as  amended  by  the
      Amendment Act 2002 was in reality a challenge  against  a
      constitutional  provision,  because, by virtue of Article
      366(24), the list of Scheduled  Castes  as  notified  and
      amended  under Article 341 became part of that definition
      clause and therefore, a constitutional  provision.    The
      learned   counsel   referred   to   the   affidavits   of
      M.K.Champaneri and R.M.  Champaneri which are  on  record
      to point out that incongruous stand was taken by them and
      that  errors  of  fact as set out in paragraph 1.2 of the
      affidavit in reply of the respondent No.8 had  crept  in,
      because, the correct facts were not brought to the notice
      of  the  Division  Bench in Special Civil Application No.
      3432 of 1985, as pointed out in paragraph 1.2 (c) of  the
      affidavit  of  the respondent No.8, affirmed on 16th July
      2003.  The learned counsel also argued that the  impugned
      Amendment  Act was protected by the provisions of Article
      122 of the Constitution.  According to him,  in  the  law
      making  process  under Article 342(1), even the President
      was a partner, having given his assent.  It  was  further
      submitted that parts or groups within the castes could be
      notified  as  scheduled  castes  and it was not necessary
      that the entire caste in the  whole  area  of  the  State
      should be notified as a Scheduled Caste.
      
      10.1	The  learned counsel has placed reliance upon the
      following decisions in support of his contentions :
      
      
      
      [a] Reliance  was  placed  on  the  decision  of  the
              Supreme   Court   in   Dadaji   alias   Dina   v.
              Sukhdeobabu, reported  in  (1980)1  SCC  621,  to
              point  out  that,  it was held in paragraph 14 of
              the judgement that :  "A reading of the  Schedule
              to  the Order also shows that where there are two
              communities  with  the  same  name,  one   having
              affinity  with  a  tribe and the other not having
              anything to do  with  such  tribe  and  both  are
              treated  as scheduled Tribes, the community which
              has affinity with another tribe  is  shown  along
              with  it in the same group against a single entry
              and  the  other  is  shown  against  a  different
              entry."
      
      [b] The decision of  the  Madras  High  Court  in  S.
              Ananthakrishnan v.  The State of Madras, reported
              in  AIR  1952  Madras 393, was cited to point out
              that, in paragraph 41 of the  judgement,  it  was
              held  that  Article  13 applies only to those two
              classes of laws that are declared void as against
              the provisions of Part III and it did  not  apply
              to the Constitution itself.  Article 13 cannot be
              read   so   as  to  render  any  portion  of  the
              Constitution invalid.
      
      [c] The decision of the Himachal Pradesh  High  Court
              in Moti  Ram  v.  Union of India, reported in AIR
              1966 H.P.  25, was cited for the  proposition  as
              reflected   in   paragraphs  22  and  23  of  the
              judgement that, when the differentiation  between
              the  States  and Union territories has been made,
              in almost all spheres by the Constitution itself,
              such a differentiation  cannot  be  struck  down,
              under   Article   14,  as  no  provision  of  the
              Constitution   can   be   considered   as   being
              contravening   any   other   provision   of   the
              Constitution.    It    was    held    that    the
              differentiation,  resulting,  from the provisions
              of  Section  54  of  the  Government   of   Union
              Territories  Act,  between  a  State  and a Union
              territory, has really been made by the provisions
              of the Constitution, itself.  and  it  cannot  be
              regarded  to  offend  against  the  provisions of
              Article 14 of the Constitution.
      
      
      11.  The learned counsel  appearing  for  the  respondent
      No.11  referred to the test evolved by J.Hutton, the 1931
      Census Commissioner, in his  Report  and  submitted  that
      `untouchability'  was an accepted criterion for inclusion
      of a caste in the list of  the  Scheduled  Castes.    The
      criteria,  by  which to identify untouchable groups, were
      referred from the excerpts of the Publication  "Competing
      Equalities" by Marc Galentor.
              
      11.1	The  learned  counsel  for  the  respondent No.9,
      thunderously submitted that when  the  Amendment  Act  of
      1976 was passed, the Gujarat Government had not submitted
      its  comments  and  it was due to such lapse that the Act
      came to  be  passed.     He   argued   that   innumerable
      certificates  were on record to show that Mochis in other
      parts of  Gujarat  were  being  attended  to  by  Brahmin
      community   and  therefore,  they  were  not  treated  as
      untouchables.  He submitted that  Baxi  Commission  could
      not  have  made  any  recommendations  in  respect of the
      Scheduled Castes, because, it  was  constituted  for  the
      purpose  of  identifying  the Other Backward Classes, and
      not for suggesting inclusions in  the  Scheduled  Castes.
      It  was  pointed  out  that the objects of the petitioner
      public trust did not include any object or aim of removal
      of untouchability.  It was pointed out that there were no
      conversions prevalent in Mochi community in  other  parts
      of   Gujarat,   because,   they   were   not  treated  as
      untouchables and conversions were  noticed  only  in  the
      castes which  were  treated  as  untouchables.    It  was
      submitted that the Mochis of other  areas  were  treating
      the Scheduled   Castes   members  as  untouchables.    He
      referred to the three affidavits filed on behalf  of  the
      respondent  No.9  for  pointing  out  the  distinguishing
      features between the Mochis of other areas of Gujarat and
      the Mochis who were treated as untouchables in the  Dangs
      district  and  Umargaon  Taluka  of  Valsad  district and
      submitted  that  there  was  absolutely  no  warrant  for
      interfering   with   the   area   restriction  which  was
      re-imposed in respect of the Mochi  community  under  the
      Amendment  Act of 2002 by specifying only Mochis of Dangs
      district and Umargaon Taluka  of  Valsad  district  as  a
      Scheduled  Caste  in Entry 4 of the Schedule to the Order
      of 1950.    He  submitted   that   the   Parliament   has
      jurisdiction  to  include  in or exclude from the List of
      Scheduled castes and referred  to  paragraph  20  of  the
      affidvit-in-reply  of  the  respondent  No.9 to point out
      that 33  decisions  of  the  Apex  Court  were  mentioned
      therein in support of his submissions.
              
      12.	The  learned counsel appearing for the respondent
      No.5 contended that procedure of making ordinary law  was
      required  to be followed even in making the Amendment Act
      of 2002 under Article 341(2) and challenge against such a
      law can be raised only  on  the  grounds  of  legislative
      incompetence or  violation of any fundamental rights.  He
      submitted that policy  making  is  an  attribute  of  the
      executive  and  not  the  legislature and there can be no
      legislative policy,  but  only  executive  policy.     He
      submitted  that  the  wisdom of the legislature cannot be
      questioned.   He  referred  to  review  of  amendment  of
      Presidential  Orders from Chapter 9 of the 28th Report of
      the Commissioner for Scheduled Castes & Scheduled  Tribes
      (1986-87)  for  pointing  out  that  the  removal of area
      restriction had resulted in some anomalous situation (See
      paragraph 12 of that Report at Annexure "P1").
      
      
      Reasoning :
              
      13.	The  petitioner  seeks  a  declaration  that  the
      exclusion of Mochis outside Dangs district  and  Umargaon
      Taluka   of  Valsad  district  from  Schedule  I  to  the
      Constitution  (Schedule  castes)  Order,  1950   by   the
      Constitution (Scheduled Castes) Orders (Second Amendment)
      Act, 2002 is violative of Articles 14, 15, 16, 19 and 341
      of  the  Constitution  and  therefore, null and void, and
      that amended entry 4 in Part IV  of  the  Order  of  1950
      relating  to  Gujarat is unconstitutional and void to the
      extent it "derecognises and despecifies"  Mochis  outside
      of Dangs district and Umargam Taluka of Valsad district.
              
      14.	Admittedly, prior to the Amendment Act  of  1976,
      there  was  area  restriction  in  respect  of Mochis and
      Mochis of the Gujarat Division of  the  bigger  bilingual
      State  of  Bombay were not specified as Scheduled castes.
      The report of the Bombay Scheduled Castes  and  Scheduled
      Tribes Committee  headed  by O.H.B.  Starte, published in
      March 1930, classified in Scheduled II List 1 at item 31,
      Mochis,  other  than  those  who  were  not  treated   as
      untouchables in Gujarat, as Scheduled Castes.  The Mochis
      who  were  not  treated  as  untouchables in Gujarat were
      shown as O.B.C.  at item 59 of  List  3  of  that  Report
      (Pages 80 - 81 of the Report).
              
      14.1	The Constitution (Scheduled Castes)  Order,  1950
      made  by  the  President  under  Article  341(1)  of  the
      Constitution of India provided in clause 2 that,  subject
      to  the  provisions  of  the  Order, the castes, races or
      tribes specified in the Schedule to the  Order  shall  in
      relation  to  the  parts  of  States to which the entries
      relate, be deemed  to  be  scheduled  castes  so  far  as
      regards  the  members  thereof resident in the localities
      specified in relation to them  in  those  parts  of  that
      schedule.
              
