Holding

The Supreme Court held that the President’s notification under Article 342, which defines the Scheduled Tribes for Tripura, is conclusive and cannot be altered by judicial enquiry or evidence; therefore the appellant’s claim of inclusion of the Laskar community must be decided by the appropriate legislative or executive process, not by the Court.

Summary

The appellant, S.K. Choudhury, claimed that the Laskar community of Tripura was historically treated as a Scheduled Tribe and should continue to enjoy reservation benefits. He relied on two pre‑independence circulars and a census report to argue that the Laskar class formed part of the “Deshi Tripura” group, which he said was covered by the entry “Tripura/Tripuri/Tippera” in the Presidential Order under Article 342. The State of Tripura contended that the Laskar community was never specifically listed in the Order and therefore could not claim Scheduled Tribe status. The Supreme Court examined the constitutional provisions governing Scheduled Tribes, the finality of the President’s notification, and precedent that courts cannot modify the list by evidence. It held that the Presidential Order is conclusive and that any amendment must come through legislative or executive action, not judicial enquiry. Consequently, the appellant’s claim was dismissed, though the Court suggested that the matter be examined by the appropriate authorities when the pending parliamentary review is concluded.

Issues considered

Whether the Laskar community is included in the entry “Tripura/Tripuri/Tippera” of the Constitution (Scheduled Tribes) Order for Tripura under Article 342.
Whether the Supreme Court can entertain evidence to determine inclusion of a community in the Scheduled Tribes list despite the finality of the Presidential Order.
Whether the appellant is entitled to relief (continuation of reservation benefits) pending the pending parliamentary review of the community’s inclusion.

Legislation cited

Constitution of Indias. Article 341, s. Article 342, s. Article 366

Subjects

Scheduled TribesArticle 342ReservationPresidential OrderConstitutional lawTribal classificationJudicial reviewIndia

Judgment

A
SRISH KUMAR CHOUDHURY
v. r
STATE OF TRIPURA AND ORS.

FEBRUARY 23, 1990

[RANGANATH MISRA, M.M. PUNCHHI AND
B
S.C. AGRAWAL, JJ.]
---{

Constitution of India-Articles 341 and 342/ Items 15-18-Laskar
Community-Inclusion in the list of Scheduled Tribes-Entertainment
-::
of

c The appellant is a resident of Tripnra State. He asserted that he .
~
belonged to the Laskar commnnity which was included in St.ate records
in the Deshi Tripura commnnity and in the former State of Tripura this
community had always been treated as Scheduled Tribes, and the
members of the commnnity freely· enjoyed all the benefits available to
~ members of the Schednled Tribes until 1976 when the State Government
decided to treat members of this community as not belonging to the
Scheduled Tribes and issued instructions to the state authorities to
implement the Government decision. Being aggrieved the appellant )-
filed a writ petition before the High Court in a representative cappacity
praying for appropriate directions directing the State Government to
E continne to treat the appellant and members of Laskar community as
belonging to Scheduled Tribes and extend all the benefits available to
Scheduled Tribes to this community. In support of his claim the appel- ·.,,-
lant relied upon the two circulars of the erstwhile State of Tripura dated
December 1930 and February 1941 as also the census report of the
ex-state of Tripura, besides the ·authorities of this Court. The respon- y
F dent took the plea that Laskar community was never included in the
Scheduled Tribes Order and as such there was no question of excluding
it from the List. After considering the rival contentions of the parties
coupled with the historical background bearing on the subject, the
statement made by the Advocate-General that the Memos will be given
prospective operation, the High Court dismissed the Writ Petition.
Hence this appeal by Special Leave. This appeal initially came up before
G
a two judges Bench for final hearing when on a statement made by the
Connsel for the Union of India that a representation made by the appel-
>-
lant and members of~is community for inclusion their caste-Laskar, in
the Presidential order under Article 342 is being looked into and is
being placed before the Parliamentary Committee for review of the
H position, the Court disposed of the appeal in terms of the assnarance

576
S.K. CHOUDHURY v. STATE OF TRIPURA 577

given on behalf of the Union. It was.specifically stated in the Court's
A
order that in case the community is not included in the Presidential
Order, it would be open io the appellant to take such action as may be
available to him in law. Nothing having happened at governmental
level, with the consent of the parties, the order disposing of the appeal
was recalled and the appeal has thus now come up for hearing.
B
Dismissing the appeal, this Court,

