Holding

The Court held that Lohars are not Scheduled Tribes but an OBC, and therefore the 2016 notification granting them Scheduled Tribe certificates is unconstitutional and must be quashed.

Summary

The petitioners, members of the Lohar community in Bihar, challenged a 2016 Bihar Government notification that authorised the issuance of Scheduled Tribe certificates to the Lohar (also referred to as Lohara) community, alleging it was illegal and violated their fundamental rights. They sought quashing of the notification under Article 32 of the Constitution and compensation for hardships arising from prosecutions under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Court examined the distinction between "Lohar" and "Lohara", noting that prior jurisprudence consistently held Lohars to be an OBC, not a Scheduled Tribe, and that the English version of the Schedule is the authoritative text. It further observed that the notification's inclusion of Lohars as Scheduled Tribes infringed Articles 14 and 21 and exposed them to harsher bail conditions under the 1989 Act. Consequently, the Court quashed the impugned notification, clarified that it applied only to the Lohar community, and ordered the State to pay Rs.5,00,000 as costs to the petitioners. The decision reaffirmed the primacy of constitutional provisions and prior Supreme Court rulings on the matter.

Issues considered

The validity of the 2016 Bihar Government notification granting Scheduled Tribe status to the Lohar community.
Whether "Lohar" and "Lohara" are synonymous and if Lohars can be classified as Scheduled Tribes under Article 342.
The applicability of Articles 14, 21 and 32 of the Constitution in striking down the notification.
The impact of the notification on the rights of individuals under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Legislation cited

Code of Criminal Procedure, 1973s. 18, s. 18A, s. 438
Official Languages Act, 1963s. 3, s. 5
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act

Subjects

Scheduled TribeLoharLoharaArticle 32Article 14Article 21SC/ST Act 1989OBCNotification quashingCompensationFundamental Rights

Judgment

[2022] 3 S.C.R. 1111 1111

SUNIL KUMAR RAI & ORS. A
v.
THE STATE OF BIHAR & ORS.
(Writ Petition (Civil) No. 1052 of 2021)
B
FEBRUARY 21, 2022
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Social status certificate: Notification dated 23.08.2016 issued
by Government of Bihar – In terms of said Notification, approval
given to issue Scheduled Tribe certificate to Lohara (Lohar) C
community – Writ petition filed under Art.32 praying quashment of
said Notification and also seeking direction to the Government to
pay compensation for illegal notification which led to FIR under
the provisions of SC and ST Act, 1989 against the petitioners –
Held: It has been held in catena of decisions that Lohars are not D
members of the Scheduled Tribe and they are members of the OBCs
– ‘Lohar’ is not same as ‘Lohara’ – The implication of Notification
dated 23.08.2016 is deep and it affects the rights of the citizens in
the most adverse manner – A person who is Lohar on being treated
as Scheduled Tribe would be entitled to invoke the protection of
1989 Act – The fact that inclusion of persons otherwise disentitled E
in the category of Scheduled Tribes would directly constitute an
unjustifiable inroad into the rights of those members of the Scheduled
Tribe in the matter of public employment and in other respects –
Therefore, there is absolutely no basis for respondent-state to have
issued the impugned notification – The quashing of the impugned F
Notification will be qua ‘Lohar’ community and the Lohara will
continue to get the benefit vouchsafed for them under the
Presidential Order as amended by the Acts – State government to
pay Rs.5,00,000/- as costs – Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
G
Constitution of India: Art.32 – Delay in approaching Court –
Delay by itself cannot be used as a weapon to Veto an action under
Art.32 when violation of fundamental rights is clearly at stake.

H
1111
1112 SUPREME COURT REPORTS [2022] 3 S.C.R.

A Allowing the writ petition, the Court
HELD: 1.Article 32 of the Constitution provides for a
Fundamental Right to approach the Supreme Court for
enforcement of the Fundamental Rights. The founding fathers
contemplated that the very right to approach this Court when
B there is a violation of Fundamental Rights, should be declared as
beyond the reach of Parliament and, therefore, it is as a part of
judicial review that the right under Article 32 has been put in
place and invoked from time to time. That in a given case, the
Court may refuse to entertain a petition under Article 32 of the
Constitution is solely a part of self-restraint which is exercised
C by the Court having regard to various considerations which are
germane to the interest of justice as also the appropriateness of
the Court to interfere in a particular case. The right under Article
32 of the Constitution remains a Fundamental Right and it is
always open to a person complaining of violation of Fundamental
D Rights to approach this Court. This is, no doubt, subject to the
power of the Court to relegate the party to other proceedings.
[Para 7][1118-B-D]
2. Lohar is not same as Lohara. Including Lohars alongside
‘Lohara’ is clearly illegal and arbitrary. The English text which
E has been held to be the authoritative text and the decisions of
this Court have been ignored. The approach which at the very
minimum betrays total non-application of mind which, in turn,
leads to an inference that it has been arrived in an arbitrary manner
is disapproved. Thus, it attracts the wrath of Article 14 of the
Constitution. This, in turn, justifies the approach of the petitioners
F under Article 32 of the Constitution. [Para 25][1129-D-E]
3. The implications of this Notification are deep and it affects
the rights of the citizens in the most adverse manner. The impact
of the Notification is also to be gauged in the context of the 1989
Act as it is with reference to the Presidential Notification under
G Article 342 that prosecution under the 1989 Act is also to be
judged. In the other words, a person who is Lohar on being treated
as Scheduled Tribe would be entitled to invoke the protection of

