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2018 Supreme(SC) 949
SUPREME COURT OF INDIA
MADAN B. LOKUR, DEEPAK GUPTA, JJ.
STATE OF ORISSA – APPELLANT(S)
Versus
DASARATHI MEHER – RESPONDENT(S)
CIVIL APPEAL NO. 7362 OF 2013 WITH CIVIL APPEAL NO. 10066 OF 2018 (@SLP (C) No. 13172 OF 2015) CIVIL APPEAL NO. 10061 OF 2018 (@SLP (C) No. 13169 OF 2015) CIVIL APPEAL NO.7363 OF 2013 CIVIL APPEAL NO.10065 OF 2018 (@SLP (C) No. 13171 OF 2015)
Decided On : 27-09-2018
IMPORTANT POINTS
No authority except Parliament can modify the Presidential Order. However, Court has to ensure that the order is read in such a manner that no caste or tribe, which is intended by President or by Parliament to be included, is actually excluded.
The term “Kulis” in the English version will include members of the “Kuli” community.
Headnote:(a) Constitution of India – Articles 341 and 342 – Presidential Order – Caste once notified – No authority except Parliament can modify – Duty of Court – Court cannot modify, alter, add to or subtract from the Presidential Order or the notification issued by Parliament – Court has to ensure that the order is read in such a manner that no caste or tribe, which is intended by President or by Parliament to be included, is actually excluded. (Para 6, 10)
(1965) 1 SCR 316; AIR 1965 SC 1557; (2001) 1 SCC 4 – Relied upon
(b) Constitution of India – Article 342 – State of Orissa – ‘Kulis’ – ‘Kuli’ tribe claiming to be part of ‘Kulis’ – High Court consistently holding so – Judgments never challenged – Attaining finality. (Para 15)
58 (1984) CLT 562 – Cited with approval
(c) Constitution of India – Article 342 – State of Orissa – ‘Kulis’ and ‘Kuli’ – Nothing to show that ‘Kulis’ was a separate community – Documents showing that ‘Kuli’ was declared a tribe in Sambalpur district while ‘Kulis’ was declared a tribe in whole of State – Nothing to show that “Kuli” or “Kulis” are two different castes or tribes dealing with some different vocations – In all the documents they have been dealt with synonymously – Hindi version of thee Order mentioning ‘Kuli’ and not ‘Kulis’ – There being no community known as ‘Kulis’, holding that it does not include ‘Kuli’ would be deleting a tribe from the Presidential Order which is not permissible – Held, the President and later Parliament while using the term “Kulis” only intended it to be used as plural for the word “Kuli”. (Para 16, 21, 23)
Facts of the case:
Whether the tribe mentioned as “Kulis” in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 in Schedule II in Part XII at Item No. 42 includes persons belonging to the “Kuli” community, is the issue which needs to be decided in the present group of cases.
Finding of the Court:
The term “Kulis” in the English version will include members of the “Kuli” community.
Result: Appeal dismissed.
JUDGMENT
Deepak Gupta, J.
Leave granted in SLP (C) No. 13172 of 2015, SLP (C) No. 13169 of 2015 and SLP (C) No. 13171 of 2015.
2. Whether the tribe mentioned as “Kulis” in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 in Schedule II in Part XII at Item No. 42 includes persons belonging to the “Kuli” community, is the issue which needs to be decided in the present group of cases.
3. Article 342 of the Constitution of India reads as follows:
“342. Scheduled Tribes.- (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”
4. It would be pertinent to mention that the aforesaid article is almost identical to Article 341 relating to Scheduled Castes. The only difference being that Article 341 deals with “castes, races or tribes or parts of or groups within castes, races or tribes”
whereas Article 342 deals only with “tribes or tribal communities or parts of or groups within tribes or tribal communities”. This small difference will not have any effect while interpreting the two articles on the facts of these cases.
5. The stand of the appellant, the State of Odisha (formerly known as ‘Orissa’) and the intervenor is that since in the Scheduled Castes and Scheduled Tribes Order, the tribe which has been declared to be a Scheduled Tribe is “Kulis”, the members of the “Kuli” community cannot take benefit of being declared as Scheduled Tribes. It is further submitted that no court including this Court has the power to change or modify what is stated in the Presidential Order and later in the Act of Parliament and, therefore, the High Court erred in holding that “Kulis” would include “Kuli”.
6. Before dealing with the factual aspect of the matter it would be pertinent to reiterate the legal position and the limits of the power of the court while dealing with these issues. A bare perusal of clause (1) of Article 342 of the Constitution clearly shows that the President with respect to any State, after consultation with the Governor thereof, may by public notification specify the tribes or tribal communities or parts of or groups thereof, which shall for the purposes of the Constitution, be deemed to be Scheduled Tribes in relation to that State. After the President issues an Order under Article 341 or 342, the said Order cannot be amended, modified, added to or any caste or tribe deleted therefrom by the State or by any court or tribunal. It is only the Parliament, which can enact a law to include or exclude from the lists of Scheduled Castes or Scheduled Tribes any caste, race or tribe. The power to alter the Presidential Order lies only with Parliament and no other authority. Therefore, the notification issued by the President is final for all purposes and for all times except if modified by a law made by Parliament.
7. These provisions have been considered in a number of cases. We need not refer to all, except three Constitution Bench judgments of this Court. The first Constitution Bench judgment was rendered in B. Basavalingappa v. D. Munichinnappa, (1965) 1 SCR 316. In this case the issue was whether a person belonging to the “Voddar” caste could claim that he belonged to the “Bhovi” caste which had been notified as a Schedu
