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CASE NO.: Writ Petition (civil)  363 of 2006

PETITIONER: VIJAY SINGH GOND & ORS

RESPONDENT: UNION OF INDIA & ORS

DATE OF JUDGMENT: 13/03/2007

BENCH: C.K. THAKKER & V.S. SIRPURKAR

JUDGMENT: JUDGMENT O R D E R WITH SPECIAL LEAVE PETITION (C) NOS. 17001-17003 OF 2005

       Rule.

       Issue notice to the Attorney General for India.

       We have heard learned counsel for the parties on  interim relief. Interim relief prayed by the petitioners in  the present petition reads as under: a)      to pass an ad-interim ex-parte order staying the  effect and operation of the Scheduled Castes and  Scheduled Tribes Orders (Amendment) Act, 2002; or b)      to pass an ad-interim ex-parte order permitting the  petitioners and other members of their communities  to contest the forthcoming U.P. State Assembly  Elections on seats reserved for Scheduled Castes; c)      to pass such other and or further orders as may be  deemed fit and necessary in the facts of the case.

The case of the petitioners is that they belong to ten  communities of the State of Uttar Pradesh, which have  been transferred from the list of Scheduled Castes to the  list of Scheduled Tribes under the Scheduled Castes and  Scheduled Tribes Orders (Amendment) Act, 2002 (Act X  of 2003) (hereinafter referred to as ’the Act’). It is the case  of the petitioners that they belonged to Scheduled Caste.  As Scheduled Caste members, they were entitled to  exercise and enjoy all fundamental rights, constitutional  rights and statutory rights as members of Scheduled  Caste. Parliament, by the impugned Act, sought to  exclude certain Scheduled Castes from the category of  Scheduled Castes and included them in the category of  Scheduled Tribes in the purported exercise of power  under Article 341 of the Constitution. The petitioners  asserted that in the State of Uttar Pradesh, before the  impugned Act was enacted, there were 69 Scheduled  Castes and 5 Scheduled Tribes. After the above Act had  been enacted, Scheduled Castes would be reduced from  69 to 52 and Scheduled Tribes would be increased from 5  to 22. Thus, there would be reduction of 17 Castes and  sub-Castes (10 Castes and 7 sub-Castes) and addition of  17 Castes in Scheduled Tribes. The impugned action,  contended the petitioners, has prejudicially affected the  petitioners and several members of Scheduled Castes  who had all throughout enjoyed benefits as Scheduled

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Castes. Now, they would be deprived of the said benefits.  It was also submitted that though there is reduction of  17 Castes and sub-Castes from Scheduled Castes, seats  in Parliament as also in Legislative Assemblies have not  been increased or decreased and they have remained as  they were, which is also violative of the scheme of the  Constitution and would be detrimental and adversely  affecting the interests of Scheduled Caste persons who  were sought to be converted to Scheduled Tribes. It  would give additional benefit to the remaining Scheduled  Caste persons inasmuch as though such Castes would  be reduced from 69 to 52, number of seats in Parliament  as well as in Legislative Assemblies would not change. On  the other hand, it would curtail the benefit to which the  members of Scheduled Tribe would be entitled as after  the impugned Act, there would be increase in Scheduled  Tribes from 5 to 22. The Act is also unconstitutional and  ultra vires Articles 14, 19 and 21 as also Part XVI  (Articles 330 to 342) of the Constitution. The petitioners  contended that the Legislature, while enacting the Act,  failed to consider the complications likely to arise and  injustice to be caused to Scheduled Castes if the Act were  to be brought into force without making necessary  change in allotment of seats in accordance with the  provisions of the Constitution, particularly Articles 330  and 332. Such action would also violate constitutional  rights of the petitioners in Part IX (Articles 243 to 243-O)  of the Constitution. The petitioners, therefore, made  representations to Hon’ble the President of India, Hon’ble  the Prime Minister of India, Hon’ble Minister for Tribal  Affairs, National Commission for Scheduled Tribes and  others requesting them to take appropriate steps so that  they would not suffer and would continue to enjoy rights  to which they are entitled but nothing was done by the  respondents. They were, therefore, constrained to  approach this Court by filing a petition under Article 32  of the Constitution. In Paras 8, 22, 23 and 24 of the Petition, the  petitioners stated; 8.      That in view of the aforesaid constitutional  provisions in the State of U.P. (prior to its  bifurcation in the Year 2000) out of the total  425 seats, 92 seats had been reserved for  Scheduled Castes and one seat had been  reserved for Scheduled Tribes.  After the  division of the State of U.P. into the States of  U.P. and Uttranchal, the total number of seats  in the State of U.P. came down to 403 and the  seats reserved for Scheduled Castes came  down to 89 and the seats reserved for  scheduled tribes became zero.