H
SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1113

1989 Act. That apart, it directly impinges upon the rights of the A
persons who stand in the shoes of the accused. The provisions of
the 1989 Act have put stringent conditions in the matter of grant
of bail. Anticipatory bail is not even permitted under Section 438
of the Code of Criminal Procedure, 1973 vide Sections 18 and
18A of the 1989 Act. Therefore, there is absolutely no basis for
B
respondent-State to have issued the impugned Notification. The
limitation on the power of the Executive in this regard has been
declared in catena of cases. The approach has been very casual
and it has created a situation for which the State is solely
responsible, even when it was entirely avoidable if only the
respondent had taken proper care and applied its mind. [Paras C
26, 28][1129-F-H; 1130-B-C]
Assam Sanmilita Mahasangha & Ors. v. Union of India
& Ors. (2015) 3 SCC 1 : [2014] 14 SCR 744; Prabhat
Kumar Sharma v. Union Public Service Commission And
Others (2006) 10 SCC 587 : [2006] 7 Suppl. SCR 522; D
Nityanand Sharma and Another v. State of Bihar and
Ors. (1996) 3 SCC 576 : [1996] 2 SCR 1; Vinay
Prakash and Others v. State of Bihar and Others,1997
(3) SCC 406 : [1997] 2 SCR 97; The State of
Maharashtra & Anr. v. Keshao Vishwanath Sonone &
Anr. (2020) 14 SCALE 456; Prathvi Raj Chauhan v. E
Union of India and Others (2020) 4 SCC 727; Nilabati
Behera @ Lalita Behera v. State of Orissa (1993) 2 SCC
746 : [1993] 2 SCR 581 – relied on.
Case Law Reference
F
[2014] 14 SCR 744 relied on Para 9
[2006] 7 Suppl. SCR 522 relied on Para 13
[1996] 2 SCR 1 relied on Para 14
[1997] 2 SCR 97 relied on Para 18
G
(2020) 4 SCC 727 relied on Para 26
[1993] 2 SCR 581 relied on Para 29

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1114 SUPREME COURT REPORTS [2022] 3 S.C.R.

A CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
1052 of 2021.
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
S. K. Rai, R. K. Ranjan, V. K. Sinha, Sandeep, Ms. Suchita Dixit,
Navin Kumar, Ms. Kumari Bandana for M/s Ranjan and Company, Advs.
B
for the Petitioners.
Ranjit Kumar, Sr. Adv., Azmat Hayat Amanullah, Advs. for the
Respondents.
The Judgment of the Court was delivered by
C
K. M. JOSEPH, J.
1. This is a writ petition maintained under Article 32 of the
Constitution of India. The petitioners, four in number, seek reliefs which
read as follows:-
D “A Issue appropriate writ, order or direction in the nature of
certiorari quashing the notification number 689 of 2016 dated
23.08.2016 issued by Respondent No.1 in Bihar Gazette;
B Issue an appropriate writ, order or direction, directing the
Government of Bihar to pay compensation to the petitioners
E due to illegal, unconstitutional notification of government of
Bihar on the basis of FIR registered under wrong provision
of SC and ST Act.
C Or pass any other order or orders as this Hon’ble Court
may deem fit and proper in the facts and circumstances of
F the above said case.”
2. The impugned notification is dated 23.08.2016, which reads as
follows:-
“BIHAR GAZETTE
G Extraordinary Marks
Published by Government of Bihar
1 Bhadra 1938 (Sh)
No Patna 689, Patna, Tuesday, 23 August 2016
General Publication Department
H
SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1115
[K. M. JOSEPH, J.]

From A
Rajender Ram,
Chief Secretary of Government,
To all Chief Secretary of all departments, all divisional Commissioner,
all District Magistrate, the Secretary of Bihar Public Service B
Commission, Patna, Secretary of Bihar Staff Selection Commission,
the Secretary Central Secretary Board (Constable recruitment,
Patna, the controller of Examination Bihar Combined Entrance
Competitive, Examination Board, Patna, Registrar, office of
advocate General Patna High Court, and Secretary of Bihar State
Election Authority, Patna) C
Patna- 15 dated 08/August/2016
Subject:- In regard to issue Scheduled Tribe Certificate and other
facility to Lohara (Lohar) community.
Sir, D
1 As per order in the above said subject it is stated that Lohara,
Lohra (Lohar, Lohara) was mentioned at Item No.22 in the list of
the Constitution Scheduled Caste and Scheduled Tribe order
amendment Act 1976 which has been listed at item No.21 as
Lohara, Lohra by the Constitution Scheduled Tribe order E
Amendment Act, 2006 (Act No.48 of 2006).
2 In this regard, it is worth mentioning that the Constitution
Scheduled Caste Scheduled Tribe orders amendment Act 2006
No.48 of 2006 has been repealed by the Repealing and Amendment
Act 2016 (Act No.23 of 2016) Parliament. Hence in the above F
stated situation and in the light of the constitution Scheduled Caste
and Scheduled Tribe Order amendment Act 1976 (Act No.108/
1976) approval is given to issue caste of certificate of Scheduled
Tribe Certificate and other facility to Lohara (Lohar) Community.
Faithfully G
Rajender Ram
Additional Secretary of Government”
(Emphasis supplied)
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1116 SUPREME COURT REPORTS [2022] 3 S.C.R.

