Gujarat High Court
Gujarat Dalit Civil & Constitutional ... vs Union Of India And Ors. Etc. on 27 November, 1987
Equivalent citations: AIR1988GUJ197, (1988)1GLR290, AIR 1988 GUJARAT 197
Author: G.T. Nanavati
Bench: G.T. Nanavati
JUDGMENT P.R. Gokulakrishnan, C.J.
1. In all these Special Civil Applications common question which is raised is as to whether Mochis (i.e. the persons belonging to Mochi Community) of Gujarat except those residing in the District of Dangs and Umbergaon Taluka (which is now apart of Bulsar District) can properly be considered to be the members of Scheduled Caste and whether the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act. 1976 (hereinafter referred to as "the Amendment Act") in so far it deleted the entry "In the district of Dangs and Umbergaon Taluka of Surat District - Mochi "- specified in Part IV Gujarat of the Scheduled to the Constitution (Scheduled Caste) Order, 1950 and in so far as it has included 'Mochi' caste as a whole in entry No. 4 of Part IV-Gujarat in the schedule substituted by the amendment Act is ultra vires.
2. Special Civil Application No. 3432 of 1985 is filed by Gujarat Dalit Civil and Constitutional Rights Pratipadan Samiti through its Convener Shri Dahyabhai Ramjibhai Parmar. It has challenged the vires of the Amendment Act on the ground that it has included within the Scheduled Caste those Mochis of Gujarat who did not suffer any disability because of untouchability, and therefore, it is ultra vires Articles 14 and 341(2) of the Constitution. In the alternative, it has prayed for a declaration that on true and correct interpretation of the Amendment Act "Mochis" of the areas other than Dangs District and Umbergaon Taluka of Bulsar District are not covered within the meaning of the term "Mochi" appearing in Part IV Gujarat of the first Schedule to the said Act. It has also prayed for a writ of prohibition prohibiting the respondents from giving benefits to Mochis residing in areas other than Dangs District and Umbergaon Taluka on the basis that they belong to the Scheduled Caste. It has also prayed for a writ of mandamus directing the respondents to take steps to undo injustice caused so far to the persons belonging to the Scheduled Caste because of the aforesaid amendment made by the Amendment Act of 1976.
3. Special Civil Application No. 1821 of 1986 is filed by one Vaghela Himatsinh Subodhbhai. He was one of the candidates who had applied for the post of Gujarat Statistical Service Class II Officers. He belongs to Rohit community which is a Scheduled Caste. On the post reserved for Scheduled Caste candidates, Gujarat Public Service Commission selected respondent No. 4 and kept the name of the petitioner on the waiting list. The contention of this petitioner is that respondent No. 4 being a Mochi residing in the area other than Dangs District and Umbergaon Taluka, is not a member of the Scheduled Caste, and, therefore, the action of the Gujarat Public Service Commission is illegal; and really the petitioner should have been selected for the said reserved post. This contention of the petitioner is really based on the other challenge made in the petition that the Amendment Act is ultra vires or in the alternative, on the true and correct interpretation of the Amendment Act "Mochis" of the areas other than Dangs District and Umbergaon Taluka of Bulsar District are not covered within the meaning of the term "Mochi" appearing in Part IV Gujarat of the First Schedule to the said Act.
4. Special Civil Application No. 3285 of 1986 is filed by Parmar Sadabhai Khodabhai. He had contested the election held on 15-61985 for the seat of Municipal Councillor of Kalol Municipality. In Ward No. 1 there were four seats. Out of them, one seat was reserved for a candidate belonging to a Scheduled Caste. Along with the petitioner, respondent No. 1 also contested the said election from the said ward for the reserved seat on the ground that he being a Mochi, he belongs to a Scheduled Caste. Respondent No. I has been returned as a successful candidate. The petitioner challenges his election on the ground that he really does not belong to the Scheduled Caste; and therefore, his election is illegal, null and void. This challenge of the petitioner is really based ' on the other challenge made in the petition that the Amendment Act is ultra vires or in the alternative, on true and correct interpretation of the Amendment Act, "Mochis- of the areas other than Dangs District and Umbergaon Taluka of Bulsar District are not covered within the meaning of the term "Mochi" appearing in Part IV-Gujarat of the First Schedule to the said Act.
5. Mr. Parmar he learned counsel, appearing for the petitioner has taken great pains in analysing the events, for putting certain castes in the Schedule describing them as Scheduled Tribes and Scheduled Castes. It is the say of Mr. Parmar that, prior to Independence, portion of territory of State of Gujarat formed part of Bombay Presidency. On 5-11-1928, the then Government of Bombay Presidency had appointed a Committee headed by Mr. O.H.B. Starte, I.C.S and other 9 members which included Dr. B. R. Ambedkar to inquire into the educational, economic and social conditions of the Depressed Classes/Untouchables and of the Aboriginal Tribes in the Presidency and to recommend measures for their uplift. The Committee, after making a detailed study of the customs and manners that prevailed in this part of the Presidency, recommended that untouchable castes should be known as 'Depressed Classes'. The Committee laid down untouchability and its resultant disabilities and social isolation as a test to identify Depressed Classes/untouchables. Mr. Vimal Chandra in his booklet ort list of Scheduled Castes and Scheduled Tribes, states that the "possible test for specifying the Scheduled Caste (Untouchables) is whether persons belonging to that Caste suffer or have suffered from the practice of untouchability and/or its resultant disabilities rendering them all round backwardness." Even the Baxi Commission, in their Report submitted to the Gujarat Government as late as 27-2-1976, states that the stigma of untouchability is the criteria for classifying Scheduled Castes.
