While quashing the notification issued by the Bihar government that approved issuance of Scheduled Tribe Caste certificate to Lohar community, the Supreme Court in a learned, laudable, landmark and latest judgment titled Sunil Kumar Rai vs State of Bihar in 2022 LiveLaw (SC) 219 and in Writ Petition (Civil) No. 1052 of 2021 delivered as recently as on February 21, 2022 observed that the delay by itself cannot be used as a weapon to veto an action under Article 32 when violation of fundamental rights is clearly at stake. This is essentially what forms the crux of this noteworthy judgment. We must note that in this case, Sunil Kumar Rai and others had approached the Apex Court challenging the notification issued by the Bihar Government in 2016. They contended that the Lohar community in Bihar is not entitled to be treated as members of the Scheduled Tribes.
To start with, this cogent, composed and convincing judgment authored by Justice KM Joseph for a Bench of Apex Court comprising of himself and Hrishikesh Roy sets the ball rolling by first and foremost putting forth in para 1 that:
This is a writ petition maintained under Article 32 of the Constitution of India.
The petitioners, four in number, seek reliefs which read as follows:
- Issue appropriate writ, order or direction in the nature of certiorari quashing the notification number 689 of 2016 dated 23.08.2016 issued by Respondent No.1 in Bihar Gazette;
- Issue an appropriate writ, order or direction, directing the Government of Bihar to pay compensation to the petitioners due to illegal, unconstitutional notification of government of Bihar Bihar on the basis of FIR registered under wrong provision of SC and ST Act.
- Or pass any other order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the above said case.
To put things in perspective, the Bench then envisages in para 3 that:
The case of the petitioners, in a nutshell, is as follows:-
The Lohar community in Bihar is not entitled to be treated as members of the Scheduled Tribe. The matter relating to Scheduled Tribes is governed by Article 342 of the Constitution. Invoking Article 342, it is the case of the petitioners that the original Order was issued by the President in 1950. Thereunder Lohars were not treated as members of the Scheduled Tribe. In fact, they were contemplated as members of Other Backward Class (for short ‘OBC’). This position continued from the year 1970 till 1976 when an amendment took place at the hands of Parliament. The position, however, as to Lohars not being entitled to be treated as Scheduled Tribe did not undergo any transformation. Thereafter, in the year 2006, Act No.48 of 2006 came to provide as follows:-
An Act further to amend the Constitution (Scheduled Tribes) Order, 1950 to modify the list of Scheduled tribes in the State of Bihar.
BE it enacted by Parliament in the Fifty-seventh Year of the Republic of India as follows:
- This Act may be called the Constitution (Scheduled Tribe) Short Title Order Amendment Act, 2006.
- The Gazette of India Extraordinary Part II-Sec 1]
Amendment of the Constitution (Scheduled Tribes) Order, 1950, as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976.
2. In the Constitution (Scheduled Tribes) Order, 1950, as amended by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976, in the Schedule, in Part III relating to Bihar, for item 22 (Since renumbered as item 21), as appearing in the Hindi version of the said Act, the following shall be substituted, namely: -
21. Lohara, Lohra.
As it turned out, the Bench then mentions in para 4 that:
Still, thereafter, Parliament came to repeal the just aforementioned enactment by Act 23 of 2016. Purporting to draw inspiration from the said enactment, the respondentState has issued the impugned Notification. The result of the Notification is not far to seek as the last sentence of the said Notification lays bare the intent, purport and object of the Respondent-State. In other words, seeking shelter under the amending Act of 2016, approval was given to issue Scheduled Tribe Certificate and other facilities to Lohar community.
As we see, the Bench then points out in para 5 that:
It is the case of the petitioners that this is per se unconstitutional and illegal. It occasions breach of Articles 14 and 21 of the Constitution. What is more, relying upon the same, proceedings have been initiated against the petitioners under the provisions of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities Act), 1989 (hereinafter referred to as ‘the 1989 Act’). Petitioners were constrained to seek anticipatory bail. Petitioner Nos. 2 and 4 were unsuccessful.
In fact, they had to undergo custody and all this is solely on account of the fact that the respondent-State has proceeded to pass the impugned Notification which has come as a handle in the hands of persons who are not entitled to the protection under the 1989 Act, to use the enactment against the petitioners. This, in turn, as already noticed has occasioned grave injustice to the petitioners, including incarceration in jails. In fact, learned counsel for the petitioners Mr. S. K. Rai would point out that there are thousands of FIRs filed in the State of Bihar invoking the impugned Notification resulting in deprivation of the liberty of several persons.
The case of the petitioners further is that the respondent-State had the audacity to disregard the declaration of law made by this Court, not once, but on three occasions. We shall refer to those decisions and it would suffice for our purposes to reiterate that the petitioners, in these circumstances, have approached this Court pointing out that the circumstances are such that it warranted the petitioners to directly approach this Court under Article 32 instead of approaching the High Court.