A 3. The case of the petitioners, in a nutshell, is as follows:-
The Lohar community in Bihar is not entitled to be treated as
members of the Scheduled Tribe. The matter relating to Scheduled Tribes
is governed by Article 342 of the Constitution. Invoking Article 342, it is
the case of the petitioners that the original Order was issued by the
B President in 1950. Thereunder Lohars were not treated as members of
the Scheduled Tribe. In fact, they were contemplated as members of
Other Backward Class (for short ‘OBC’). This position continued from
the year 1970 till 1976 when an amendment took place at the hands of
Parliament. The position, however, as to Lohars not being entitled to be
treated as Scheduled Tribe did not undergo any transformation.
C Thereafter, in the year 2006, Act No.48 of 2006 came to provide as
follows:-
“An Act further to amend the Constitution (Scheduled Tribes)
Order, 1950 to modify the list of Scheduled tribes in the State of
Bihar.
D
BE it enacted by Parliament in the Fifty-seventh Year of the
Republic of India as follows: -
1. This Act may be called the Constitution (Scheduled Tribe) Short
Title Order Amendment Act, 2006.
E 2. The Gazette of India Extraordinary
Part II-Sec 1]
Amendment of the Constitution (Scheduled Tribes) Order, 1950,
as amended by the Scheduled Castes and Scheduled Tribes Order
(Amendment) Act, 1976.
F
2. In the Constitution (Scheduled Tribes) Order, 1950, as amended
by the Scheduled Castes and Scheduled Tribes Order
(Amendment) Act, 1976, in the Schedule, in Part III relating to
Bihar, for item 22 (Since renumbered as item 21), as appearing in
the Hindi version of the said Act, the following shall be substituted,
G namely: -
“21. Lohara, Lohra”.
4. Still, thereafter, Parliament came to repeal the just
aforementioned enactment by Act 23 of 2016. Purporting to draw
H inspiration from the said enactment, the respondent-State has issued the
SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1117
[K. M. JOSEPH, J.]

impugned Notification. The result of the Notification is not far to seek as A
the last sentence of the said Notification lays bare the intent, purport and
object of the Respondent-State. In other words, seeking shelter under
the amending Act of 2016, approval was given to issue Scheduled Tribe
Certificate and other facilities to Lohar community.
5. It is the case of the petitioners that this is per se unconstitutional B
and illegal. It occasions breach of Articles 14 and 21 of the Constitution.
What is more, relying upon the same, proceedings have been initiated
against the petitioners under the provisions of the Scheduled Castes and
Scheduled Tribes (Preventions of Atrocities Act), 1989 (hereinafter
referred to as ‘the 1989 Act’). Petitioners were constrained to seek
anticipatory bail. Petitioner Nos.2 and 4 were unsuccessful. In fact, they C
had to undergo custody and all this is solely on account of the fact that
the respondent-State has proceeded to pass the impugned Notification
which has come as a handle in the hands of persons who are not entitled
to the protection under the 1989 Act, to use the enactment against the
petitioners.This, in turn, as already noticed has occasioned grave injustice D
to the petitioners, including incarceration in jails. In fact, learned counsel
for the petitioners Mr. S. K. Rai would point out that there are thousands
of FIRs filed in the State of Bihar invoking the impugned Notification
resulting in deprivation of the liberty of several persons. The case of the
petitioners further is that the respondent-State had the audacity to
disregard the declaration of law made by this Court, not once, but on E
three occasions. We shall refer to those decisions and it would suffice
for our purposes to reiterate that the petitioners, in these circumstances,
have approached this Court pointing out that the circumstances are such
that it warranted the petitioners to directly approach this Court under
Article 32 instead of approaching the High Court. F
6. Per-contra, Mr. Ranjeet Kumar, learned senior counsel assisted
by Mr. Azmat Hayat Amanullah, learned counsel appearing for the State
of Bihar, would point out that the petitioners should have approached the
High Court. What is at stake, according to the learned senior counsel, is
some ‘personal enmity’. It is also pointed out that there is a delay of G
about five years in seeking protection of this Court under Article 32 of
the Constitution. The petitioners have challenged the impugned
Notification of the year 2016 after five years. He would submit that the
petitioners were refused protection under Section 438 of the Code of
Criminal Procedure (for short ‘Cr.P.C.’). Petitioners ought to have worked
H
1118 SUPREME COURT REPORTS [2022] 3 S.C.R.

A out their remedies as against those orders and it does not lie in their
mouth to seek protection afforded under Article 32 of the Constitution in
the facts of this case.
FINDINGS

B 7. Article 32 of the Constitution provides for a Fundamental Right
to approach the Supreme Court for enforcement of the Fundamental
Rights. The founding fathers contemplated that the very right to approach
this Court when there is a violation of Fundamental Rights, should be
declared as beyond the reach of Parliament and, therefore, it is as a part
of judicial review that the right under Article 32 has been put in place
C and invoked from time to time.That in a given case, the Court may refuse
to entertain a petition under Article 32 of the Constitution is solely a part
of self-restraint which is exercised by the Court having regard to various
considerations which are germane to the interest of justice as also the
appropriateness of the Court to interfere in a particular case. The right
D under Article 32 of the Constitution remains a Fundamental Right and it
is always open to a person complaining of violation of Fundamental Rights
to approach this Court. This is, no doubt, subject to the power of the
Court to relegate the party to other proceedings.
8. At the heart of the Constitution lies certain principles which
E have, in fact, been recognised as part of the basic structure. Article 14
of the Constitution proclaims right to equality. The right against unfair
State action is part of Article 14. Unequals being treated equally is tabooed
under Article 14 of the Constitution. A person entitled to be treated as a
member of Scheduled Tribe under Article 342, cannot be treated on par
with a person who is brought in by an incompetent Body, viz., the State
F
in the manner done. Article 21 of the Constitution again is the fountain
head of many rights which are part of the grand mandate which has
been from time to time unravelled by this Court giving rise to the theory
of unenumerated rights under the Constitution. While liberty is a dynamic
concept capable of encompassing within it a variety of Rights, the
G irreducible minimum and at the very core of liberty, is freedom from
unjustifiable custody.
With these prefatory remarks, we may pass on to consider the
complaint of the petitioners and the response of the respondent-State on
the same.
H
SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1119
[K. M. JOSEPH, J.]