6. The Starte Committee, of which Dr. B. R. Ambedkar was one of the members, prepared a detailed list after roving enquiry in Appendix-Il of its report, denoting Castes which are untouchables (Depressed Classes), aboriginals and hill tribes and other backward classes. The Annexure 'C' in this Special Civil Application is the said Appendix-II prepared by the Starte Committee. In that, Item 31 in the Column 'Depressed Classes*, we find "Mochi or (Mochi except Gujarat where they are (touchables) in this Appendix-II which is at Annexure 'C' in Item 59 in the Column 'Other Backward Classes', it is stated "Mochi (touchables in Gujarat and untouchables elsewhere)". On the basis of the above report, the Mochi community residing in Gujarat area of Bombay Presidency was not specified as Scheduled Caste in the list prepared by the Government of India in 1935 and attached to the orders-in-council issued under the Government of India Act, 1935 and cited as "the Government of India (Scheduled Castes) Order, 1936." The said order is marked as Annexure 'D' to the Special Civil Application. In that, we find Mochi community throughout the Bombay Presidency except in Ahmedabad, Kaira, Bharuch, Panchmahal and Surat were considered to be Scheduled Castes. Thus, the Government of India (Scheduled Castes) Order, 1936 was taken as the basis for defining the Harijans who are said to be Scheduled Castes while enacting the Bombay Harijan (Removal of Social Disabilities) Act, 1946, which Act in Section 2-A defines 'Harijan' as follows :
"Harijan means a member of a Caste, race or tribe deemed to be a Scheduled Caste under the Government of India (Scheduled Castes) Order, 1936.-
Mr. Parmar further says that, Mochis, except. in the District of Dangs and Umbergaon Taluka in Bulsar, never suffered any social disability. Further, in the fist of backward classes approved by the Government of Bombay under Resolution Political and Services Department No. 1673/34 dated 23-4-42 and modified up to 30-6-1949, Mochi community of Gujarat was not shown, as Harijans (Untouchables), but was shown as other backward classes. This we find in entry No. 36 of Part I (Harijans) and entry No. 81 of Part III (Other Backward Classes) of the list, copy of which is annexed to the petition and marked as Annexure 'E'. Continuing the narration, Mr. Parmar submitted that the President of India, by virtue of the power under Article 341(1) of the Constitution of India, issued the Constitution (Scheduled Castes) Order, 1950. The said Constitution (Scheduled Castes) Order, 1950 is marked as Annexure 'A' to the Special Civil Application. In the said order also, Mochis of Gujarat have not been specified, Nevertheless, we are able to find that, in this order, Telugumochi and Kamtirnochi are referred. Mr. Parmar also referred to the list of Scheduled Castes and Scheduled Tribes published in Part VI of Gazette on 2nd June 1960 as per erstwhile Bombay State Reorganisation Act, 1960. The said list is Annexure 'F' to this Special Civil Application. Item 25 in the said list refers to Mochi of Dangs Jilla and Umbergaon Taluka. All these particulars, according to Mr. Parmar, clearly establishes that Mochi community in the State of Gujarat except in the District of Dangs and Umbergaon Taluka cannot be considered as untouchables and as such they will not come under the category of Scheduled Castes. The Learned Counsel further states that the Government of Gujarat under Resolution dated 8-8-1972, appointed a Commission called Baxi Commission to identify socially and educationally backward classes, other than Scheduled Castes and Scheduled Tribes and to inquire into their problems. This commission submitted its report on 27-2-1976, According to this Commission, Mr. Parmar says, the stigma of untouchability is the declared criterion for classifying Scheduled Castes while Scheduled Tribes are constituted of those that were subjected to social ostracism and segregation from the general population. The Commission also formulated the concept of backwardness. After defining the concept of backwardness, Baxi Commission prepared a list of socially and educationally backward classes wherein-are specified as many as 82 communities, This list, which is marked as Annexure 'G' to this Special Civil Application includes Mochi community in Serial No. 52. On social status of Mochi community the Commission observed that this community engages itself in shoe making: that some of them in this community processes the raw hides for shoe making; that their average income will be about Rs. 100 to 150 per month: that the women engages themselves as domestic workers in the families of higher class communities, and that their indebtedness varies from Rs. 1.000/- to Rs. 2,000/- per family. This observation made by the Baxi Commission, according to Mr. Parmar, leaves no doubt in the mind that the Mochis being touchables (backward class) community and as such cannot be included in the list of untouchable depressed classes (Harijans) specified under the Scheduled Castes Order, 1950. Mr. Parmar further states that, subsequent to the bringing in force of all the provisions of the Constitution including that of Article 17 which abolishes untouchability and Article 15(2) which prohibits practice of disability on grounds specified therein, which also includes Caste. There cannot be any fresh inclusion of Scheduled Castes in the Constitution (Scheduled Castes) Order, 1950 since penal laws like Untouchability Offences Act, 1956 have been passed and enforced. In the teeth of such penal laws, there cannot be any fresh list of untouchable community to bring it under the Scheduled Caste category. Mr. Parmar also pointed out the statement of objects and reasons which is Annexure 'X' to this Special Civil Application wherein it is stated that the inclusion of Mochi community in the Scheduled Caste and Scheduled Tribe Orders (Amendment) Act, 1976 except the community in Dangs District and Umbergaon Taluka will affect the real Scheduled Caste Mochis, who suffers the disqualification of untouchability. Thus, according to Mr. Parmar, the learned Counsel appearing for the petitioner, the 1976 Amendment Act has writ large injustice and upset standards of distributive justice. Disastrous effects, according to Mr. Parmar are that Mochis of area other than Dangs and Umbergaon Taluka, who belong to Caste Hindu community, have been snatching and eating away the benefits and rights of the Scheduled Castes enshrined under Articles 15, 16, 46, 330. 332 and 335 of the Constitution of India. With these factual allegations, the petitioner has approached this Court under Article 226 of the Constitution, challenging the 1976 Amendment Act on various grounds.