      14.2	Under Clause 4 of the said Order, it was provided
      that:   "Any reference in the Schedule to this Order to a
      district or other territorial division of a  State  shall
      be  construed  as  reference  to  that  district or other
      territorial division as  existing  on  the  26th  January
      1950."
              
      14.3	Part III of the Schedule to  the  Order  of  1950
      related to State of Bombay and at Clause 2 therein, Mochi
      caste  was specified as Scheduled Caste throughout Bombay
      State except  in  Gujarat  Division.    Thus,  Mochis  of
      Gujarat were not recognized as a scheduled Caste and were
      specifically  excluded by imposing area restriction under
      the Order of 1950.
              
      14.4	In   pursuance   of  Section  41  of  the  States
      Re-organisation Act, 1956 and Section 14 of the  Bihar  &
      West  Bengal  (Transfer  of  Territories)  Act, 1956, the
      President  of  India  made  the  Scheduled   Castes   and
      Scheduled  Tribes  Lists  (Modification) Order, 1956 and,
      inter alia, modified the Order of 1950, in the manner and
      to the extent specified in Schedule 1.  Part  2  of  that
      Schedule related to the State of Bombay and as per Clause
      2  thereof,  only  the  "Mochi" caste in the districts of
      Greater Bombay,  West  Khandesh,  East  Khandesh,  Dangs,
      Nasik, Ahamadnagar, Puna, Satara (North), Satara (South),
      Kolhapur,  Solapur,  Thana,  Kolaba  and  Ratnagiri  were
      specified as Scheduled  Castes.    This  means  that  the
      Mochis  who belonged to the specified areas alone were to
      be treated as Scheduled Castes and not all Mochi.
              
      14.5	When the State  of  Bombay  was  re-organised  in
      1960,  the State of Gujarat was formed under Section 3 of
      the Bombay Re-organisation Act, 1960, as per  which,  its
      territories,  inter  alia,  comprised  of "Dangs" and the
      villages in Umargaon Taluka of Thana district became part
      of the State of Gujarat.  Under Section 26 of the Act  of
      1960, the Constitution (Scheduled Castes) Order, 1950 was
      amended as directed in Schedule 7 of that Act.  Part 4 of
      the  Order 1950 was substituted and with reference to the
      State of Gujarat, as per clause  2  thereof,  only  Mochi
      caste  "in  the districts of Dangs and Umargaon Taluka of
      Valsad district" was specified as Scheduled Caste,  which
      means  that the area restriction for recognition of Mochi
      caste as Scheduled Caste continued as  before  and  Mochi
      caste  of  the  other parts of Gujarat was not treated as
      Scheduled Caste.
              
      15.	In  para  4, under the heading "Mochi" on page 87
      of the Report of the Socially and Educationally  Backward
      Class  Commission,  Volume  1,  published  by the Gujarat
      State in 1976, it was mentioned that :  "The  Mochis  are
      considered  as  scheduled  caste  in  Dangs  district and
      Umargaon Taluka of Balsar district.  In the former  State
      of  Bombay  as  well  as  in the State of Saurashtra, the
      Gujarati Mochis were  treated  as  Other  Backward  Class
      (O.B.C.)".   With a view to provide for the inclusion in,
      and exclusion from  the  list  of  Scheduled  Castes  and
      Scheduled  Tribes,  of  certain castes and tribes for the
      re-adjustment of the representation of the  parliamentary
      and   assembly   constituencies   in   so   far  as  such
      re-adjustment  was  necessitated  by  such  inclusion  or
      exclusion  and  for  the matters connected therewith, the
      Parliament enacted the  Scheduled  Castes  and  Scheduled
      Tribes  Orders (Amendment) Act, 1976 on 18-9-1976 and the
      Order of 1950 was amended by Section  3  thereof  in  the
      manner  and to the extent specified in the first schedule
      thereto.  In  part  4  of  that  schedule  pertaining  to
      Gujarat,   `Mochi'   caste   (without   mention  of  area
      restriction) was grouped alongwith the  other  castes  at
      Entry 4.
              
      16.	On  inclusion  of  `Mochi'  caste  in the list of
      Scheduled Castes specified in the Presidential  Order  of
      1950   by   the   said   Amendment   Act,  1976,  several
      representations are said to have been received  from  the
      members  of  the  Scheduled  Castes  by the Government of
      Gujarat for re-imposing area restriction  in  respect  of
      Mochi  caste  as  it prevailed earlier on the ground that
      the Mochi caste elsewhere in Gujarat was not subjected to
      the practice  of  untouchability.    The  Directorate  of
      Social  Welfare, Gujarat, by letter dated 11-1-1977 (copy
      at  Annexure  R-II  to  the  affidavit-in-reply  of   the
      respondents Nos.   2 and 3), giving a detailed account of
      the earlier lists not including the  Mochi  community  as
      scheduled caste as it was never treated as untouchable in
      Gujarat and stating that :  "the community was treated as
      caste  Hindus  and they had all the religious, social and
      other customs performed by caste Hindu Brahmin  for  them
      without   any   discrimination  from  other  caste  Hindu
      community", concluded in paragraph 14 as under :
      
      
      
       "14.	It appears, therefore,  that  the  matter
              requires  immediate study by the State Government
              and if  necessary,  the  facts  stated  above  be
              brought   to  the  notice  of  Ministry  of  Home
              Affairs, Government of India,  that  the  "MOCHI"
              community was never treated as Scheduled Caste in
              the  area  of  eighteen districts out of nineteen
              and in 183 Talukas out  of  184  Talukas  of  the
              State  and  hence,  the community as they did not
              suffer  from  the  disability  arising   out   of
              untouchability  in  the 183 Talukas consisting of
              18 Districts of the State out  of  19  Districts,
              and therefore, if it is included by some error of
              representation,  the same may please be corrected
              by excluding the said community from the  revised
              list  of  Scheduled  Castes  which may be brought
              into operation by an Act  revising  the  list  of
              Scheduled   Castes   and   Scheduled   Tribes  by
              government of India, in respect  of  the  Gujarat
              State."
              
      16.1	Thereafter,   on  11-5-1977,  the  Government  of
      Gujarat wrote to Government of India,  Ministry  of  Home
      Affairs  that  Mochi  community was never included in the
      list of  Scheduled  Castes  in  Gujarat  except  for  the
      incoming area  from Maharashtra viz.  Dangs district, and
      Umargaon Taluka now forming the part of Valsad  District.
      The  State  Government  while  proposing  that  the  area
      restriction for Mochi community in relation to the  Dangs
      district and Umargaon Taluka of Valsad district should be
      restored, wrote as under :
      
              
       "2.	Looking  to  these facts, it will be seen
              that MOCHI community was never  included  in  the
              list  of  Scheduled  Castes in Gujarat except for
              the incoming area from Maharashtra  viz.    Dangs
              District,  and  Umargaon  Taluka  now forming the
              part of Balsar  District.    The  exact  position
              whether the members of the MOCHI Community in the
              Dangs  district  and  Umargaon  Taluka  of Bulsar
              district are still considered as untouchables  by
              members of other communities and whether they are
              subjected   to  any  disability  arising  out  of
              untouchability was again ascertained by the State
              Government recently and it has  been  found  that
              "MOCHIS" in Dangs district and Umargaon Taluka of
              Bulsar  district  hailed from Maharashtra area of
              Ex-Bombay  State  and  belonged   to   "Chambhar"
              Community  which has been included in the list of
              Scheduled   Castes   by   the    Government    of
              Maharashtra.   The Gujarat Government, therefore,
              feels that it would not be proper to request  the
              Government   of   India   to   cancel   the  area
              restriction for these MOCHIs  of  Dangs  district
              and  Umargaon  Taluka of Bulsar district from the
              list of Scheduled Castes.
              
       3.	The  MOCHI  community   is   treated   as
              Scheduled  castes  in  the districts of Dangs and
              Umargaon  Taluka  of  Bulsar  District  only  and
              hence,  the  community residing in other areas of
              Gujarat viz.  Saurashtra, Kutch and in  other  10
              districts  of the old Bombay territory cannot be,
              as they were never treated as untouchables in the
              past of (nor?) are being treated as  untouchables
              at present, treated as Scheduled Castes except in
              the area of Dangs district and Umargaon Taluka of
              Bulsar district.
              
       4.	The State  Government,  therefore,  feels
              that  the  matter  requires  to be brought to the
              notice  of  the   ministry   of   Home   Affairs,
              Government  of  India particularly in view of the
              fact that the MOCHI community was  never  treated
              as  Scheduled Castes in the areas of 18 districts
              out of the 19 districts of this State as they did
              not suffer from the  disability  arising  out  of
              untouchability.   Therefore, the area restriction
              for MOCHI community which has been removed  under
              the  Scheduled Castes and Scheduled Tribes Orders
              (Amendment) Act, 1976, so far as the  Gujarat  is
              concerned,   if   removed   by   some   error  of
              representation the same need to  be  restored  in
              relation  to  the  Dangs  district  and  Umargaon
              Taluka of Bulsar district.  The State Government,
              therefore, proposes that the area restriction for
              MOCHI community in relation to the Dangs district
              and Umargaon Taluka of Bulsar district should  be
              restored in view of the position explained above.
              I am, therefore, directed to request you to place
              this  proposal before the Government of India for
              consideration  and   appropriate   action   under
              intimation   to   this   Government."   (emphasis
              supplied).
              
