Dr. D.Y. CHANDRACHUD, J.

THE CONTOURS OF THE CASE

The questions that arise before the Full Bench for determination relate to the standards which have to be applied in determining whether or not an applicant belongs to a designated Scheduled Tribe. Article 342 of the Constitution empowers the President to specify caste, races or tribes or parts or groups within them which shall be deemed to be Scheduled Tribes in relation to a State or a Union Territory. The power to include in or to exclude from the lists of Scheduled Tribes specified in a notification issued by the President is vested in Parliament. Pursuant to Article 342, the Scheduled Tribes were notified by the Constitution (Scheduled Tribes) Order, 1950. This was followed by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956. In 1976 Parliament enacted the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976. Part IX of the Third Schedule to the Amending Act specifies Scheduled Tribes for the State of Maharashtra. Among the Scheduled Tribes which have been specified are:

(1) Mahadev Koli, Malhar Koli, Tokre Koli (Entries 28, 29 and 30);

(2) Dhanwar (Entry No.14)

(3) Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar (Entry 44)

(4) Mana (Entry 18)

(5) Mannervarlu (Entry 27)

(6) Halba, Halbi (Entry 19).

Attempts were made over a period of time by certain persons belonging to non-tribal communities to claim tribal status, on the assertion that their community is synonymous with a tribal group which is specified in the notification, or that their tribe is subsumed in a tribe which is specifically notified. The nomenclatures of the communities of such applicants were similar to those of designated Scheduled Tribes, often with a tribal prefix or suffix. For instance, non-tribal communities include Koli (Son Koli, Suryawanshi Koli, Vaiti Koli), Dhangar, Munnurwar/Mannerwar/ Mannawar and Koshti/Halba Koshti. Decisions of the Supreme Court laid down that the entries contained in the Scheduled Caste or the Scheduled Tribes Order have to be taken as they stand and no evidence can be led either to interpret or to explain those entries. A tribe which is not specifically named as a Scheduled Tribe cannot lay claim to inclusion, either on the basis of a similarity of nomenclature or by contending that the tribe in question is subsumed within a designated Scheduled Tribe.

2. In the State of Maharashtra the State Legislature enacted 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. The Act has now made statutory provisions for the verification and scrutiny of caste claims by competent authorities and subsequently by Caste Scrutiny Committees. The Act creates offences; provides for disqualifications and for the withdrawal of benefits granted on the basis of false caste certificates.

3. In Kumari Madhuri Patil and another v. Addl. Commissioner, Tribal Development, (1994) 6 SCC 241) the Supreme Court laid down the procedure for the verification and scrutiny of caste and tribe claims. The procedure has now been codified into legislation in the State of Maharashtra. Madhuri Patil's case, while elaborating on the basis of scrutiny, accepted the relevance and importance of the affinity test. By the affinity test, the Scrutiny Committees would be entitled to verify the genuineness of the claim of an applicant on the basis of ethnicity and anthropology. The expression “affinity” is used to denote the association of the applicant with a Scheduled Tribe into which he or she has been born by the application of certain settled standards.

4. The reference to the Full Bench has been occasioned as a result of a conflict in the views expressed in Judgments of this Court on the applicability of the affinity test. The points which have been referred by the Division Bench for