7. Mrs. K. T. Mehta, the learned counsel for the Respondents Nos. 1 and 2 have, inter alia, contended that Parliament has passed the Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976; that the said Act came into force on 27th July 1977after having received the assent of the President on 18-9-1976; that in Part IV of the substituted Scheduled which deals with Gujarat Item 4 enumerates several castes and Mochi is included in one of that castes in the said item and that as a result of that enactment, Mochi community is treated as Scheduled Caste so far as the State of Gujarat is concerned. It is further submitted that it is within the province of the Parliament to include in or exclude from the list of Scheduled Castes specified in the Notification issued under sub-clause (1) of Article 341 of the Constitution of India, any caste, race or tribe or part or group within any caste, race or tribe. The wisdom of the Parliament cannot be the subject matter of challenge before this court. It is further submitted that, as to whether a particular caste would fall within Scheduled Castes or not is a subject matter of legislation as required under Article 341(2) of the Constitution of India and it would not be open to the petitioner to contend that a caste included by the Parliament by the said enactment is not Scheduled Caste or the Caste excluded by the Parliament is a Scheduled Caste within the meaning of Clause (24) of Article 336 read with Article 341 of the Constitution of India. The Respondents further state that Mochi Community as a whole in the State of Gujarat is considered as Scheduled Caste and if this community is differentiated within the State as one belonging to the Scheduled Caste and other outside its purview, serious consequences and confusion will arise. After giving certain analogy as to how anomalies will arise if the Mochi community is not treated as a Scheduled Caste in the whole of State of Gujarat, the respondents submitted that the very object of the enactment which was to remove such anomaly will be frustrated. In paragraph 5 of its reply, the respondents have stated:
"With reference to para 7 even the Baxi Commission has come to the conclusion that the community has been considered to be very low and has suffered all the disadvantages of having such social status. The Baxi Commission has also come to the conclusion that most of the other communities usually do not have social relations with them, particularly in the matter of food and (their social status appears to be a little higher than that of Harijans). This finding of the Baxi Commission itself shows that Mochi community was required to be recognized by Parliament as Scheduled Caste. There is a clear finding that they are treated like Harijans, except that between Harijans and Mochis, Mochis are treated at a little higher level."
These respondents further stated that, in the State of Maharashtra also, the whole Mochi community has been treated as Scheduled Caste and like-wise the Mochi community in the State of Gujarat as a whole has been treated as Scheduled Caste. These respondents, after referring to various other constitutional provisions contended that Mochi community of Gujarat State has been correctly classified as a Scheduled Caste and the 1976 Amendment Act which is being impugned is a valid piece of legislation and cannot be struck down.
8. The petitioner, by his rejoinder has, inter alia, stated that Parliament does not possess power of including any caste Hindu community or person or group of persons who never suffered untouchability and resultant disability in the schedule made by President in exercise of the powers conferred under Article 341 of the Constitution. It has been further stated that the Scheduled Castes Order (Amendment) Act, 1976 in so far as it covers State of Gujarat is violative of Article 14 since the Parliament has exceeded its limits carved out by Clause (2) of Article 341 of the Constitution.
9. Mr. Parmar, the learned counsel appearing for the petitioner formulated five points for the purpose of addressing his argument. They are: (1) By the Act of 1976, the Parliament has included Mochi community of the areas other than Dangs District and Umbergaon Taluka in the Schedule by including all the Mochi communities of the State of Gujarat. Apart from the Mochi community of Dangs District and Umbergaon Taluka, the unequals are treated as equals thereby depriving the concession so far restricted to the Mochi community of Dangs District and Umbergaon Taluka. This offends Article 14 of the Constitution; (2) The main test for coming under the Scheduled Castes is untouchability. Mochi community of the areas other than Dangs District and Umbergaon Taluka does not suffer the disability of untouchability and as such they cannot be included in the Scheduled Castes, (3) Parliament under Article 341 can add in the Scheduled Castes only such of those who suffer the disability of untouchability in view of the historical facts and the scheme of the Constitution. If any other person who does not suffer the disability of untouchability is added to Scheduled Caste by any order of the Parliament, the same will be arbitrary and unconstitutional; (4) The Scheduled Castes and Scheduled Tribes (Amendment) Act, 1976 (Act 108 of 1976) so far as it includes Mochi in entry No. 4 of Part IV-Gujarat in the Schedule substituted by the said Act, namely, the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1976 referred to in this petition as 1976 Amendment Act, is ultra vires, since it contravenes implied limitations; (5) The word Mochi occurring in entry 4 Part IV of the Schedule to Act 108 of 1976, should be so interpreted that it covers only those Mochi community that skins the dead animal and that type of Mochis are residing only in Dangs District and Umbergaon Taluka. The doctrine of affinity theory has to be invoked and accordingly it should be construed that Mochi mentioned along with the groups in that entry are those Mochis who suffer disability by untouchability just like other communities in that entry.