HELD: Reservation has become important in view of the in-
creasing competition in society and that probably had led to the
anxiety of the appellant and the people in his community to claim
reservation. [586G I
c
In Tripura the Scheduled Tribes within the meaning of the defini-
tion given in Article 366 of the Constitution have been 'Jamatia, Noatia,
Riang and Tripura/Tripuri/Tippera' apart from 15 other tribes. It is
the case of the appellant that Laskars are a part of the tribe named as
'Tripura, Tripuri and Tippera' covered by Entry 18. (5810] D

_...( This Court should not assume jurisdiction and enter into an
enquiry to determine whether the three terms indicated in the Presi-
dential Order include Deshi Tripura which covers the Laskar com-
mnnity; but it is appropriate to commend to the authorities concerned
that as and when the question is reviewed it should be examined E
whether the claim of the appellant representing the Laskar community
to be included in the scheduled tribes is genuine and should, therefore,
be entertained. [586F-G]

Even if historically this tribe was covered by the general descrip-
tion of Tripura, that by itself may not justify its inclusion in the Order F
as a Scheduled Tribe. That is an additional feature which has weighed
with us in taking our decision not to interfere in the matter. [587C]

B. Basavalingappa v. D. Munichinnappa, [1966] I SCR 316;
Bhaiyalal v. Harikishan Singh and Ors., [1965] 2 SCR 877; Parsram
and Anr. v. Shivchand and Ors., [1969) I SCC 20; Kishorilal Hans v. G
Raja Ram Singh and Ors., [1972) 2 SCR 632; Dina v. Narayan Singh,
38 ELR 212 and Bhaiya Ram Munda v. Anirudh Pa tar and Ors., [1971]
I SCR 804, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 479
~~- H
578 SUPREME COURT REPORTS [ 1990] l S.C.R.

A. From the Judgment and Order dated 18.3.1985 of the Assam High · y·
Court in Civil Rule No. 139 of 1979. )

A.K. Ganguli, A. Mariarputham, A.D. Sikri and Dilip Tandon
for the Appellant.

B Kapil Sibal, Additional Solicitor General, Rajiv Dhawan, Gopal {-
Singh, C.V.S. Rao, Adv. (NP) and R.B. Misra for the appearing
respondents.

Hardev Singh and S. Ravindra Bhat for the intervenor.

¢ The Judgment of the Court was delivered by

RANGANATH MISRA, J.This appeal by special leave calls in ,>--
question the judgment of the Guwahati High Court dated March 18, .
1985, dismissing the appellant's writ petition. The appellant is a resi-
dent of Tripura State. In his application in a representative capacity
D before the High court he maintained that he belonged to the Laskar
community which had always been treated in the erstwhile State of
Tripura as a Scheduled Tribe and on that basis in the State records was
included in the Deshi Tripura community long before integration of >-..-
the Ruler's State of Tripura with the Union of India. Members of the
Laskar community freely enjoyed all the benefits available to mem-
E bers of the Scheduie Tribes until in 1976 the State Government decided
to treat members of that community as not belonging to the Scheduled
Tribes and issued instructions to the State authorities to implement the y---
Government decision. That led to the filing of the petition before the
High Court. In the writ petition appellant prayed for appropriate
directions to continue. to treat the appellant and members of his com- ·y
F munity as belonging to the Scheduled Tribes and for a direction to the
State Government to extend all the benefits admissible to members of
the Sch.eduled Tribes to members of the Laskar community. Before the
High Court the respondents disputed the claim and maintained that
the Laskar community was never included in the Scheduled Tribes
Order and as such there was no question of exclusion from the list. A
G historical study of the claim would show that in the past Tripura/Tri-
puri/Tippera which have been included in the Presidential Notification T
never included the Laskar community. Tripuras were a Tibeto-
Durman race akin to the Shan tribe and Tipperas were divided into
four groups, namely, (i) Puran or original Tipperas; (ii) Jamatias; (iii)
Noatias or Nutan Tripuras and (iv) Riangs. Respondents relied upon
H Government records and official publications in support of the
aforesaid stand.
S.K. CHOUDHURY v. STATE OF TRIPURA [MISRA, J.] 579

