Affinity test not a conclusive test to decide caste validity claim: Supreme Court

An affinity test is not a conclusive test to decide caste claim and is not an essential part of the verification process of the caste/tribe claims, the Supreme Court held on Friday [Mah Adiwasi Thakur Jamat Swarakshan Samiti vs State of Maharashtra and ors]. .In an affinity test, a candidate, who has obtained a caste certificate from a competent authority, is tested about the anthropological traits, deities, rituals, customs, mode of marriage, death ceremonies, method of disposal of dead bodies etc of the concerned caste, to ascertain whether he has knowledge about the particular caste/ tribe. A bench of Justices Sanjay Kishan Kaul, Abhay S Oka and Manoj Misra said that person who has stayed in an urban area might not be aware of the customs, rituals which are factors used in affinity test.“The Vigilance Cell, while conducting an affinity test, verifies the knowledge of the applicant about deities of the community, customs, rituals, mode of marriage, death ceremonies etc. in respect of that particular Scheduled Tribe. By its very nature, such an affinity test can never be conclusive. If the applicant has stayed in bigger urban areas along with his family for decades or if his family has stayed in such urban areas for decades, the applicant may not have knowledge of the aforesaid facts. It is true that the Vigilance Cell can also question the parents of the applicant. But in a given case, even the parents may be unaware for the reason that for several years they have been staying in bigger urban areas. On the other hand, a person may not belong to the particular tribe, but he may have a good knowledge about the aforesaid aspects,” the Court saidHence, the result of such a test will have to be factored in along with all other material on record to decide on the validity of caste/tribe claims, the Court said."Affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case," the bench explained.Affinity test cannot be conclusive and when an affinity test is conducted, the result of the test along with all other material on record having probative value will have to be taken into consideration for deciding the caste validity claim, the Court ruled..Background.The State of Maharashtra in October 2001, brought into force the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (2000 Act).The 2000 Act contains a very elaborate mechanism for regulating the issue and verification of caste certificates to persons belonging to various categories of backward classes. A two-level mechanism was provided. The first level is of the Competent Authority issuing a caste certificate which is valid only subject to verification and grant of validity certificate by the Scrutiny Committee constituted under the 2000 Act. Power is vested in the Scrutiny Committee constituted under Section 6 to verify the correctness of the caste certificates issued by the Competent Authority. Section 9 confers powers on the Competent Authority and the Scrutiny Committee of a civil court of summoning and enforcing the attendance of witnesses, requiring the discovery and inspection of documents etc.Rule-making power under the 2000 Act was exercised to frame the Maharashtra Scheduled Tribes (Regulation of Issuance and verification of) Certificate Rules, 2003 (ST Rules).Similarly, the Maharashtra Scheduled Castes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012 (SC Rules) were framed.The Vigilance Cell established under ST Rules consists of a Senior Deputy Superintendent of Police, Police Inspectors, Police Constables to assist the Police Inspector and a Research Officer.The SC Rules specifically provide for the Vigilance Cell to conduct affinity test. There was lack of clarity about whether the vigilance cell constituted under the ST Rules has a power to conduct the affinity test.The Vigilance Cell is required to enquire about anthropological and ethnological traits, deities, rituals, customs, mode of marriage, death ceremonies, method of disposal of dead bodies etc. by the castes or tribes or tribal communities concerned. As a part of the affinity test, a candidate who has obtained a caste certificate from Competent Authority is tested to ascertain whether he has knowledge about the aforesaid factors pertaining to the particular caste/tribe.A full bench of the Bombay High Court in Shilpa Vishnu Thakur v. State of Maharashtra held that the affinity test is an integral part of the determination of the correctness of the caste claim under ST Rules.In the order dated March 24, 2022, a bench of the Supreme Court noted that there was a conflict of views expressed in two decisions of coordinate Benches of the apex court. The first case was of Vijakumar v. State of Maharashtra & Ors. and the second case was Anand v. Committee for Scrutiny