Social status certificate: Notification dated 23.08.2016 issued by Government of Bihar – In terms of said Notification, approval given to issue Scheduled Tribe certificate to Lohara (Lohar) community – Writ petition filed under Art.32 praying quashment of said Notification and also seeking direction to the Government to pay compensation for illegal notification which led to FIR under the provisions of SC and ST Act, 1989 against the petitioners – Held: It has been held in catena of decisions that Lohars are not members of the Scheduled Tribe and they are members of the OBCs – ‘Lohar’ is not same as ‘Lohara’ – The implication of Notification dated 23.08.2016 is deep and it affects the rights of the citizens in the most adverse manner – A person who is Lohar on being treated as Scheduled Tribe would be entitled to invoke the protection of 1989 Act – 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 – Therefore, there is absolutely no basis for respondent-state to have issued the impugned notification – 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 – State government to pay Rs.5,00,000/- as costs – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Constitution of India: Art.32 – Delay in approaching Court – Delay by itself cannot be used as a weapon to Veto an action under Art.32 when violation of fundamental rights is clearly at stake. Allowing the writ petition, the Court
HELD: 1.Article 32 of the Constitution provides for a Fundamental Right to approach the Supreme Court for enforcement of the Fundamental Rights. The founding fathers contemplated that the very right to approach this Court when there is a violation of Fundamental Rights, should be declared as beyond the reach of Parliament and, therefore, it is as a part of judicial review that the right under Article 32 has been put in place and invoked from time to time. That in a given case, the Court may refuse to entertain a petition under Article 32 of the Constitution is solely a part of self-restraint which is exercised by the Court having regard to various considerations which are germane to the interest of justice as also the appropriateness of the Court to interfere in a particular case. The right under Article
32 of the Constitution remains a Fundamental Right and it is always open to a person complaining of violation of Fundamental Rights to approach this Court. This is, no doubt, subject to the power of the Court to relegate the party to other proceedings. [Para 7][1118-B-D]
2. 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. The 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 is disapproved. 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. [Para 25][1129-D-E]
3. 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. Therefore, 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 catena of cases. 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. [Paras 26, 28][1129-F-H; 1130-B-C]
Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors. (2015) 3 SCC 1 : [2014] 14 SCR 744; Prabhat Kumar Sharma v. Union Public Service Commission And Others (2006) 10 SCC 587 : [2006] 7 Suppl. SCR 522; Nityanand Sharma and Another v. State of Bihar and Ors. (1996) 3 SCC 576 : [1996] 2 SCR 1; Vinay
Prakash and Others v. State of Bihar and Others,1997
(3) SCC 406 : [1997] 2 SCR 97; The State of
Maharashtra & Anr. v. Keshao Vishwanath Sonone & Anr. (2020) 14 SCALE 456; Prathvi Raj Chauhan v. Union of India and Others (2020) 4 SCC 727; Nilabati Behera @ Lalita Behera v. State of Orissa (1993) 2 SCC
746 : [1993] 2 SCR 581 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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