Court Cannot Alter Presidential Order On Scheduled Tribes: SC Reverses Bombay HC Judgment Declaring 'Gowari' As ST

The Supreme Court has held that a High Court cannot look into the evidences to find out and decide that a particular tribe is part of Scheduled Tribe which is included in the Constitution (Scheduled Tribes) Order, 1950.

The caste 'Gowari' and 'Gond Gowari' are two distinct and separate castes, the bench comprising Justices Ashok Bhushan, R. Subhash Reddy and MR Shah observed while it set aside the Bombay High Court that had held that the Gowari community cannot be denied benefits of a Scheduled Tribe status.

The High Court had held that :

(1) Gond Gowari was completely extinct before 1911 and no trace of it was found either in the Maratha Country of C.P. and Berar or in the State of Madhya Pradesh prior to 1956.

(2) there did not exist any tribe as Gond Gowari as on 29-10-1956, i.e. the date of its inclusion as 28th Item in Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra and it was Gowari community alone shown as Gond Gowari, therein. The State of Maharashtra had appealed against this judgment of the High Court.

The following were the issues considered by the Apex Court in appeal:

1. Whether the High Court in the writ petition giving rise to these appeals could have entertained the claim of the caste "Gowari", which is not included as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, that it be declared a Scheduled Tribe as "Gond Govari" which is included at Item No.18 of Constitution (Scheduled Tribes) Order, 1950 applicable in the State of Maharashtra and further to take evidence to adjudicate such claim?
2. Whether the ratio of the judgment of the Constitution Bench of this Court in B. Basavalingappa Vs. D. Munichinnappa, AIR 1965 SC 1269 permits the High Court to take evidence to find out whether 'Gowari' are 'Gond Gowari' and is there any conflict in ratio of judgment of Constitution Bench in B. Basavalingappa and subsequent Constitution Bench judgment of this Court in State of Maharashtra Vs. Milind, (2001) 1 SCC 4?
3. Whether the High Court could have entered into the adjudication of the issue that 'Gond Gowari' which is a Scheduled Tribe mentioned in Scheduled Tribes Order, 1950, as amended up to date is no more in existence and was extinct before 1911?
4. Whether the conclusion of the High Court in the impugned judgment that 'Gond Gowari' Tribe was extinct before 1911 is supported on the materials which were on record before the High Court?
5. Whether caste 'Gowari' is same as 'Gond Gowari' included at Item No.28, Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 and the High Court could have granted declaration to caste 'Gowari' as 'Gond Gowari' entitled for Scheduled Tribe certificate?
6. Whether the High Court is correct in its view that 'Gond Gowari' shown as Item No.28 in Entry 18 of the Constitution (Scheduled Tribes) Order, 1950 is not a sub-tribe of Gond, hence, its validity cannot be tested on the basis of affinity test specified in Government Resolution dated 24.04.1985?

The bench, referring to various judgments, including that of constitution bench, and answered the issues as follows:

1. The High Court in the writ petition giving rise to these appeals could not have entertained the claim of a caste "Gowari" that it be declared a Scheduled Tribe as "Gond Gowari" included at Entry No.18 of the Constitution (Scheduled Tribes) Order, 1950 nor High Court could have taken evidence to adjudicate the above claim
2. There is no conflict in the ratio of the judgment of Constitution Bench of this Court in Basavalingappa's case and Milind's cas
3. The High Court could not have entered into the issue that "Gond Gowari" which was Scheduled Tribe mentioned in Constitution (Scheduled Tribes) Order, 1950 as amended upto 1976 is no more in existence and became extinct 86 before 1911. 
   
4. The conclusion of the High Court in the impugned judgment that "Gond Gowari" Tribe had been extinct before 1911 is not supported by the materials which were on record before the High Court.
5. The caste 'Gowari' is not the same as 'Gond Gowari'. The High Court could not have granted declaration of caste 'Gowari' as 'Gond Gowari'.
6. The High Court is not correct in its view that 'Gond Gowari' shown as item No.28 in Entry 18 of Scheduled Tribes Order, 1950, is not a sub-tribe of 'Gond'. The validity of caste certificate to 'Gond Gowari' has to be tested on the basis of affinity test as specified in the Government Resolution dated 24.04.1985.

The Court noted that the High Court in the impugned judgment has heavily relied on Constitution Bench judgment of this Court in B.Basavalingappa Vs. D. Munichinnappa and Ors., AIR 1965 SC 1269. the circumstances in which this Court in B. Basavalingappa's case approved the looking of the evidence were peculiar to that case and has no application in the facts of the present case, the bench held.

Referring to State of Maharashtra Vs. Milind and Ors., (2001) 1 SCC 4, the bench observed that the power to include or exclude, amend or alter the Presidential Order is expressly and exclusively conferred on and vested with the Parliament and Courts cannot and should not extend jurisdiction to deal with the question as to whether a particular caste or sub-caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order.

CASE: STATE OF MAHARASHTRA vs. KESHAO VISHWANATH SONONE [CIVIL APPEAL NO. 4096 of 2020]

CORAM: Justices Ashok Bhushan, R. Subhash Reddy and MR Shah

COUNSEL: Sr. Adv Shyam Divan and Adv Ravindra Keshavrao Adsure, for State of Maharashtra.  Sanjay Jain, Additional Solicitor General, Sr. Adv C.U. Singh, Sr. Adv Mukul Rohatgi, Adv Bansuri Swaraj for respondents

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