Karnataka High Court
Bannatti Saibanna vs Union Of India on 17 April, 2013
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 17TH DAY OF APRIL, 2013
PRESENT
THE HON'BLE MR. D.H.WAGHELA, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.P.No.6714/2013 (SC/ST).
BETWEEN:
1.BANNATTI SAIBANNA,
S/O LAKSHAPPA HOSAMANI,
AGED 40 YEARS,
CASTE CHALAVADI (SC),
R/O BANNETTI-585 218,
TQ: CHITAPUR, DIST: GULBARGA.
2.MARUTHI JAMBAGA,
S/O BASANNA, AGED 40 YEARS,
CASTE: CHALVADI (SC),
STATE PRESIDENT,
KARNATAKA PRADESH CHALVADIGAR SANGH,
H.NO.TE-20/2, UKP CAMP,
BHEEMARAYANAGUDI-585 287,
TQ: SHAHAPUR, DIST: YADAGIRI.
3.DEVAMITRA,
ADVOCATE (PARTY IN PERSON),
S/O MALLAIAH CASTE MADIGA (SC),
AGED 56 YEARS,
STATE PRESIDENT,
KARNATAKA PRADESH MADIGAR SANGH,
NO. 103, FIRST MAIN ROAD, 2ND STAGE,
BALAGANGADHARNAGAR, KENGUNTE,
MALLATHALLI, BANGALORE-560056.
... PETITIONERS
(BY SMT: LALITHA, SMT. MALLIKA MITRA, AND SRI.DEVAMITRA
ARE PARTY-IN-PERSON)
2
AND:
1.UNION OF INDIA,
MINISTRY OF LAW AND JUSTICE,
(LEGISLATIVE DEPARTMENT),
NEW DELHI-110 001.
2.UNION OF INDIA,
MINISTRY OF HOME AFFAIRS,
GRUHA MANTRALAYA,
NEW DELHI-110 001.
3.STATE OF KARNATAKA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF SOCIAL WELFARE,
VIKASA SOUDHA,
BANGALORE-560 001.
4.CHAIRMAN,
NATIONAL COMMISSION
FOR SCHEDULED CASTES,
B WING, 5TH FLOOR,
LOKANAYAK BHAVAN,
NEW DELHI-110 003.
5.PRINCIPAL SECRETARY,
ELECTION COMMISSION OF INDIA,
NIRVACHAN SADAN,
ASHOK ROAD,
NEW DELHI-110 001.
6.CHIEF ELECTORAL OFFICER
OF KARNATAKA,
NIRVACHANA NILAYA,
SHESHADRI ROAD,
BANGALORE-560 001.
7. SECRETARY,
STATE ELECTION COMMISSION,
KARNATAKA STATE CUNNINGHAM ROAD,
BANGALORE.
... RESPONDENTS
3
(BY SRI: KALYAN.S.BASAVARAJ, ASG FOR R1 & R2,
SRI.C.JAGADEESH, SPL. GOVT., ADV. FOR R3,
SRI.K.N.PHANINDRA, ADV FOR R6 & R7,
SRI.KRISHNA.S.DIXIT, ADV. FOR R5)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
ORDER ANN-A PASSED BY THE R1 TO R3 DT.18.12.02, VIDE
ANN-A & ETC.,
THIS PETITION BEING RESERVED AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, NAGARATHNA J.,
MADE THE FOLLOWING:
ORDER
The petitioners by way of this public interest litigation have assailed the notification of the Constitution (Scheduled Castes) Orders (Second Amendment) Act, 2002 (hereinafter referred to as 'the Act') insofar as it relates to Entry-6 of Schedule I of the Act, which is published in the Gazette of India on 18/12/2002.
2. It is the case of the petitioners that the inclusion of four types of castes in Entry-6 is unconstitutional as these castes are not Scheduled Castes who could have been included in Part-VII of the Karnataka Scheduled Caste List. It is further contended that the procedure contemplated in 4 Article 341 of the Constitution and Article 368 dealing with amendment of the Constitution have not been followed while passing the Act dated 17/12/2002. It is their further case that Article 341 read with sub-clause (24) of Article 366 of the Constitution of India deals with the Scheduled Castes in relation to a State or Union Territory, as the case may be and that there cannot be any inclusion of non- Scheduled Castes into the Scheduled Castes under Clause (1) of Article 341 of the Constitution.
3. Placing reliance on a decision of this Court in Ramakrishna Singh Ram Singh and others V/s State of Mysore and others (AIR 1960 Mysore 338), the argument proferred is that castes such as Lambani, Waddar are Backward castes. Similarly, the Karnataka Backward Class Commission in its Report submitted in the year 1978 has stated that Banjara, Lamani as well as Bhovi, Waddar etc., are non-Scheduled Castes and are Backward Tribes. That an order to that effect has been made by the State Government on 04/03/1977. 5 Therefore, by a Constitutional Amendment Act, there could not have been any inclusion in Entry-17, 23, 53 and 54 by adding various non-Scheduled Castes to the Scheduled Castes Order pertaining to Karnataka. Therefore, the petitioners have sought quashing of Entry-6 to Schedule-I of the Act. Reliance is placed on (AIR 2001 SC 393) to buttress the aforesaid contentions.
