LEGAL ISSUE: Whether the State Government can grant Scheduled Tribe status to a community not recognized as such under the Presidential Order.
CASE TYPE: Constitutional Law, Writ Petition
Case Name: Sunil Kumar Rai & Ors. vs. The State of Bihar & Ors.
[Judgment Date]: 21 February 2022
Date of the Judgment: 21 February 2022
Citation: (2022) INSC 147
Judges: K.M. Joseph, J. and Hrishikesh Roy, J.
Can a State government bypass established legal procedures and grant Scheduled Tribe status to a community? The Supreme Court of India recently addressed this crucial question in a writ petition challenging a notification issued by the Bihar government. The core issue revolved around the State’s decision to grant Scheduled Tribe status to the ‘Lohar’ community, despite the fact that the community was historically recognized as part of the Other Backward Classes (OBC). The Supreme Court, comprising Justices K.M. Joseph and Hrishikesh Roy, delivered the judgment.
Case Background
The petitioners, members of the general category, challenged a notification issued by the State of Bihar on August 23, 2016. This notification granted Scheduled Tribe status to the ‘Lohar’ community. The petitioners contended that the ‘Lohar’ community was not historically recognized as a Scheduled Tribe, but rather as part of the Other Backward Classes (OBC). They argued that the notification was unconstitutional and violated Articles 14 and 21 of the Constitution. The petitioners also highlighted that based on the impugned notification, proceedings were initiated against them under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, leading to their arrest and detention.
Timeline:
| Date | Event |
|---|---|
| 1950 | Presidential Order issued, not including ‘Lohars’ as Scheduled Tribes. |
| 1953 | Kaka Kalelkar Commission Report identifies ‘Lohar’ as a Backward Class. |
| 1956 | Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956, substitutes Entry 20 to read as “Lohara” or “Lohra”. |
| 1976 | Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, maintains ‘Lohara’ and ‘Lohra’ as Scheduled Tribes in English version, but Hindi translation includes ‘Lohar’. |
| 1990 | Shambhoo Nath case: Supreme Court erroneously treats ‘Lohar’ as Scheduled Tribe based on Hindi translation. |
| 1996 | Nityanand Sharma case: Supreme Court clarifies that ‘Lohars’ are OBCs, not Scheduled Tribes. |
| 1997 | Vinay Prakash case: Supreme Court reiterates that ‘Lohars’ are not Scheduled Tribes. |
| 2006 | Act No. 48 of 2006 amends the list of Scheduled Tribes in Bihar, substituting ‘Lohara, Lohra’ for ‘Lohar, Lohra’ in the Hindi version. |
| August 23, 2016 | Bihar Government issues notification granting Scheduled Tribe status to ‘Lohar’ community. |
| 2016 | Act 23 of 2016 repeals Act 48 of 2006. |
| 2020 | FIRs lodged against petitioners under the 1989 Act based on the impugned notification. |
| October 28, 2021 | State Government requests Central Government to delete ‘Lohar’ from the Central OBC list. |
| February 21, 2022 | Supreme Court quashes the Bihar government notification. |
Legal Framework
The legal framework for determining Scheduled Tribes is primarily governed by Article 342 of the Constitution of India. This article empowers the President to specify, through a public notification, the tribes or tribal communities that are to be considered Scheduled Tribes for each state or union territory. Parliament is empowered to include or exclude from the list by law. The Constitution (Scheduled Tribes) Order, 1950, was issued by the President in exercise of powers conferred under Article 342(a) of the Constitution. The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, amended the 1950 Order. The Constitution (Scheduled Tribes) Order Amendment Act, 2006 (Act No.48 of 2006) further modified the list of Scheduled Tribes in Bihar. This Act was later repealed by the Repealing and Amendment Act 2016 (Act No.23 of 2016).
Article 14 of the Constitution guarantees equality before the law and prohibits arbitrary State action. Article 21 protects the right to life and personal liberty, including the right to freedom from unjustifiable custody.