10. Mr. Shelat, the learned counsel appearing for the respondents 3, 4, 5 and 6 submitted that when deeming fiction is created in Article 366(24) and once the Parliament includes in the Notification any caste as Scheduled Caste, it cannot be questioned in the Court of Law. The learned counsel, reading Article 311(2) of the Constitution, submitted that the Parliament has absolute power to exclude or include in the Schedule and the only limitation is that it should not exercise that power arbitrarily. Mrs. K. T. Mehta, the learned counsel appearing for the Central Government further submitted that, before the Act 108 of 1976 was passed, Ordinance was introduced in the Lok Sabha as early as 21-5-1976. A copy of the Bill was sent to all the States giving time limit up to the end of August 1976 to submit their objections to the Bill. The Bill was discussed at the end of August 1976 and up till then, the Gujarat Government did not furnish any suggestions or objections. In those circumstances, the Parliament passed the Bill as late as in 1976. Mrs. K. T. Mehta also read the object and reasons of the Act and submitted that reasonable criteria was adopted in including all the Mochi community in the Scheduled Caste by the impugned Act.
11. Inasmuch as, we have extracted the averments in the petition and the argument of Mr. Parmar elaborately in paragraph supra, we do not think it is necessary to repeat the same for the purpose of narrating the events that ultimately led to the passing of the impugned Act, which is being questioned in this Special Civil Application. In exercise of the powers conferred by Clause (1) of Article 341 of the Constitution of India, the President after consultation with the Governors and Raj Pramukhs of the States concerned made the Constitution (Scheduled Castes) Order, 1950. Mr. Parmar correctly traced as to how this Constitution (Scheduled Castes) Order, 1950 came to be passed. He made reference to Starte Committee in which one of the members is Dr. B. R. Ambedkar. In that Starte Committee Report Appendix II deals with classification of Castes and Backward Classes. Schedule I thereof deals with Depressed Classes and Schedule 3 deals with other Backward Classes. Item No. 31 of the Schedule 1 which catalogue Scheduled Castes states "Mochi (Mochi except Gujarat where they are touchables)." Item 59 of Schedule 3 which catalogues Other Backward Classes states "Mochi (Touchables in Gujarat and Untouchables elsewhere)." Mr. Parmar explained by stating that disability by untouchability is the criteria for including the community in the Scheduled of Depressed Classes. According to Mr. Parmar Mochi Community has two distinct groups. One group which are in the Dangs District and Umbergaon Taluka are untouchables since they skin dead animals, treat the skin so removed wash and supply colour to it. Mochis who reside in the Gujarat State other than the District of Dangs and Umbergaon Taluka, are not untouchables and as such they cannot be classified as untouchables by including them in the category of Scheduled Castes. In the publication called "Saurashtrani Pachhat Komo", Mochi community is dealt with in the third volume. In this volume, it is stated that there are 9 sub-castes in the Mochi community; that Chamadias is one of such sub-castes who colour the skin; that this Chamadias are treated lower to other Mochis; that Mochis other than Chamadias follow Swaminarayan's sect of Hindu religion; that Brahmins perform religious rights of caste Hindus for Mochis who are other than Chamadias and Mochis other than Chamadias play Raas, Karba with Khodets. In Volume 1, at page 88 of Baxi Commission Report, there is a reference to Mochi community and it states that in this community, women are being engaged as domestic servants in higher class community which means caste Hindus. From the above said references, Mr. Parmar contends that the Mochis residing in other areas except Dangs District and Umbergaon Taluka cannot be treated as Scheduled Castes since they do not suffer the disability of untouchability. Pointing out the decision reported in AIR 1966 SC 1119, which held that, Swaminarayan's sect is not distinct and separate from Hindu religion, Mr. Parmar submitted that those Mochis who follow the Swaminarayan's sect do not suffer religious disability and as such they cannot be classified as Scheduled Castes.
12. No doubt, the disability of untouchability may be one of the criteria for cataloguing such community in the Scheduled Castes. The Starte Committee Report and also references in the Book called "Framing of India's Constitution" by Shiva Rao suggests that untouchables should be considered as minority community. For such Scheduled Castes, major safeguards of representation, in legislature and public services have been provided for and they can be spelt out from Articles 330, 332, 334 and 335. Article 341 was enacted for the purpose of identification of Depressed Classes.
13. In the above said background, we can consider as to whether the Act 108 of 1976 is arbitrary and offends Article 14 of the Constitution.
14. The Statement of Objects and Reasons in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act 1O8 of 1976) reads as follows :
"Under the Scheduled Castes and Scheduled Tribes Orders some communities have been specified as Scheduled Castes or as Scheduled Tribes only in certain areas of the State concerned and not in respect of the whole State. This has been causing difficulties to members of these communities in the areas where they have not been so specified. The present bill generally seeks to remove these area restrictions. However, in cases where continuance of such restrictions were specifically recommended by the Joint Committee on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill, 1967 no change is being effected. The Committee had also recommended exclusion of certain communities from the list of Scheduled Castes and Scheduled Tribes, These exclusions are not being made at present and such communities are being retained in the lists with the present area restrictions. Such of the communities in respect of which the Joint Committee had recommended exclusion on the ground that they were not found in a State are, however, being excluded if there were no returns in respect of these communities in the censuses of 1961 and 1971.