      
      16.2	The   request  to  restore  area  restriction  in
      relation to Mochi community in Gujarat  by  amending  the
      Scheduled  Castes  &  Scheduled Tribes Orders (Amendment)
      Act, 1976 was repeated in letter dated September 7,  1977
      of  the  Chief  Minister Mr.B.J.Patel to Mr.Charan Singh,
      Minister of Home Affairs,  Government  of  India,  letter
      dated 18-10-1977 addressed to the Prime Minister of India
      Mr.   Morarjibhai  Desai, letter dated August 22, 1990 of
      the Chief Minister Mr.Chimanbhai Patel addressed  to  the
      Minister of Labour & Welfare, Government of India, letter
      dated 28th March 1994 of the Chief Minister Mr.Chhabildas
      Mehta addressed to the Minister of Welfare, Government of
      India,  letter  dated  3-5-1999 of the Chief Minister Mr.
      Keshubhai  Patel  to  Shri  Atalbihari  Vajpayee,   Prime
      Minister  of  India,  and  other letters addressed to the
      Government of India.
              
      16.3	Pursuant to  the  representations  of  the  State
      Government,  it  appears  from the record that a Bill was
      prepared to restore the area restriction  in  respect  of
      Mochi Community.  The extract from  Bill  No.84  of  1978
      which is on record, reads as under :
              
       "The Government of Gujarat have represented  that
              removal of area restrictions in the case of Mochi
              community is not justified because this community
              has  never  suffered  from any disability arising
              out of the practice of untouchability in any part
              of Gujarat State, except the Dangs  district  and
              Umbergaon  Taluka of the present Bulsar district.
              It  has  also  been  pointed  out   that   mochis
              elsewhere  in  the State being comparatively more
              advanced, are likely to take  away  the  benefits
              which   ought  to  go  to  the  members  of  this
              community  residing   in   Dangs   district   and
              Umbergaon Taluka.    The present Bill, therefore,
              seeks to restore the position in respect  of  the
              Mochi  community  in the list of Scheduled Castes
              of Gujarat State  which  obtained  prior  to  the
              enforcement of the Scheduled Castes and scheduled
              Tribes Orders (Amendment) Act, 1976."
              
      16.4	The said bill, however,  lapsed  and  the  matter
      remained pending.   Ultimately, by the impugned Amendment
      Act of 2002, the Constitution (Scheduled  Castes)  Order,
      1950  was amended and in part IV of its Schedule, Entry 4
      was substituted by referring  to  Mochi  caste  of  Dangs
      district and  Umargaon  Taluka  only.    Thus, only Mochi
      caste of the specified area  was  included  as  Scheduled
      Caste  in  the  list of the Order of 1950 and the earlier
      position was restored.  The Mochi  community  of  Gujarat
      has  through  the  petitioner public trust challenged the
      Amendment Act of 2002 to the extent it  makes  the  above
      change in the entry of the Order of 1950.
              
      17.	Part XVI of  the  Constitution  contains  special
      provisions  relating  to  certain  classes,  the foremost
      being reservation of seats for the scheduled  castes  and
      scheduled tribes in the House of People under Article 330
      and   similar   provision   for   the  State  Legislative
      Assemblies under Article 332.  Article 330,  inter  alia,
      provided  for  reservation  of  seats  for  the scheduled
      castes in the same proportion  to  the  total  number  of
      seats  allotted  to  the  State or Union Territory in the
      House of the people as the population  of  the  scheduled
      castes  in  the State or Union territory or part thereof,
      as the case may be, in respect of  which,  seats  are  so
      reserved,  bears  to the total population of the State or
      Union Territory.  Article 79 of the Constitution provided
      for Constitution of Parliament.    Therefore,  since  the
      Parliament was to be constituted as per the provisions of
      the Constitution, it became imperative to provide for the
      method  of working out the number of seats to be reserved
      for the scheduled castes and scheduled  tribes  and  this
      exercise was  done in Article 330 itself.  The protective
      discrimination was  made  obviously  in  the  context  of
      Article  46  of the Constitution by which a directive was
      issued to the effect that the  State  (as  defined  under
      Article   12)   shall   promote  with  special  care  the
      educational and economic interests of the weaker sections
      of the people, and in particular, of the scheduled castes
      and the scheduled tribes  and  shall  protect  them  from
      social injustice and all forms of exploitation.
              
      17.1	It  was  simultaneously,  by  Article  335 of the
      Constitution, provided that the claims of the members  of
      the  Scheduled Castes and Scheduled Tribes shall be taken
      into consideration, consistently with the maintenance  of
      efficiency  of  administration,  in  the  making  of  the
      appointments to service and posts in connection with  the
      affairs of  the  Union and of a State.  In the context of
      Article 335, it was,  inter  alia,  provided  in  Article
      320(4)  that,  nothing  in Article 320(3) shall require a
      Public Service Commission to be  consulted  "as  respects
      the manner in which effect may be given to the provisions
      of Article 335".
      
      17.2	The  provisions  for  reservation  of  seats  for
      scheduled castes / scheduled tribes are already contained
      in  the  Constitution  itself,  as  noticed  above, under
      Article 330 / 332 and such reservation was  meant  to  be
      made   for  a  limited  period  of  ten  years  when  the
      Constitution was  adopted.    The  castes   notified   as
      scheduled   castes  for  this  purpose  were,  therefore,
      intended to be given the benefit of reservation of  seats
      under  the special provisions of Articles 330 and 332 for
      ten years, and therefore, the list notified under Article
      341(1) had a limited purpose to achieve in the context of
      its duration in respect of special provisions relating to
      reservation of seats.  No such time limit was  prescribed
      for  the  claims of scheduled castes to services / posts,
      because, the Constitution itself  did  not  make  special
      provision  of reservation to such posts, and since making
      of any provision for reservation of appointments or posts
      in favour of any backward class of citizens was  left  to
      be  made  by  the  State under Article 16(4) as amplified
      later on by inserting clause (4A) (by section  2  of  the
      Constitution  77th  Amendment Act, 1995) in Article 16 by
      specifically referring to Scheduled Castes and  Scheduled
      Tribes   who  were  not  adequately  represented  in  the
      services.  Thus, while reservation of seats was a mandate
      under the  Constitution  for  a  period  specified  under
      Article 334; the matter of making reservation in services
      /  posts  was  left  to  the  State  by enabling it under
      Article 16(4) to do so.  Similarly, an enabling provision
      was  introduced  in  Article  15(4)  of  making   special
      provisions   for   advancement   of   any   socially  and
      educationally backward classes of  citizens  or  for  the
      scheduled castes  and  scheduled  tribes.    It  will  be
      noticed that when  the  Constitution  (Scheduled  Castes)
      Order,  1950 was issued, the expression "Scheduled Castes
      & Scheduled Tribes" was not there in Articles 15  or  16.
      However,  Article  335  did provide for the claims of the
      members of the scheduled castes / scheduled tribes to  be
      taken  into  consideration,  in making of appointments to
      services / posts in connection with the  affairs  of  the
      Union  /  State  consistently  with  the  maintenance  of
      efficiency  of  administration  keeping   in   view   the
      directive  principle of State policy enshrined in Article
      46 of the Constitution that :  The  State  shall  promote
      with  special care the educational and economic interests
      of the weaker sections of the people, and, in particular,
      of the Scheduled Castes and  the  Scheduled  Tribes,  and
      shall protect them from social injustice and all forms of
      exploitation.".    The  enabling  provision  of  Articles
      16(4A) was supplemental to Article 335 so that protective
      discrimination contemplated thereunder when spelt out  by
      the State is not assailed on the ground of discrimination
      on the basis of caste.
      
      17.3	The  provisions  of  Constitution   relating   to
      reservation  of seats were to cease to have effect on the
      expiry of a period of ten years from the commencement  of
      the  Constitution  which period was extended from time to
      time currently being "sixty years from  the  commencement
      of  the  Constitution", as provided by Article 334 of the
      Constitution.
              
      18.	It is, in the context  of  the  above  provisions
      that Article 341, re-produced hereunder, is to be viewed:
             
      
       "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  notification  issued  under  the  said
              clause shall not  be  varied  by  any  subsequent
              notification."
              
