24 March 2023 5:51 AM GMT
The Supreme Court, on Friday, answered the reference pertaining to the question - whether the affinity test is integral to the determination of caste status made by the Caste Scrutiny Committee.Affinity test is used to ascertain if the person follows the traditional cultural traits of the community.A Bench comprising Justice S.K. Kaul, Justice A.S. Oka and Justice Manoj Misra held that...
The Supreme Court, on Friday, answered the reference pertaining to the question - whether the affinity test is integral to the determination of caste status made by the Caste Scrutiny Committee.
Affinity test is used to ascertain if the person follows the traditional cultural traits of the community.
A Bench comprising Justice S.K. Kaul, Justice A.S. Oka and Justice Manoj Misra held that affinity test is not a litmus test to decide a caste name and is not an essential part in the process of the determination of correctness of a caste/tribe name in every case. Moreover, it observed that the occasion to conduct affinity test would arise only in those cases where the matter has been referred to the Vigilance Cell by the Scrutiny Committee. However, it was also stated that when a case is required to be referred, the Scrutiny Committee should record reasons as to why it is not satisfied with the material provided by the applicant.
"Only when the Scrutiny Committee after holding an inquiry is not satisfied by the material provided by the applicant the case can be referred to the Vigilance Cell. If sent to the Vigilance Cell the Scrutiny Committee should record reasons why it is not satisfied by the material produced by the applicant. Only after a case is referred to the Vigilance Cell...the occasion for conduct of affinity test would arise...Affinity test cannot be conclusive either way. When a Affinity test is conducted by the Vigilance cell, the result of the test with all other material on record having probative value will have to be taken into consideration by the Scrutiny Committee to decide the caste validity claim."
In essence the Bench upheld the judgment in Anand v. Committee for Scrutiny and Verification of Tribe Claims And Ors.
In March, 2022, observing that two judgments rendered by the Division Bench of the Apex Court have set out different parameters for the verification of caste certificates, a Bench comprising Justices Hemant Gupta and V. Ramasubramanian referred the issue to be authoritatively decided by a Three Judge Bench. The issue framed by the Bench was as under -
“The question as to whether what should be the parameters available to the Scrutiny Committee for verification of caste certificate is a matter of importance arising out of interpretation of the Act and the Rule framed therein.”
Why the reference?
The Shilpa Vishnu Thakur v. State of Maharashtra And Ors., the question before the Full Bench of the Bombay High Court was the standards which have to be applied in determining if an applicant belongs to a designated Scheduled Tribe. The Full Bench was of the opinion that the kinship and affinity to a tribe are vital in determining the correctness of the claim. Therefore, while determining whether a person genuinely belongs to a designated Scheduled Tribe, the Scrutiny Committee ought to consider all material evidence including the satisfaction of the affinity test.
The Apex Court while deciding Vijakumar v. State of Maharashtra And Ors. (2010) 14 SCC 489, had referred to the decision of the Full Bench of the Bombay High Court in Shilpa Vishnu Thakur (supra). However, later, in Anand v. Committee for Scrutiny and Verification of Tribe Claims And Ors. (2012) 1 SCC 113, the Apex Court, without referring to the Full Bench decision or the judgment in Vijakumar (supra), independently, set out parameters that are to be considered while deciding on the genuineness of the caste certificate. It, inter alia, held that the affinity test ought not to be regarded as the litmus test in establishing the link of the applicant with Scheduled Tribe and should not be the sole criteria to reject claims. However, the Supreme Court was of the view that the affinity test may be used to corroborate the documentary evidence. Considering there is variation in parameters to be applied by the Scrutiny Committee in determining the correctness of the caste certificate as reflected in the above-mentioned judgements of coordinates Benches, the Division Bench thought it fit to refer the issue to a larger Bench.
During the course of the hearing Justice Oka had identified the issue in the reference order as -
“whether the affinity test is an integral part of the Scrutiny committee”
The appellants argued that though not salient to the process of caste status determination, the affinity test has corroborative value. It was averred that the affinity test is not the litmus test and cannot supplant the documents on record. Senior Advocate, Mr. Shekhar Naphade, representative appellants in one of the petitions argued that primary importance ought to be assigned to documentary evidence as is evident from the scheme of the relevant status and rules. It was asserted that in cases where there is no suspicion in relation to a caste certificate issued by the concerned authority no further action is required to be taken. Moreover, Mr. Naphade argued that SC & ST (Amendment) Act, 1976, that modified the Presidential Order under the Constitution of India, 1950, though comprehensive, does not define an affinity test. It was emphasised that in modern times when people belonging to the Scheduled Caste and Scheduled Tribe community are relocating primarily to cities the affinity test might not prove to be effective as they might lose touch with their distinct culture and ceremonies. It was alleged that in reality, in the garb of the affinity test, the Scrutiny Committee very frequently rejects caste certificates, depriving the certificate holder the rights recognised by the Constitution.
Senior Advocate, Ms. V. Mohona appearing on behalf of some of the appellants apprised the Bench that States are issuing Government Orders that are not in compliance with the statute and rules, to deprive the certificate holders of their rights.
Senior Advocate, Mr. Dhruv Mehra emphasised on the importance of documents as the primary form of evidence to establish caste. It was submitted that though the affinity test should not obliterate the documents on record, in practice, the Scrutiny Committee is ignoring documents and deciding on the basis of the affinity test.
Senior Advocate, Mr. Sanjay Hegde submitted that until and unless there is specific evidence that the documents on record are suspicious, the affinity test ought not to be carried out. He added that even when there are suspicious documents, the applicant ought to be out to the notice of the same, especially when their constitutional rights are at stake.
The sheet-anchor of the submission made by the Senior Advocate, Mr. Shyam Divan appearing for the State of Maharashtra was that the affinity test should not be made only a corroborative exercise. It was argued that the Scrutiny Committee ought to be given some discretion in rejecting or accepting the caste certificates. Point at the situation on the ground, Mr. Divan submitted that usually there are two types of cases - one where all the documents are consistent and the other where there is inconsistency in documentary evidence. If there is inconsistency then the Scrutiny Committee refers it to the Vigilance cell. He argued that for a surname like Thakur, which had several variations, even if there is no inconsistency in the documents, it would be well within the purview of the Scrutiny Committee, a quasi-judicial body, to refer and insist on an affinity report. He beseeched the Bench to ensure that the affinity test is not reduced to a corroborative exercise.
[Case Title: Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. State of Maharashtra And Ors. SLP (C) No. 24894 of 2009]
Citation : 2023 LiveLaw (SC) 241
Community Certificate - affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case-affinity test cannot be conclusive either way. When an affinity test is conducted by the Vigilance Cell, the result of the test along with all other material on record having probative value will have to be taken into consideration by the Scrutiny Committee for deciding the caste validity claim
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