Full Judgment Text
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PETITIONER:
SHRI HEIKHAM SURCHANDRA SINGH & ORS. ETC.
Vs.
RESPONDENT:
THE REPRESENTATIVE OF "LIOS" KAKCHING,MANIPUR (A SCHEDULED C
DATE OF JUDGMENT: 09/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL Nos. 14513-24 OF 1996
[Arising out of SLP (C) Nos. 8499-8505 of 1996]
O R D E R
Leave granted.
We have heard learned counsel on both sides.
These appeals by special leave arise from the common
judgment of the Division Bench of the High of Guwahati,
Imphal Bench made on November 17, 1995 in Civil Rule No.
800/94 and batch.
The admitted position is that when the President of
India, exercising the power under Article 341(1) of the
Constitution, had issued Scheduled Castes and Scheduled
Tribes Order, 1950 "Louis" was declared as Scheduled Caste
but not throughout the State. It was amended by the
Scheduled Castes and Scheduled Tribes (Amendment) Act, 1956
(53 of 1956) and Scheduled Castes Scheduled Tribes
(Amendment) Act, 1976. Consequently, "Lios" came to be
declared as a Scheduled Caste for the purpose of the
Constitution in relation to the entire State of Manipur. We
are informed that the total population of all Scheduled
Castes including Lios in Tripura State is 16000. It would
appear that after the residents of Kakching village
belonging to "Lios" caste had obtained 2500 certificates
showing their social status as Scheduled Castes for the
purpose of the Constitution, it would appear that an issue
as regards their status as Scheduled Castes gave rise to
agitation by people residing in eight villages. A statutory
Commission consisting of a retired High Court Judge, Justice
V. Ibotombi Singh of Assam High Court and two other members,
one of which was a sociologist, was constituted to enquire
into the status of the members of Lois in the State of
Manipur and to recommend as to who were the persons among
them entitled to the benefit of the status of Scheduled
Castes under Article 341 and also to suggest remedial steps
in that behalf. Pursuant thereto, a report was submitted by
the Commission on February 28, 1993 after detailed survey of
the issue and enquiry. In that report, the Commission
pointed out in paragraph 25 as under:
"on the other hand, the members of
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the Loi community living in these
villages other than the 8 (eight)
villages mentioned above did not
claim themselves to be members of
the Scheduled Caste for more than 3
decades. Hence, it is our
irresistible conclusion that the
expression loi in the President’s
Notification included only the Loi
population living in these 8
(eight) villages, Sekmj (Awang),
Phayeng, Khurkhul, Koukruk,
Laimaram, Kwatha Laimaram Khunon
(Jairenpokpi) and Andro."
In paragraphs 50 to 57, the Commission had recorded its
conclusion as under:
50. Admittedly, these 10 villages
viz., Kakching Khullen, Pallel,
Waikhong, Kakching Khunou, Chairel,
Wangoo, Sagnu, Moirang, Khamaran
and Thanga plus 16 others villages
of this State were historically
Lois in the true connotation of the
term like those specified 8
Scheduled Caste Loi villages.
Certainly, caste system has not be
working in Manipur as strictly as
in the rest of the country. Yet,
consequent upon the mass conversion
of the Meitei into Hinduism since
the 18th century, caste, the
backbone of all Hindu social
orders, system in a way whatever
different it may be from cases in
the rest of the Hindu world. In
fact, the uniqueness of Hindu caste
system lies in its differences from
one region to another and even
within the same region. As a
corollary of the new social order
organised on the caste line, the
chunk of people who had been
Excommunicated from the social
mainstream under the designation
Lois came to be treated as being
enter or to the caste Meitei
society. Mention may be made here
that many of the prisoners and
social offenders exiled to the Loi
villages had been Hindu converts
and as such through them the
original Loi villagers were brought
under the minimal influence of
Hinduism. However, on ground of
being Lois by birth and by
banishment, this class of people
formed a distinct population of
local exterior caste whose
relationship with the caste Meiteis
was markedly characterised by the
taboo of inter-marriage and co-
dinning.
