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
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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?
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SAMASTA GUJARAT RAJYA MOCHI SAMAJ
Versus
UNION OF INDIA THRO' SECRETARY
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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
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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.]
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