Most significantly, what forms the cornerstone of this learned judgment is then encapsulated in para 9 wherein it is put forth that:
We may take up the first preliminary objection by the State, namely, that the petitioners have approached this Court with considerable delay. The impugned Notification is issued in August, 2016. A person cannot be said to be aggrieved merely upon the issuance of an instrument or of a law by itself. In fact, the Court may refuse to examine the legality or the validity of a law or order on the basis that he may have no locus standi or that he is not an aggrieved person.
No doubt, the Courts have recognized challenge to even a legislation at the hands of a public interest litigant. However, we may only indicate, ordinarily, the Court may insist on a cause of action and therefore, a person must be an aggrieved party to maintain a challenge. We must not be oblivious to the fact that based on the Notification, it appears that FIRs came to be lodged by persons claiming to be members of the Scheduled Tribe community and seeking to invoke the 1989 Act. The FIRs lodged in the year 2020 occasioned the petitioners to approach Courts seeking protection under Section 438 of the Cr.P.C.
Two of the petitioners have not secured such protection. Petitioner No.1, it appears was not arrested. But even assuming for a moment, that the petitioners have come with some delay, we find reassurance from the opinion of this Court in the judgment reported in Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors. (2015) 3 SCC 1, wherein this Court has inter alia held as follows:-
32. …..Further, in Olga Tellis v. Bombay Municipal Corpn., it has now been conclusively held that all fundamental rights cannot be waived (at para 29). Given these important developments in the law, the time has come for this Court to say that at least when it comes to violations of the fundamental right to life and personal liberty, delay or laches by itself without more would not be sufficient to shut the doors of the court on any petitioner.
Therefore, we do not think we should be detained by the objection. We would think that delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake.
Adding more to it, the Bench then states in para 10 that:
Equally unimpressive is the further argument of the learned senior counsel for the respondent-State that what is at stake is the case of personal feud or personal enmity. This Court is not concerned with the merits of the case as such. What this Court is concerned is with the legal and constitutional aspects arising from the challenge to the impugned Notification in question. Once this Court is convinced that the Notification has no legs to stand on and must collapse, it becomes the Court’s duty to grant relief.
Without mincing any words, the Bench then holds in para 22 that:
We are deeply anguished by the state of affairs which has been brought to our notice through the contents of the petition under Article 32. This is not a matter which has not engaged the attention of this Court, which as we have noticed has dealt with the issue on as many as three occasions. It has been clearly and unequivocally declared that Lohars are not members of the Scheduled Tribe and they are members of the OBCs. Under the principle of separation of powers, in the manner we have it under the Constitution, it becomes the duty and the right of the Courts to settle disputes. The Constitution, no doubt, has given powers to the other organs of the State.
When it comes to taking decisions which affect the rights of the citizens, it is the paramount duty of the Executive to enquire carefully about the implications of its decisions. At the very minimum, it must equip itself with the law which is laid down by the Courts and find out whether the decision will occasion a breach of law declared by the highest Court of the land. This is a case where we have noticed an unbroken line of reasoning and decisions as noticed in the three judgments which we have referred to. This Court has also pronounced on the aspect of the English language prevailing over the Hindi version, if there is a conflict.
While continuing in same vein, the Bench then adds in para 23 that:
We should further realize the impact of a decision on the Rights and what is more, Fundamental Rights of the citizens flowing from of Government’s action and the need to increasingly evolve a system, whereby decision making promotes and strengthens the rule of law. Respect for the decisions of the Courts holding the field are the very core of Rule of Law. Disregard or neglecting the position at law expounded by the Courts would spell doom for a country which is governed by the Rule of Law.
Needless to state, the Bench states in para 24 that:
In this case, it is clear as daylight that the Lohars were not included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the OBCs in the State of Bihar. This position has attained articulation at the hands of this Court and this Court has traced the history of the matter in the decision in Prabhat Kumar Sharma (supra).
Notably, the Bench then points out in para 25 that:
What has apparently happened is that in the year 2006, initially, by the Act 48 of 2006, in the Hindi version of the 1976 amendment, the words ‘Lohara, Lohra’ were added as serial No.21 in place of the earlier serial No.22 which was subsequently renumbered as serial No.21. Apparently, this amendment did not and would not advance the case for the Lohars being Scheduled Tribes.
On the other hand, it was in conformity with the English version which is the authoritative version. Subsequently, in 2016, it is true that Act 48 of 2006 came to be repealed. Even taking the effect of the repeal to be that Act 48 of 2006 which was repealed was never in the statute book, it cannot possibly lead to the position that Lohars can make their way into the list of Scheduled Tribes. What is the basis for the respondent-State to take it upon itself to issue the impugned Notification by which referring to the 2016 amendment repealing the 2006 Act, it proceeded to give approval to caste certificate of Scheduled Tribe to Lohara, Lohar community?