51. Probably, peculiar of the local
caste system, and the same time,
the erstwhile Loi villages that had
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been subjected to the stigma of
untouchability were again gradually
absorbed into the Meitei body
social on the condition of their
conversion into Hinduism with the
necessary approval of the them
kings. What remain have been those
8 villages covered by the Scheduled
Caste Lois. The peoples in this lot
of 8 (eight) villages are till date
taken together traditional customs
and practices of manufacturing
country and practices of
manufacturing country liquor,
drinking it and relishing part, as
a collective way of cultural life,
though, to be candid, they also
practice since long some of the
superficial cultural traits of
Hinduism after the model of the
Meitei, rather in the mode of
fashion.
52. All this unmistakably speaks
eloquently of the differentiation
and, for that matter,
categorisation, in later part of
history of the Lois into two
distinct classes that one observes
today in the contemporary larger
Meitei society. Most probably, well
cognizant of this fact of dichotomy
of the Lois, Shri P.C. Methew,
Chief Commissioner to the
Government of Manipur recommended
the names of only those specified 8
(eight) villages for inclusion in
the list of Scheduled Castes at the
time of revision of the said list
in 1956.
53. Crucially needful to the above
point, it may be reckoned with the
fact that Classification of a
peripheral Hindu or Sikh people for
recognition/inclusion in the list
of Scheduled Castes rests on the
indisputable, simple criterion of
untouchability or near
untouchability, a disabling
condition resulting from the
people’s exterior, peripheral
position in relation to the caste
Hindu mainstream. Now, put to the
test of this criterion the case of
the other Lois than the Scheduled
Castes Lois provides the Committee
no rational point for its self
justification of giving any
suggestion to the authority
concerned for consideration of
recognition/inclusion of this class
of people in point as members of
Scheduled Castes. We take the
privilege of passing this comment
in so far as advised is sought by
the Government of Manipur from the
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Committee on the matter in issue.
This class of Lois stands rather
much closer to the caste Meitei
pole of the Meitei-Loi social
continuum.
54. What with the traditionally
less strict feature of castism in
Manipur as compared with its scene
in the rest of the Hindu universe
and what with the massive caste
eradication programs undertaken by
the Governmental of India on the
strength of special provisions in
the Indian Constitution, the
dehumanising social situation of
untouchability in this state of
Manipur may be said to have
significantly diminished in its
magnitude now. The concept of Lois
as a social institution as it
worked in history during the days
of the Meitei monarchs, too, is not
now fully operative. Payment of
tributes to the then Meitei Lords
had been stopped with the British
occupation and administration of
Manipur. It is all administration
of Manipur. It is all the more
expected to be completely free from
any such social complexes as
involved in the historical Loi
institution and the position of
exterior castes in these days of
democracy in our country.
Repetition of the expression Lois
as the name of a Scheduled Castes
community is indeed shown of any
idea of invoking the old
institution of Lois it is sheerly
for the administrative purpose of
the Government of India in
scheduling certain really Backward
Classes for special protection of
the people thereof, among whom the
Lois of 8 (eight) specified
villages of Manipur have been duly
recognised as one.
55. Despite these facts of
contemporary social situation of
Loi castism of untouchability or
near untouchability in Manipur,
continuity of this phenomenon in
its residual forms looms large till
date. As a matter of fact, this
lingering residue of history still
works behind the fact of social
distance standing between the so-
called Lois and the core Meiteis,
particularly in the matter of
marriage. Owing to this reasons,
cases of inter-marriage between the
core Meiteis and persons from any
of the eight villages the Scheduled
Caste Lois are very few and far
between, the frequency being thus
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left far short of the expected
quantum. Some such similar scene of
social distance, in lesser degree
undoubtedly, has been observed in
the relationship of the core Meitei
with the Lois of the other class,
too, vis-a-vis the letter’s
assimilation into the socio
religious order of the former, a
scene that presupposes rather low
position of this class of people in
the local social hierarchy. Of
late, inter-marriage of the meitei
of higher social status with people
of this class of erstwhile Lois
have occurred, admittedly,; but,
these are conditional of the
educational attainments and
affluent economic standings of the
individual spouses from the latter
group, and these too mostly when
they settle at the urban areas. At
the group level, however, they
remain still, more or less,
victimised under the old social
stigma of looking down upon them.
