2022 Supreme(SC) 177

SUPREME COURT OF INDIA
K. M. JOSEPH, HRISHIKESH ROY, JJ.
SUNIL KUMAR RAI & ORS. – Petitioners
Vs.
THE STATE OF BIHAR & ORS. – Respondents
WRIT PETITION (CIVIL) NO. 1052 OF 2021
Decided On : 21-02-2022

IMPORTANT POINTS
(1) Scheduled Tribes – Lohar is not the same as Lohara – Including Lohars alongside ‘Lohara’ is clearly illegal and arbitrary.
(2) Rule of law – When it comes to taking decisions which affect rights of citizens, it is paramount duty of Executive to enquire carefully about implications of its decisions.
(3) Writ Jurisdiction – 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.

Headnote:

(A) Constitution of India – Article 32 read with Article 14 – Writ Petition seeking compensation to petitioners due to illegal, unconstitutional notification of government of Bihar on the basis of FIR registered under wrong provision of SC and ST Act – Right under Article 32 of Constitution remains a Fundamental Right and it is always open to a person complaining of violation of Fundamental Rights to approach this Court – Right against unfair State action is part of Article 14 – Unequals being treated equally is tabooed under Article 14 of Constitution – A person entitled to be treated as a member of Scheduled Tribe under Article 342, cannot be treated on par with a person who is brought in by an incompetent Body, viz., State in the manner done – Impugned Notification number 689 of 2016 dated 23.08.2016 issued by Respondent No.1 in Bihar Gazette is issued in August, 2016 – A person cannot be said to be aggrieved merely upon issuance of an instrument or of a law by itself – FIRs came to be lodged by persons claiming to be members of Scheduled Tribe community and seeking to invoke 1989 Act – FIRs lodged in year 2020 occasioned petitioners to approach Courts seeking protection under Section 438 of Cr.P.C. – Two of petitioners have not secured such protection – 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 – Once this Court is convinced that Notification has no legs to stand on and must collapse, it becomes Court’s duty to grant relief – A person who is Lohar on being treated as Scheduled Tribe would be entitled to invoke protection of 1989 Act – That apart, it directly impinges upon rights of persons who stand in shoes of accused – Provisions of 1989 Act have put stringent conditions in the matter of grant of bail – Anticipatory bail is not even permitted under Section 438 of Code of Criminal Procedure, 1973 vide Sections 18 and 18A of 1989 Act – Impugned Notification quashed – Petitioners did undergo imprisonment for some time – Impugned Notification quashed – Respondent No. 1 shall pay costs of Rs.5,00,000/- – As regards cases against petitioners, it is for petitioners to work out remedies in appropriate Forum. (Paras 7 to 10, 26, 29 to 31)

(B) Constitution of India – Article 342 – Scheduled Tribes – Lohar is not the same as Lohara – Lohars are, admittedly, blacksmiths, a backward community in the State of Bihar, whereas Loharas are Scheduled Tribes in State of Bihar – Appellants who hailed from State of Bihar and belonged to Lohar Caste claimed status as Scheduled Tribes under Scheduled Tribes Order of 1950 as amended by Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 – Lohars were not members of Scheduled Tribe and they were members of the OBC in the State of Bihar – Lohars were not included as members of Scheduled Tribe right from beginning and they were, in fact, included as members of OBCs in State of Bihar – Including Lohars alongside ‘Lohara’ is clearly illegal and arbitrary – It attracts wrath of Article 14 of Constitution – This, in turn, justifies approach of petitioners under Article 32 of Constitution – Implications of this Notification are deep and it affects rights of citizens in the most adverse manner. (Paras 17, 18, 20, 24 to 26)

(C) Constitution of India – Articles 14, 154 and 166 – Rule of law – Respect for decisions of Courts holding the field are very core of Rule of Law – Disregard or neglecting position at law expounded by Courts would spell doom for a country which is governed by Rule of Law – When it comes to taking decisions which affect rights of citizens, it is paramount duty of Executive to enquire carefully about implications of its decisions – At the very minimum, it must equip itself with law which is laid down by Courts and find out whether decision will occasion a breach of law declared by highest Court of land. (Paras 22 and 23)

Facts of the case:

Case of the petitioners is that 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 (‘OBC’).

Findings of Court:

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. 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.

Result : Writ Petition allowed.