'Lohar Is Not Same As Lohara': Supreme Court Quashes Bihar Govt. Notification That Approved Issuance Of Scheduled Tribe Caste Certificates To Lohar Community

The Supreme Court quashed a notifications issued by Bihar Government that approved issuance of Scheduled Tribe Caste certificate to Lohar community."Lohar is not same as Lohara. Including Lohars alongside 'Lohara' is clearly illegal and arbitrary", the bench comprising Justices KM Joseph and Hrishikesh Roy observed.The court noted that Lohars were not included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the OBCs in the State of Bihar. It said that a person entitled to be treated as a member of Scheduled Tribe under Article 342, cannot be treated on par with a person who is brought in by an incompetent Body, viz., the State.The court clarified that Lohara will continue to get the benefit vouchsafed for them under the Presidential Order.Sunil Kumar Rai and others had approached the Apex Court challenging the notification issued by Bihar Government. They contended that the Lohar community in Bihar is not entitled to be treated as members of the Scheduled Tribe. They also submitted that, relying upon these certificates which were issued, proceedings have been initiated against them under the provisions of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities Act), 1989. In response, the State raised a technical objection that there is a delay of about five years in seeking protection under Article 32 of the Constitution as the impugned Notification was issued in the year 2016.The bench, rejecting the preliminary objection, observed that the delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake.The court then referred to judgments viz. Prabhat Kumar Sharma Vs. Union Public Service Commission And Others (2006) 10 SCC 587, Nityanand Sharma and Another vs. State of Bihar and Ors. (1996) 3 SCC 576, Vinay Prakash and Others vs. State of Bihar and Others 1997 (3) SCC 406, and noted that the Court has categorically ruled that Lohars were not members of the Scheduled Tribe and they were members of the OBC in the State of Bihar. The bench observed:"We are deeply anguished by the state of affairs which has been brought to our notice through the contents of the petition under Article 32. This is not a matter which has not engaged the attention of this Court, which as we have noticed has dealt with the issue on as many as three occasions. It has been clearly and unequivocally declared that Lohars are not members of the Scheduled Tribe and they are members of the OBCs. Under the principle of separation of powers, in the manner we have it under the Constitution, it becomes the duty and the right of the Courts to settle disputes. The Constitution, no doubt, has given powers to the other organs of the State. When it comes to taking decisions which affect the rights of the citizens, it is the paramount duty of the Executive to enquire carefully about the implications of its decisions. At the very minimum, it must equip itself with the law which is laid down by the Courts and find out whether the decision will occasion a breach of law declared by the highest Court of the land. This is a case where we have noticed an unbroken line of reasoning and decisions as noticed in the three judgments which we have referred to. This Court has also pronounced on the aspect of the English language prevailing over the Hindi version, if there is a conflict."While allowing the writ petition, the bench observed:We cannot at all, approve this approach which at the very minimum betrays total non-application of mind which, in turn, leads to an inference that it has been arrived in an arbitrary manner. Thus, it attracts the wrath of Article 14 of the Constitution. This, in turn, justifies the approach of the 24 petitioners under Article 32 of the Constitution.The court also directed the state to pay costs of Rupees Five Lakhs to the petitioners.HeadnotesSummary : Writ Petition Challenging Bihar Government notification approving issuance of caste certificate to Lohar community - Allowed - Lohars were not included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the OBCs in the State of Bihar - Lohar is not same as Lohara. Including Lohars alongside 'Lohara' is clearly illegal and arbitrary - State to pay costs of Rs. 5 Lakhs to the petitioners. Constitution of India, 1950 - Article 32 - Delay by itself cannot be used as a weapon to Veto an action under Article 32 when violation of Fundamental Rights is clearly at stake. (Para 9)Constitution of India, 1950 - Article 32 - The court has power of grant of compensation in the case of violation of Fundamental Rights. (Para 29)Constitution of India, 1950 - Article 32 - Ordinarily, the Court may insist on a cause of action and therefore, a person must be an aggrieved party to maintain a challenge - A person cannot be said to be aggrieved merely upon the issuance of an instrument or of a law by...

'Lohar Is Not Same As Lohara': Supreme Court Quashes Bihar Govt. Notification That Approved Issuance Of Scheduled Tribe Caste Certificates To Lohar Community

Ashok KM

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