56. It is in consideration of this
relative social backwardness of
this integral section of people of
the caste Hindu Meritei society
that it is hereby being suggested
by the Committee with a humanistic
and egalitarianist concern for the
people in point to the Government
of Manipur as an alternative course
of action for the act of taking a
decision over the issue, the idea
of examining in the case of this
class of people could be considered
in favour of their
recognition/inclusion in the list
of Other Backward Classes, of
course, within the parameters not
only of their social backwardness
but also their educational
backwardness as so laid down in the
Constitution of India for such
purpose. It would be worthwhile to
mention here that the Government of
Manipur has not so far framed its
State list of OBCs. In case of
acceptance of this suggestion a
separate elaborate inquiry is asked
for to evolve an appropriate
scientific methodology. If some or
all, as the case may be, of the
said class of Lois are found social
and educationally backward by the
test of the criteria set up by the
acceptably adopted methodology,
they may rightly be put, for
administrative purpose, under the
label "Other Backward Lois."
57. TERM NO. 3: "to give
recommendation regarding validity
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on an approximately 2500
certificates issued by the Deputy
Commissioner, Thoabal during the
period from March, 1992 onwards."
While deciding term No. 2, we have
already held that the term Loi
mentioned in the President’s
Notification includes only the Loi
population of the 8 villages,
namely, Sekmai (Awang), Phayeng,
Khurkhul, Koutruk, Laimaram,
Laimaram Khunon (Tairenpokpi),
Kwatha and Andro and that the
expression Loi does not cover the
Loi population of the remaining 26
villages. There is, therefore, no
doubt that the Loi population of
Kakching village are not included
in the expression Loi mentioned in
the President’s Notification. It
follows, therefore, that the
Scheduled Caste certificates
numbering about 2500 issued by the
District Magistrate and his
subordinate officers are not valid
in the eye of law. Further, on
perusal of the records, it is seen
that the District Magistrate and
his subordinate offices issued
Scheduled Caste certificates
arbitrarily without making proper
inquiry as to the genuineness of
the claims of the petitioners. It
is to be noted here that the
absence of proper inquiry would
permit an inference that they were
not even aware of the vital fact
and that they mechanically
proceeded to issue the certificates
which would unmistakably indicate
that there was non application of
mind to the most relevant fact. Any
order of this nature passed
mechanically with application of
mind of the competent authority) is
liable to be set aside as invalid.
The District Magistrate issued one
such certificate in favour of one
Rameshwar Singh (one of the 2500
certificate holders) on the basis
of the direction of the Government
of Manipur which was communicated
to him by one Under Secretary
without making any Under Secretary
without making any inquiry for his
subjective satisfaction as to the
genuineness of the claim. We have
stated above and we repeat it again
that while doing so, the District
Magistrate was acting as a rubber
stamp of the Government and
therefore the certificate issued by
him in favour of Rameshwar Singh is
invalid. There is no dispute that
the competent authorities to issue
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Scheduled Castes certificate are
District Magistrate, Sub Divisional
Magistrate, etc. and not the
Government of Manipur. Therefore,
the district Magistrate could not
issue the certificate in favour of
Rameshwar Singh on the advice or
direction of the Government without
making any inquiry for his
subjective satisfaction. It appears
that the District Magistrate was
quite ignorant of this simple legal
position. The certificate purported
to have been issued by the District
Magistrate, Thoabal was, in fact,
made by the Government of Manipur
and the District Magistrate merely
acted as the mouth piece of the
Government and, therefore, the
certificate issued by him in favour
of Rameshwar Singh was invalid.
After all, the power exercisable by
the District Magistrate and his
subordinate officers is a statutory
power which can be exercised only
by them. It appears that the
District Magistrate, Thoabal has
lost sight of this aspect when he
issued the certificates."
The Government accepted the Commission’s
recommendations by its proceedings dated July 6, 1994 and
acted upon the Report. In the meanwhile, directions were
issued on June 30, 1994 that the caste certificates issued
to the aforesaid persons from Kakching village would not be
acted upon. Calling this action in question, writ petitions
came to be filed. The High Court in the impugned order had
held that the impugned order of the Government was not
sustainable in the light of the Presidential Order, However,
a direction was given that the Scheduled Caste Certificates
issued to the inhabitants of Kakching area shall be subject
to the appropriate legislation that may be passed on the
basis of the enquiry report. As against the quashing of the
order, the appeal arising out of SLP (C) No. 3408/96 was
filed and as regards para 34, the respondents have filed the
appeals arising out of SLP (C) Nos. 8499-8505/96. Thus,
these appeals by special leave.