Before the High Court two circulars of the erstwhile State of
A
Tripura, one being of December, 1930, and the other of February,
1941, as also the census report of the ex-State of Tripura were pro-
duced in support of the claim advanced by the appellant. Several
authorities of this Court were relied upon for finding out the scope of
enquiry in a claim of this type and ultimately by the impugned judg-
ment the High Court dismissed the writ petition but on the basis of a B
statement made by the Advocate-General appearing for the State, it
recorded:

"We keep on record the statement made by the learned
Advocate-General, Tripura, on instruction that as a result
of the impugned Memorandum No. 18887-19077/TW/6-4-
(L-D) dated 28.4.1979 the certificates already issued would
c
I be treate~ as infructuous prospectively and not retrospec-
-~ tively and those who have already enjoyed the benefits bv
virtue of such Scheduled Tribe certificates they shall not be
deprived of the benefits they have already enjoyed and the
Memorandum shall be effective from its date prospectively D
insofar as the future benefits are concerned."

· __../ This appeal had come up for final hearing earlier and by a brief
judgment reported in [1987] 3-SCC 463, a two-Judge Bench recorded
the following order:
E
"The record before u~ shows that the people of the Laskar
community have been treated as members of the Scheduled
Tribes and there have been some letters from the Govern-
ment of India to the State Government in support of that
position; it is,- however, a fact that there has been no clear
inclusion of the community in an appropriate Presidential F
Order. The appellant has maintained that even in the
absence of such a clear specification in a Presidential
Order, as a sub-group under one of the notified categories,
the appellant's community has been enjoying th_e privileges.
We have been told by the learned counsel for the Union of
India that the representation made by the appellant and G
members of his community for inclusion in the Presidential
Order under Article 342 of the Constitution is being looked
into and is being placed before the Parliamentary Commit-
tee in accordance with the prescribed procedure for a
review of the position. He has assured us that the Govern-
ment of India will take steps to finalise the matter at an H
580 SUPREME COURT REPORTS [ 1990] 1 S.C.R.

A early date and may in compliance with the procedure as
prescribed, take a final decision. Jn case the community is
not included in the Presidential Order, it would be open to
r
the appellant to take such action as may be available in
law."
B The appellant waited for some time and approached the Govern-
ment of India for quick action but when nothing happened, an applica-
tion for directions w~s made in this Court. Several adjournments were
taken but Government could not take any decision. Ultimately, by

c
consent of parties, the order disposing of the appeal was recalled and
the appeal was directed to be set down for re-hearing. That is how the
appeal is now before us.

Articles 341 and 342 of the Constitution deal with Scheduled
-
Castes and Scheduled Tribes respectively and contain almost identical
provision. We may extract Article 342 dealing with Scheduled Tribes:

"342.(1) The President may, with respect to any State or
Union Territory and where it is a State after consultation
with the Governor thereof, by public notification, specify
the tr.ibes or tribal communities or parts of or groups within
tribes or tribal communities which shall for the purposes of
this Constitutj.on be deemed to be Scheduled Tribes in rela-
E tion to that State or Union Territory, as the case may be.

(2) parliament may by law include in or exclude from the·
list of Scheduled Tribes specified in a notification issued 'f
under clause ( 1) any tribe or tribal community or part of or

F
group within any tribe or tribal community, but save as y
aforesaid a notification issued under the said clause shall
not be varied by any subsequent notification."

Article 366(25) defines 'Scheduled Tribes' to mean such tribes or
tribal communities or parts or groups within such tribal communities
as are deemed under Art. 342 to be Scheduled Tribes for the purposes
G of this Constitution. The Constitution (Scheduled Tribes) (Union Ter-
ritories) Order, 1950 relating to Tripura included 19 tribes within the
notification. Items 15, 16, 17 and 18 are relevant for our purpose and
they were:

"15. Tripura or Tripuri, Tippera.
H
S.K. CHOUDHURY '· STATE OF TRIPURA !MISRA, J.] 581