      18.1	While   Article  341  enables  the  President  to
      specify the castes, races or tribes or parts of or groups
      within castes,  races  or  tribes  which  shall  for  the
      purposes  of  the  Constitution be deemed to be Scheduled
      Castes in relation to that State, or Union  territory  by
      public   notification,  such  notification  issued  under
      Clause  (1)  shall  not  be  varied  by  any   subsequent
      notification  as  provided  by clause (2) of Article 341.
      Therefore, once a  public  notification  is  issued  with
      respect to any State or Union territory that notification
      cannot be  varied  by  the  President.   The Constitution
      specifies the territories of the  States  and  the  Union
      territories in  the  First  Schedule.    As  and when new
      States were formed, for which obviously there existed  no
      notification,   the   President   had   power   to  issue
      notification under Article 341(1) because  for  that  new
      State,  such notification would not be a variation of the
      existing notification, but  a  fresh  notification  which
      could,   after   its  issuance,  not  be  varied  by  the
      President.   Under  Clause  (2)  of  Article   341,   the
      Parliament  is  enabled to include in or exclude from the
      List of Scheduled Castes specified  in  the  notification
      issued  under  Clause (1) by the President by making such
      law.
      18.2	Why was the President given this limited power to
      issue notification with respect to the  States  or  Union
      Territories, and then the matter of variation of the List
      of   Scheduled   Caste  so  published  was  left  to  the
      Parliament?  The reason appears to be this :    When  the
      Constitution  was  adopted,  the Parliament was yet to be
      formed pursuant to its  constitution  under  Article  79.
      That  could  be  done  only  by  holding elections on the
      pattern adopted under the Constitution which contemplated
      reservation  of  seats  for  the  scheduled  castes   and
      scheduled tribes  under  Article 330.  For the purpose of
      fulfillment of the constitutional promise of  reservation
      of  seats  for  the scheduled castes and scheduled tribes
      contained under Article 330, identification of  scheduled
      castes  and  scheduled  tribes was imperative and without
      which, elections to the Houses of People could  not  have
      been held in accordance with the provisions of Article 81
      for  the  purpose  of which the President was required to
      specify  scheduled  castes  under  Article   341(1)   and
      scheduled tribes  under Article 342(1).  Since the Houses
      of Parliament constituted by Article 79 were  yet  to  be
      composed  and  elections  were  required  to  be held for
      composition of the House of People, the President came to
      be empowered by Article 341(1) to  specify  the  list  of
      scheduled  castes  for  the purposes of the Constitution.
      In fact, this was the immediate purpose at the time  when
      the  Constitution  (Scheduled  Castes)  Order,  1950  was
      issued  by  the  President,   because,   the   provisions
      regarding reservation of seats in the House of People for
      the   Scheduled  Castes  already  existed  under  Article
      330(1)(a) while other purposes underlying Article  16(4),
      46  and  335 were in their embryonic form and were yet to
      be spelt out pursuant to these provisions.  On  formation
      of  the  House  of People, any change of scheduled castes
      specified in the  Presidential  notification  became  the
      concern  of  the Parliament in the context of reservation
      of seats for  the  Scheduled  Castes  under  Article  330
      affecting  its  composition,  and that is why the task of
      variation of the list of scheduled castes was left to the
      exclusive legislative  domain  of  the  Parliament.    As
      regards  the  States  which were created subsequently, as
      and when they were created, there being  no  notification
      with  respect to such new States, the President continued
      to be empowered by virtue  of  Article  341(1)  to  issue
      similar  notifications  with respect to the new State and
      which could be varied thereafter only by the Parliament.
      
      18.3	The    modalities    for   issuance   of   public
      notification under Article 341(1) are prescribed  therein
      for the  President.  When the power is to be exercised in
      relation to  a  State,  consultation  with  the  Governor
      thereof was required to be done.  The President has power
      to  specify  not  only  the entire caste but even part or
      groups within the caste in the notification.   The  power
      to  specify  castes  is  to  be  exercised in relation to
      States or Union territories.  It can  also  be  exercised
      for  any  part  within the territorial limits of a State.
      The exercise of specifying the Scheduled castes is to  be
      done for  the purpose of the Constitution.  The provision
      clearly empowers the President to specify  "parts  of  or
      groups within  the  castes"  as  scheduled  castes.   The
      Parliament under Article 341(2) can vary the notification
      under clause (1) by including in or  excluding  from  the
      list  of  scheduled castes specified therein any caste or
      "part of or group within  any  caste".    Therefore,  the
      Parliament   could,   by   removing   or   imposing  area
      restriction, make inclusion or exclusion of any caste  or
      group  or  part  within  such  castes in the Presidential
      Notification.  The power of the Parliament  to  make  law
      under  Article  341(2)  is  confined  to  inclusion in or
      exclusion from the list of Scheduled Castes specified  in
      the public  notification  issued  by  the  President.  In
      making such law, the Parliament has to  follow  the  same
      legislative  procedure  as  it  is  required to follow in
      respect of other laws.  The permissible variation in  the
      list  of  the  Scheduled castes will also obviously be in
      the context of the purposes of the Constitution for which
      the  caste  or  group  within  it  may  be  specified  as
      Scheduled Castes.
              
      19.	What  then  will  be  the nature and ambit of the
      powers conferred on  the  President  and  the  Parliament
      under  Article  341  and  is  the  exercise of such power
      amenable to judicial review  are  the  pivotal  questions
      around  which  the  debate  raised by the learned counsel
      with great erudition has revolved.
              
      20.	The powers of the President arise  from  and  are
      defined by  the  Constitution.    The  President  is  the
      repository of all the executive power of the Union  which
      is  to  be  exercised  by  him  in  accordance  with  the
      Constitution.   The  power  of  Parliament,  however,  to
      confer  by  law  functions  on authorities other than the
      President is kept intact under Article 53(3)(b),  thereby
      placing  the  President as the Constitutional Head in our
      Parliamentary democracy  system  of  governance.      The
      executive  power  is  the residue of the functions of the
      State which are neither legislative nor  judicial.    The
      executive  power  of  the  Union  extends  under  Article
      73(1)(a)  to  the  matters  with  respect  to  which  the
      Parliament has  power  to  make  laws.   The President of
      India was not intended to  be  made  a  mere  figure-head
      though  he  was  required to act by the aid and advice of
      the Council of Ministers as  provided  under  substituted
      provision  of  Article  74(1)  which  always was to be so
      understood.  Circumstances may exist where the  immediate
      promulgation of the law is absolutely necessary and there
      is no  time  in  which  to  summon  the  Parliament.  The
      President has been, therefore,  empowered  to  promulgate
      Ordinances during  the  recession  of the Parliament.  "A
      Democratically Elected President who has moreover to  act
      on  the  advise  of  the  Ministers  responsible  to  the
      Parliament is not at all likely to  abuse  any  Ordinance
      making power  with  which he may be invested".  (See note
      below clause  17  of  the  Recommendation  of  the  Union
      Constitution  Committee - Indian Constitutional Documents
      Munshi Papers, Volume II at page 254).
              
      20.1	The  sub-committee  of  the  Union   Constitution
      Committee came to the conclusion that :
        
      
       "The  President  should  not  be  reduced  to the
              position  of  a  figure-head  like   the   French
              President, but should have a status and authority
              equal to that of the legislature, by being chosen
              as  the  nation's  representative  by  the  whole
              country, though indirectly, through an  electoral
              college  consisting  of all the elected embers of
              the legislatures in the country.
              
       The  conclusion,  when  approved  by  the   Union
              Constitution   Committee   with   a   few  verbal
              alterations, became the basis  for  the  relevant
              Articles  as  finally  adopted by the Constituent
              Assembly." (See Indian Constitutional Documents -
              Vol.I  -  "Pilgrimage  to  Freedom"  -   by   Dr.
              K.M.Munshi at p.  258).
      
      20.2	Since  the  Constitution  does  not  contain  any
      provision   requiring   the   President  to  act  in  his
      discretion, it is logical to conclude that  he  must,  in
      all  matters  (apart  from the discretionary powers, such
      as, returning of Bill for reconsideration  under  Article
      111 conferred on the President), act on the advice of his
      Council of  Ministers in exercise of his functions.  Such
      conclusion is also supported by  the  fact  that  Article
      75(3)   which   makes  the  Union  Council  of  Ministers
      collectively responsible to the Lok Sabha is  unambiguous
      and   must,   therefore,   be   taken   to   predicate  a
      constitutional status for the President.   Under  Article
      74,  the  expression  "who shall, "in the exercise of his
      functions"  act  in  accordance  with  such  advice,  the
      President  is  bound  by  the  advice  of  the Council of
      Ministers and all his functions are to  be  exercised  in
      accordance with  such advice.  The word "functions" under
      Article 74(1) has to be  given  a  wider  meaning  having
      regard  to  the responsible nature of the government in a
      parliamentary democratic system  and  would  embrace  not
      only  the  executive  functions,  but also the law making
      functions, such as, framing  of  rules,  regulations  and
      notifications.  This would a fortiori mean that the Court
      will  not  go  into material or its sufficiency with that
      part of procedural advice in respect of the  exercise  of
      the  presidential  functions  under  Article  74  of  the
      Constitution.
      