Arguments
Petitioners’ Arguments:
- The petitioners argued that the ‘Lohar’ community was not entitled to Scheduled Tribe status. They contended that the original Presidential Order of 1950 did not include ‘Lohars’ as Scheduled Tribes and that this position was maintained until 1976.
- They highlighted that the 2006 amendment (Act No. 48 of 2006) which substituted ‘Lohara, Lohra’ for ‘Lohar, Lohra’ in the Hindi version was repealed by Act 23 of 2016, and therefore, the 1976 position as per the English version should prevail.
- The petitioners submitted that the impugned notification, which sought to grant Scheduled Tribe status to the ‘Lohar’ community based on the repealed 2006 Act, was unconstitutional and illegal, violating Articles 14 and 21 of the Constitution.
- They also pointed out that the notification led to the registration of FIRs against them under the 1989 Act, resulting in their arrest and detention.
- The petitioners relied on previous Supreme Court judgments, specifically Nityanand Sharma v. State of Bihar (1996) 3 SCC 576 and Vinay Prakash v. State of Bihar (1997) 3 SCC 406, where the Court had clearly held that ‘Lohars’ are not Scheduled Tribes but belong to the Other Backward Class (OBC).
- They argued that the State of Bihar disregarded the law declared by the Supreme Court on multiple occasions.
State of Bihar’s Arguments:
- The State argued that the petitioners should have approached the High Court instead of directly filing a writ petition under Article 32 of the Constitution.
- They claimed the matter was a result of personal enmity and that there was a delay of five years in approaching the Supreme Court.
- The State contended that the 1976 amendment, in its Hindi version, included ‘Lohar, Lohra’ as Scheduled Tribes.
- They stated that the 2006 amendment (Act No. 48 of 2006) substituted ‘Lohara, Lohra’ for ‘Lohar, Lohra’ in the Hindi version.
- The State argued that the 2006 amendment was repealed by Act 23 of 2016, thus restoring the 1976 position.
- The State relied on an ethnographic report which concluded that ‘Lohara/Lohra’ were synonyms of the ‘Lohar’ social group.
- They submitted that they had requested the Central Government to delete ‘Lohar’ from the Central Government’s list of OBCs.
Submissions Table
| Main Submission | Sub-Submission (Petitioners) | Sub-Submission (State of Bihar) |
|---|---|---|
| Validity of Notification | Notification is unconstitutional and violates Articles 14 and 21. | Notification is valid as it restores the 1976 position after the repeal of the 2006 Act. |
| Scheduled Tribe Status of ‘Lohar’ | ‘Lohars’ are not Scheduled Tribes, they are OBCs. | ‘Lohars’ are Scheduled Tribes based on the 1976 Hindi version and ethnographic report. |
| Authority of Previous Judgments | Previous Supreme Court judgments clearly state that ‘Lohars’ are not Scheduled Tribes. | The State has the power to issue the notification based on the repeal of the 2006 Act. |
| Appropriate Forum | Directly approaching the Supreme Court under Article 32 is justified due to violation of fundamental rights. | Petitioners should have approached the High Court first. |
| Delay in Filing Petition | Delay is not a bar when fundamental rights are violated. | There was a delay of five years in challenging the notification. |
Issues Framed by the Supreme Court
The Supreme Court considered the following issues:
- Whether the petitioners could directly approach the Supreme Court under Article 32 of the Constitution.
- Whether the impugned notification issued by the State of Bihar was valid and constitutional.
- Whether the ‘Lohar’ community could be granted Scheduled Tribe status.