9. We may take up the first preliminary objection by the State, A
namely, that the petitioners have approached this Court with considerable
delay. The impugned Notification is issued in August, 2016. A person
cannotbe said to be aggrieved merely upon the issuance of an instrument
or of a law by itself. In fact, the Court may refuse to examine the legality
or the validity of a law or order on the basis that he may have no locus
B
standi or that he is not an aggrieved person. No doubt, the Courts have
recognized challenge to even a legislation at the hands of a public interest
litigant. However, we may only indicate, ordinarily, the Court may insist
on a cause of action and therefore, a person must be an aggrieved party
to maintain a challenge. We must not be oblivious to the fact that based
on the Notification, it appears that FIRs came to be lodged by persons C
claiming to be members of the Scheduled Tribe community and seeking
to invoke the 1989 Act. The FIRs lodged in the year 2020 occasioned
the petitioners to approach Courts seeking protection under Section 438
of the Cr.P.C. Two of the petitioners have not secured such protection.
Petitioner No.1, it appears was not arrested. But even assuming for a
D
moment, that the petitioners have come with some delay, we find
reassurance from the opinion of this Court in the judgment reported in
Assam Sanmilita Mahasangha & Ors. v. Union of India & Ors.
(2015) 3 SCC1, wherein this Court has inter alia held as follows:-
32. “…..Further, in Olga Tellis v. Bombay Municipal Corpn., it
has now been conclusively held that all fundamental rights cannot E
be waived (at para 29). Given these important developments in
the law, the time has come for this Court to say that at least when
it comes to violations of the fundamental right to life and personal
liberty, delay or laches by itself without more would not be
sufficient to shut the doors of the court on any petitioner.” F
Therefore, we do not think we should be detained by the
objection.We would think that delay by itself cannot be used as a weapon
to Veto an action under Article 32 when violation of Fundamental Rights
is clearly at stake.
G
10. Equally unimpressive is the further argument of the learned
senior counsel for the respondent-State that what is at stake is the case
of personal feud or personal enmity. This Court is not concerned with
the merits of the case as such. What this Court is concerned is with the
legal and constitutional aspects arising from the challenge to the impugned
H
1120 SUPREME COURT REPORTS [2022] 3 S.C.R.

A Notification in question. Once this Court is convinced that the Notification
has no legs to stand on and must collapse,it becomes the Court’s duty to
grant relief.
11. Another objection which is raised by the learned senior counsel
for the State is that this is a case again which should engage the attention
B of the High Court and this Court should not interfere under Article 32.
We have already dealt with the true purport of Article 32. We do not
think we should elaborate more on this aspect. We take the view that
this is clearly an appropriate case for reasons to follow where this Court
should consider the challenge to the impugned Notification.
C 12. Undoubtedly, the Constitution of India in Article 342 provides
for the manner in which the members of the Scheduled Tribe are to be
recognised. Article 342 provides for the power with the President after
consultation with the State to specify the Tribes which are to be treated
as Scheduled Tribes in that State or the Union Territory as the case may
be. Parliament is empowered in sub-Article (2) to include or exclude
D from the list. This is the scheme.
13. The first decision of this Court which chronicles the annals of
the dispute is the last of the three Judgments, i.e.,Prabhat Kumar Sharma
Vs. Union Public Service Commission And Others(2006) 10 SCC
587. Therein, it was, inter alia, held as follows:
E
“8. Under the Constitution (Scheduled Tribes) Order, 1950 issued
in exercise of powers conferred under Article 342(a) of the
Constitution of India, at Sl. No. 20 the tribe “Lohara” was
mentioned as a Scheduled Tribe for the State of Bihar. The first
Backward Classes Commission was set up in the year 1953 known
F as the Kaka Kalelkar Commission. According to the report of the
Kaka Kalelkar Commission, amongst the list of Backward Classes,
“Lohar” was shown at Sl. No. 60. However, the Commission
report also dealt with the Scheduled Tribes Order and the
Commission recommended that “Lohra” be added with “Lohara”
G in the Scheduled Tribes Order, 1950.
9. After the Kaka Kalelkar Commission Report, the Scheduled
Castes and Scheduled Tribes Order (Amendment) Act, 1956 was
enacted which was brought into force with effect from 25-9-1956
and for Bihar, Entry 20 was substituted to read as “Lohara” or
“Lohra”. Thus, right up to 1976 there was no ambiguity in the
H
SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1121
[K. M. JOSEPH, J.]