Shri R.F. Nariman, learned senior counsel for the
appellants, contended that in view of the findings recorded
by the statutory Commission appointed by the Government,
though "Lois" has been declared as a Scheduled caste
throughout the State, except the persons who really have the
status of the Scheduled Castes or of Lois are inhabitants of
the eight villages, namely, Sekmai (Awang), Phayeng,
Khurkhul, Koutruk, Laimaram, Laimaram Khunon (Tairenpokpi),
Kwatha and Andro, the people from other villages do not have
the said status. In support thereof, he relies upon the
report of I. Seshimeran Aier, Commissioner and P.C. Mathew,
Commissioner appointed by the State Government to identify
the Scheduled castes for the purpose of amending the list of
Scheduled Castes before coming inhabiting in these eight
villages alone are the members of the Scheduled Castes.
Others, though historically Lois, were assimilated in the
mainstream of the Neither Hindu society. Therefore, they are
not entitled to the benefit of the status of Scheduled
Castes for the purpose of the Constitution. But they
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recommended to the Government for consideration of their
social and educational backwardness after identification
under Article 340 of the Constitution. This material does
indicate that the Lois inhabiting in rest of 18 villages,
though historically considered to be Lois, are, in fact, not
Lois and they are not entitled to the status of Scheduled
Castes. The High Court, therefore, was not right in quashing
the notification issued by the Government.
Dr. Shankar Ghosh, learned senior counsel for the
respondents, on behalf of 2500 recipients of social status
as Scheduled Castes, on the other hand, contended that in
view of the Presidential notification issued after the 1976
[Amendment] Act, declaring Lois is the State of Manipur as
Scheduled castes, it is neither permissible for the State
Government nor for the Court to subtract their status as
Scheduled Castes by receiving any evidence from any source,
whether laid by the parties or by the Commission. Therefore,
the certificates issued to the persons in Kakching village
are valid in law and that para 34 of the judgment of the
High Court requires to be set aside and it does not warrant
interference with the rest of the conclusions reached by the
Division Bench.
In view of the respective contentions, the question
that arises for consideration is; whether the view taken by
the High Court is correct in law? This Court has considered
the controversy in catena of decisions. Article 366(24)
defines "Scheduled Castes" and Article 341(1) gives power to
the President in respect of any State or Union Territory to
identify the Scheduled Castes in consultation with the
Governor of the State and issue a public notification
specifying the Scheduled Castes for the purpose of the
Constitution. The Scheduled Castes so specified, shall be
subject to law made by the Parliament under Article 341(2)
of the Constitution. The list of the Scheduled Castes thus
published in respect of each of the State shall be final and
conclusive.
The question whether Bhovi is a voddar caste, the
latter having been declared by the Presidential notification
to be a Scheduled Caste, had come up for consideration in B.
Basavalingappa vs. D. Munichinnappa [(1965) 1 SCR 316]. The
Constitution Bench considering the question had held that
"the power was given to Parliament to modify the
notification made by the President under clause (1). Clause
(2) further goes on to provide that a notification issued
under clause (1) shall not be varied by any subsequent
notification, thus making the notification by the President
final for all times except for modification by law as
provided by clause (2). Clearly, therefore, Article 341
provides for a notification and for its finality except when
altered by Parliament by law. Therefore, in view of this
stringent provision of the Constitution with respect to a
notification issued under clause (1), it is not open to any
one to include any caste as coming within the notification
on the basis of evidence - oral or documentary - if caste in
question does not find specific mention in the terms of
notification." This view was reiterated by another
Constitution Bench in Bhaiyalal vs. Harikishan Singh [(1965)
2 SCR 877]. The question was reconsidered in Srish Kumar
Choudhury vs. State of Tripura [(1990) 1 SCR 576]. Therein,
the Laskar community claimed the status of Scheduled Tribes
in Tripura State. The Presidential notification did not
specifically deal with them by express notification but they
claimed the status of Jamatia, Notia which is a Tribe
notified by the President. Dealing with that question, this
Court, after considering the above two Constitution Bench
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judgment and other judgments, had held that as a result of
the detailed enquiry made as to the economic status, the
level of education and the necessity of protection,
inclusion into or exclusion from the Order requires to be
made by the President and, therefore, it is for the State
Government to make necessary recommendations to the
President for taking appropriate action whether Laskars
would be included as Scheduled Tribes by appropriate
amendment. In this behalf, until that was done, it was held
that it was not permissible for the Court to receive any
evidence to consider whether they are Schedules Tribes.