      20.3	The words "aid and advice" have to be  understood
      not  by  the words used in dictionary, but by considering
      their origin  and  the  line  of  their  growth.      The
      expression "aid and advice" is a constitutional euphemism
      and embodies the well-known British convention, where the
      King  always  acts  on  the advice of his ministers, even
      though all power is legally vested in him, and it  is  in
      that  sense,  the  words  "aid  and  advice"  have  to be
      understood  in  respect  of  exercising  powers  by   the
      President of India.
      
      21.	As  a  component  part  of  the  Parliament,  the
      President,  in  theory,  possesses  extensive legislative
      powers.  The modern concept of  State  demands  that  the
      State  Executive  Head  should also have some legislative
      powers.  Executive bodies, especially  in  recent  times,
      perform  acts  which  are  difficult  to distinguish from
      legislation, on the one hand and  judicial  functions  on
      the other.    (See  "A  Grammar of Politics" by Harold J.
      Laski (4th Edition) at page 296).  The Constitution being
      the highest law, the "grund-norm" cannot be  expected  to
      provide for all the rules of governance.  It is therefore
      a  source  of all powers to the three wings of the State.
      The President has been  entrusted  with  variety  of  law
      making  powers  such  as, of making of Ordinances, Rules,
      Orders, Notifications, Regulations, under  the  following
      constitutional provisions.    The  Presidential powers of
      law making under the Constitution has  the  assurance  of
      independent handling of the issues covered by such powers
      and   raises  its  exercise  to  the  level  of  national
      perspective away from the grips of the parochial  aspects
      of the bureaucrat government.
      
      21.1	Under Article 77(3), the President is required to
      make rules for the more convenient  transactions  of  the
      business of the Government of India and for allocation of
      the said  business  among  the  Ministers.  Under Article
      108(1)(c), the President may issue a public  notification
      to summon  the  Houses,  if  they  are  not sitting.  The
      President may make rules as to the procedure with respect
      to the joint sittings of and communications  between  the
      two Houses.    The  President  has  legislative  power of
      limited  duration  under  Article   123   to   promulgate
      Ordinances  which "shall have same force and effect as an
      Act of Parliament".  Under proviso to  Article  146  (1),
      the  President may by rule require that, in such cases as
      may be specified in the rule, consultation with UPSC with
      respect to the appointment of  a  person  to  any  office
      connected  with  the Supreme Court shall be necessary, if
      such person is not already attached to the Court.   Under
      Article  148(5),  the  President  may, after consultation
      with the Comptroller and Auditor General, prescribe rules
      regarding the conditions of service of persons serving in
      the India  Audit  &  Accounts  Department  and  prescribe
      administrative  powers  of  the  Comptroller  and Auditor
      General.  The President has power to issue  Order,  under
      Article  170(3)  second proviso, to specify the date when
      the re-adjustment of seats in the Legislative  Assemblies
      and  territorial  constituency  of  each State shall take
      effect.  Under Article 190(2), the President may  specify
      in  rules  period at the expiry of which the persons seat
      in the Legislatures of all  States  shall  become  vacant
      unless  he  has previously resigned his seat from all but
      one of the States.  Under Article 222(2),  the  President
      may  issue Order fixing compensation allowance receivable
      by a transferee  judge.    The  President  may  by  Order
      determine  allowance  of  retired  judges appointed under
      Article 224A at sittings of High Courts.   Under  Article
      239AB,  the  President may by order suspend the operation
      of Article 239AA or of any  provisions  of  law  made  in
      pursuance  of  Article  239AA  (Special  provisions  with
      respect to Delhi).  Under Article 240, the President  has
      power  to  make  regulations  for the peace, progress and
      good governance of  certain  Union  territories.    Under
      proviso  to  Article  243(L), the President may by public
      notification direct that the provision of Part  IX  shall
      apply  to any Union territory or part thereof, subject to
      such exceptions and modifications as he  may  specify  in
      the notification.    Under Article 263, the President may
      establish by Order, an Inter State Council under  Article
      263   and  define  the  nature  of  its  duties  and  its
      organization and procedure.  Under  Article  275(2),  the
      President may by order exercise powers conferred upon the
      Parliament  under  clause  (1),  subject to any provision
      that is made by the Parliament.   Under  Article  283(1),
      until  provision is made by parliament, regulating by law
      custody etc.  of consolidated funds, contingency fund and
      moneys credited to the  public  accounts,  the  President
      shall regulate  the same by rules.  Under Article 288(1),
      the  President  may  by  order  provide  for  removal  of
      exemption  from taxation by states in respect of water or
      electricity in certain cases.    The  President  or  such
      person  as  he  may direct may frame rules regulating the
      recruitment and conditions of service in case of services
      or posts in connections with the  affairs  of  the  Union
      under proviso to Article 309.  Article 318 confers powers
      on  the President to make regulations as to conditions of
      service of members and staff of the Union Public  Service
      Commission.   Under proviso to clause (3) of Article 320,
      the President may make  regulations  subject  to  Article
      320(5)   specifying   the   matters   in   which   either
      particularly or in any particular circumstances, it shall
      not be necessary for  Public  Service  Commission  to  be
      consulted  as respects the All India Services and also as
      respects other services and posts in connection with  the
      affairs of  the  Union.  The President may subject to the
      provisions of  any  law  made  by  Parliament,  by  rule,
      specify under Article 338(5)(f) functions of the National
      Commission  for  Scheduled Castes and Scheduled Tribes in
      relation to  the  protection,  welfare,  development  and
      advancement of the scheduled castes and scheduled tribes.
      The   President  can  by  rule  determine  under  Article
      338(8)(f) any matter not specified in sub-clause  (a)  to
      (e)  in respect of which the Commission shall have powers
      of a Civil Court.  Under Clause (10) of Article 338,  the
      President  may by order specify other backward classes on
      report of a Commission appointed  under  article  340(1).
      Under  Article 339(1), the President may by order appoint
      a commission to  report  on  administration  of  schedule
      areas etc.    Under  Article 340(1), the President may by
      order appoint a commission to investigate the  conditions
      of backward   classes.    The  President  may  by  public
      notifications under Article 341(1) and 342(1) specify the
      castes, races, tribes or parts or groups within  them  as
      schedule  castes  or  scheduled  tribes in respect of any
      State or Union territory.  The  President  may  by  order
      authorize  use of Hindi language for official purposes of
      the Union under Article 343(2).   Under  Article  344(1),
      the  President  shall by order constitute a commission on
      official language and define in it the  procedure  to  be
      followed by  the  Commission.    Under  Article 350A, the
      President may issue direction as he  considers  necessary
      or   proper  to  any  State  for  securing  provision  of
      facilities for instruction in mother  tongue  at  primary
      stage.   Under  Article 352(1), the President may declare
      by a proclamation emergency.    Under  Article  356,  the
      President  may,  by proclamation, assume functions of the
      government of the State and declare that the power of the
      legislature of the State shall be exercisable by or under
      the  authority  of  parliament  and  make   consequential
      provisions.   Under  Article 357(1)(a), the Parliament is
      competent to confer on the President the  powers  of  the
      legislature of  the  State  to  make laws.  Under Article
      359, the President may by order suspend  the  enforcement
      of right conferred by Part III during emergencies.  Under
      Article  360,  the  president may by proclamation, make a
      declaration of financial emergency.  The President may by
      order made under proviso to Article  367(3)  declare  any
      state other than India not to be a foreign State for such
      purposes, as  may  be  specified  in  the  Order.   Under
      Article 370(1)(b)(ii), the President may by order specify
      "other matters" in the Union and concurrent  lists,  with
      the concurrence of the Government of the State of Jammu &
      Kashmir  with  respect  to  which the Parliament may make
      laws for the said  State.    Under  Article  370(3),  the
      President may by public notification declare that Article
      370  shall  cease  to  be operative or shall be operative
      with exceptions and  modifications  as  he  may  specify.
      Under  Article  371(f)(n),  the  President  may by public
      notification extend any enactment which is  in  force  in
      the State   in  India  to  the  State  of  Sikkim.    The
      adaptation or modification of any law which the President
      may order under Article 372(1) and 372A(1) shall  not  be
      questioned in any Court of law.
              
      22.	The President of India has, thus, wide law making
      powers entrusted to him under the above provisions of the
      Constitution.   These powers are with respect to issuance
      of Ordinances, Proclamations, Orders, Rules, Regulations,
      Notifications and Directions, all having in the territory
      of India the force of  law.    The  public  notifications
      issued by the President are gazetted notifications (See -
      definition  of `public notification' in Article 366(19)).
      A public notification specifying  the  castes,  races  or
      tribes  or parts of or groups within the castes, races or
      tribes which are deemed to be scheduled  castes  for  the
      purposes  of  the  Constitution  issued  by the President
      under Article 341(1)  is,  therefore,  "law"  within  the
      meaning   of  Article  13(2)  of  the  Constitution,  and
      therefore,  if  any  such  notification  takes  away   or
      abridges   the  rights  conferred  by  Part  III  of  the
      Constitution,  it  shall  be  void  to  the   extent   of
      inconsistency because, the President by virtue of Article
      13(2)  "shall  not  make  any  law  which  takes  away or
      abridges the rights conferred" by Part III.
              
