Karnataka High Court
S Krishna Setty vs Dr P L Punia on 19 June, 2024
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2024:KHC:23964
WP No. 30440 of 2013
C/W WP No. 29941 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 30440 OF 2013 (GM-CC)
C/W
WRIT PETITION NO. 29941 OF 2013(GM-CC)
IN WRIT PETITION NO. 30440 OF 2013:
BETWEEN:
1. S KRISHNA SETTY
S/O LATE SRINIVASA SETTY
AGED ABOUT 68 YEARS
RESIDING AT NO.1786, P & T BLOCK
'ANIKETHANA ROAD', 5TH MAIN (NORTH)
MYSORE-23.
2. M KRUPALA
S/O LATE V MUNISWAMAPPA
AGED ABOUT 69 YEARS
RESIDING AT NO.359, 11TH CROSS
18TH MAIN, II PHASE, J P NAGAR
BANGALORE-560 078.
Digitally signed by B
K
MAHENDRAKUMAR
Location: HIGH
3. T P KRISHNAPPA
COURT OF S/O RAMAIAH, AGED ABOUT 49 YEARS
KARNATAKA
RESIDING AT NO.5/5, 'PADMADEEPA'
3RD CROSS, NANJAPPA LAYOUT
VIDYARANYAPURA, BANGALORE-560 097.
4. N DEVARAJ
S/O NARAYANAPPA
AGED ABOUTR 42 YEARS
THALAGAWARA POST, CHINTHAMANI TALUK
CHICKABALLAPURA DIST.
...PETITIONERS
(BY SRI. T A RAMAKRISHNAPPA., ADVOCATE)
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WP No. 30440 of 2013
C/W WP No. 29941 of 2013
AND:
1. DR P L PUNIA, CHAIRMAN
NATIONAL COMMISSION FOR SCHEDULED CASTES
2. DR RAJKUMAR VERKA
VICE CHAIRMAN
NATIONAL COMMISSION FOR SCHEDULED CASTES
3. SRI RAJU PARMA, MEMBER
NATIONAL COMMISSION FOR SCHEDULED CASTES
4. SRI M SHIVANNA MEMBER
NATIONAL COMMISSION FOR SCHEDULED CASTES
(ALL ARE LOCATED IN 5TH FLOOR
LOKANAYAK BHAVAN, KHAN MARKET
NEW DELHI-110 003)
5. CHIEF SECRETARY TO THE
GOVT. OF KARNATAKA
VIDHANA SOUDHA, BANGALORE-560 001.
6. SECRETARY TO THE GOVT. OF INDIA
DEPARTMENT OF SOCIAL JUSTICE
GOVT. OF INDIA, NEW DELHI-110 001.
...RESPONDENTS
(BY SRI. H SHANTHI BHUSHAN, DSG FOR R1 TO R4;
SRI. C JAGADISH, SPECIAL COUNSEL FOR R5)
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE PUBLIC
NOTICE & PROCEEDINGS FOLLOWING THE PUBLIC NOTICE,
ISSUED BY THE NATIONAL COMMISSION FOR SCHEDULED
CASTS, PUBLISHED IN "THE HINDU 1.7.13, VIDE ANN-H AND ETC.
IN WRIT PETITION NO. 29941 OF 2013:
BETWEEN:
SRI SHANKARAPPA
ADVOCATE, AGED ABOUT 43 YEARS
S/O LATE VENKATARAYAPPA
M/S M T NANAIAH & ASSOCIATES
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WP No. 30440 of 2013
C/W WP No. 29941 of 2013
NO.14, 2ND FLOOR, MAMATHA A APARTMENT
4TH MAIN, GANDHINAGAR
BANGALORE 560 009
(PARTY IN PERSON)
...PETITIONER
(BY SRI. SHANKRAPPA., ADVOCATE)
AND:
1. UNION OF INDIA
REP. BY ITS SECRETARY
SOCIAL WELFARE DEPARTMENT
NEW DELHI-110 003.
2. THE SECRETARY
NATIONAL COMMISSION FOR SCHEDULE CASTE
5TH FLOOR, LOKNAYAK BHAVAN
KHAN MARKET, NEW DELHI - 110 003.