Scheduled Tribes Order as only “Lohara” was initially considered A
as a Scheduled Tribe and with effect from 1956 “Lohara” as well
as “Lohra” were mentioned as Scheduled Tribes.
10. In the year 1976 the Scheduled Castes and Scheduled Tribes
Order (Amendment) Act, 1976 was passed and in the English
version of the same viz. Entry 22 the position as existing from B
1956 was maintained. “Lohara” and “Lohra” were stated to be
Scheduled Tribes. However, in the Hindi translation of the said
entry “Lohara” was translated as “Lohar”. Thus, the Hindi
translation had “Lohar” and “Lohra” as two Scheduled Tribes.
After the 1976 amendment, members of the “Lohar” community
started claiming themselves to be members of a Scheduled Tribe C
even though they had been identified as a Backward Class as
early as in the year 1955 by the Kaka Kalelkar Commission.
11. Because of the ambiguity in the Hindi translation of the 1976
Scheduled Tribes Order, members of “Lohar” community claimed
themselves to be members of a Scheduled Tribe. The first litigation D
which came to the Supreme Court on this subject was in Shambhoo
Nath v. Union of India [ CA No. 4631 of 1990 dated of on 12-9-
1990 (Ed.: Coram: Ranganath Misra, M.M. Punchhi and K.
Ramaswamy, JJ.)] . This came up for hearing before three Judges
of this Court. This Court disposed of the appeal on 12-9-1990 [ E
CA No. 4631 of 1990 dated of on 12-9-1990 (Ed.: Coram:
Ranganath Misra, M.M. Punchhi and K. Ramaswamy, JJ.)] by
passing the following order:
“1. Special leave granted.
2. The short point raised in this appeal is as to whether the Central F
Administrative Tribunal was right in holding that the appellant did
not belong to the Lohar community which has now been declared
as a Scheduled Tribe in Chapra District of Bihar. It is not in dispute
that from 1976 onwards the community has been so included but
according to the Postal Department of the Union of India, at the
time when the appellant entered into service, the community had G
not been so included and, therefore, the recruitment on the footing
that he was a member of a Scheduled Tribe entitled to reservation
was bad.
3. We have looked into the record and have heard counsel for the
parties. In view of the accepted position that Lohar community is H
1122 SUPREME COURT REPORTS [2022] 3 S.C.R.

A included in the Scheduled Tribe from the date of amendment of
the list in 1976 and the dispute as to whether the community was
known as ‘Lohar’ or ‘Lohra’ and if it was the latter, it has been so
included from before, we do not think the Tribunal was justified in
holding the view it has taken.
B 4. The appeal is allowed and the order of the Tribunal is vacated.
The appellant shall now return to duty. The period between 16-
12-1986 when the order removing him was made and the date
when he would join in terms of our decision now he shall be entitled
to 50% of his salary. In regard to all other service benefits, his
service shall be treated to be continuous. This decision may not
C be taken as a precedent. No costs.”(emphasis supplied)
It may be noted that at that point this Court did not notice the
discrepancy between the English and the Hindi translation of the
Scheduled Tribes Order and proceeded on the premise that
“Lohar” being mentioned in the Hindi version of the Order, the
D appellant was entitled to get the benefit of being a Scheduled
Tribe. Even the counsel appearing on behalf of the Union of India
did not point out to the Court the discrepancy and the order was
passed treating the “Lohars” as members of the Scheduled Tribe.
Rather the Union of India accepted the position that “Lohar”
E community is included in the Scheduled Tribe. This order was
passed by the Court without any contest.”
14. Next, we must notice the Judgment rendered by a Bench of
three learned Judges of this Court in Nityanand Sharma and Another
vs. State of Bihar and Ors. (1996) 3 SCC 576. Therein, the appellants
F who hailed from the State of Bihar and belonged to the Lohar Caste
claimed the status as Scheduled Tribes under the Scheduled Tribes Order
of 1950 as amended by the Scheduled Castes and Scheduled Tribes
Orders (Amendment) Act, 1976. We need only notice the following
paragraph Nos. 11, 13, 15:

G “11. ‘Lohra’ or ‘Loharas’ are thus different from ‘Lohar’ in Bihar
as ‘Lohars’, as noticed hereinbefore are ranked with ‘Koiris’ and
‘Kurmis’ whereas ‘Lohra’ or ‘Loharas’ are merely sub-castes, a
sept of Mundas in Chotanagpur or sub-tribes of Asurs who are
Scheduled Tribes.
xxx xxx xxx
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SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1123
[K. M. JOSEPH, J.]

13. The question then is: Whether Lohars could be considered by A
the Court as synonyms of Loharas or Lohras? This question is no
longer res integra. In Bhaiyalal v. Harikishan Singh [(1965) 2
SCR 877 : AIR 1965 SC 1557] , a Constitution Bench of this
Court had considered in an election petition whether Dadar caste
was a Scheduled Caste. It held that the President in specifying a
B
caste, race or tribe has expressly been authorised to limit the
notification to parts of or groups within the caste, race or tribes. It
must mean that after examining the social and educational
backwardness of a caste, race or a tribe, the President may come
to the conclusion that not the whole caste, race or tribe, but parts
of or groups within them should be specified as Scheduled Caste C
or Scheduled Tribe. The result of the specification is conclusive.
Notification issued under Article 341(1), after an elaborate enquiry
in consultation with the Governor and reaching the conclusion
specifying particular caste, race or tribe with reference to different
areas in the State, is conclusive. The same view was reiterated
D
in B. Basavalingappa v. D. Munichinnappa [(1965) 1 SCR 316
: AIR 1965 SC 1269] .”
(Emphasis supplied)
15. Dealing with Shambhu Nath case, this Court held as follows:
E
“16. … In Shambhu Nath case [ CA No. 4631 of 1990, decided
on Sept. 15, 1990] this Court, therefore, did not intend to lay down
any law that Lohars are Scheduled Tribes. Unfortunately due to
concession by the counsel for the Union, without due verification
from English version, this Court accepted Hindi version placed
before the Bench and held that they were included as Scheduled F
Tribes. There was an obvious mistake in accepting a mistaken
fact. Therefore, this Court proceeded on that mistaken assumption
without verification from the Act that Lohars are included in Part
III of Second Schedule relating to the State of Bihar. Therein this
Court stated thus:
G
“In view of the accepted position that Lohar community is included
in the Scheduled Tribe from the date of the amendment of the list
in 1976 we do not think that the Tribunal was justified in holding
the view it has taken.”
H
1124 SUPREME COURT REPORTS [2022] 3 S.C.R.