      23.	The pendulum of arguments of  the  rival  parties
      swung  from  one  extreme of non-availability of judicial
      review of the public notification  issued  under  Article
      341(1)  or of the Amendment Act made under Article 341(2)
      by the Parliament varying it, to  the  other  extreme  of
      such action being open to close judicial scrutiny in view
      of   the  special  nature  of  power  coupled  with  duty
      entrusted  to  these  functionaries  thereunder  for  the
      purpose  of achieving the purpose of ameliorating the lot
      of the scheduled castes.  It was contended by the learned
      counsel representing the learned Attorney General  during
      the  course of his arguments that the list specifying the
      scheduled castes was to be  treated  as  a  part  of  the
      constitutional   provisions,   because,  section  366(24)
      instead of enumerating the scheduled castes by  attaching
      the  schedule  in  the Constitution itself has left it to
      the President to specify them and  such  list  should  be
      read  in  Article  366(24)  and  therefore,  any judicial
      review thereof would amount to reviewing a constitutional
      provision.  We feel that this contention has been pitched
      rather too  high.    The   Constitution   has   entrusted
      Parliament  the  function  of making laws with respect to
      the matters enumerated in the Union and Concurrent  Lists
      and  on  all residuary matters not mentioned in the State
      List apart from the emergency power or power derived from
      the volition of the State Legislatures to enact laws even
      with respect to the matters falling in  the  State  List.
      Such  laws  enacted on the basis of the legislative power
      conferred by the Constitution do not become part  of  the
      Constitution with reference to their relevant subjects of
      the legislative  lists.  Therefore, the list of scheduled
      castes  made  by  the   President   by   issuing   public
      notification with or without variation by a Parliamentary
      Amendment  Act  under Article 341(2) cannot be treated as
      the provision of the Constitution  itself  under  Article
      366(24) defining    scheduled   castes.      The   public
      notification, with or without variation by Amendment  Act
      of the Parliament will, therefore, be subject to judicial
      review  in  the  same  way  as  any other law made by the
      appropriate legislature in exercise  of  its  legislative
      functions  is  subject to by virtue of the constitutional
      powers of the higher judiciary.
              
      23.1	The object of Article 341(1) and  342(1)  was  to
      eliminate  the  necessity  of  burdening the Constitution
      with long lists of Scheduled Castes and Scheduled Tribes.
      The President is, therefore, empowered to issue a general
      notification in the gazette specifying all the castes and
      tribes or groups  thereof  deemed  to  be  the  Scheduled
      Castes  and  Scheduled  Tribes  for  the  purposes of the
      privileges  which  were   defined   for   them   in   the
      Constitution.   The only limitation that has been imposed
      on this power is that  once  the  notification  has  been
      issued  by the President, in consultation with and on the
      advice of the Government of each  State,  thereafter,  if
      any  elimination was to be made from the List so notified
      or any addition was to be made, that must be made by  the
      Parliament and not by the President.  "The object of this
      restriction  was  to  eliminate  any  kind  of  political
      factors having a play in the matter of the disturbance in
      the Schedule  so  published  by  the  President".    (See
      B.R.Ambedkar  -  300A and 300B (corresponding to Articles
      341 and 342) in the Draft Constitution :  The Constituent
      Assembly Debates, Volume 9, Page 1637).
              
      23.2	There is no rigid separation of  powers  possible
      in   the   Montesquieuian   way   for  a  harmonious  and
      responsible governance of  the  country.    The  bulk  of
      legislative   power   is   vested   in   the  appropriate
      legislatures under Article 246 read with the  legislative
      Lists of Scheduled 7 to the Constitution.  However, under
      several  other  provisions  of  the  Constitution (as for
      example, under Articles 2, 3, 11,  16(3),  22(7),  32(3),
      33,  34,  35,  49,  59(3),  65(3),  71(3),  75(6), 80(5),
      81(1)(b), 82,  83,  84(c),  97,  98(2),  100(3),  101(1),
      102(1)(e), 105(3), 106, 122(3)(g), 119, 120(2), 124, 125,
      138,  139,  140,  148(3),  149,  158(3),  169(1), 170(3),
      171(3), 172(1), 173(c), 221(1), 222(2),  230(1),  231(1),
      239AB,   239AA(2)(b)(7),   241,   243M(4)(b),   243ZC(3),
      244A(1), 247, 248,  249(1),  250,  252,  253,  262,  267,
      269(3),  275,  280(2),  283(1),  285,  286,  289(3), 292,
      293(2), 297(3), 298, 302, 303(2), 307,  312,  312A,  315,
      323A(1),  327,  341(2), 342(2) and 343(3), the Parliament
      is entrusted with power to make laws apart from its  bulk
      legislative   power  enumerated  in  the  Union  and  the
      Concurrent List and its general residuary power.  It will
      be too late in the day to dim the  exercise  of  judicial
      review  adopted  as  a  constitutional  safeguard against
      making of laws  violating  the  Constitution.    One  may
      recall here Harold  Laski  stating  :  "What Prof.  Dicey
      has called the rule of law is, with all its  implications
      fundamental.   It  means that the State must be put on an
      equality with all other bodies, that it must  answer  for
      its  acts;  it means also, that no mysterious prerogative
      should intervene to prevent attainment of justice.    The
      power  of the judiciary over the executive is, therefore,
      if contingent,  nevertheless  is  essential".    (See  "A
      Grammar of  Politics"  by  Harrold  J.   Laski, Chapter 8
      "Political  Institutions",  at  page  298  of   the   4th
      Edition).   The  Presidential  notification under Article
      341(2) whether varied or not by parliamentary legislation
      is not a "mysterious prerogative".  The President  acting
      on  the aid and advice of the Council of Ministers issues
      such public notification and since it has a force of law,
      it  is  an  instance  of   "executive   legislation"   or
      "executive law  making".   The power under Article 341(1)
      read with Article 366(24) is not a constituent power  and
      the  list notified under Article 341 (1) of the Scheduled
      Castes, is  not  a  provision  of  the  Constitution  and
      therefore, variation in such list is not a constitutional
      amendment  and  need  not  be viewed with the constraints
      attached  to  the  extent  of  judicial   review   of   a
      constitutional amendment.
       
      24.	Ability  of  the  higher  judiciary to review the
      constitutional validity of the actions of  the  executive
      and  legislative branches of the State is the hallmark of
      the Indian system of governance under  the  Constitution.
      The  role  of  the  higher  judiciary  as  constitutional
      guardian cannot easily be circumscribed.  When a  statute
      violated  the  Constitution it was the duty of the Courts
      to  apply  the  Constitution  as  paramount   law   which
      superceded inconsistent statutes.
      
      24.1	Presidential  laws  have  often  been the subject
      matter of judicial review.  The Apex Court in context  of
      proclamation  under  Article  356  held  in S.R.Bommai v.
      Union of India (1994)3 SCC 1 that a  proclamation  issued
      by  the  President  under  Article  356  is  amenable  to
      judicial review.  It was, however, held that it would  be
      wholly  incorrect to view the exercise of the President's
      satisfaction on par with  the  satisfaction  recorded  by
      executive  officers  in  the  exercise  of administrative
      control.   Distinguishing  judicial   review   from   the
      justiciability  by  the  Court,  it was held that the two
      concepts are not synonymous, and that, justiciability  of
      the  decision  taken  by  the  President  is  one  of the
      exercise of powers by the Court  hedged  by  self-imposed
      judicial restraint.    Judicial review is a basic feature
      of the Constitution and the Supreme Court  and  the  High
      Courts  have  constitutional  duty  and responsibility to
      exercise judicial review as sentinel  on  the  qui  vive.
      Judicial  review  is however not concerned with merits of
      the decision but with the manner in  which  the  decision
      was taken.
       
