A division bench of the Bombay High Court comprising Hon’ble Justice Rohit B. Deo and Hon’ble Mr. Justice Y.G. Khobragade upholds the high probative value of pre-constitutional documents in determining the tribal claim of an applicant. The bench placed reliance on the judgment of the Hon’ble Supreme Court in the case of Anand V/s Committee for Scrutiny and Verification of Tribe Claims and Ors., and its subsequent reference to a three-judge bench for determining the parameters available to scrutinize the tribal or caste claim of an applicant.
Brief Facts:
The Petitioner claims that he belongs to ‘Thakur’, a Scheduled Tribe recognized at serial 44 in the list of the Constitution (Scheduled Tribes) Order, 1950. However, on 01.11.2022, respondent 1 - Scrutiny Committee rejected his caste claim. In support of his caste claim, the Petitioner produced seventeen documents, some of which are pre-constitutional. However, respondent 1 – Scrutiny Committee has ignored these documents and rejected the tribe claim of the Petitioner on the ground of the affinity test and the area restrictions.
Contentions of the Petitioner:
The learned Counsel for the Petitioner submitted that the Scrutiny Committee committed an error in their finding that merely mentioning caste ‘Thakur’ in all these documents does not prove that the Petitioner belongs to ‘Thakur’, Scheduled Tribe. He further added that the rejection of caste claim of the Petitioner on the ground that he failed to establish his affinity test and ethnic linkage towards ‘Thakur’, Scheduled Tribe ignoring pre-constitutional documents is not tenable. Therefore, he prayed the Court to direct the competent authorities to issue the Petitioner’s caste certificate.
Contentions of the Respondent:
The Respondent supported the impugned order on the point that the affinity test is an integral part of a determination of the correctness of the tribe claim of the Petitioner, but the Petitioner failed to prove the said affinity test.
Observation of the Court
This Court observed that the Scrutiny Committee had not disputed the existence of documents pertaining to ancestors of the Petitioner, which reflect the caste of the petitioner ‘Thakur’ and these documents, are pre-constitutional. However, the Scrutiny Committee has rejected the claim of the Petitioner on the ground of affinity test and area restrictions. The Hon’ble Apex Court has held that the affinity test is not a litmus test and that the document of a pre-constitutional era is of the highest probative value in the eyes of law. In these circumstances, the Hon’ble Apex Court has framed the question as to what should be the parameters available to the Scrutiny Committee for verification of caste certificate, and referred the same to the larger Bench of three Judges for authoritative decision.
In light of the pending consideration before the Hon’ble Apex Court, the High Court was of the opinion that the affinity test could not be said to be the only test to issue a validity certificate of tribe claim or caste claim. The appropriate approach, according to the Bombay High Court, is that where the pre-constitutional documents of the persons like Petitioner shows that his caste is recorded as ‘Thakur’, then the authority has to consider the documents along with other evidence to issue validity certificate, subject to the outcome of the final decision of the Hon’ble Supreme Court.
As far as area restriction is concerned, the Court held that the significance of the same has been scaled down because of the migration of the tribe families for their livelihood. Thus, the tribe claim of the Petitioner could not have been rejected on this count as well, ignoring pre-constitutional documents.
The decision of the Court:
This Court directed the Scrutiny Committee to issue a ‘Thakur’ Scheduled Tribe validity certificate to the Petitioner in view of the fact that the Petitioner is an aspiring student to get admission in various colleges.
Case Title: SHANTANU CHAVAN V. SCHEDULE TRIBE CASTE CERTIFICATE SCRUTINY COMMITTEE, CHAPRASHIPURA AND ANOTHER
Coram: Hon’ble Justice Rohit B. Deo and Hon’ble Justice Y.G. Khobragade
Case no.: Writ Petition (WP) 8067 of 2022
Advocate for the Petitioner: Mr. A.P. Kalmegh
Advocate for the Respondents: Mr. M.K. Pathan and Mr. N.S. Khubalkar
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