Presidential (Scheduled Tribes) Order, 1950, are ‘inviolate’: HC

Bombay High Court held that courts cannot confer Scheduled Tribes status separately on tribes and sub-tribes based on their interpretation of existing tribes

MUMBAI: A three-judge bench of the Bombay high court (HC) on Wednesday held that courts cannot start an enquiry or confer Scheduled Tribes (ST) status separately on tribes and sub-tribes by coming up with their interpretation of the already mentioned tribes in a wider, inclusive umbrella terms in the Presidential (Scheduled Tribes) Order, 1950.

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The bench comprising of justices Vinay Joshi, Avinash Gharote and Anil Kilor said the entries in the Presidential (Scheduled Tribes) Order, 1950, are “inviolate” and must be read as those are.

“No enquiry of any nature whatsoever is permissible to find out whether any tribe, sub-tribe or parts thereof have been included in such entries in the Presidential (ST) Order 1950, as non-mention of any tribe, sub-tribe or part/s thereof would necessarily mean their specific exclusion,” said the bench while deciding a reference.

The reference was made by a division bench of justice Rohit Deo and justice Vrushali Joshi in April this year after hearing a petition filed by three members of a family, questioning the rejection of their tribe’s claim by the ST Caste Scrutiny Committee at Amravati.

In support of their claim, their lawyer had relied on three earlier judgements delivered in 2018 by some other benches of the high court. Government pleaders SM Ukey and MK Pathan, however, pointed out that the 2018 judgements were “inconsistent with, and militated against, the authoritative enunciation of the Supreme Court on the issue.

In one of the 2018 judgements, the bench had held that the term “Mana” as reflected in the Presidential Order meant that the entire ‘Mana’ community from Maharashtra, as a class included in the Presidential Order and included different sub-groups, like ‘Badwaik Mana’, ‘Khand Mana’, ‘Kshatriya Mana’, ‘Kunbi Mana’, ‘Maratha Mana’, ‘Gond Mana’, ‘Mani/Mane’ etc.

The bench headed by justice Deo had referred the matter for consideration of a larger bench, observing that, “Broadly, it appears to be fairly well settled, that an entry in the Presidential Order must be read as it is, and cannot be interpreted or construed with the aid of extrinsic material.”

The three-judge bench accepted the contention and held that the inclusion of ‘Mana’, tribe in the Presidential Order means only ‘Mana’ tribe alone was recognised as an ST and “none else, whatever be its prefix or suffix with the word ‘Mana’, or inter-se relation with ‘Mana.’”

The three-judge bench further held that therefore no community, sub-tribe or groups like ‘Badwaik Mana’, ‘Khand Mana’, ‘Kshatriya Mana’, ‘Kunbi Mana’, ‘Maratha Mana’, ‘Gond Mana’, ‘Mani/ Mane’, etc. could be said to be recognised as STs because of inclusion of ‘Mana’ tribe in the Presidential Order.

This, the bench said, was more so because all tribes and sub-tribes on whom the status of STs was to be conferred were specifically mentioned in the Presidential Order and while including the tribe ‘Mana’, the Order, the President could not be said to be oblivious of the existence of the sub-tribes or groups which had prefixes or suffixes, synonyms with ‘Mana’, and thus the exclusion will have to be held as intentional and deliberate.