22.     That the Petitioners and other similarly  situated persons who prior to enactment of the  Act contested the Parliament and Assembly  elections on seats reserved for Scheduled  Castes would now not be able to contest  elections from these reserved seats as these  persons now belong to Scheduled Tribes and  they would also not be able to get any benefit  of the provision for reservation of seats for  Scheduled Tribes as no reservation can be  effected for Scheduled Tribes in the State of  U.P. as per the changed population till a  census is conducted after 2026.

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23.     That the members of the ten castes and seven  sub castes which have been shifted from list of  Scheduled Castes to list of Scheduled Tribes  are now faced with a grossly unfair, unjust  and disadvantageous situation wherein they  have now due to the enactment of the Act, on  one hand lost the benefits which were available  to them earlier being members of the  Scheduled Castes and on the other have not  been conferred with any benefits for being  members of the Scheduled Tribes due to the  explanation of Article 330.

24.     That the Petitioners and other members of  their community had a constitutional right  under Articles 330 and 332 to have seats  reserved for them in House of People and State  Assemblies.  However the said right now seems  to stand defeated in view of the enactment of  the Act.  This extinguishments of their  constitutional rights is also not temporary or  for a short period but for a period of twenty six  years which means that one whole generation  of these oppressed classes would stand to lose  their constitutional right of reservation in  elected bodies due to enactment of the Act.

Notice was issued by this Court on August 14,  2006. (It may be stated that a similar grievance was  made by the petitioners in Special Leave Petition (Civil)  Nos. 17001-03 of 2005 which have been filed by the  petitioners against judgment and order passed by the  High Court of Judicature at Allahabad on July 25, 2005).  On November 6, 2006, the Court observed that  respondents had not filed counter affidavit and three  weeks’ time was granted as prayed for to file such  affidavit. Even thereafter, affidavit was not filed. On  February 2, 2007, learned counsel for the Union of India,  State of U.P. and Election Commission sought two weeks’  time to file affidavit and the prayer was granted. But even  today affidavit is filed only by the Election Commission of  India (Respondent No.2) and no affidavit in reply is filed  either by the Union of India or by the State of U.P. Mr. Shanti Bhushan, Senior Advocate appearing for  the petitioners submitted that the impugned Act is  violative of Part III of the Constitution as it interferes with  the fundamental rights of the petitioners who belong to  Scheduled Castes as also Part XVI of the Constitution as  it interferes with the constitutional rights conferred on  members of Scheduled Castes. He also submitted that  there is total non application of mind on the part of  Parliament in not considering the effect of the Act and  consequences likely to ensue. The counsel also urged  that serious prejudice would be caused to several castes  and sub-castes which had all throughout enjoyed the  status and benefit of Scheduled Castes without  conferring benefits as members of Scheduled Tribes  under Part XVI of the Constitution. He, therefore,  submitted that the Act is unconstitutional. A prayer is  made in the petition to stay the operation of the Act. The  counsel, however, submitted that if this Court is not  inclined to grant stay against operation of the Act, limited  stay may be granted permitting the petitioners and other  members of Scheduled Caste communities who are