A 17. This Court, therefore, proceeded on the premise as admitted
by the counsel that Lohar was included in the Act as Lohars in
the Second Schedule as Scheduled Tribe. The counsel wants us
to read the earlier sentence, viz., “We have looked into the record”.
In view of the factual quotation from the Act and the Second
Schedule, as extracted in the earlier part of the judgment, the
B
effect of the above sentence speaks for itself and seems to be
otherwise. As a fact the Bench proceeded on the basis of the
concession of the Union counsel. It proved to be an obvious mistake
and as a fact the translated Hindi copy was placed before the
Court and the Court proceeded on that premise. …”
C 16. We may finally notice paragraph-20 of Nityanand Sharma
(supra):
“20. Accordingly, we hold that Lohars are an Other Backward
Class. They are not Scheduled Tribes and the Court cannot give
any declaration that Lohars are equivalent to Loharas or Lohras
D or that they are entitled to the same status. Any contrary view
taken by any Bench/Benches of Bihar High Court, is erroneous.
It would appear that except some stray cases, there is a consistent
view of that Court that Lohars are not Scheduled Tribes. They
are blacksmiths. We approve the said view laying down the correct
E law.”
17. A perusal of paragraph No.20 would reveal unambiguously
that this Court declared that Lohar is an Other Backward Class and
what is more, they are not Scheduled Tribes and the Court cannot give
any declaration that Lohars are equivalent to Loharas or Lohras or that
F they are entitled to the same status.
18. In the next judgment, which is reported in 1997 (3) SCC 406,
Vinay Prakash and Others vs. State of Bihar and Others, in the very
first sentence of the Judgment, this Court notices that it was the fourth
attempt made by the Lohar community to get the status of Lohara.
G Thereafter, the Court proceeds to hold that Lohars are, admittedly,
blacksmiths, a backward community in the State of Bihar, whereas
Loharas are Scheduled Tribes in the State of Bihar. The Court further
notices that an attempt was made to re-open the declaration contained
in Nityanand Sharma (Supra) also. The Court held, inter alia, as
follows:-
H
SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1125
[K. M. JOSEPH, J.]

“6. The question is whether a person, who is not a Scheduled A
Tribe under the Presidential notification, is entitled to get the status
of a Scheduled Tribe. It is already held that though the English
version of the Presidential notification clearly mentions “Lohara”,
there was no mention of Lohar. But while translating it, Lohars
were also wrongly included as was pointed out by this Court in
B
Nityanand Sharma case [(1996) 3 SCC 576] . It would, thus, be
seen that the Presidential notification was unequivocal and,
therefore, Lohars were not Scheduled Tribes within the meaning
of the definition of “Scheduled Tribes” under Article 366(25) read
with the notification issued by the President of India under Article
342(1) of the Constitution and, therefore, this Court had pointed C
out that they are not entitled to the status of Scheduled Tribes. It
is clear that if a Presidential notification does contain any specific
class or tribe or a part thereof, then, as held by this Court, it would
be for Parliament to make necessary amendments in Article 342(2)
of the Constitution and it is not for the executive Government but
D
for the Court to interpret the rules and construe as to whether a
particular caste or a tribe or a part or section thereof is entitled to
claim the status of Scheduled Tribes. Under these circumstances,
we think that the decision in Nityanand Sharma case[(1996) 3
SCC 576] does not require any reconsideration; so also other
decisions referred to therein except the Palghat case [(1994) 1 E
SCC 359] , which was later considered in another judgment. Under
these circumstances, we do not think that there is any illegality in
the decision rendered by the Division Bench of the High Court
warranting interference.
7. It is then contended that the doctrine of prospective application F
of the judgment in Nityanand Sharma case [(1996) 3 SCC 576]
may be applied. In support thereof, the learned counsel relied
upon two judgments of this Court in State of Karnataka v. Kumari
Gowri Narayana Ambiga [1995 Supp (2) SCC 560 : 1995 SCC
(L&S) 887 : (1995) 30 ATC 37] and Govt. of A.P. v. BalaMusalaiah
[(1995) 1 SCC 184 : 1995 SCC (L&S) 275] . We are afraid, we G
cannot accede to the contention of the learned counsel. This is a
case where the respondents were not entitled, from the inception,
to the social status of Scheduled Tribes. Since the entry gained by
them was based on wrong translation made by the Department in
the notification and the order was obtained on that basis, the same H
1126 SUPREME COURT REPORTS [2022] 3 S.C.R.

A cannot be made the basis of grant of the status of Scheduled
Tribes. We cannot allow perpetration of the illegality since under
the Constitution they are not at all entitled to the status of Scheduled
Tribes. Under these circumstances, the above two judgments have
no application to the facts in this case.”
B (Emphasis supplied)
19. It was nearly after a decade, again that this Court had occasion
to consider this question and the same is reported in Prabhat Kumar
Sharma (supra). The Court, in fact, notices the fact that it was the
second attempt to revisit the exposition of law in Nityanand Sharma
C (supra).
An attempt was made before this Court in Prabhat Kumar
Sharma (supra) to contend that after the coming into force of the Official
Languages Act, 1963, the Hindi version was the authoritative text and
should there be a conflict between the Hindi and English version, the
D Hindi version should prevail. These arguments were specifically dealt
with and rejected.
“21. Learned Senior Counsel appearing for the appellant contends
that after the coming into force of the Official Languages Act,
1963 the Hindi version was the authoritative text and in the case
E of ambiguity between Hindi and English versions, the Hindi version
would prevail. Article 348 of the Constitution clearly provides
English to be the authoritative text in respect of Acts of Parliament,
amendments to Acts subject to any law made by Parliament. The
Official Languages Act, 1963 vide Section 3 thereof provides for
continuance of English language for official purposes of the Union
F and for use in Parliament. Section 5 provides for a Hindi translation
of all Central Acts and Ordinances promulgated by the President
or if any order or rule or regulation or bye-laws issued under the
Constitution or under any Central Act. Section 6 deals with the
State Act with which we are not concerned in the instant case.
G From a conjoint reading of Article 348 of the Constitution and
Sections 3 and 5 of the Official Languages Act, 1963, English
continues to remain the authoritative text in respect of the Acts of
Parliament.”
20. Thereafter, we may only notice to do justice to the petitioners,
the judgment of this Court reported in (2020) 14 SCALE 456, The
H
SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1127
[K. M. JOSEPH, J.]