Lohar is not same as Lohara. Including Lohars alongside ‘Lohara’ is clearly illegal and arbitrary. The English text which has been held to be the authoritative text and the decisions of this Court have been ignored. We cannot at all, approve this approach which at the very minimum betrays total non-application of mind which, in turn, leads to an inference that it has been arrived in an arbitrary manner. Thus, it attracts the wrath of Article 14 of the Constitution. This, in turn, justifies the approach of the petitioners under Article 32 of the Constitution.
Be it noted, the Bench then holds in para 26 that:
The implications of this Notification are deep and it affects the rights of the citizens in the most adverse manner. The impact of the Notification is also to be gauged in the context of the 1989 Act as it is with reference to the Presidential Notification under Article 342 that prosecution under the 1989 Act is also to be judged. In the other words, a person who is Lohar on being treated as Scheduled Tribe would be entitled to invoke the protection of 1989 Act. That apart, it directly impinges upon the rights of the persons who stand in the shoes of the accused. The provisions of the 1989 Act have put stringent conditions in the matter of grant of bail. Anticipatory bail is not even permitted under Section 438 of the Code of Criminal Procedure, 1973 vide Sections 18 and 18A of the 1989 Act. No doubt, the effect of these provisions has been clarified by the Court [See (Prathvi Raj Chauhan vs. Union of India and others (2020) 4 SCC 727)].
Quite naturally, the Bench then remarks in para 27 that:
These are aspects which should have been borne in mind. This is apart from the fact that inclusion of persons otherwise disentitled in the category of Scheduled Tribes would directly constitute an unjustifiable inroad into the rights of those members of the Scheduled Tribe in the matter of public employment and in other respects.
It cannot be glossed over that the Bench then also remarks in para 28 that:
We are, therefore, of the view that there is absolutely no basis for respondent-State to have issued the impugned Notification. The limitation on the power of the Executive in this regard has been declared in Vinay Prakash (supra). We would think that the approach has been very casual and it has created a situation for which the State is solely responsible, even when it was entirely avoidable if only the respondent had taken proper care and applied its mind as we have already noticed.
As a corollary, the Bench then observes in para 29 that:
In view of the aforesaid discussion, the writ petition must be allowed and the impugned Notification must perish. The further, relief which is sought by the petitioners is that they must be given compensation. Undoubtedly, this Court has power of grant of compensation in the case of violation of Fundamental Rights. If any authority is required for the same, we may only refer to the judgment of this Court in Nilabati Behera @ Lalita Behera v. State of Orissa (1993) 2 SCC 746. We do not think that we should refer to any further judgments.
Interestingly enough, the Bench then observes in para 30 that:
We have noticed that there is a case for the petitioners that petitioner Nos. 2 and 4 did undergo imprisonment for some time. No doubt, there is a case for the State that the prosecution in regard to the two petitioners was not solely premised on the complainants therein belonging to the Lohar caste setting up a case under the 1989 Act. There is no relief sought in regard to quashing of the proceedings. However, we do think that the petitioners must be adequately provided for in monetary terms which we would describe as costs. In the facts and circumstances of this case, we would think that an amount of Rs. 5,00,000/- (Rupees Five Lakhs) must be imposed as costs.
Finally, the Bench then concludes by holding in para 31 that:
Resultantly, we allow the writ petition. We quash the impugned Notification. We may notice that in the impugned Notification, the direction is to give certificate to ‘Lohara’, (‘Lohar’) community. While ‘Lohara’ is a member of the Scheduled Tribe, ‘Lohar’ is not. Therefore, while we have quashed the notification, it must not be understood as meaning that ‘Lohara’ which is already included in the category of Scheduled Tribe is to be affected by this Judgment.
We clarify that the quashing of the impugned Notification will be qua ‘Lohar’ community and the Lohara will continue to get the benefit vouchsafed for them under the Presidential Order as amended by the Acts. We direct that the respondent No. 1 shall pay costs in the sum of Rs.5,00,000/- (Rupees Five Lakhs) which shall be done within a period of one month from today and the respondent shall produce proof of the payment of the costs by production of the receipt of the same within a period of six weeks from today.
As regards the cases against the petitioners, it is for the petitioners to work out the remedies in the appropriate Forum and necessarily, the Courts will take note of the pronouncement which we have made today. We would expect that the first and the second respondents will issue appropriate direction(s) to the authorities in the light of today’s pronouncement. Pending application(s), if any stand disposed of.
All told, this learned judgment makes it crystal clear that delay by itself cannot veto a writ petition under Article 32 when fundamental rights are clearly at stake. Of course, all the courts must strictly abide by what the Apex Court has held. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