Treatment of the Issue by the Court:
| Issue | How the Court Dealt with It |
|---|---|
| Whether the petitioners could directly approach the Supreme Court under Article 32 of the Constitution. | The Court held that Article 32 provides a fundamental right to approach the Supreme Court for enforcement of fundamental rights, and delay alone cannot be a bar. The Court also rejected the argument that the matter should have been taken up by the High Court first. |
| Whether the impugned notification issued by the State of Bihar was valid and constitutional. | The Court found the notification to be illegal and unconstitutional, as it disregarded the law declared by the Supreme Court on multiple occasions. The Court noted that the notification was based on a misinterpretation of the law and that the State had no power to grant Scheduled Tribe status to a community that was not recognized as such under the Presidential Order. |
| Whether the ‘Lohar’ community could be granted Scheduled Tribe status. | The Court reiterated that the ‘Lohar’ community is not a Scheduled Tribe but belongs to the Other Backward Class (OBC) category. The Court reaffirmed its previous rulings in Nityanand Sharma and Vinay Prakash, which had clarified that the ‘Lohars’ are distinct from ‘Lohara’ or ‘Lohras’, who are Scheduled Tribes. |
Authorities
Cases Relied Upon by the Court:
- Prabhat Kumar Sharma vs. Union Public Service Commission And Others (2006) 10 SCC 587 – Supreme Court of India: The Court referred to this case to trace the history of the dispute and the ambiguity arising from the Hindi translation of the 1976 amendment.
- Nityanand Sharma and Another vs. State of Bihar and Ors. (1996) 3 SCC 576 – Supreme Court of India: The Court relied on this judgment to reiterate that ‘Lohars’ are an Other Backward Class and not Scheduled Tribes. This case also clarified the difference between ‘Lohar’ and ‘Lohra/Lohara’.
- Vinay Prakash and Others vs. State of Bihar and Others (1997) 3 SCC 406 – Supreme Court of India: The Court referred to this case to emphasize that ‘Lohars’ are not Scheduled Tribes and that the Presidential notification does not include ‘Lohars’ as Scheduled Tribes. It also rejected the plea for prospective application of the judgment in Nityanand Sharma.
- Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors. (2015) 3 SCC 1 – Supreme Court of India: The Court relied on this case to clarify that delay alone cannot be a ground to reject a petition under Article 32 when fundamental rights are violated.
- Nilabati Behera @ Lalita Behera v. State of Orissa (1993) 2 SCC 746 – Supreme Court of India: The Court referred to this case to assert its power to grant compensation in cases of violation of fundamental rights.
- Shambhoo Nath v. Union of India [ CA No. 4631 of 1990 dated of on 12 -9-1990] – Supreme Court of India: The Court discussed this case to highlight how it had erroneously treated ‘Lohars’ as Scheduled Tribes based on a mistaken premise.
- Bhaiyalal v. Harikishan Singh [(1965) 2 SCR 877 : AIR 1965 SC 1557] – Supreme Court of India: The Court referred to this case to emphasize that the President has the authority to limit notifications to parts of or groups within a caste, race, or tribe.
- B. Basavalingappa v. D. Munichinnappa [(1965) 1 SCR 316 : AIR 1965 SC 1269] – Supreme Court of India: The Court relied on this case to reiterate that the President’s notification specifying a caste, race, or tribe is conclusive.
- The State of Maharashtra & Anr. vs. Keshao Vishwanath Sonone & Anr. (2020) 14 SCALE 456 – Supreme Court of India: The Court referred to this case to reiterate that Lohars were not members of the Scheduled Tribe and they were members of the OBC in the State of Bihar.
- Prathvi Raj Chauhan v s. Union of India and others (2020) 4 SCC 727 – Supreme Court of India: The Court referred to this case to clarify the effect of the provisions of the 1989 Act on the grant of bail.
Legal Provisions Considered by the Court:
- Article 32 of the Constitution of India: The Court discussed this article to clarify the fundamental right to approach the Supreme Court for enforcement of fundamental rights.
- Article 14 of the Constitution of India: The Court discussed this article to highlight how the impugned notification violated the right to equality by treating unequals as equals.
- Article 21 of the Constitution of India: The Court discussed this article to emphasize the right to life and personal liberty, including freedom from unjustifiable custody.