3. THE GOVERNMENT OF KARNATAKA
REP. BY ITS CHIEF SECRETARY
VIDHANA SOUDHA, BANGALORE-560 001.
4. PRINCIPAL SECRETARY
SOCIAL WELFARE DEPARTMENT
GOVT. OF KARNATAKA, VIDHANA SOUDHA
BANGALORE, KARNATAKA STATE-560 001.
5. THE SECRETARY
STATE COMMISSIN FOR SCHEDULE CASTE
VIDHANA SOUDHA, BANGALORE-560 001.
...RESPONDENTS
(BY SRI. H SHANTHI BHUSHAN, DSG FOR R1 & R2;
SRI. C JAGADISH, SPECIAL COUNSEL FOR R3 TO R5)
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF
CONSTITUTION OF INDIA PRAYING TO QUASH NOTIFICATION VIDE
ANNEXURE-E DATED 21.6.2013 AND ANNEXURE-F PAPER
PUBLICATION PUBLISHED IN NEWS PAPER CALLING AFFECTIVE
COMMUNITIES ON 2.7.2013 VIDE ANNEXURE-F AND ETC.
THESE PETITIONS, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 30440 of 2013
C/W WP No. 29941 of 2013
ORDER
In W.P. No. 30440/2013:
The petitioners assert that they belong to the Korama and Koracha communities, which are classified as Scheduled Castes in the Presidential Notification of 1950.
In W.P. No. 29941/2013:
2. The petitioner, appearing as a party-in-person, claims to belong to the Bhovi community, which is also classified as a Scheduled Caste in the Presidential Notification of 1950.
3. The Karnataka Rajya Aspurshya Mahasabha, Gulbarga, filed a writ petition before this Court seeking the deletion of these castes from the Scheduled Caste list, alleging that they have not historically suffered from the stigma of untouchability.
4. This Court, in WP No. 18243/2012 (dated 23.8.2012), recorded a finding based on the case of E.V. Chinnaiah v. State of Andhra Pradesh (AIR 2005 SC 162), determining that writs cannot be issued regarding the addition or deletion of castes from the Presidential Notification of 1950. Additionally, the petitioner's request only sought the disposal of their representation to the Government/National Commission for Scheduled Castes, without transgressing the dicta in E.V. Chinnaiah. Consequently, this Court issued orders for the disposal of the petitioner's representation.-5-
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5. Following the direction of this Court to consider the petitioner's representation, respondent No.1 issued a public notice dated 1.7.2013, published in The Hindu daily newspaper, inviting associations, organizations, or individuals of the aforementioned castes/sub-castes/communities to appear before the Commission regarding the exclusion or inclusion of these castes/sub- castes/synonyms in the Central List of Scheduled Castes for the State of Karnataka. These petitions were filed in response to the notice.
6. The learned counsel for the petitioners contends that respondent No.1 lacks the authority and jurisdiction to include or exclude castes from the Scheduled Caste list specified in the Presidential Notification of 1950, as this is the exclusive domain of Parliament under sub-clause (2) of Article 341 of the Constitution of India.
7. In support of this contention, reliance is placed on the following decisions of the Hon'ble Supreme Court:
i) Kum. K.S. Jayashree & Anr. v. State of Kerala & Anr. (AIR 1976 SC 2381)
ii) Nithyananda Sharma & Anr. v. State of Bihar & Ors. (AIR 1996 SC 2306)
iii) State of Maharashtra v. Milind & Ors. (AIR 2001 SC 393)
iv) E.V. Chinnaiah v. State of Andhra Pradesh & Ors.
(AIR 2005 SC 162) -6- NC: 2024:KHC:23964 WP No. 30440 of 2013 C/W WP No. 29941 of 2013
v) Shree Surath Valsad Jilla KMG Parishad v. Union of India & Ors. (AIR 2007 SC 2056)
8. Conversely, the learned counsel for respondents No.1 and No.2 argues that the initial list of Scheduled Castes for a State or Union Territory is determined by a notified order of the President. Any subsequent modifications can only be made by an Act of Parliament as per clause (2) of Article 341 of the Constitution of India.
