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Monday, June 2, 2008

Status of Kol Adhiwasi community as Schedule Tribe

From the office of : - PHONE :- (0532)2637720/2436451, 9415284843, 9451181638
YOGESH KUMAR SAXENA CHAMBER NO 139
ADVOCATE, HIGH COURT HIGH COURT BUILDING
H.I.G. 203 PREETAM NAGAR ALLAHABAD.
SULAM SARAI, ALLAHABAD.
FOR – KOL ADIVASHI VIKASH SAMITI , U.P. ALLAHABAD
THROUGH ITS PRESIDENT SRI Surya Lal,
20/3B , CHAKDAUD NAGAR, KAZIPUR ROAD , NAINI , Allahabad
TO
(1) HON’BLE THE SPEAKER , LOK SHABHA
PARLIAMENT STREET NEW DELHI

(2)HON’BLE THE LAW MINSTER
MINSTRY OF LAW, COMPANY AFFAIR AND JUSTICE
NEW DELHI.

(3)HON’BLE CHAIRMAN NATIONAL COMMISSION FOR SCHEDULE
CASTE AND SCHEDULE TRIBE , NEW DELHI .

(4)RAGISTRAR GENERAL OF INDIA, MINISTRY OF SOCIAL JUSTICE& EMPOWERMENT MANSINGH ROAD NEW DELHI .

(5)CABINATE SECRETARY, SOCIAL JUSTICE AND EMPOWERMENT
GOVERNMENT OF INDIA , SECRETARIATE , NEW DELHI
WITH THE REQUEST FOR FORWARDING THE RECOMMENDATION OF STATE GOVERNMENT.

HON’BLE CHIEF MINISTER, U. P. LUCKNOW
Government of Uttar Pradesh, LUCKNOW
Through – Hon’ble Minister for Social Welfare ,
Government of Uttar Pradesh,LUCKNOW
REFFERANCE: - REQUEST FOR ISSUANCE OF APPROPRIATE DIRECTIONS FOR MAKING COMPLIANCE OF HON’BLE ALLAHABAD HIGH COURT DIRECTION TO THE UNION OF INDIA .TO TAKE APPROPRIATE ACTION FOR TRANSFERRING KOL COMMUNITY FROM THE LIST OF SCHEDULE CASTE TO SCHEDULE TRIBE AS PER THE RECOMENDATION OF STATE OF UTTER PRADESH BY THE JUDGEMENT DATED 17TH MARCH 2001 PASSED IN WRIT PETITION NO.9286 OF2001, KOL ADIWASHI VIKASH SAMATI, ALLAHABAD AND OTHERS VERSUS UNION OF INDIA AND OTHERS.
SUBJECT:- KOL COMMUNITY AND ITS RECOGNITION AS SCHEDULE TRIBE IN U.P.