The question was also examined in Palghat Jilla Thandan
Samudhaya Samrakshna Samityi vs. State of Kerala [(1994) 1
SCC 357]. Therein, another Bench of three Judges had held
that Thandans in Kerala State were declared to be Scheduled
Castes. The High Court directed an enquiry whether Ezhavas
or Thiyyas are other Backward Classes (Tappers) are
Thandans. This Court had held that the enquiry that was
ordered by the High Court to find out whether there was
community called Thandan distinct from Ezhava in Palghat
District in areas other than the erstwhile Chittur Taluk and
also in any other place in the erstwhile Malabar District,
was not permissible to be made since neither the Court nor
the State Government has any power to amend or subtract the
list published by the President and, therefore, the
direction issued by the High Court was not correct in law.
Accordingly a direction was given to issue necessary
certificates until the Order was amended by the Parliament.
Unfortunately, it was not brought to the notice of the Court
that they are Other Backward Class (Tappers) and, therefore,
similar question was considered by this Court in Nityanand
Sharma & Anr. vs. State of Bihar & Ors. [JT 1996 (2) SC
117]. Therein Lohars were not included in the Scheduled
Tribes in the State of Bihar. They claimed the status of
Scheduled Tribes. Lohars are only blacksmiths while Lohras
are the Scheduled Tribes notified by the President. This
Court had held that it was not permissible for the Court to
consider whether Lohars are Lohras who are declared to be
Scheduled Tribes. In Kumari Madhuri Patel & Ors. vs.
Additional Commissioner, Tribal Development & Ors. [(1984
(6) SCC 241], a Bench of two Judges, to which one of us (K.
Ramaswamy, J.) was a member had to consider whether Kolis, a
Backward Class in Maharashtra would be declared as Mahadeo
Koli, a Scheduled Tribe in Maharashtra. Despite the cultural
advancement, the genetic traits pass on from generation to
generation and no one could escape or forget or get them
over. The tribal customs are peculiar to each tribe or
tribal communities and still being maintained and preserved.
Their cultural advancement to some extent may have
modernised and progressed but they would not be oblivious or
ignorant of their customary and cultural past to establish
their affinity to the membership of a particular tribe. The
tribe or tribal communities, parts, of or groups thereof
have their peculiar traits. It was further held that
Presidential declaration, subject to amendment by
Parliament, is conclusive. No addition to it by way of
declaration of castes, tribes or sub-caste, parts of or
groups of tribes or tribal community is permissible. After
an elaborate survey of the Constitutional purpose and the
relative caste structures, customs, marriages etc. it was
held that Kolis are Backward Class and Mahadeo Koli are
Scheduled Tribes. The appellants therein being OBCs were
held not entitled to status as Scheduled Tribes. The Court
has no power to declare synonymous as equivalent to the
tribes specified in the Order or include in or substitute
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any caste/tribe etc. It would thus be clear that for the
purpose of the Constitution, "Scheduled Tribes" defined
under Article 366(25) as substituted under the Act, and the
Second Schedule thereunder are conclusive. Though evidence
may be admissible to a limited extent of finding out whether
the community which claims the status as Scheduled Caste or
Scheduled Tribe was in fact include in the concerned
Schedule, the Court is devoid of power to include in of
exclude from or substitute or declare synonyms to be of to a
Scheduled Caste or Scheduled Tribe or parts thereof or group
of such caste or tribe. In Valsamma Paul vs. Cochin
University & Ors. [JT 1996 (1) SC 571] by virtue of the
marriage, the appellant a forward class claimed status of a
backward class. The question arose: whether the could claim
the said status by virtue of being married to a backward
class (fishermen)? It was held that she was not entitled to
the said status. The retrograde attempt to grab the benefit
of and distributive justice to the targetted group was held
to be prevented. It would thus be clear and we hold that
until the Presidential notification was modified by
appropriate amendment by Parliament in exercise of the power
under Article 341(2) of the Constitution, the Presidential
notification issued under Article 341(1) is final conclusive
and it cannot be added to any caste or subtracted by any
action either by the State Government or by a court on
adduction of evidence.