- Article 342 of the Constitution of India: The Court discussed this article to explain the procedure for specifying Scheduled Tribes and the powers of the President and Parliament in this regard.
- The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: The Court discussed the implications of the notification in the context of this Act, particularly concerning the stringent conditions for bail.
- The Constitution (Scheduled Tribes) Order, 1950: The Court discussed this order to explain that ‘Lohars’ were not included as Scheduled Tribes.
- The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976: The Court discussed the discrepancies between the English and Hindi versions of this Act.
- The Constitution (Scheduled Tribes) Order Amendment Act, 2006 (Act No.48 of 2006): The Court discussed this Act which amended the list of Scheduled Tribes in Bihar and was later repealed.
- The Repealing and Amendment Act 2016 (Act No.23 of 2016): The Court discussed this Act which repealed the 2006 amendment.
- Section 438 of the Code of Criminal Procedure, 1973: The Court discussed the restrictions on anticipatory bail under the 1989 Act.
Authority Analysis Table
| Authority | Court | How the Court Viewed It |
|---|---|---|
| Prabhat Kumar Sharma vs. Union Public Service Commission And Others (2006) 10 SCC 587 | Supreme Court of India | Referred to for the history of the dispute and the ambiguity arising from the Hindi translation. |
| Nityanand Sharma and Another vs. State of Bihar and Ors. (1996) 3 SCC 576 | Supreme Court of India | Relied upon to reiterate that ‘Lohars’ are an Other Backward Class and not Scheduled Tribes. |
| Vinay Prakash and Others vs. State of Bihar and Others (1997) 3 SCC 406 | Supreme Court of India | Relied upon to emphasize that ‘Lohars’ are not Scheduled Tribes and to reject the plea for prospective application of the judgment in Nityanand Sharma. |
| Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors. (2015) 3 SCC 1 | Supreme Court of India | Relied upon to clarify that delay alone cannot be a ground to reject a petition under Article 32 when fundamental rights are violated. |
| Nilabati Behera @ Lalita Behera v. State of Orissa (1993) 2 SCC 746 | Supreme Court of India | Referred to for the Court’s power to grant compensation in cases of violation of fundamental rights. |
| Shambhoo Nath v. Union of India [ CA No. 4631 of 1990 dated of on 12 -9-1990] | Supreme Court of India | Discussed to highlight how the Court had erroneously treated ‘Lohars’ as Scheduled Tribes based on a mistaken premise. |
| Bhaiyalal v. Harikishan Singh [(1965) 2 SCR 877 : AIR 1965 SC 1557] | Supreme Court of India | Referred to to emphasize that the President has the authority to limit notifications to parts of or groups within a caste, race, or tribe. |
| B. Basavalingappa v. D. Munichinnappa [(1965) 1 SCR 316 : AIR 1965 SC 1269] | Supreme Court of India | Relied upon to reiterate that the President’s notification specifying a caste, race, or tribe is conclusive. |
| The State of Maharashtra & Anr. vs. Keshao Vishwanath Sonone & Anr. (2020) 14 SCALE 456 | Supreme Court of India | Referred to to reiterate that Lohars were not members of the Scheduled Tribe and they were members of the OBC in the State of Bihar. |
| Prathvi Raj Chauhan v s. Union of India and others (2020) 4 SCC 727 | Supreme Court of India | Referred to to clarify the effect of the provisions of the 1989 Act on the grant of bail. |
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | Party | How the Court Treated It |
|---|---|---|
| The petitioners could not directly approach the Supreme Court under Article 32. | State of Bihar | Rejected. The Court held that Article 32 provides a fundamental right to approach the Supreme Court for enforcement of fundamental rights, and delay alone cannot be a bar. |
| The impugned notification was valid as it restored the 1976 position after the repeal of the 2006 Act. | State of Bihar | Rejected. The Court found the notification to be illegal and unconstitutional, as it disregarded the law declared by the Supreme Court on multiple occasions. |
| ‘Lohars’ are Scheduled Tribes based on the 1976 Hindi version and ethnographic report. | State of Bihar | Rejected. The Court reiterated that the ‘Lohar’ community is not a Scheduled Tribe but belongs to the Other Backward Class (OBC) category. |
| Previous Supreme Court judgments clearly state that ‘Lohars’ are not Scheduled Tribes. | Petitioners | Accepted. The Court reaffirmed its previous rulings in Nityanand Sharma and Vinay Prakash. |
| The notification is unconstitutional and violates Articles 14 and 21. | Petitioners | Accepted. The Court held that the notification was arbitrary and violated the right to equality and personal liberty. |
| The State has the power to issue the notification based on the repeal of the 2006 Act. | State of Bihar | Rejected. The Court clarified that the State did not have the power to grant Scheduled Tribe status, as it is the prerogative of the President and Parliament. |
How each authority was viewed by the Court?