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sought to be transferred to Scheduled Tribe communities  to enjoy benefits as they have enjoyed up to the day of  passing of the impugned Act by allowing them to contest  forthcoming Uttar Pradesh State Legislative Assembly  elections on seats reserved and earmarked for the  candidates belonging to Scheduled Castes. According to  him, if such relief is not granted, serious prejudice would  be caused to them and they would suffer irreparable loss. As already stated, the Union of India has not filed  counter to the petition. So far as Election Commission is  concerned, it stated that it has "nothing to say with  regard to the challenges to the vires of the impugned  Act". It was also stated that once the petitioners’  community had been declared to be Scheduled Tribe  under the impugned Act, they cannot be said to belong to  Scheduled Caste. The Election Commission is obliged to  conduct Assembly Elections in the State of Uttar Pradesh  as per enacted laws. Having heard learned counsel for the parties, in our  opinion, no interim relief can be granted as prayed for by  the petitioners. It is no doubt true that Part III of the  Constitution confers certain fundamental rights and for  the observance and enforcement of such rights, an  aggrieved party may approach a High Court under Article  226 or this Court under Article 32 of the Constitution. It  is also true that ’Special provisions relating to certain  classes’ have been made in Part XVI. Article 330 provides  for reservations of seats for Scheduled Castes and  Scheduled Tribes in the House of People. The said Article  reads as under: 330. Reservation of seats for Scheduled  Castes and Scheduled Tribes in the  House of the People.\027(1) Seats shall be  reserved in the House of the People for \027 (a) the Scheduled Castes; (b) the Scheduled Tribes except the  Scheduled Tribes in the autonomous  districts of Assam; and (c) the Scheduled Tribes in the  autonomous districts of Assam.

(2) The number of seats reserved in any  State or Union territory for the Scheduled  Castes or the Scheduled Tribes under  clause (1) shall bear, as nearly as may be,  the same proportion to the total number  of seats allotted to that State or Union  territory in the House of the People as the  population of the Scheduled Castes in the  State or Union territory or of the  Scheduled Tribes in the State or Union  territory or part of the State or Union  territory, as the case may be, in respect of  which seats are so reserved, bears to the  total population of the State or Union  territory.

(3) Notwithstanding anything contained in  clause (2), the number of seats reserved in  the House of the People for the Scheduled  Tribes in the autonomous districts of  Assam shall bear to the total number of  seats allotted to that State a proportion  not less than the population of the  Scheduled Tribes in the said autonomous

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districts bears to the total population of  the State.

Explanation. \027In this article and in article  332, the expression "population" means  the population as ascertained at the last  preceding census of which the relevant  figures have been published:

Provided that the reference in this  Explanation to the last preceding census  of which the relevant figures have been  published shall, until the relevant figures  for the first census taken after the year  2026 have been published, be construed  as a reference to the 2001 census.

Likewise, Article 332 provides for reservations of  seats for Scheduled Castes and Scheduled Tribes in the  Legislative Assembly of the States. Clause (1) of Article  341 enables the President by a notification to specify the  Castes, Races or Tribes or parts or groups within Castes,  Races or Tribes which shall for the purposes of the  Constitution be deemed to be Scheduled Castes in  relation to that State or Union Territory, as the case may  be. Clause (2) of Article 341 empowers Parliament  by law to 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. The contention of the learned counsel for the  petitioners is that Article 330 mandates that the  number of seats reserved in any State or Union  Territory for Scheduled Caste or Scheduled Tribe  must be on the basis of population of such  Scheduled Castes or Scheduled Tribes. It was,  therefore, submitted that once there is change and  either reduction or addition in population of  Scheduled Castes or Scheduled Tribes, as the case  may be, there must necessarily be decrease or  increase in seats in Parliament as also in the  Legislative Assembly. Such a constitutional  requirement cannot be overlooked or ignored.  Parliament, by enacting the impugned Act, had  made certain members of Scheduled Castes as  members of Scheduled Tribes without implementing  and giving effect to Articles 330 and 332 of the  Constitution, which is clearly illegal and against  the scheme of the Constitution. It is also submitted  that for the purpose of Articles 330 and 332, the  expression ’population’ would mean the population  as ascertained in the last preceding census of  which the relevant figures have been published  which is 2001 census. The counsel also relied upon  the proviso to Article 330 which declares that the  reference in the Explanation to the last preceding  census of which the relevant figures had been  published shall until the relevant figures for the  first census taken after the year 2006 have been  published, be construed as a reference to the 2001  census. It was, therefore, submitted that the  impugned Act is inconsistent with the provisions of  Articles 330 and 332 of the Constitution. Mr. Gopal Subramanium, Additional Solicitor