4. We have heard the learned counsel for the parties and perused the material on record.
5. The Act amends Schedule-I to the Constitutional (Scheduled Castes) Order 1950. Entry-6 to Schedule-I of the said Act reads as follows:
" 6. In Part VII - Karnataka-
(i) for entry 17, substitute-
"17. Banjara, Lambani, Lambada, Lambadi, Lamani, Sugali, Sukali",
(ii) for entry 23, substitute-
"23. Bhovi, Od, Odde, Vaddar, Waddar, Voddar, Woddar";
(iii) for entries 53 and 54, substitute-
"53. Koracha, Korachar
54. Korama, Korava, Koravar."6
6. Article 366 of the Constitution which is the definition clause defines 'Scheduled Castes' to mean such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of the Constitution.
7. Article 341 reads as follows:
"Article 341 Scheduled Castes:
(1) 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 may be].
(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 notification issued under the said 7 clause shall not be varied by any subsequent notification."
8. On a combined reading of these articles, it becomes clear that in respect of any State or Union Territory the President of India after consultation with the Governor of a State, by a Public Notification can specify castes, races or tribes or parts of or groups within castes, races or tribes to be for the purposes of the Constitution, deemed to be Scheduled Castes in relation to a particular State or Union Territory. Therefore, Clause (1) of Article 341 is a deeming provision for enumeration of Scheduled Castes in relation to a State or Union Territory by issuance of a notification in the name of the President of India. After the list of Scheduled Castes specified in the notification issued under Clause (1) of Article 341 is notified, the Parliament is vested with the power to include in or exclude from the list of Scheduled Castes any caste, race or tribe or parts of or groups within castes, races or tribes by a law. The notification issued under Clause(1) of Article 341 cannot otherwise be varied by any subsequent notification. The 8 implication is that there cannot be an executive order amending a notification issued under Clause (1) of Article 341 dealing with the list of Scheduled Castes in relation to a State or Union Territory. If the said list is to be amended by inclusion or exclusion of certain castes, it can only be done by the Parliament by a legislation and not in any other manner. In other words, the list of Scheduled Caste notified by the President is sacrosanct and can be amended by way of inclusion or exclusion of any caste, race or tribe or part of or group within any caste, race or tribe by the Parliament by an enactment. By the impugned Act, the Parliament has amended the Constitution (Scheduled Castes) Order, 1950, in respect of several states including Karnataka. The inclusion of various castes as Scheduled Castes under Clause (2) of Article 341 of the Constitution by the aforesaid Act implies that these castes are deemed to be Scheduled Castes in relation to the State of Karnataka. The petitioners have not pointed out any lacuna in the manner in which the 9 legislation has been enacted seeking to amend the Constitution (Scheduled Castes) Order, 1950.
9. The grievance of the petitioners is that despite this court as well as the Karnataka Backward Class Commission holding that these castes were either Backward classes or backward tribes, they have by virtue of the Act been included in the list of Scheduled Castes which would affect the other Scheduled Castes in the matter of benefits under the Constitution. As already stated the list of Scheduled Caste notified by the President is under Clause (1) of Article 341 and gives a deemed status to certain castes as Scheduled Castes in relation to a State or Union Territory. Despite this court's ruling as well as the Report of the Karnataka Backward Class Commission regarding certain castes inserted by the Act in question, the power of the Parliament to amend the Scheduled Caste Order by a legislation as expressly provided in the Constitution is not taken away. The wisdom of the Parliament in including certain castes in the Schedule in relation to any State or 10 Union Territory cannot be questioned in a court of law and neither can this court sit in judgment over the inclusion or exclusion to the list of Scheduled Castes or Scheduled Tribes by a legislative amendment.
10. In this context, reliance could be placed on the judgments of the Hon'ble Supreme Court in Samasta Gujarat Rajya Mochi Samaj V/s. Union of India througth Secretary & others (2004 (2) GLH 67) and in Shree Surat Valsad Jilla K.M.G. Parishad V/s. Union of India & others (AIR 2007 SC 2056), wherein it has been observed that it is not for the Court to render its opinion on the Presidential Order. Even in (AIR 2001 SC 393), on which reliance is placed by the petitioners, it is stated that a caste is a scheduled caste or a tribe only if they are included in the presidential order issued under Article 341 or 342 as the case may be.
11. So long as the said inclusion or exclusion of a caste is by law, i.e., by way of and Act of Parliament, as 11 envisaged in clause (2) of Article 341 of the Constitution there cannot be any challenge to the list of Scheduled Castes and Scheduled Tribes. In the aforesaid premise, there is no merit in the petition and hence, it is dismissed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE *mvs Index: Y/N