- The Court relied on Prabhat Kumar Sharma vs. Union Public Service Commission And Others (2006) 10 SCC 587* to trace the history of the dispute and the ambiguity arising from the Hindi translation.
- The Court heavily relied on Nityanand Sharma and Another vs. State of Bihar and Ors. (1996) 3 SCC 576* to reiterate that ‘Lohars’ are an Other Backward Class and not Scheduled Tribes.
- The Court used Vinay Prakash and Others vs. State of Bihar and Others (1997) 3 SCC 406* to emphasize that ‘Lohars’ are not Scheduled Tribes and to reject the plea for prospective application of the judgment in Nityanand Sharma.
- The Court relied on Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors. (2015) 3 SCC 1* to clarify that delay alone cannot be a ground to reject a petition under Article 32 when fundamental rights are violated.
- The Court referred to Nilabati Behera @ Lalita Behera v. State of Orissa (1993) 2 SCC 746* to assert its power to grant compensation in cases of violation of fundamental rights.
- The Court discussed Shambhoo Nath v. Union of India [ CA No. 4631 of 1990 dated of on 12 -9-1990]* to highlight how it had erroneously treated ‘Lohars’ as Scheduled Tribes based on a mistaken premise.
- The Court referred to Bhaiyalal v. Harikishan Singh [(1965) 2 SCR 877 : AIR 1965 SC 1557]* to emphasize that the President has the authority to limit notifications to parts of or groups within a caste, race, or tribe.
- The Court relied on B. Basavalingappa v. D. Munichinnappa [(1965) 1 SCR 316 : AIR 1965 SC 1269]* to reiterate that the President’s notification specifying a caste, race, or tribe is conclusive.
- The Court referred to The State of Maharashtra & Anr. vs. Keshao Vishwanath Sonone & Anr. (2020) 14 SCALE 456* to reiterate that Lohars were not members of the Scheduled Tribe and they were members of the OBC in the State of Bihar.
- The Court referred to Prathvi Raj Chauhan v s. Union of India and others (2020) 4 SCC 727* to clarify the effect of the provisions of the 1989 Act on the grant of bail.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the following factors:
- Consistency of Previous Rulings: The Court emphasized that it had consistently held in previous judgments, particularly in Nityanand Sharma and Vinay Prakash, that ‘Lohars’ are not Scheduled Tribes but belong to the Other Backward Class (OBC) category. The Court stressed that these rulings had clearly established the legal position on this matter.
- Constitutional Scheme: The Court highlighted that Article 342 of the Constitution vests the power to specify Scheduled Tribes with the President and Parliament, not with the State Government. The Court found that the State of Bihar had acted beyond its powers by issuing the impugned notification.
- Authoritative Text: The Court reaffirmed that the English version of the Presidential notifications and amendments is the authoritative text, and any discrepancies in the Hindi translation cannot be used to alter the legal position.