2. The proposed amendments in the fists of Scheduled Castes and Scheduled Tribes may lead to an increase in the population of these Castes and Tribes and consequently, in, the number of reserved seats in the Lok Sabha and certain State Legislative Assemblies. Provisions have, therefore, been made in the Bill to empower the census authority to reestimate the population of the Scheduled Castes and the Scheduled Tribes, and the Election Commission to reallocate the reserved constituencies."
It is seen from the above said Statement of Objects and Reasons that a Joint Committee recommended the inclusion and exclusion of the Scheduled Castes in the list and a Bill called "Scheduled Castes Scheduled Tribes Orders (Amendment) Act, 1967" was passed. It is in the argument of the counsel for the Central Government, Mrs. K. T. Mehta that, objections were called for on the said report and no such objections or suggestions were received from the State of Gujarat and as such, the recommendation of the Joint Committee was accepted. No doubt, Mr. Parmar objects to such inclusion on the ground that the objections were called for during the emergency period and as such the failure to object or suggest for the inclusion or the exclusion from the Schedule cannot, in any way, affect the contentions now put forth by the petitioner here.
15. At this juncture, we can usefully refer to Article 341(1) and (2) of the Constitution, which reads as follows :
"341(l). 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 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 or Union Territory, as the case maybe.
341(2). Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe, or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification."
The object of Article 341(1) is to provide additional protection to the members of the Scheduled Castes having regard to the economic and educational backwardness from which they suffer. It is obvious that in specifying castes, races or tribes, the President has been authorised to limit in the Notification to parts or groups within the castes etc., and that must mean that, after examination of the educational and social backwardness of a caste, the President may well come to the conclusion that not the whole caste, race or tribe, but parts or groups within them should be specified. Similarly, the President may specify castes etc., or parts thereof in relation to parts of the State where he is satisfied that the examination of the social and educational backwardness of the race, caste or tribe justifies such specification. The Scheduled Castes Order, 1950 has been promulgated by the President by the power vested by the Constitution and the object of such order is to avoid all disputes as to whether a caste is a Scheduled Caste or not, for the purposes of the Constitution. In order, therefore, to determine whether a particular caste is a Scheduled Caste within the meaning of Article 341, one has to look to the terms of this order. The Courts have no power to go behind this order. With such an order made by the President, the Parliament by virtue of the power conferred on it under Article 341(2) may include by law or exclude by law from the fist of Scheduled Castes specified in a Notification issued under Clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said Clause shall not be varied by any subsequent notification. Thus, by virtue of Clause (2) of Article 341, the impugned order has been passed. Before passing the impugned order, we are able to see from the Statement of Objects and Reasons that a Commission was appointed to examine the list of Scheduled Castes and Scheduled Tribes and on the recommendation of the said Commission for adding and deleting certain castes, an Ordinance was passed. This Ordinance was called "The Scheduled Castes Scheduled Tribes Ordinance" and that was replaced by Act 108 of 1976. In its preamble it is stated "An act to provide for inclusion in and the exclusion from the lists of Scheduled Castes and Scheduled Tribes of certain castes and tribes for the readjustment of representation of parliamentary and assembly constituency in so far as such readjustment is necessitated by such inclusion or exclusion and for matters connected therewith." In the Schedule Part IV which deals with the State of Gujarat, Mochi community has been included.
16. Before the advent of our Constitution, Gujarat formed part of Bombay Presidency. On 5-11-1928, the-Bombay Presidency had appointed a Committee headed by Mr. O.H.B. Starte I.C.S. and other 9 members which include Dr. B. R. Ambedkar, to inquire into the educational, economical and social conditions of the Depressed Classes/ Untouchables and of the Aboriginal Tribes in the Presidency and to recommend measures for their uplift. The Committee gave elaborate description of the social stigma attached to the Depressed Classes in its report. The Committee recommended that the untouchable castes should be known as 'Depressed Classes'. Thus, it can be seen that the Committee laid down untouchability and its resultant disabilities and social isolation as a general test to identify Depressed Classes/Untouchables. Mr. Vimal Chandra, in his booklet states, "the possible test for specifying a Scheduled Caste (Untouchables) is whether persons belonging to that caste suffer or have suffered from the practice of untouchability and its resultant disabilities rendering them all round backwardness." The stigma of untouchability is one of the criteria for classifying Scheduled Castes as it is revealed by the report of Baxi Commission also. The Starte Committee, after elaborate investigation, came to the conclusion that Mochi community, except in the State of Gujarat are untouchables and as far as the State of ' Gujarat is concerned they are touchables and as such they come under the category of other backward classes. In the book called "Framing of India's Constitution" which is a Project Committee Report under the Chairmanship of Mr. B. Shiva Rao, in Volume II, it has been stated in paragraph 3 (c) that, Muslims shall have reservation of seats for the Muslims in the Lower Houses of the Central and Provincial Legislatures on the basis of their population. In paragraph 3A, the report says, "The section of the Hindu community referred to 'as Scheduled Castes as defined in Schedule I to the Government of India Act, 1935, shall have the same rights and benefits which are herein provided for the minority community specified in paragraph 3(c). In Volume III of the Project Committee Report by Mr. Shiva Rao under the title "Framing of India's Constitution, this Committee, while considering the 11th Schedule to the Constitution observed, "it was decided that this Schedule should be omitted and a definition of the expression "Scheduled Caste" should be inserted in the interpretation clause and the said expression should have the same meaning as in the Government of India (Scheduled Castes) Order 1936." As a matter of fact, the Government of Gujarat, subsequent to the passing of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act 108 of 1976), represented to the Government of India stating that the removal of area restrictions in the case of Mochi community is not justified because this community has never suffered from ' any disability arising out of the practice of untouchability in any part of Gujarat State, except the Dangs District and Umbergaon Taluka of the present Bulsar District. On this representation a Bill was prepared with an idea of restoring the position in respect of the Mochi community in the list of Scheduled Castes of Gujarat State which obtained prior to the enforcement of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976. We find that this Bill has not been passed by the Parliament. In the light of the* above said literature in respect of bringing a particular caste in the Scheduled Castes and also as to how the Mochi community of Gujarat State was included in the Scheduled Castes taking out the area restriction, we can usefully refer to certain decisions.