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General submitted that an Act has been enacted by  competent Legislature i.e. Parliament. If the Court  is of the view that the challenge to constitutionality  of law requires consideration, the petition may be  admitted. Regarding interim relief, however, he  stated that normally a Court would not grant  interim relief against legislative action. Even with  regard to limited interim relief, he submitted that  once the Act has been enacted and has been  brought into force, interim relief of interfering with  an action taken in pursuance of a legislation may  not be granted. He submitted that the Act has come  into force with effect from January 7, 2003. The  Schedule thereof excludes certain Scheduled Castes  into Scheduled Tribes under the Act. If interim  relief sought by the petitioners is granted and  irrespective of the provisions of the Act, members of  Scheduled Castes to be treated as members of  Scheduled Tribes would be deemed to be treated as  Scheduled Caste members, virtually the Court  would be granting interim stay against operation of  the Act. He also submitted that the operation of the  Act is not limited to elections to Parliament,  Legislative Assemblies or Local Bodies. The Act is  general in nature and deals with status of members  of ’certain classes’. In fact, Part XVI of the  Constitution itself deals with matters other than  election. For instance, Article 335 relates to claims  of Scheduled Castes and Scheduled Tribes to  services and posts. The Act has already been  implemented and has come into force. Persons  belonging to certain Scheduled Castes have been  treated, under the impugned Act, as members of  Scheduled Tribes. In our opinion, Mr. Gopal Subramanium is  right in submitting that grant of interim relief may  create complications. For instance, a member of a  particular Scheduled Caste who has now been  treated under the impugned legislation as member  of Scheduled Tribe, may be able to claim certain  benefits as member of Scheduled Tribe under the  Act. How can he at the same time claim benefits as  a member of Scheduled Caste also? Again, can it be  said that a person originally belonged to Scheduled  Caste and required to be treated as belonged to  Scheduled Tribe under the impugned Act will  continue to be treated as belonged to Scheduled  Caste for the purpose of election under Articles 330  and 332 of the Constitution, but such person will  be treated as member of Scheduled Tribe for the  purpose of other provisions of the Constitution, for  instance, under Article 335 of the Constitution?   Such dichotomy, in our opinion, is not envisaged.   Since we are of the view that serious questions of  law have been raised by the petitioners, the petition  deserves to be admitted and accordingly we have  issued Rule. But in the facts and circumstances of  the case, in our opinion, grant of interim relief  would result in complications and confusions.  Virtually it would amount to grant of interim relief  against legislation as grant of such relief would  prevent legislation to operate. Moreover, the Act is  of 2002 and came into force in January, 2003  whereas the petition under Article 32 of the  Constitution was filed by the petitioners in this

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Court in July, 2006. It is no doubt true as  submitted by Mr. Shanti Bhushan that before filing  the petition, representations were made by the  petitioners but no heed was paid by the authorities.  It is also true that even after July, 2006,  respondents, particularly Union of India, had not  done anything in the matter, not even filed affidavit  in reply by clarifying the position as to injustice  likely to be suffered by a section of the society. At  the same time, however, grant of interim relief  would create more problems, complications and  confusions. In our opinion, therefore, interim relief,  as prayed for by the petitioners, cannot be granted  at this stage. Hence, interim relief is refused. Special Leave Petition (Civil) Nos. 17001-17003/2005         Leave granted.         To be heard with Writ Petition No. 363 of 2006.