16. Jamatia .
A
17. Noatia

18. Riang"

Following the Reorganisation Act (37 of 1956), the Ministry of B
Home Affairs on October 29, 1956, notified the list of Scheduled
Castes and Scheduled Tribes. In respect of the then Union Territory of
Tripura the same communities were relisted. Then came the North-
Eastern Area (Reorganisation) Act (81 of 1971) which in the Fourth
Schedule contained . amendment to the Constitution (Scheduled
Tribes) Order, 1950. Items 15 to 18 in the Scheduled contained the
same descriptions. The Scheduled Castes & Scheduled Tribes Orders c
(Amendment) Act, (108 of 1976) in relation to Tripura in the Second
Scheduled carried the same in Entries 7, 14, 16 and 18. It is, therefore,
clear that in Tripura the scheduled tribes within the meaning of the
definition given in Art. 366 of the Constitution have been the follow-
ing: 'Jamatia, Noatia, Riang and Tripura/Tripuri/Tippera' apart from D
15 other tribes as specified. It is not necessary to refer to the 15 others
inasmuch as it is the case of the appellant that Laskars are a part of the
tribe named as Tripura, Tripuri or Tippera covered by Entry 18.

Before adverting to the evidence upon which the appellant relies
in support of his stand, it is necessary that the scope of enquiry to be E
conducted in this regard by the Court may be determined. There are
precedents of this Court which have to be first referred to. A Constitu-
tion Bench in the case of B. Basavalingappa v. D. Munichinnappa,
[1965] 1SCR316 examined the provisions of Art. 341 which contained
similar provisions for the scheduled castes wit!J reference to an elec-
tion dispute. Wanchoo, J. spoke for the Constitution Bench thus: F

"Clause (1) provides that the President may with respect to
any State, after consultation with the Governor thereof, by
public notification, specify the castes, races or tribes or
parts of or groups within castes, races or tribes which shall
for the purposes of the Constitution be deemed to be G
Scheduled Castes in relation to that State. The object of
this provision obviously is to avoid all disputes as to
whether a particular caste is a Scheduled Caste or not and
only those castes can be Scheduled Castes which are
notified in the Order made by the President under Art. 341
after consultation with the Governor where it relates to H
582 SUPREME COURT REPORTS [1990] I S.C.R.

A
such castes in a State. Clause (2) then provides that Parlia- y
ment may by law include in or exclude from the list of I
scheduled castes specified in a notification issued under
cl. ( 1) any caste, race or tribe or part of or group within any
caste, race or tribe. The power was thus given to Parlia-
ment to modify the notification made by the President
B under cl. (1). Further cl. (2) goes on to provide that a
notification issued under cl. ( 1) shall not be varied by any -{
subsequent notification, thus making the notification by
the President final for all times except for modification by
law as provided by cl. (2). Clearly therefore Art. 341 pro-
vides for a notification and for its finality except when
altered by Parliament by law ..... Therefore in view of
c this stringent provision of the Constitution with respect to a
notification issued under cl. (1) it is not open to any one to
include any caste as coming within the notification on the
basis of evidence-Oral or documentary,-if the caste in
question does not find specific mention in the terms of the
D notification ..... It may be accepted that it is not open to
make any modification in the Order by producing evidence
to show (for example) that though caste A alone is
mentioned in the Order, caste B is also a part of caste A
and therefore must be deemed to be included in caste A. It
may also be accepted that wherever one caste has another
name it has been mentioned in brackets after it in the
Order. Therefore, generally speaking it would not be open
to any person to lead evidence to establish that caste B is r
part of caste A notified in the Order."

The factual dispute raised in the case before the Constitution y
F Bench was whether Voddar caste was included in Bhovi caste which
was one of the notified castes. The Constitution Bench dealt with the
evidence and ultimately said:

"In the circumstances therefore we agree with the High
Court that respondent No. 1 though Voddar by caste
G belongs to the scheduled caste of Bhovi mentioned in the
Order. We may again repeat that we have referred to the
evidence in this case only because there was undoubtedly
no caste known as Bhovi in the Mysore State as it was
before 1956 and we had to find out therefore which caste
was meant by the word 'Bhovi' as used in the Order. But
H for this fact it would not have been open to any party to
S.K. CHOUDHURY v. STATE OF TRIPURA [MISRA, J.l 583

give evidence to· the effect that caste A mentioned in the . A
Order includes or was the same as caste B where caste A
does exist in the area to which the Order applies."

