Courts not empowered to examine whether a Presidential order specifying Scheduled Tribes includes a particular community: Supreme Court

Consequently, top court set aside a judgment of Bombay High Court which had embarked upon determining whether tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which was included in Presidential Order of 1950.
Courts not empowered to examine whether a Presidential order specifying Scheduled Tribes includes a particular community: Supreme Court

The power to specify tribal communities or tribes as Scheduled Tribes under the Constitution is vested with the President as per Article 342(1) and courts cannot assume jurisdiction to determine whether the terms of the Presidential Order includes a particular community, the Supreme Court held on Friday.

The top court also held that the power to include or exclude, amend or alter such a Presidential Order is expressly and exclusively conferred on and vested with the Parliament as per Article 342(2) and the same can be done by enacting law.

Courts cannot and should not extend jurisdiction to deal with the question as to whether a particular caste or sub-caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order, it was held.

Consequently, the top court set aside a 2018 judgment of the Bombay High Court which had embarked upon determining the question of whether tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950.

“The conclusion is inescapable that the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950,” the judgment said.

The question before the Bombay High Court was whether the caste 'Gowari' was the same as 'Gond Gowari' entitling 'Gowari' to be classified as Scheduled Tribe.

'Gond Gowari' was, in 1956, included as 28th Item in Entry No. 18 of the Constitution (Scheduled Tribes) Order, 1950.

The High Court undertook the exercise of examining evidence to the conclude that the tribe ‘Gond Gowari’ was completely extinct before 1911 and no trace of it was found either in the Maratha Country of C.P. and Berar or in the State of Madhya Pradesh prior to 1956.

Hence, there did not exist any tribe as 'Gond Gowari' as on October 29, 1956, i.e. the date of its inclusion as 28th Item in Entry No. 18 of the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra.

This would mean that the tribe of ‘Gond Gowari’ in the President order meant the tribe of “Gowari”, the High Court concluded.

It, therefore, ruled that the people belonging to 'Gowari' community in the State of Maharashtra cannot be denied the benefits of the Scheduled Tribes.

The Supreme Court relying on a plethora of judgments ruled that the High Court could not have undertaken the exercise of deciding whether 'Gowari' caste was the same as 'Gond Gowari'.

On the merits of the High Court’s finding that 'Gond Gowari' was 'Gowari', the Supreme Court said that the expression ‘Gond Gowari’ clearly conveyed that the community ‘Gond Gowari’ has to do with tribe ‘Gond.

“We are clear in our view that ‘Gond Gowari’ is a community which has affinity with ‘Gond’ and is sub-tribe of ‘Gond’. The entry of ‘Gond Gowari’ in Scheduled Tribes Order 1950 was as a sub-tribe of ‘Gond’ which is clear from a report of the Backward Classes Commission, 1955. When the inclusion of the entry ‘Gond Gowari’ was as (subtribe of Gond), its affinity with ‘Gond’ cannot be ignored on any basis," the judgment said.

The Court also adverted to the fact that the State of Maharashtra had expressly written to the Government of India on November 6, 1981 that ‘Gowari’ community does not fulfill the criteria of Scheduled Tribe.

Thereafter, several studies were conducted by Tribal department in State of Maharashtra including a report dated May 12, 2006 which reaffirmed that ‘Gond Gowari’ and ‘Gowari’ are distinct communites and ‘Gowari’ is not a Scheduled Tribe.

The Court, therefore held that he caste ‘Gowari’ is not the same as ‘Gond Gowari’ and the High Court could not have granted declaration of caste ‘Gowari’ as ‘Gond Gowari’.

The Supreme Court, however, afforded protection to those persons who had availed the benefit of the High Court judgment from August 14, 2018 till date.

But the apex court also said that such persons shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of Scheduled Tribe certificate given to the ‘Gowari’ community.

[Read Judgment]

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