The petitioner ’ kol Adhiwasi vikas samiti Register Security No 2809/1977-78filed Writ Petition praying that Hon’ble court may graciously be pleased to direct the Union of India to place the recommendation of state Govt., for transfer of ‘kol’ community members / citizen in utter Pradesh from the list of schedule caste to the of scheduled tribes for including them in the constitution (Schedule Tribe) order, 1950 (amendment) Act, 1976 (Act no. 108 of 1976) by amending the entry 19 of the VII schedule by placing it before the parliament expeditiously.
It is a matter of great concern that kol community is recognised as Schedule Tribe in Bihar, Madhya Pradesh, Maharastra and orrisa, but the status of identically situated individuals seeking recognition as such from the State of U. P. have yet not given such status by Govt. Of India. Gujjar Movement is a shame on the face of their demand, as the Tribal identity of these people are lacking. Sri Yogesh Kumar Saxena, Advocate, High Court prefers agitating the rights of Kol community from the pendulum of Court of Law by enforcement of Law and order situation.
It was further prayed that since the state Govt. vide its letter issued by Govt. of U.P on 16.3.2000, In pursuant of letter no. 8/1/97-SS (UP) dated 25.02.1997 issued from the office of Registrar general of India has already clarified the objection raised the this regard and the matter was considered in top priority in furtherance of the a fore said recommendation of state Got on 16.3.200 the benefit to the member of kol communities scheduled tribe inconsonant with their fundamental right conferred under Article 15 (4) or 16(4) read with Article 14,21,38,39,39-A, 41 and 46 of the constitution of India.
In the present case there is no occasion to appropriate to think as to whether the ‘’Kol ‘’ casts is educationally and socially backward casts as to place with the privilege conferred to this caste. Under the constitution (Scheduled Tribe) order, 1950 for being included amongst the list of castes,.the inquiry is needed by the commission meant for this purposes.
No such inquiry is needed in the present case, but no such inquiry is needed in the present case under Article 341 as the state Govt., has already a recommended to the national commission of scheduled castes and scheduled tribe and also to the Registrar General for placing such recommendation through the parliament
The concept of equality before the law contemplates minimizing the inequalities in income and eliminating the inequalities in status, facilities and opportunities. The aforesaid concept of equality is comprising of two clause I.e. ‘’equality before the law’’ and equal protection of the law. Both these clauses appear to be identical, but the contents are not same. The contents of expression ‘’equality before the law ‘’ is illustrated not only by article 15 to 18, but also by several article in part –IV, in particular, article 38, 39, 39-A, 46 of constitution of India.
Amongst others the concept of equality before the law contemplates for securing adequate means of live livelihood to its citizens and to promote with special care the educational and economic interest of the weaker section of the people, in particular the scheduled tribes and to protect them from social injustice and all form of exploitation. By part XVI of the constitution contain contains ‘’ special pro vision relating to curtains classes’’. The ‘’classes’’ which special provisions are made are scheduled castes, scheduled tribe and the Angle –Indian community. Under Article 340 the president may by order appoint a commission to territory of I India. It has been provide that difficulty under which they labor and to make recommendation as to the steps, should be taken by the union to remove such difficulties and to improve their condition.

The sixty fifth Amendments, the Article 338 have been extensively amended. It provides for establishment of commission for the scheduled castes and scheduled tribes.

It shall be duty of the commission: -
(a) to investigate and monitor all matters relating to the safeguards provided for the scheduled castes and scheduled tribes under these constitution or under any other law for the time being in force or under any order of the Govt. and to evaluate the working of such safe guards :
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the scheduled castes and scheduled tribes;
(c) to participate and advise on the planning process of souci-economic development of the scheduled cast and scheduled tribes and to evaluate th progress of their development under the Union and any states;
(d) to present to the president, annually and at such other times as the commission may deem fit , reports upon the working of those safeguards;
(e) to make in such reports recommendation as to the measures that should be taken by the Union or any state for the effective implementation of those safeguard and other measure for the protection, welfare and souci-economic development of the scheduled castes and scheduled tribes; and
(f) To discharge such other function in relation the protection, welfare and development and advancement of the scheduled castes and scheduled tribes as the president may, subject to the provision of any made by parliament, by rule specify.
Clause (6) provides that the president shall cause all such report to be laid before each House of parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the union and the reasons for the non acceptance if any, of any of such recommendation.
Clause (7) being relevant may also be read here. It reads, ‘’where any such report or any part thereof, relates to any matter with which any states Govt. is concerned, a copy of such report shall be forwarded k to the Governor if the state who shall cause it to be laid before the legislature of the state along with a memorandum explaining the action taken or proposed to be taken on the recommendation relating to the state and the reasons for the non acceptance, if any, of /any (or) any of such recommendation’’.