A similar dispute again came before a Constitution Bench in
Bhaiyalal v. Harikishan Singh & Ors., [1965] 2 SCR 877 with reference
to a scheduled tribe in an election dispute. Gajendragadkar, CJ speak- B
ing for the Court said:

"It is obvious that in specifying castes, races or tribes, the
President has been expressly authorisd to limit the notifica-
tion to parts of or groups within the caste·s, races or tribes,
and that must mean that after examining the educational
and social backwardness of a caste, race or tribe, the Presi-
c
dent may well come to the conclusion that not the whole
caste, race or tribe but parts of or groups within them
should be specified. Similarly, the President can specify
castes, races or tribes or parts thereof in relation not only
to the entire State, but in relation to parts of the State D
where he is satisfied that the examination of the social and
educational backwardness of the race, caste or tribe justi-
fies such specification. In fact, it is well-known that before
a notification is issued under Art. 341(1), an elaborate
enquiry is made and it is as a result of this enquiry that
social justice is sought to be done to the castes, races or E
tribes as may appear to be necessary, and in doing justice,
it would obviously be expedient not only to specify parts or
groups of castes, races or tribes, but to make the said
specification by reference to different areas in the State."

What we have extracted above clearly supports the view of the F
other Constitution Bench, namely, the list is intended to be final.

We may now refer to a two-Judge Bench decision in the case of
Parsram & Anr. v. Shivchand & Ors., [1969] 1 SCC 20. Here again,
the Scheduled Castes Order was in issue in an election dispute and the
question for consideration was whether mochi was included in the G
notified caste of.chamar. The Court referred to both the Constitution
Bench judgments and indicated:

"These judgments are binding on us and we do not there-
fore t.hink that it would be of any use to look into the
gazeteers and the glossaries on the Pun jab castes and tribes H
584 SUPREME COURT REPORTS [ 1990[ 1 S.C.R.

to which reference was made at the Bar to find out whether y
A
Mochi and Chamar in some parts of the State at least meant
the same caste although their might be some difference in
the professions followed by their members, the main dif-
ference being that Chamars skin dead animals which
Mochis do not. However that may be, the question not
being open to agitation by evidence and being one the
determination of which lies within the exclusive power of
the President, it is not for us to examine it and come to a
conclusion that if a person was in fact a Mochi, he could
still claim to belong to the scheduled caste of Chamars and
be allowed to contest an election on that basis." .
In Kishorilal Hans v. Raja Ram Singh & Ors., [1972] 2 SCR 632 a
two-Judge Bench was called upon to decide whether jatav caste not
me'ntioned in the scheduled castes of Datia district of Madhya Pradesh
in the Order was included in chamar caste. The Court indicated:

I) "If the matter were res-integra we would have felt a good
deal of difficulty in reconciling with the constitutional pro-
visions the scheme followed in the state and the Orders
concerned by which some caste has been includes in some "r--.
districts of the same State and excluded in the other dis-
tricts. This Court, however, has in Bhaiyalal v. Harikishan
Singh & Ors., supra, made observations repelling the con-
tention that under Art. 341 of the Constitution the Presi- 1
dent was not authorised to limit the notification to P"rts of
a State ..... In Bhaiyalal's case the appellant's election
had been challenged on the ground that he belonged to the
Dohar caste which was not recognised as a scheduled caste
for the district in question and so his declaration that he
belonged to the Chamar caste which was a Scheduled Caste
was improperly and illegally accepted by the Returning
Officer. It was held that the plea that though the appellant
was not a Chamar as such he could claim the same status by
reason of the fact that he belonged to Dohar caste which is
0 a sub-caste of the Chamar caste could not be accepted. An
enquiry of that kind would not be permissible having
regard to the provisions contained in Art. 341 of the
Constitution.''

We may now refer to two separate judgments of this Court in the
H case Dina v. Narayan Singh, 38 ELR 212 and Bhaiya Ram Munda v.
S.K. CHOUDHURY v. STATE OF TRIPURA [MISRA, J.] 585

Anirudh Patar & Ors., [1971) 1 SCR 804. Both were rendered by a. A
common Bench of Shah (as he then was) and Bhargava, JJ. In the first
case the question for consideration was interpretation of Entry 12 in
the Scheduled Tribes Order. The entry read. 'Gond including Mana'.
The Court interpreted that Mana community was a substitute of Gond
and on a proper construction of the entry Manas not being Gonds were
not intended to be included. The decision in that case is not relevant
B
for our purpose.