      24.2	In the context of judicial review of  President's
      Order granting relief under Article 72, the Supreme Court
      held in  Kehar Singh v.  Union of India, (1989)1 SCC 204,
      that the Court can go into the nature and extent  of  the
      power  under  Article  72  but  exercise of the powers on
      merits is not open  to  judicial  review.    In  R.K.Jain
      (1993)   4   SCC   119,  it  was  held  that  it  is  the
      constitutional, legitimate and lawful power and  duty  of
      the  Supreme Court to ensure that powers, constitutional,
      statutory or executive are exercised in  accordance  with
      the Constitution   and  the  law.    In  the  context  of
      Ordinance issuing power under Article  123,  the  Supreme
      court in  A.K.Roy v.  Union of India, reported in (1982)1
      SCC 271, held that judicial  review  of  the  President's
      satisfaction   regarding   the   necessity  to  issue  an
      Ordinance is not totally excluded.  The  question  as  to
      whether  the  pre-conditions  to exercise of powers under
      Article  123  have  been  satisfied  or  not,  cannot  be
      regarded  as  a purely political question and kept beyond
      judicial review.  In  Kaiser-I-Hind  Pvt.    Ltd.      v.
      National Textile   Corpn.     (Maharashtra  North)  Ltd.,
      reported in (2002)8 SCC 182, the Supreme court held that,
      granting assent under Article 254(2) was not exercise  of
      legislative  power  of the President such as contemplated
      under Article 123  but  is  a  part  of  the  legislative
      procedure,  and that, whether procedure prescribed by the
      Constitution before enacting the law is followed  or  not
      can always  be  looked into by the Court.  (See paragraph
      29).
       
      24.3	The laws made by the Parliament with  respect  to
      any   of   the  subjects  enumerated  in  the  Union  and
      Concurrent  List  or  made  under  any  of  the  specific
      provisions  of  the  Constitution, such as, under Article
      341(2), cannot be subjected to  different  yardsticks  of
      judicial review.  The presumption of constitutionality of
      a  statute  attaches  to  all  types  of laws made by the
      appropriate legislature within its legislative competence
      under the Constitution.    However,  judicial  review  is
      provided  for  in  the Constitution itself and the higher
      Courts in the country  are  constitutionally  obliged  to
      exercise  the  power  of  judicial review in every matter
      which is constitutional in nature  or  has  potential  of
      constitutional    repercussions    and   the   test   for
      interference is constitutional violation.  Though  wisdom
      of legislative policy may not be open to judicial review,
      but  when  the wisdom takes the concrete form of law, the
      same must stand the  test  of  being  in  tune  with  the
      fundamental  rights  and  if  it trenches upon any of the
      fundamental rights, it is void as ordained by Article  13
      and  cannot  be  shielded  on the ground that it enacts a
      legislative policy.   [See  A.L.Kalra  v.     Project   &
      Equipment  Corporation of India Ltd., reported in (1984)3
      SCC 316].  The State, however, has the  full  freedom  to
      experiment  in  implementing  its  policy for achieving a
      desired object.  Though the Courts have  no  function  in
      the  evaluation of the policies or in determining whether
      they are good or bad  for  the  community,  they  however
      have,  in  examining  the legislative action taken by the
      State in furthering the ends, to ensure  that  the  means
      adopted  do  not  conflict  with  the  provisions  of the
      Constitution within which the  State  action  has  to  be
      confined.
       
      24.4	It  is,  therefore,  clear from the nature of law
      making power  of  the  executive  head  -  the  President
      conferred  on  him  by  Article  341(1), as also from the
      legislative power of the Parliament specified in  Article
      341(2)  of making variation in the notification issued by
      the President under Article 341(1) that both  the  public
      notification  issued  by  the  President  as  well as the
      Amendment Act of the Parliament varying such notification
      are ordinary law made in exercise of the  law  making  or
      legislative  power and cannot be elevated to the level of
      Constitutional  law  which  is  made   in   exercise   of
      constituent power.    Since  both the public notification
      issued by the President under Article  341(1)  as  varied
      and  the  impugned Amendment Act of 2002 are ordinary law
      within the meaning of Article 13(2), their validity is to
      be decided on the touchstone of the Constitution.
       
      24.5.	We, therefore, reject  the  contention  that  the
      public notification under Article 341(1) or the Amendment
      Act,  2002,  varying  that  notification, determining the
      scheduled  castes,  being  part  of  the   constitutional
      provision  of Article 366(24) cannot be questioned on the
      basis of violation of Article 13(2).
       
      25.	The  Houses  of Parliament make rules for conduct
      of their business under Article 118(1).  The  legislative
      procedure  as  to  introduction  and  passing  of  a Bill
      seeking amendment in the public notification issued under
      Article 341(1) would be the same as is prescribed for the
      other laws made by the Parliament.  When a Bill has  been
      passed  by  the Houses of Parliament, it is presented for
      assent of the President under Article 111.    By  Article
      122(1),   it   is  provided  that  the  validity  of  any
      proceedings in Parliament shall not be called in question
      on the ground of any alleged irregularity  of  procedure.
      The consideration of a Bill proposed for amendment in the
      public  notification  issued  under  Article  341(1) is a
      matter which  is  regulated  by  the  internal  rules  of
      business of  the  Houses  of  Parliament.   No inquiry is
      permissible  by  any  outside  agency  to  examine   what
      procedure was adopted for the purpose of considering such
      Bill  by  the Houses of Parliament and in what manner was
      the  Bill  considered  and  which  material  and  factors
      weighed  with  the Houses of Parliament in reaching their
      collective wisdom for the passage of the Bill.  While the
      matters  which   went   into   consideration   or   their
      sufficiency  or  adequacy are insulated from being called
      in  question  by  Article  122(1),  the  impact  of   the
      statutory provisions which are enacted would obviously be
      subject   to  judicial  review  in  the  context  of  the
      legislative competence or violation  of  any  fundamental
      right.    The   consideration  of  the  material  or  its
      sufficiency by the Parliament are  the  matters  entirely
      within  its  domain  and whom to consult, how to consult,
      whether to consult, what material to call for, what other
      factors in the context of the governance of  the  country
      to  consider,  the desirability of the provisions and the
      social and economic repercussions are all matters  within
      the  exclusive  domain  of the Parliament and there is no
      way by which an outside agency  can  interfere  with  the
      procedure   of  consideration  of  such  a  Bill  by  the
      Parliament.  The representatives of the people are by the
      very nature of our democratic set-up presumed to know the
      pulse of the people and to be aware of what is for  their
      good  and  what  balancing  of interest is required to be
      done.  There  is  no  permissible  way  of  knowing  what
      material   was  actually  considered  by  the  Houses  of
      Parliament, what aspects were discussed and on what basis
      the  Amendment  Act  was  made  under   Article   341(2).
      Therefore,   one  cannot  do  what  is  impermissible  by
      considering material available  at  the  stage  prior  to
      Parliamentary  consideration of the Bill and on the basis
      of the views of the State  Government  or  the  Registrar
      General of India or the National Commission for Scheduled
      Castes  &  Scheduled  Tribes  come  to  a  finding  about
      non-consideration or insufficiency of material before the
      Parliament, without having any means to know whether this
      and what other material weighed in favour of the  passage
      of the  Bill  by  the  Houses  of Parliament.  Due to the
      Constitutional insulation of the Parliamentary  procedure
      in  passage of Bills prescribed under Article 122(1), the
      examination of the adequacy of material or the  processes
      adopted  by  the Houses of Parliament in consideration of
      the Bill and enacting the impugned Amendment Act of  2002
      lacks adjudicatory disposition and no scrutiny beyond the
      scope  of  permissible  judicial review can be undertaken
      even in respect of the Amendment Act made  under  Article
      341(2)  on  the  `power coupled with duty' - doctrine, as
      was sought to be contended by the learned counsel for the
      petitioner.  The Amendment Act  made  by  Article  341(2)
      exhausts  itself  by  making variation in the list of the
      Scheduled  Castes  notified  under  Article  341(1)   and
      disturbing  the  Amendment  Act,  which  is  just a shell
      having achieved  its  purpose  of  varying  the  list  of
      Scheduled  Castes  by inclusion or exclusion, by scrutiny
      by the Court will  have  a  direct  impact  on  the  list
      published under  Article 341(1) itself as so varied.  The
      judgments of the Apex Courts rendered in the  context  of
      public notification under Article 341(1) will, therefore,
      apply  with  equal  force  for  regulating  the  scope of
      judicial review even to the list of Scheduled  Castes  as
      varied by the Parliamentary Amendment.  The contention of
      the  learned  Senior  Counsel for the petitioner that the
      decisions  of  the  Apex  Court  that  inclusion  in   or
      exclusion  from  the  list  of scheduled castes cannot be
      ordered, are not applicable to the  nature  of  challenge
      raised  against  the  constitutionality  of  the impugned
      Amendment Act cannot, therefore, be accepted.
       
      26.	That  takes  us  to  the   examination   of   the
      contention  that  the list of scheduled castes as amended
      by the impugned Amendment  Act  2002  is  in  its  impact
      arbitrary and  discriminatory.    The  record referred to
      hereinabove clearly reveals that all  Mochis  of  Gujarat
      were not treated as "untouchables" which was an important
      and acceptable basis on which the castes or groups within
      the castes could be specified as scheduled castes.
       