and Verification of Tribe Claims & Ors.In Vijakumar, it was held that if a candidate fails the affinity test at any stage, a caste validity certificate cannot be granted to him. In the case of Anand, it was held that the affinity test is not the only criteria for deciding a caste claim based on a caste certificate issued by a Competent Authority.Hence, the matter was referred to a three-judge bench to settle the issue..The counsel for the State of Maharashtra argued that the affinity test should be rendered a mere corroborative exercise, as it is needed when surnames can be across castes/tribes, for example.The counsel for the appellants argued that the test cannot supplant documents on record. Further, in the current scheme of things, caste scrutiny committees were frequently rejecting caste certificates citing the results of affinity test, it was pointed out.The Court noted that sub-rule (2) of Rule 12 clearly provides that only if the Scrutiny Committee is not satisfied with the documentary evidence produced by the applicant, it shall forward the application to the Vigilance Cell for conducting the school, home and other enquiry.“Therefore, in every case, as a matter of routine, the Scrutiny Committee cannot mechanically forward the application to Vigilance Cell for conducting an enquiry. When subrule (2) of Rule 12 contemplates that only if the Scrutiny Committee is not satisfied with the documents produced by the applicant that the case should be referred to Vigilance Cell, it follows that the Scrutiny Committee is required to pass an order recording brief reasons why it is not satisfied with the documents produced by the applicant," the judgment stated. It is not possible to exhaustively lay down in which cases the Scrutiny Committee must refer the case to Vigilance Cell, the Court added.One of the tests is as laid down in the case of Kumari Madhuri Patil as per which the documents of the pre-Constitution period showing the caste of the applicant and their ancestors have got the highest probative value. In such a case, a reference to Vigilance Cell is not warranted at all, the Court made it clear.In a given case, the Scrutiny Committee may be satisfied that the caste validity certificate relied upon by the applicant has been issued after making a lawful enquiry. But if the Scrutiny Committee is of the view that the applicant has not clearly established that the person to whom caste validity certificate produced on record has been granted is his blood relative, in terms of subrule (2) of Rule 12 of the ST Rules, the Caste Scrutiny Committee will have to refer the case for conducting an enquiry through Vigilance Cell."Question of conducting of affinity test will arise only when a case is made out for referring the case to Vigilance Cell. If the Scrutiny Committee, after holding an enquiry is satisfied with the material produced on record, without referring the case to the Vigilance Cell, the Caste Scrutiny Committee is under a mandate to grant validity to the caste certificate ... For example, if an applicant is relying upon a caste validity certificate granted to his blood relative and the Scrutiny Committee, after finding that the certificate is issued after due inquiry entertains a doubt about the relationship pleaded, it can direct the Vigilance Cell to make inquiry only about the relationship," the Court said.Specifically on the validity of the affinity test, the Court held that the same cannot be said to be conclusive.In this regard, the Court said that a person who has stayed in an urban area for decades might not be aware of the customs, rituals which are factors used in affinity test.Hence, it ruled that the affinity test is not an integral part of the determination of the correctness of the claim.The Court thus arrived at the following conclusions:- Only when the Scrutiny Committee after holding an enquiry is not satisfied with the material produced by the applicant, the case can be referred to Vigilance Cell. While referring the case to Vigilance Cell, the Scrutiny Committee must record brief reasons for coming to the conclusion that it is not satisfied with the material produced by the applicant. Only after a case is referred to the Vigilance Cell for making enquiry, an occasion for the conduct of affinity test will arise.- Affinity test cannot be conclusive either way. When an affinity test is conducted by the Vigilance Cell, the result of the test along with all other material on record having probative value will have to be taken into consideration by the Scrutiny Committee for deciding the caste validity claim;- In short, affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case..Senior Advocates Shekhar Naphade, V Mohna, and Ravi K Deshpande appeared for the appellants.Senior Advocate Shyam Divan appeared for the State of Maharashtra..[Read Judgment]