Clauses (10) bring in socially and education ally backward class identified by the Govt. on the basis of the report of the commission appointed under of the Article 340 and Anglo –Indian within the purview of the expression ‘’ scheduled castes scheduled tribes ‘’. In this article reference to the S.C. & S.T. shall be construed as including reference to such other back- ward class as the president may on receipt of the report of a commission appoint under clause (i) of Article 340, by order specify and also to the Anglo Indian community.
Dr. Ambadkar had stated, ‘’ then we have quite a massive opinion which insists that although theoretically it is good to have the principle that the shall be equality at opportunity, there must at the same time be a provision made for the entry of certain communities which have so far been outside the administration ‘’.. It was this demand, which was mainly responsible for the incorporation of clause (4) in Article 16. As a matter of fact, in some of the southern states, reservations in favor of O.B.Cs. Were in vogues since quite a number of years prior to the constitution. There was a demand for similar reservation at the center. In response to this demand and also in realization of its obligation to provide for such reservations of backward section of the society the central government appointed a backward class commission under article 340 of the constitution on January 29,1953. The commission, popularly know as kaka kalekar commission, was required ‘’to investigator the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labor and to make recommendations as to the steps that should be taken by the union or any state to remove difficulties and to improve their conditions.
The commission submitted its report on March 30, 1955. According to it, the relevant factors to consider while classifying backward classes would be their traditional occupation and profession, the percentage of literacy or the general education advancement made by them; the estimated population of the community and the distribution of the various comminutes throughout the state or their concentration in certain areas. The commission was also of the opinion that the social position which a community occupies in the caste hierarchy would also have to be considered as well as its representation in government service or in the industrial sphere. According to the commission. The causes of education backwardness amongst the educationally and backward communities were (i) traditional a pithy for education on account of social and environmental conditions or occupational handicaps; (ii) poverty and lack of educational institution in rural areas and (ii) living in in accessible areas. The chairman of the commission, kaka kalelkar, however, had second thoughts after signing the report. In the enclosing leer addressed to the president he virtually pleaded for the rejection of the report on the ground that the reservation and other remedies recommended on the basis of caste would not be in the interest of society and country. He opined that the principle of caste should be ached altogether. Then alone, he said, would it be possible to hold the extremely poor and deserving members of all the communities, at the same time, he added, preference ought to be given to those who come from traditionally neglected social classes.
The report made the commission we considered by the central government, which apparently was not satisfied with the approach adopted by the commission in determining the criteria for identifying the backward classes under Article 15(4). The memorandum of action appended to the report of the commission while placing it in the table of the parliament (as required by clause (3) of Article 340 on September 3. 1956.pointed out that the caste state us the greatest hindrance in the way of our progress to egalitarian society and that in such a situation recognition of certain specified castes as backward may serve to maintain and perpetuate the existing distinctions in the basis of caste. the memorandum also found fault with certain tests adopted by the commission for identifying the backward classes . it expressed the opinion that amore systematic and elaborate basis has to be evolved for identifying backward classes . be that as it may , the report was never discussed by the parliament .
No meaningful action was taken after 1956 either for constituting another commission or for evolving a better criterion ultimately. On august 14. 1961. The central government wrote to all the state government stating inter alia that ‘’ while the state government have the discretion to choose their own criteria for defining backwardness, in the view of the government of India it would be better to apply economic tests then to go by caste ‘’. The letter stated further rather inexplicably.
That ‘’ even if the central Govt. Were to specify under Article 338 (3) certain groups of people as belonging to other backward classes; it will still be open to a very state Govt. to draw up its own lists for the purposes of Article 15 &16. As, therefore the state Govt. may adhere to their own lists. Any All-India list drawn up by the central government would have no practical utility. Various states Governments there upon appointed commission for identifying backward classes and issued orders identifying the socially and economically backward classes and reserving certain percentage of posts in their favor. So far as the central services are concerned, no reservations were ever made in favour of other backward classes though made in favor of scheduled castes and scheduled tribes.
By an order made by the president of India in the yea 1979 under Article 340 of the constitution , a backward class commission was appointed to investigate the condition of socially and educationally backward within the territory of India, which commission is popularly known as mansal commission . The term of reference of the commission were: -
(a) to determine the criteria for defining the socially and educationally backward classes ;
(b) to recommend steps to be taken for the advancement of the socially and educationally backward classes of citizen so identified ;