17. In AIR 1980 Supreme Court 150, after referring to the grouping of certain communities in a specific entry, the Supreme Court observed that it is reasonable to quote that the communities mentioned against any specific entry are those which have mutual affinity amongst them. Thus, we find in the Schedule to the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 at Part IV in Item 4, the following communities are mentioned :
Part IV-Gujarat 4. "Bhambi, Bhambhi, Asadaru, Asodi, Chamadia, Chamar, Chambhar, Chamgar, Haralayya,Harah, Khalpa, Machigar, Mochigar, Madar, Madig, Mochi, Nalia, Telegu Mochi, Kamati Mochi Ranigar, Rohidas, Rohit, Samgar."
In this, we find Mochi community also. Mr. Parmar Contends that the Mochi community of Dangs District and Umbergaon Taluka alone can be considered as having mutual affinity with the other communities mentioned in this entry 4. This submission of Mr. Parmar proceeds on the basis that, as per the doctrine of affinity theory, the Mochi referred in (Part IV-Gujarat entry 4) are those Mochis who suffer the disability whether it be social, economical or educational as that of the castes mentioned along with it in that entry. We are not having any evidence or data regarding the disabilities suffered by the communities mentioned in those entry in order to limit the Mochies in certain area to come under this entry. Hence under the facts and circumstances of the present case, we do not think that the decision reported in AIR 1980 SC 150 can have any application to the facts of this case.
18. Art. 366 isa definition Article. In this Article, in Clause (24), 'Scheduled Castes' mean such castes, races or tribes or parts of or groups within such castes. races or tribes as are deemed under Art. 341 to be Scheduled Castes for the purposes of this Constitution. When such deeming fiction is created under Art. 366(24), any caste included in the Scheduled Castes by the Parliament by virtue of its power under Art. 341 is deemed to be a Scheduled Caste and the wisdom of the Parliament in that respect cannot be the subject-matter of any further interpretation. As we have seen in paragraph supra, the statement of Objects and Reasons in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 (Act 108 of 1976) spells out the exercise taken by the Parliament before it passed the said Act. Thus, it is clear, the constitutional mandate for the purpose of invoking the provisions of Art. 341 has been strictly followed in including the Mochi community in the Gujarat State in the Scheduled Castes and it cannot be said that such a power is used arbitrarily by the Parliament.
19. In AIR 1985 SC 551, the Supreme Court had occasion to consider whether an Ordinance can be invalidated on the ground of non-application of mind. In that connection, the Supreme Court observed; "it is impossible to accept the submission that the Ordinance can be invalidated on the ground of non-application of mind. The power to issue an Ordinance is not an executive power but is the power of the executive to legislate. The power of the Governor to promulgate an Ordinance is contained in Art. 213 which occurs in Chapter IV of Part VI of the Constitution. The heading of that Chapter is "Legislative Power of the Governor". This power is plenary within its field like the power of the State Legislature to pass laws and there are no limitations upon that power except those to which the legislative power of the State Legislature is subject. Therefore, though an ordinance can be invalidated for contravention of the constitutional limitations which exist upon the power of the State Legislature to pass laws, it cannot be declared invalid for the reason of non-application of mind, any more than the other law can be. An executive act is liable to be struck down on the ground of non-application of mind and not the act of Legislature.
20. In this connection, we can also usefully refer the decision reported in AIR 1967 SC 691. It is the contention of Mr. Parmar that, in making the Mochi community of the whole of Gujarat to come under the Scheduled Caste offends Art. 14 of the Constitution since such an action treats unequals as equals. In the above cited decision, the Supreme Court had occasion to consider the principle of treating unequals as equals and observed; "Equal treatment of unequal objects, transactions or persons is not liable to be struck down as discriminatory unless there is simultaneously absence of a rational relation to object intended to be achieved by the law." The object and reasons for treating the Mochi community of the whole of Gujarat as Scheduled Caste is for removing the area distinction for particular community which was otherwise treated differently indifferent area in the same State to remove the hardship that is experienced by this community in social relations between them simply because they reside in different areas of the same State After considering these things the Legislature thought it fit to abolish this distinction by enacting the impugned Act by including al the Mochi communities of the State of Gujarat in the Scheduled Castes. Thus, we find the rational relation to the object intended to be achieved by the law and hence it is difficult to construe that such a law offends Art. 14 of the constitution. Moreover, the wisdom of passing the impugned Act by the Parliament cannot be questioned inasmuch as the same was passed after getting the report of the Commission set up and without contravening any of the constitutional limitations enshrined in Art. 341 of the Constitution.
