The Bihar government issued a notification last year saying the Lohar community would be issued ST certificates. But the Supreme Court later rejected the modification of SC/ST lists.
New Delhi: In an order that is expected to bring greater clarity on bringing the Lohar community under the scheduled tribe (ST) category in Bihar, the Central Information Commission (CIC) has directed the Nitish Kumar government in the state to clarify its stand on “whether people belonging to the community of Lohar fall under the category of ST or not”.
The order was issued by Central Information Commissioner M. Sridhar Acharyulu after a plea was filed by Gorakhanandan Vishwakarma. Vishwakarma has sought information on the Bihar government’s proposal to include the community in the state’s ST list. His plea noted that the government of India had approved the modalities for determining the claims for inclusion, exclusion and modification to lists of STs.
In his order, Acharyulu said:
“As per the order of the Supreme Court and the constitutional scheme, it is the duty of the state of Bihar to take a stand, initiate the process and make formal recommendation on the issue as to whether the state of Bihar has any substantive role to play in inclusion of Lohar community in SC/ST list or not.”
Bihar CMO/CS directed to clear their stand
The CIC therefore directed the office of the chief minister, or office of the chief secretary, or the concerned additional secretary:
“to inform their stand on whether they recommend Lohar community to be listed among STs and provide certified copies of their response and correspondence on this issue to the appellant, marking copies to this Commission.”
In response to the petition filed by Vishwakarma, the Public Information Officer in the ministry of tribal affairs had responded that the proposal for providing ST reservation to the Lohars was pending. The appellant approached the CIC after there was no further communication regarding approval of the proposal.
In his order, Acharyulu said the ministry officers had responded that the recommendation of the concerned state in matters for inclusion of certain communities in list of STs was a pre-requisite to process a proposal. It was also communicated to the CIC that the proposal was referred by the ministry in March 2016 to the Registrar General of India(RGI) for its comments and views, and that the latter “did not support the proposal”.
SC had rejected addition or subtraction to SC/ST list
In the meantime, the order said, the Bihar government had on August 23, 2016, issued a notification that the Lohar community would be issued ST certificates. However, in November 2016, the Supreme Court held that the Centre “cannot add or subtract to the list of scheduled castes and scheduled tribes”.
A division bench of Justices Ashok Bhan and Markandey Katju negated the claim of a person belonging to Lohar community, that the community did not fall under the OBC category and that “Lohars in Bihar were actually SCs”.
The bench clarified that “neither the government nor the judiciary can add or subtract to the list of SC/STs,” but reiterated the “limited jurisdiction” of the courts to hold that the judiciary has jurisdiction “to the extent of finding out whether the community which claims the status as SC/ST, was included in the schedule concerned”.
“To that limited extent, the court would have the jurisdiction but otherwise the court is devoid of power to include in or exclude from or substitute or declare synonyms to the SC/ST or parts thereof or group of such castes or tribes,” the apex court ruled.
SC had gone by English definition of ‘Lohar’
The Supreme Court had also noted that the courts must “read the lists of scheduled castes and scheduled tribes under article 341 and 342 read with article 366(24) and (25) as they find them and accept their ordinary meaning”.
Acharyulu had stated that Articles 341 and 342 prescribe the presidential notification for notifying SCs and STs and Articles 366(24) and (25) give the definition of SCs and STs.
Going into the arguments on the issue, the CIC had stated that it was contended before the Bench that after the Official Languages Act, 1963, the Hindi version would prevail in case of ambiguity between Hindi and English versions. This argument was advanced to stress the point that the Hindi meaning for ‘Lohar’ community should be taken for its inclusion in the SC list. But the court had rejected this argument and held that English would be the authoritative text in respect of Acts of parliament.
Bihar government notification not in conformity with relevant Acts
As for the response of the government of Bihar, Acharyulu had noted that on examining the notification issued by it in August 2016, it was found that “the said notification was not in conformity with the relevant Acts”.
Since the Lohar community was not included in Bihar’s ST list, the government was advised to withdraw the notification and to expedite its comments on the observation of RGI. The CIC said a letter was issued to the additional secretary of the state government on August 1, 2017 for furnishing the final decision. However, with the response yet to come, the CIC has directed the ministry of tribal affairs to “provide the status report along with certified copies of reminder letters and any other correspondence in this regard.”