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]
ORDER
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
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
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
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
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
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
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 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 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 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).
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.