-
In Bhaiya Ram's case, the tribe specified in the Scheduled Tribes
Order was Munda. The respondent was a Patar but he maintained that
it was included in the notified tribe. The Bench was of the view that
evidence was admissible for the purpose of showing what an entry in c
the Presidential Order was intended to mean though evidence could
not be accepted for modifying the order by including a new tribe. Since
the respondents' case was that Patars were Mundas, evidence could be
given to show that the entry 'Munda' included 'Patar'.

These authorities clearly indicate, therefore, that the entries in D
the Presidential Order have to be taken as final and the scope of
enquiry and admissibility of evidence is confined within the limitations
indicated. It is, however, not open to the Court to make any addition
or subtraction from the Presidential Order.

- The evidence in this case on which reliance has been placed in
support of the claim that Laskars are included in the tribe described as
'Tripura/Tripuri/Tippera' mainly consists of two circulars of the erst-
while State of Tripura. Circular No. 9 is of December, 1930. There is a
narration therein to the following effect:
E

"In this State Tripura Sampradaya means the following five F
communities'

1. Puratan Tripura

2. Deshi Tripura (related to Laskar Class)
G
3. Noatia
-.,
"-\
4. Jamatia
5. Riang"
H
586 SUPREME COURT REPORTS I 1990] 1 S.C.R.

In Circular No. JO which is of the year 1941, it has been said: Y
"In this State Tripura-Kshatriya denotes the following
classes:

1. Puratan Tripura

2. Deshi Tripura (related to Laskar Class)

q
3. Noatia

4. Jamatia

5. Riang"
-
The latter document related to census operation in the State.
From these two documents it is clear that Deshi Tripura covered the
Laskar class while there was another class called 'Tripura/Tripuri/
D Tippera' which did not relate to Laskar class. The Presidential Order
has admitted the three tribes of Noatia, Jamatia and Riang in terms
but while dealing with the two classes of Puratan Tripura and Deshi
Tripura covering the Laskar class, it has adopted the description of
those three terms without referring to Puratan or Deshi.

E The two Constitution Bench judgments indicate that enquiry is
contemplated before the Presidential Order is made but any amend-
ment to the Presidential Order can only be by legislation. We do not
think we should assume jurisdiction and enter into an enquiry to
determine whether the three terms indicated in the Presidential Order
include Deshi Tripura which covers the Laskar community; but we y
F consider it appropriate to commend to the authorities concerned that
as and when the question is reviewed it should be examined whether
the claiin of the appellant representing the Laskar community to be
included in the scheduled thbes is genuine and should, therefore, be
entertained.

G Reservation has become important in view of the increasing
competition in society and that probably had led to the anxiety of the
appellant and the people in his cm_nmunity to claim reservation. As
pointed out by the Constitution Bench judgments which we have refer-
red to above, the basis on which inclusion into or exclusion from the
enumerated list made under Art. 342 is contemplated is the changing
H economic, educational and other situations of the members of any
S.K. CHOUDHURY v. STATE OF TRIPURA [MISRA, J.) 587

particular tribe. Keeping that -in view the State Government may A
initiate appropriate proposals for modification in case it is satisfied and
after appropriate enquiry if the authorities are satisfied that the claim
is genuine and tenable, amendment may be undertaken as provided by
the Constitution.

This Court has indicated in some of the judgments referred to B
above that as a result of the detailed enquiry made as to the economic
status, the level of education and the necessity of protection, inclusion
into or exclusion froni the Order is made. This material relating to the
Laskar tribe in 1930 or 1941 may not have been considere_d sufficient
before the respective Orders were made for including the Laskars, said
to have been covered by the description ofDeshi Tripura. Therefore, c
even if historically this tribe was covered by the general description of
Tripura, that by itself may not justify its inclusion in the Order as a
scheduled tribe. That is an additional feature which has weighed with
us in taking our decision not to interfere in the matter.

The claim of the appellant is dismissed so far as this Court is D
concerned but the observations which we have made may be kept in
view. There shall be no order for costs through-out.

Y. Lal Appeal dismissed.