State of Maharashtra &Anr. vs. Keshao Vishwanath Sonone&Anr. A
and we do not think we should burden our judgment further with reference
to case law. Suffice it to say that this Court has categorically ruled that
Lohars were not members of the Scheduled Tribe and they were members
of the OBC in the State of Bihar.
21. In this background, we must consider the challenge to the B
impugned Notification. The stand of State is that in the year 1976, in the
Hindi version of the Act, at serial No.22 of the List of Scheduled Tribes
for Bihar, the social group ‘Lohar, Lohra’ (in Hindi) was specified. It is
their further case that later by another amendment in the year 2006 (Act
48/2006), amendment was made to the Act of 1976, whereby the schedule
in part III relating to the State of Bihar, for item No. 22 (since renumbered C
as item 21), as appearing in the Hindi version of the Act, the words
‘Lohara, Lohra’ were substituted for the words ‘Lohar, Lohra’.
Reference is made to the fact that during this time various associations
of Lohar caste were repeatedly making representation and emphasizing
that the word ‘Lohara’ was the English translation of the word ‘Lohar’. D
It is further contended that in Act No.48 of 2006, persons belonging to
the Lohar social group in the State of Bihar were not being recognized
as Scheduled Tribe at the time. However, keeping in view the
backwardness of the said caste, an ethnographic report was
commissioned to be prepared to evaluate the social and educational status
of the Lohar social group. This group , inter alia, concluded on the basis E
of survey of 38 districts of Bihar that Lohara/Lohra were both mere
synonyms of the Lohar social group and were one and the same. On the
basis of the ethnographic report, the State recommended to the Central
Government to include the Lohar social group in the list of Scheduled
Tribes. During the pendency of the recommendation with the Central F
Government, it came to the notice of the State Government that
Parliament hadenacted Act 23 of 2016 which had repealed the earlier
amending Act of 2006 which had substituted the words ‘Lohar, Lohra’
with the words ‘Lohara, Lohra’. Various associations of the Lohar caste
started claiming, owing to the repeal of the 2006 Act, that the status of
the 1976 Act stood restored. In the light of the aforesaid and owing to G
the ethnographic report, the State decided to facilitate the Lohar caste in
the State of Bihar as a Scheduled Tribe on the basis of the impugned
Notification. The State Government has also requested the Central
Government to delete the entry of ‘Lohar’ caste from the Central
Government’s list of OBCs and the response of the Central Government H
1128 SUPREME COURT REPORTS [2022] 3 S.C.R.

A in this regard is awaited, is the further case of the State. In the meantime,
Entry No.115 of the EBC List pertaining to caste ‘Lohar’ was deleted.
Further additionally, and very recently, the State Government has also
made a request to the Central Government dated 28.10.2021 requesting
it to delete ‘Lohar’ caste from entry No.18 of the Central OBC list for
Bihar by letter dated 08.08.2016 which was published as Gazette No.689
B
dated 23.08.2016 which is the impugned Notification.
22. We are deeply anguished by the state of affairs which has
been brought to our notice through the contents of the petition under
Article 32. This is not a matter which has not engaged the attention of
this Court, which as we have noticed has dealt with the issue on as
C many as three occasions. It has been clearly and unequivocally declared
that Lohars are not members of the Scheduled Tribe and they are
members of the OBCs. Under the principle of separation of powers, in
the manner we have it under the Constitution, it becomes the duty and
the right of the Courts to settle disputes. The Constitution, no doubt, has
D given powers to the other organs of the State. When it comes to taking
decisions which affectthe rights of the citizens, it is the paramount duty
of the Executive to enquire carefully about the implications of its
decisions. At the very minimum, it must equip itself with the law which is
laid down by the Courts and find out whether the decision will occasion
a breach of law declared by the highest Court of the land. This is a case
E where we have noticed an unbroken line of reasoning and decisions as
noticed in the three judgments which we have referred to. This Court
has also pronounced on the aspect of the English language prevailing
over the Hindi version, if there is a conflict.
23. We should further realize the impact of a decision on the Rights
F and what is more, Fundamental Rights of the citizens flowing from of
Government’s action: and the need to increasingly evolve a system,
whereby decision making promotes and strengthens the rule of law.
Respect for the decisions of the Courts holding the field are the very
core of Rule of Law. Disregard or neglecting the position at law
G expounded by the Courts would spell doom for a country which is
governed by the Rule of Law.
24. In this case, it is clear as daylight that the Lohars were not
included as members of the Scheduled Tribe right from the beginning
and they were, in fact, included as members of the OBCs in the State of
H Bihar. This position has attained articulation at the hands of this Court
SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1129
[K. M. JOSEPH, J.]