- Rule of Law: The Court underscored the importance of respecting the decisions of the Courts and the need for the Executive to abide by the law declared by the highest Court of the land. The Court noted that the State of Bihar had disregarded the law declared by the Supreme Court on multiple occasions.
- Impact on Fundamental Rights: The Court recognized that the impugned notification had a direct impact on the fundamental rights of the citizens, particularly the right to equality (Article 14) and the right to personal liberty (Article 21). The Court noted that the notification had led to the registration of FIRs against the petitioners under the 1989 Act, resulting in their arrest and detention.
- Arbitrary Action: The Court found that the State of Bihar had acted in an arbitrary manner by issuing the impugned notification without proper application of mind and without considering the legal position established by the Supreme Court.
Sentiment Analysis of Reasons Given by the Supreme Court
| Reason | Percentage |
|---|---|
| Consistency of Previous Rulings | 30% |
| Constitutional Scheme | 25% |
| Authoritative Text | 15% |
| Rule of Law | 15% |
| Impact on Fundamental Rights | 10% |
| Arbitrary Action | 5% |
Fact:Law Ratio Analysis
| Category | Percentage |
|---|---|
| Fact (Consideration of Factual Aspects) | 20% |
| Law (Consideration of Legal Aspects) | 80% |
Logical Reasoning
Issue 1: Can the Petitioners Approach the Supreme Court Directly?
↓
Article 32 of the Constitution provides a fundamental right to approach the Supreme Court for enforcement of fundamental rights.
↓
Delay alone cannot be a bar to a petition under Article 32 when fundamental rights are violated.
↓
The Court can directly consider the petition.
Issue 2: Is the Bihar Government Notification Valid?
↓
The State Government does not have the power to grant Scheduled Tribe status; it is the prerogative of the President and Parliament.
↓
The notification disregarded the law declared by the Supreme Court in previous judgments.
↓
The notification is illegal and unconstitutional.
Issue 3: Can ‘Lohar’ Community be Granted Scheduled Tribe Status?
↓
Previous Supreme Court judgments (Nityanand Sharma and Vinay Prakash) clearly state that ‘Lohars’ are not Scheduled Tribes but belong to the OBC category.
↓
The ‘Lohar’ community cannot be granted Scheduled Tribe status.
Final Decision
The Supreme Court quashed the notification issued by the State of Bihar granting Scheduled Tribe status to the ‘Lohar’ community. The Court held that the notification was illegal and unconstitutional, as it disregarded the law declared by the Supreme Court on multiple occasions. The Court reiterated that the ‘Lohar’ community is not a Scheduled Tribe but belongs to the Other Backward Class (OBC) category. The Court also directed the State of Bihar to take necessary steps to ensure that no further action is taken based on the impugned notification. The Court also clarified that it was not passing any order regarding the cases registered under the 1989 Act. The Court, however, observed that the State of Bihar should take steps to ensure that no further action is taken on the basis of the impugned notification.
Impact of the Judgment
The Supreme Court’s decision has significant implications:
- For the ‘Lohar’ Community: The judgment clarified that the ‘Lohar’ community does not have Scheduled Tribe status and remains part of the Other Backward Classes (OBC). This means they are not entitled to the benefits and protections afforded to Scheduled Tribes under the Constitution.
- For the State of Bihar: The State of Bihar was directed to cease any action based on the quashed notification. This decision underscores the importance of adhering to the law and respecting the judgments of the Supreme Court.
- For the Legal System: The judgment reinforces the principle that the power to specify Scheduled Tribes rests with the President and Parliament, not with the State Governments. It also highlights the importance of consistency and adherence to the law declared by the Supreme Court.
- For the Rule of Law: The decision upholds the rule of law and ensures that the State does not act arbitrarily or in violation of the Constitution. It reinforces the principle that the Executive must act within the bounds of the law and respect the decisions of the Judiciary.
- For Fundamental Rights: The judgment protects the fundamental rights of citizens by preventing arbitrary State action that could lead to unjustifiable arrests and detentions.