      26.1	Shri V.I.Muniswami Pillai,  while  the  provision
      was  being  introduced  from the draft Constitution, made
      the  following  observations,  which  indicate  that  the
      Scheduled  Castes were castes who suffered the disability
      due to  the  social  evil  of  untouchability  which  was
      practiced by the Hindu community for ages against them :
       
      
       "But,  I  would  like to inform this House of the
              background which brought out the special name  of
              Scheduled Castes.  It was the untouchability, the
              social  evil that has been practised by the Hindu
              community for ages, that was responsible for  the
              Government  and the people to know the section of
              people coming under the category  of  Hindus  and
              who  were  kept  at  the  outskirts  of the Hindu
              society.  Going backwards to 1961, it was in that
              year when Government found that something had  to
              be  done  for the untouchable classes, (when they
              said  untouchable  classes,  they   were   always
              understood  to  be  Hindus,)  and  they had to be
              recognized.    In   Madras,   there   were    six
              communities  that came under this classification.
              During the Montago Chelmsford reforms  they  were
              made ten.    In  1930 when the great epoch-making
              fast of Mahatma Gandhi came about, then only  the
              country   saw   who  were  the  real  untouchable
              classes.  And in the  1935  Act,  the  Government
              thoroughly examined the whole thing and as far as
              the Province of Madras is concerned, they brought
              86 communities into this list or category, though
              there were  some  touchable  classes  also.  Now,
              after   further   examination,   the   Provincial
              Governments  have  drawn  up  a  list and I think
              according to the amendment  mover's  suggestions,
              all   these   communities  that  come  under  the
              category of untouchables and  those  who  profess
              Hinduism will be the Scheduled Castes."
      
      26.2	From series of documents which have been referred
      to  hereinabove,  such  as, Report of 1930, Report of the
      Joint Committee etc., it is clear that untouchability was
      the criterion adopted for inclusion in the  list  of  the
      Scheduled Caste.
      
      26.3	Extreme social &  economic  backwardness  arising
      out   of   traditional  practices  of  untouchability  is
      normally  considered  as  criterion   for   including   a
      community  in  the list of Scheduled Castes (See decision
      of the Supreme Court in  Marri  Chandra  Shekhar  Rao  v.
      Dean, Seth G.S.  Medical College, reported in (1990)3 SCC
      130).    Though   "untouchability"   is   a   symptom  of
      backwardness, all backward classes are not  untouchables.
      Among  the  backward  classes, untouchables are the worst
      lot socially and if the law provides that a  group  or  a
      part  within  the  Mochi  caste be specified as scheduled
      caste, while others are classified  as  O.B.C.    on  the
      basis  of  the historical factual data based on the local
      practices, it cannot be  said  that  equals  are  treated
      unequally.  The  concept  of equality is contextual.  The
      context of Mochis of Dangs district and  Umargaon  Taluka
      of  Valsad  district  by virtue of their being treated as
      untouchables was sufficient to classify them as scheduled
      castes while other members  of  the  Mochi  community  in
      other  parts  of Gujarat who though backward but were not
      treated untouchables in the other parts of the State  and
      were classified  as  O.B.C.    (for  whom  also  benefits
      similar to those admissible to the scheduled castes could
      be provided) cannot claim to be falling in the same class
      of those  who  were  treated  as  untouchables.      Such
      classification  is  reasonable  and  has sufficient nexus
      with the object sought to be achieved by the law  dealing
      with the  claims  of  the  Scheduled Castes persons.  The
      challenge against the constitutionality of  the  impugned
      Amendment  Act,  2002  and the impugned entry No.4 of the
      Schedule to the Presidential Order 1950,  raised  by  the
      petitioner, therefore, fails.
       
      27.	There  cannot  be  an  embargo on the legislative
      process of amending the list of  scheduled  castes  under
      Article  341(2)  and even if area restriction was earlier
      removed by the Amendment Act of  1976,  re-imposition  of
      area  restriction by the subsequent Amendment Act of 2002
      was within the legislative competence of the  Parliament.
      Exercise   of   such  legislative  power  by  making  the
      Amendment Act of 2002  under  Article  341(2)  cannot  be
      questioned  on  the  ground  that the earlier Act of 1976
      viewed the matter  differently.    The  decision  of  the
      Division  Bench  of  this Court which was rendered in the
      context of the Act of 1976 cannot  therefore  assist  the
      petitioner.   The  validity  of the Amendment Act of 2002
      cannot be judged  on  the  basis  of  the  ratio  of  the
      decision rendered in the context of the earlier Amendment
      Act  of  1976 in view of the clear legislative competence
      of the Parliament not only to make law but to change  the
      law by   subsequent   legislation.      The  exercise  of
      legislative power on a subject is not a static matter and
      one time  exercise  on  that  subject  and  there  is  no
      justification  for  such stultifying view of the power of
      the legislature.  The Parliament  has  plenary  power  to
      make   and   unmake  the  laws  in  accordance  with  the
      Constitution.  Therefore, the power of the Parliament  to
      frame  the  impugned  Amendment  Act  of  2002  cannot be
      assailed on the ground of the earlier  decision  of  this
      Court rendered in context of the earlier law.
      
      Conclusions :
      
      28.	We, therefore, conclude :
      
      (i) The  List  of  Scheduled  Castes specified in the
              public notification issued by the President under
              Article 341(1) of the Constitution whether varied
              or not by the Parliament under Article 341(2) can
              not  be  treated  as   the   provision   of   the
              Constitution  itself  under the definition clause
              366(24) and the Amendment Act made under  Article
              341(2)   varying   the   Constitution  (Scheduled
              Castes) Order,  1950  cannot  be  treated  as  an
              amendment of any constitutional provision.
      
      (ii) The public notification issued by  the  President
              under  Article  341(1) and the Amendment Act made
              by  the  Parliament  under  Article  341(2)   are
              ordinary  law within the meaning of Article 13(2)
              of the Constitution.    The  Amendment  Act  made
              under   Article   341(2)   is  not  made  by  the
              Parliament in exercise of constituent power,  but
              is enacted while exercising its legislative power
              spelt out in Article 341(2).
      
      (iii) Both   the  public  notification  issued  by  the
              President under Article 341(1)  as  well  as  the
              Amendment   Act  made  by  the  Parliament  under
              Article 341(2) being "law" within the meaning  of
              Article  13(2) are amenable to judicial review on
              the ground of  violation  of  fundamental  rights
              conferred by Part III of the Constitution.
      
      (iv) Though  the process of making of the Presidential
              Notification  under  Article   341(1)   and   the
              legislative  process  of  making of the Amendment
              Act under Article 341(2) cannot be  subjected  to
              judicial    scrutiny   and   lacks   adjudicatory
              disposition  in  view   of   the   constitutional
              insulations  contained in Articles 74(2) and 122,
              the impact of such "law" can  be  tested  on  the
              ground of constitutional violation.
      
      (v) The Parliament has legislative power to exclude a
              caste  or  part of or group within the caste from
              the list of the Scheduled  Castes  under  Article
              341(2)  even  if  by earlier law, it had included
              that caste or group or part thereof in such list.
      
      (vi) The classification of the Mochi  caste  of  Dangs
              district  and  Umargaon Taluka of Valsad district
              and the Mochi caste of the other areas of Gujarat
              on the ground of  the  former  being  treated  as
              "untouchables"  and  the  latter  not, is a valid
              classification having reasonable nexus  with  the
              object  sought  to  be  achieved  by the impugned
              legislation.
      
      (vii) The   impugned  provisions  of  the  Constitution
              (Scheduled Castes) Orders (Second Amendment) Act,
              2002  and  the  Constitution  (Scheduled  Castes)
              Order,  1950,  as  varied  by  it,  imposing area
              restriction for recognition  of  Mochi  community
              are  neither  discriminatory nor arbitrary and do
              not  violate  any  fundamental   right   of   the
              petitioner   and   are   constitutionally   valid
              provisions.
      
      Final Order :
      
      29.	For the foregoing reasons, the challenge  of  the
      petitioner against the impugned Amendment Act of 2002 and
      the  imposition  of  area  restriction  in respect of the
      Mochi caste as done in the varied entry 4 of the Order of
      1950,  as  well  as  against  the   impugned   Government
      Resolution  dated  18-2-2003  fails  and  the contentions
      raised on behalf of the  petitioner  and  the  supporting
      respondent No.10  have  no  substance.   The petition is,
      therefore, rejected.  Rule is discharged.  There shall be
      no order as to costs.
       
      30.	At  this  stage,  the  learned  counsel  for  the
      petitioner  requests  for  certificate  of  fitness under
      Articles 132(1) and  133(1)(a)  that  the  case  involves
      substantial  question  of law as to the interpretation of
      the Constitution which was also  of  general  importance.
      In our opinion, the extent of judicial review permissible
      under  Article  341  of  the  Constitution  has  been the
      subject matter of various  apex  Court's  judgements  and
      there is hardly any substantial question of law as to the
      interpretation   of   the   Constitution  or  of  general
      importance involved in the matter  meriting  issuance  of
      such certificate.  The request is, therefore, rejected.
       
       				[R.K.ABICHANDANI, J.]
       
       				[D.H.WAGHELA, J.]
       
       parmar*
       


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