21. In AIR 1965 SC 1557, a contention was raised that Dohar Caste is a sub-caste of Chamar and as such he comes under the category of Scheduled Castes. Rejecting the contention, the Supreme Court held, "In order to determine whether or not a particular caste is a scheduled caste within the meaning of Art. 341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to Chamar, Jatav or Mochi and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether the Appellant is a Chamar, Jatav or Mochi. The plea that, though he is not a Chamar as such he can claim the same status by reason of the fact that he belongs to the Dohar Caste which is a sub-caste of the Chamar caste, cannot be accepted. It appears to us that, an enquiry of this kind would not be permissible having regard to the provisions contained in Art. 341".
22. In AIR 1965 SC 1269, an election petition was filed challenging the election of the first respondent, inter alia, on the ground that he was not a member of any of the Scheduled Castes mentioned in the Constitution (Scheduled Castes) Order, 1950. Respondent No. 1 claimed that he belonging to the Scheduled Caste listed as Bhovi in that Order. That Appellant on the other hand contended that, respondent No. 1 was a Voddar by caste and that Voddar was not a scheduled caste specified in the Order and consequently respondent No. I could not stand for election from a scheduled caste constituency. It was held by this court that it was not open to any one to seek for any modification in the order by producing the evidence to show (for example) that though caste 'A' alone is mentioned in the order, Caste 'B' was also a part of caste A and, as such be deemed to be included in Caste A. Supreme Court also pointed out that, wherever one caste has another name it will be mentioned in brackets after it in the order, Therefore, generally speaking, it would not be open to any person to lead evidence to establish that caste B is a part of caste A notified in the order.
23. In AIR 1969 SC 597, the Supreme Court, following the principles laid down in AIR 1965 SC 1269 and AIR 1965 SC 1557, held, "These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazetteers and the glossaries on the Punjab castes and tribes to which reference was made at the Bar to find out whether Mochi and Chamar in some parts of the State at least meant the same caste although there might be some difference in the professions followed by their members, the main difference being that Chamars skin dead animals while Mochis do not. However that may be, the question not being open to agitation by evidence and being one, the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a Mochi, he could still claim to belong to the scheduled caste of Chamars and be allowed to contest an election on that basis. Quite a lot of evidence was adduced orally and also by documents before the learned trial Judge to show that Krishan Lal was a Chamar and not a Mochi. The learned Judge examined the evidence thoroughly and we do not propose to do the same again. In. his view Krishan Lal was a Mochi and not a Chamar and we do not see any reason why we should come to any different conclusion.
Once we hold that it is not open to this Court to scrutinise whether a person who is properly described as a mochi also falls within the caste of chamars and can describe himself as such, the question of the impropriety of the rejection of his nomination paper based on such distinction disappears. In this case, Krishan Lal was found to be mochi and not a chamar and therefore his nomination paper was rightly rejected. He tried to prove by evidence that he was a chamar but he-did not succeed therein. The appeal therefore fails and is dismissed with costs."
24. In AIR 1976 SC 490, the Supreme Court at paragraph 43 has observed as follows :
"Scheduled Castes and Scheduled Tribes are not a caste within the ordinary meaning of caste. In Bhaiyalal v. Harikishan Singh. (1965) 2 SCR 877 : AIR 1965 SC 1557 this Court held that an enquiry whether the appellant there belonged to the Dohar caste which was not recognised as a Scheduled Caste and his declaration that he belonged to the Chamar caste which was a Scheduled Caste could not be permitted because of the provisions contained in Art. 341. No Court can come to a finding that any caste or any tribe is a Scheduled Caste or Scheduled Tribe. Scheduled Caste is a caste as notified under Art. 366(25). A notification is issued by the President under Art. 341 as a result of an elaborate enquiry. The object of Art. 341 is to provide protection to the members of Scheduled Castes having regard to the .economic and educational backwardness from which they suffer."
25. In view of the above said decisions which squarely apply to the facts of this case, much learning poured into the discussion of this case to the effect that the disability by untouchability alone is the basis for determining the Scheduled Caste cannot be of any avail. In the teeth of the decisions which settle the sphere of questioning the declaration made by the President and the Parliament in respect of a particular caste as to whether the same comes under the category of Scheduled Caste. or not the argument to the effect that caste which suffers the disability of untouchability alone is the basis to declare a caste as scheduled caste cannot be appreciated.
26. In AIR 1971 SC 530, the Supreme Court observed in paragraph 115asfollows :
"There are many analogous provisions in the Constitution which confer upon the President a power coupled with a duty. We may refer to two such provisions. The President has under Arts. 341 and 342 to specify Scheduled Castes and Scheduled Tribes; and he has done so. Specification so made carries for the members of the Scheduled Castes and Scheduled Tribes certain special benefits, e.g., reservation, of seats in the House of the people, and in the State Legislative Assemblies by Arts. 330 and 332. and of the numerous provisions made in Schedules V and VI. It may be noticed that expressions 'Scheduled Castes' and Scheduled Tribes are specially defined for the purposes of the Constitution by Arts. 366(24) and 366(25). If power to declare certain classes of citizens as belonging, to Scheduled Castes and Scheduled Tribes includes power to withdraw declaration without substituting a fresh declaration. the President will be destroying the constitutional scheme. The power to specify may carry with it the power to withdraw specification, but it is coupled with a duty to specify in a manner which makes the constitutional provisions operative.-
27. Mr. Parmar cited the decision reported in AIR 1951 SC 41. This decision at para 12 on page 41 deals with the relevancy of referring to legislative proceedings. In that paragraph. the Supreme Court states Now, the petitioner has made no attempt to discharge the burden of proof to which I have referred and we are merely asked to presume that there must necessarily be other Companies also which would be open to the charge of mismanagement and negligence. The question cannot.. in my opinion, be treated so lightly. On the other hand, how important the doctrine of burden of proof is and how much harm can be caused by ignoring it or tinkering with it, will be fully illustrated, by referring to the proceedings in the Parliament in connection with the enactment of the Act where the circumstances which necessitated it are clearly set out. I am aware that legislative proceedings cannot be referred to for the purpose of construing an Act or any of its provisions. but I believe that they are relevant for the proper understanding of the circumstances under which it was passed and the reasons which necessitated it."