9. The learned counsel for respondent No.5 asserts that the National Commission is tasked with collecting information from the public and subsequently submitting a report to determine whether the said castes suffer from any stigma.
10. The arguments of the learned counsel for the parties have been duly considered.
11. Article 341 of the Constitution of India states that the President, in consultation with the Governor of a State, may specify castes, races, or tribes, or parts or groups within them, that shall be deemed Scheduled Castes in relation to that State by public notification.
12. Clause (2) of Article 341 stipulates that Parliament may, by law, include or exclude castes, races, or tribes from the list specified in a notification issued under clause (1). A notification issued under clause (1) cannot be varied by any subsequent notification except by an Act of Parliament.
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13. A reading of Article 341 of the Constitution of India clearly indicates that only Parliament has the authority to include or exclude castes from the list of Scheduled Castes specified in a notification under clause (1). The Supreme Court, in the case of State of Maharashtra v. Milind & Ors. (AIR 2001 SC 393), ruled in para-35 as follows:
"35. In the light of what is stated above, the following positions emerge :-
1. It is not at all permissible to hold any enquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it s not specifically mentioned in the concerned Entry in the Constitution (Scheduled Tribes) Order, 1950.
2. The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it.
3. A notification issued under Clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by the Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under Clause (1) of Article 342 only by the Parliament by law and by no other authority.
4. It is not open to State Governments or Courts or tribunals or any other authority to modify, amend or later the list of Scheduled Tribes specified in the notification."-8-
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14. The legal principles established by the Supreme Court further affirm that only Parliament can include or exclude castes from the list of Scheduled Castes specified in the Presidential Notification of 1950. The National Commission, constituted under Article 338 of the Constitution of India to discharge functions under sub-clauses (a) to (f) of Clause (5) of Article 338, cannot conduct enquiries to include or exclude castes from the list.
15. Respondent No.6, the Union of India, has filed a counter-affidavit stating that any modification of the notified order can only be made by an Act of Parliament as per clause (2) of Article 341 of the Constitution of India. The affidavit also states that the Government of India approved procedures in 1999, subsequently modified in 2002, for deciding claims regarding inclusion, exclusion, and other modifications in the Orders specifying Scheduled Castes and Scheduled Tribes. These steps include:
a. The complete proposal with ethnographic support, to modify the existing list of SCs is to be initiated by the concerned State Government/Union Territory Administration.
b. The proposal is then referred to the Registrar General and Census Commissioner, India (RGI) for comments.
c. In case the Registrar General and Census Commissioner, India does not, for the first time, agree with the proposal, it is referred back to the concerned State Government/ Union Territory Administration, with a -9- NC: 2024:KHC:23964 WP No. 30440 of 2013 C/W WP No. 29941 of 2013 request to review or further justify the proposal, in the light of the comments of Registrar General and Census Commissioner, India.
d. The proposal agreed to by the Registrar General and Census Commissioner, India is referred to the National Commission for Scheduled Castes (NCSC) for comments.
e. The proposal, not agreed to either by the Registrar General and Census Commissioner, India on second reference or NCSC is rejected with approval of the Hon'ble Minister (SJ & E).
f. such Proposals, which have been agreed to by the RGI and NCSC are processed further, and introduced as a bill for consideration and passing by the Parliament under clause (2) of the Article 341 of the Constitution of India.
16. Consequently, the impugned public notice issued by respondent No.1, calling upon concerned parties to file objections regarding the exclusion/inclusion of the said castes/sub- castes/synonyms in the Central List of Scheduled Castes, lacks authority.
17. Accordingly, the writ petitions are allowed.
18. The impugned public notice issued by the National Commission for Scheduled Castes, published in The Hindu dated 1.7.2013 (Annexure-H), the impugned public notification dated 21.06.2013 (No.S-44/Inclusion-Exclusion-17/2012-SSW-I, Annexure-E), and the impugned newspaper publication calling
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19. All pending I.As. do not survive for consideration and are disposed of.
Sd/-
JUDGE BKM/HR