Validity of the order.

The Chief Justice.-Article 330(1) of the Constitution provides that seats Shall be reserved in the House of the People for the Scheduled Castes. Article 332(1) similarly provides for the reservation of seats for the Scheduled Castes in the Legislative Assembly of every State. The expression "Scheduled Castes" is defined in Article 366, clause 24, as meaning

"Such castes races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be scheduled castes for the purpose of this Constitution."

Article 341(1) now runs as follows:

"The President may, with respect to any State, or where it is a State specified in Part A or Part B of the First Schedule, after consultation with the Governor or Rajapramukh thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State."

In exercise of the powers conferred by clause(1) of Article 341, the President made an order called the Constitution (Scheduled Castes) Order, 1950. The material provisions of this Order are paragraphs 2 and 3 which are as follows:

"2 Subject to the provisions of this Order, the castes, races or tribes, or parts of, or groups within, castes, races or tribes, specified in Parts I to XVI of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes. so far as regards members thereof resident in the. localities specified in relation to them in those parts of that Schedule.

3. Notwithstanding, anything contained in paragraph 3, no person who professes a religion different from Hinduism shall be deemed to be a member of a Scheduled Caste." ......"

The petitioner alleges that he is a member of the Paraiyan caste which is item 64 in Part V of the Schedule to the Scheduled Castes Order. Admittedly, he is a convert to Christianity. He therefore would be a person professing a religion different from Hinduism and therefore under paragraph 3 of the Scheduled Castes Order would be deemed not to be a member of a Scheduled Caste. He desires to stand as a candidate for a seat reserved for the Scheduled Castes and he can do so only if he is deemed to be a member of a Scheduled Caste. As the aforesaid provision prevents him from so standing he has filed the above application for adequate relief from this Court.

Learned Counsel for the petitioner contended that paragraph 3 of the Order in question is not valid as it is beyond the power conferred on the President by Article 341(1). The President can no doubt specify the Castes or parts of or groups within Castes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes. But he cannot artificially or arbitrarily create a part of or group within a Caste. The part or group must have a separate objective existence independent of the President’s fiat. The President can only specify a part or group which has such an independent existence, even before he specifies it. He cannot create a part or group by specifying it. He cannot, for instance, say that only the illiterate members of a particular Caste shall be deemed to be a Scheduled Caste or members of the Caste who do not own any property. No doubt, persons could be selected on such a basis and formed into a part or group; but Article 341 does not contemplate such a part or group. So ran one part of the argument of the petitioner’s learned counsel.

The other part of the argument was based on the form of the rule embodied in paragraph 3. It is negative in character it was submitted. It assumes that a particular person would otherwise be a member of a Scheduled Caste but because the person happens to profess a religion other than Hinduism, he is taken out of the category of a Scheduled Caste. This is beyond the powers of the President under Article 341.

The second part of the argument does