28. Mr. Parmar reads the Lok Sabha proceedings when it discussed the Bill to provide for the inclusion in and the exclusion from the list of Scheduled Castes and Scheduled Tribes of certain castes and tribes. In the discussion before the Lok Sabha, Shri K. Brahmananda Reddy. stated as follows :
"I would request my young hon. friend very earnestly to go through this Bill and not merely be carried away by emotions, If a certain community which is undergoing all these disabilities is not included as a Scheduled Caste, certainly, there is a case for including it in the Schedule.
Suppose in your area or in another area of West Bengal certain people satisfy the criteria which I have just now mentioned but are not included in the 'Scheduled Castes', certainly it is a case for you to plead for them and see, whenever a chance comes that they are included in 'Scheduled Castes'.
I would like to say just for your information that the basic criteria in regard to scheduling a caste is untouchability which had been the predominant social evil in the Hindu religion. Religion cannot thus be lost sight of in regard to Scheduled Castes: Even while explaining what 'Scheduled Castes' means, I have submitted in the Lower House that it is not merely the poverty or backwardness that can be the sole criterion. Obviously, it is the social economic and educational backwardness which are the characteristics of untouchability. Otherwise, for instance, there are so many communities and millions of people living. in each State calling themselves backward classes, who may be as poor, who maybe as backward and who maybe socially backward also and they will also claim to be Scheduled Caste."
29. According to Mr. Parmar, the above speech of Mr. Brahmananda Reddy makes it clear that, untouchability is the sole criterion for determining the Scheduled Caste. Mr. Parmar also cited the decision reported in (1983) 4 SCC 392 : (AIR 198 ' 4 SC 1182), wherein the Supreme Court observed; "In the absence of a definition of the expression "financial non-viability in the Act, it should be construed having regard to the Finance Minister's speech, the Notes on clauses of the Bill and the Memorandum explaining the provisions of S. 72-A containing that expression. Moreover, since the expression is occurring in a taxing statute in the context of amalgamation of companies it will have to be understood in its popular sense, namely the sense or meaning that is attributed to it by men of business, trade or commerce and by persons or institutions interested in or dealing with companies". In this connection, Mr. Parmar also cited the decision reported in (1982) 1 SCC 271 : (AIR 1982 SC 710 at p. 719). In this, the Supreme Court has observed :
"No two constitutions are alike, for it has no mere words that make a constitution. It is the history of a people which )ends colour and meaning to its Constitution. We must, therefore, turn inevitably to the historical origin of the ordinance making power conferred by our Constitution and as per the scope of that power in the light of the restraint by which that power is hedged." Pressing these decisions into service, Mr. Parmar sought that the speeches of the Ministers in the Parliament and the various criteria enunciated in text books and reports, which he has referred and which has been quoted in paragraphs supra, clearly spells out that disability by untouchability is the criterion for grouping 'the class as Scheduled Caste and as such in grouping without this criterion as has been done in the present case has to be struck down as arbitrary and violative of Art. 14 of the Constitution. We are afraid, we are not able to appreciate this argument. Apart from the f acts that the decisions cited above, cannot have any relevancy to the facts on hand, it cannot be said that the constitutional mandate is that the disability has to be judged only when a case is made out that a particular, class is untouchable. As to when and how a class has to be considered as Scheduled Caste has been made clear by Art. 366(24) and that definition gains strength by the order which is impugned and which bas been passed on, the strength of Art. 341 of the Constitution.
30. Considering all these aspects of the case and from the discussions we have made above, we are clear that the impugned Legislation has not violated any of the provisions of the Constitution and as such we are not able to agree with the contentions and submissions made by Mr. Parmar. In view of our finding to the effect that the impugned Act does not violate any of the provisions of the Constitution of India,. all the three petition deserve to be dismissed. We also make it clear, in Special Civil Applications Nos. 1821 of 1986 and 3285, though some other reliefs have been prayed for, since they are dependent upon the main question which we have decided above, they cannot be granted. The Rule in each one of these petitions is discharged with no order as to costs.
31. Mr. Parmar at this stage makes an oral representation for grant of leave for the purpose of filing an appeal to Supreme Court against this order. We have considered all the, aspects of the case including the constitutionality of the order impugned in his case. Apart from the fact that all the questions which we, have decided are in accordance with the principles laid down by the Supreme Court in various decisions referred in this judgment, we do not find that the question involved in this case, needs to be interpreted by the Supreme Court. For 'these reasons prayer for grant of leave is refused.
32. Order accordingly.