and this Court has traced the history of the matter in the decision in A
Prabhat Kumar Sharma (supra).
25. What has apparently happened is that in the year 2006, initially,
by the Act 48 of 2006, in the Hindi version of the 1976 amendment, the
words ‘Lohara, Lohra’ were added as serial No.21 in place of the earlier
serial No.22 which was subsequently renumbered as serial No.21. B
Apparently, this amendment did not and would not advance the case for
the Lohars being Scheduled Tribes. On the other hand, it was in conformity
with the English version which is the authoritative version. Subsequently,
in 2016, it is true that Act 48 of 2006 came to be repealed. Even taking
the effect of the repeal to be that Act 48 of 2006 which was repealed
was never in the statute book, it cannot possibly lead to the position that C
Lohars can make their way into the list of Scheduled Tribes. What is the
basis for the respondent-State to take it upon itself to issue the impugned
Notification by which referring to the 2016 amendment repealing the
2006 Act, it proceeded to give approval to caste certificate of Scheduled
Tribe to Lohara, Lohar community?Lohar is not same as Lohara.Including D
Lohars alongside ‘Lohara’ is clearly illegal and arbitrary. The English
text which has been held to be the authoritative text and the decisions of
this Court have been ignored.We cannot at all, approve this approach
which at the very minimum betrays total non-application of mind which,
in turn, leads to an inference that it has been arrived in an arbitrary
manner. Thus, it attracts the wrath of Article 14 of the Constitution. E
This, in turn, justifies the approach of the petitioners under Article 32 of
the Constitution.
26. The implications of this Notification are deep and it affects
the rights of the citizens in the most adverse manner. The impact of the
Notification is also to be gauged in the context of the 1989 Act as it is F
with reference to the Presidential Notification under Article 342 that
prosecution under the 1989 Act is also to be judged. In the other words,
a person who is Lohar on being treated as Scheduled Tribe would be
entitled to invoke the protection of 1989 Act. That apart, it directly impinges
upon the rights of the persons who stand in the shoes of the accused. G
The provisions of the 1989 Act have put stringent conditions in the matter
of grant of bail. Anticipatory bail is not even permitted under Section 438
of the Code of Criminal Procedure, 1973 vide Sections 18 and 18A of
the 1989 Act. No doubt, the effect of these provisions has been clarified
by the Court [See (Prathvi Raj Chauhan vs. Union of India and
others (2020) 4 SCC 727)]. H
1130 SUPREME COURT REPORTS [2022] 3 S.C.R.

A 27. These are aspects which should have been borne in mind.
This is apart from the fact that inclusion of persons otherwise disentitled
in the category of Scheduled Tribes would directly constitute an
unjustifiable inroad into the rights of those members of the Scheduled
Tribe in the matter of public employment and in other respects.
B 28. We are, therefore, of the view that there is absolutely no basis
for respondent-State to have issued the impugned Notification. The
limitation on the power of the Executive in this regard has been declared
in Vinay Prakash (supra). We would think that the approach has been
very casual and it has created a situation for which the State is solely
responsible, even when it was entirely avoidable if only the respondent
C had taken proper care and applied its mind as we have already noticed.
29. In view of the aforesaid discussion, the writ petition must be
allowed and the impugned Notification must perish.
The further, relief which is sought by the petitioners is that they
D must be given compensation. Undoubtedly, this Court has power of grant
of compensation in the case of violation of Fundamental Rights. If any
authority is required for the same, we may only refer to the judgment of
this Court in Nilabati Behera @ Lalita Behera v. State of Orissa
(1993) 2 SCC 746. We do not think that we should refer to any further
judgments.
E
30. We have noticed that there is a case for the petitioners that
petitioner Nos. 2 and 4 did undergo imprisonment for some time. No
doubt, there is a case for the State that the prosecution in regard to the
two petitioners was not solely premised on the complainants therein
belonging to the Lohar caste setting up a case under the 1989 Act. There
F is no relief sought in regard to quashing of the proceedings. However, we
do think that the petitioners must be adequately provided for in monetary
terms which we would describe as costs. In the facts and circumstances
of this case, we would think that an amount of Rs.5,00,000/- (Rupees
Five Lakhs) must be imposed as costs.
G 31. Resultantly, we allow the writ petition.We quash the impugned
Notification. We may notice that in the impugned Notification, the
direction is to give certificate to ‘Lohara’, (‘Lohar’) community. While
‘Lohara’ is a member of the Scheduled Tribe, ‘Lohar’ is not. Therefore,
while we have quashed the notification, it must not be understood as
meaning that ‘Lohara’ which is already included in the category of
H
SUNIL KUMAR RAI & ORS. v. THE STATE OF BIHAR & ORS. 1131
[K. M. JOSEPH, J.]

Scheduled Tribe is to be affected by this Judgment. We clarify that the A
quashing of the impugned Notification will be qua ‘Lohar’ community
and the Lohara will continue to get the benefit vouchsafed for them
under the Presidential Order as amended by the Acts.We direct that the
respondent No. 1 shall pay costs in the sum of Rs.5,00,000/- (Rupees
Five Lakhs) which shall be done within a period of one month from
B
today and the respondent shall produce proof of the payment of the
costs by production of the receipt of the same within a period of six
weeks from today. As regards the cases against the petitioners, it is for
the petitioners to work out the remedies in the appropriate Forum and
necessarily, the Courts will take note of the pronouncement which we
have made today. C
We would expect that the first and the second respondents will
issue appropriate direction(s) to the authorities in the light of today’s
pronouncement.
Pending application(s), if any stand disposed of.
D

Devika Gujral Writ petition allowed.
(Assisted by : Shevali Monga, LCRA)

E

F

G

H