The next question is: whether the Lois other than the
Lois residing in the aforestated eight villages are entitled
to claim the status as Scheduled Castes. It is right, as
contended by Dr. Ghosh, that so long as the Presidential
notification remains unamended, everyone who is declared as
Lois is entitled to the status of Scheduled Caste. But there
is a peculiar factual situation prevailing in the State of
Manipur as historically collected from the evidence by the
two Commissioners appointed by the State Government before
1956 (Amendment) Act and also the latest Commission whose
findings have been extracted hereinbefore.
C.M. Mathew, Commissioner had
stated thus:
"The Lois are living in the vally
and they take meant and liquor as
the scheduled tribes but unlike the
Scheduled Tribes when they die they
are cremated. Socially the Lois are
as little better than Yaithibis in
the eyes of the caste Hindus. The
Lois are backward and deserve
special consideration from
Government for the amelioration of
their condition. I am, therefore,
of opinion that should be included
in the list of Scheduled Castes."
I. Shimaren Aiar, Regional Assistant Commissioner after
recording evidence had stated in 1953 thus:
"The term "Lois" means backward
class. There are a distinct
community, different in many
aspects from the manipuri Meitei,
and to a great extent similar to
those of the hill tribes. They have
been treated as untouchable for the
following reasons.
1. The Lois are not allowed to
enter the houses of the Meiteis
(Manipuri Hindus).
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2. The main occupation of the Lois
are cultivation and distilling of
country liquor.
3. Inter-marriage and co-dining
between the Lois and the Meiteis
are prohibited.
4. The Lois worship goddes of
nature.
5. The Lois cremate their deaths,
in this respect they are a kin to
the Hindus."
It would thus be seen that the Lois who are Scheduled
Castes have been subject to the disabilities mentioned by
the two Commissioners, Aier and Mathews and accepted by the
statutory Commission. In this behalf, Articles 17, (15(2)
and 46 furnish the unimpeachable historical evidence of
disabilities to which Scheduled Castes are subjected to and
the Constitution aimed to remedy by distributive justice,
equality of opportunity and the status with dignity of
person in socio-economic and political democracy and to
prevent their exploitation. They would furnish as guiding
principles to solve the given problem. As stated earlier,
the question is; who are entitled to the status of Scheduled
Castes? It is not in dispute that though Lois residing in 26
villages other than the eight named villages mentioned
hereinbefore, had not claimed the status as Scheduled Castes
until March 1992, until the Commissioner of District Thoubal
and his subordinates had issued the social status
certificates, for the first time, only to the 2500 residents
of Kakching; until then, too did not village, no other
residents in other 17 villages have claimed the status as
Scheduled Castes even after 1992 till date. This material
has not been contradicted; nor can it be contradicted. The
Commission had pointed out that at the direction of the
Government one Rameshwar Singh was issued social status
certificate as Scheduled Caste without any enquiry,. That
would show the enormity of the misuse of the power to claim
false social status.
Under these circumstances, though the High Court was
right that until the amendment to the List has duly been
made, the Lois would be entitled to the status of Scheduled
Castes, before issuance of the certificate of status the
competent officer should enquire whether the applicant is
subjected to the disabilities which the Scheduled Castes
have been suffering. All those who satisfy these criteria
alone are entitled to the issuance of certificates until the
amendment is duly made by the Parliament under Article 341
(2) of the Constitution. The High Court, therefore, was not
right in the conclusion in paragraph 34 that though the
certificates issued by the Commissioner including those 2500
certificate holders were valid, that would be subject to the
law made by the Parliament. Any one who claims the status of
Scheduled Castes should satisfy the same criteria indicated
by the Commissioners until the amendment is duly made by the
Parliament under Article 341(2) of the Constitution and an
enquiry should be conducted in that behalf.
The State Government is directed to furnish to the
President the report submitted by the Commission, referred
to hereinbefore, and all other material for appropriate
action by the Central Government by laying before the
Parliament to effect necessary amendment under Article
341(2) of the Constitution.
The appeals are accordingly disposed of, but, in the
circumstances, without costs.
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