(c) to examine the desirability or otherwise of making provision for the reservation of appointments making provision for the reservation of appointment or pest in favor of such backward classes of citizen which are not adequately represented in public services and post in connection with the affair of the union or of any state ; and
(d) To present to the president a report setting out the fact as found by them making such recommendation as the think proper.
The commission was empowered to: -
(a) obtain such information as they may consider necessary or relevant for their purpose in such form and such manner as they may think appropriate from the central Got , the union territory administration and such other authorities , organization or individual as may , in the opinion of the commission be of assistance of them ; and
(b) Hold their sitting or the sitting of such sub communities as the may appoint from among their own member Kat such time and such place as may be determined by, or under the authority of the chairman.’’
Chapter V Del with social dynamic of cast that not with standing public declaration condemning the casts; it has remained a significant basis of action in politics and public life. Reference is made to several caste associations
The above account should serve as a warning against any hasty conclusion about the weakening of caste as the basis of social organization of their Hindu society. The pace of social mobility is no doubt increasing and some tradition features of the caste system have inevitably weakened, but what caste has lost on the ritual front it has more than gained on the political front. This has also led to some adjustments in the power equation between the high and low castes and there by accentuated social tensions. Whether these tension render the socials fabric or the country is able to resolve them by internal adjustment will depend on how understandingly the ruling high castes handle the legitimate aspiration and demands of the historically suppressed and backward classes.
The chapter deals with social justice, merit and privilege. It attempt to establish, that merit in a elitist society is not something inherent but is the consequence of environment privileges enjoyed by the member of higher castes. This is sought to be illustrated by giving an example of two boys Lallu and Mohan. Lallu is village boy belonging to a backward class occupying a low social position in the village and caste hierarchy. He comes from a poor illiterate family and studies at a village school, where the Laval of instruction is woeful. On the other hand, Mohan comes from a fairly well off middle class and educated family, attends one of the good public school in the city, he assistance at home besides the means of acquiring knowledge through television, radio, magazines and so on. Even though both Lallu and Mohan posses the same level of intelligence, Lallu can never compare with Mohan in any open competition because of the several environment disadvantage suffered by him.
Chapter VII deal with social justice, constitution and the law, It refers to the relevant prevision of the constitute to the decision in M.R .Balaji Vs state of Mysore 1963 supple (1) SCR 439; (AIR1963 SC 649) and various subsequent occasion of Hon’ble supreme court and discusses the principles flowing from the said decision .
It notes that the subsequent decision of this court in C.A. Rajendrran Vs. union of India 1968 (1) SCR721; (AIR 1968 SC 507). State of Andhra Pradesh Vs P. Sagar 1968 (3) SCR 595; (AIR 1968 SC 1379). And state of Andhra Pradesh Vs. U.S.V. Balram 1972(3) SCR; (AIR 1972 SC 1375). Etc show a marked shift from the original position taken in Balaji or several important points. in particular, it refers to the observations in Rajendran to the effect that caste is also a class of citizens and if the class as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it was socially and educationally backward class of citizens with the meaning of Article 15 (4) . It refers to the sate in A. Peeriakaruppan Vs state of Tamil Nadu (1971 (2) SCR 430 (AIR 1971 SC 2303 to the effect that a case has always been recognized as a class, It also recommends the dissenting view of Subroy J in T De vadasan Vs. union of India 1964(4) SCR 680; (AIR 1964SC 179) (wrongly referred to as Rangachari)- (general manager, southern railway Vs rangchart 1962 (2) SCR 586; (AIR 1962 SC 36).
The Hon’ble supreme court has considered the mater pertaining to the rights of scheduled tribes in case of Bahiya Ram Munda versus Anirudh Patar (1970(2) SCC 825), state of Maharashtra Vs Abhat AIR 1985 SC 328, B Basavalingappa Vs D, Munichinnappa AIR 1965 SC 1269 and in srish kumar chaudhari Vs state of Tripura 1994(1) SCC 359 has considered that it is only the parliament which is compatant to amand the order issued under Article 342 and additional protection to the member of schedule tribe having regard to social and educational backwardness which are suffering since a considerable time /long length of time , may be considered after completion of the scheduled tribe to the member of Kol community in Uttar Pradesh, the matter may not be kept pending from last 50 years .

The authority to provide and declare the fundamental right any community for being included in the list of scheduled tribes is vested in the parliament under Article 342 (2) of the constitution of India. The constitution (scheduled tribe) order, 1950 was by the president for determination to scheduled caste. However it is only the parliament which is competent to amend the orders issued under Article 34 and 342 of the constitution and hence it is not possible for the state Govt. to modify the said order. However the constitution mandate provide under Article 15(2), 16(2) and 29 in chapter of fundamental rights as well as article 41 and 46 has to be maintained by the union of India by given effect to the recommendation of the state Govt., for classifying a particular castes as scheduled tribes according to their education and social backwardness.
The constitution assembly (official report volume 9) as explained by Dr B .R. Ambedkar explained as follows: -
(a) Both these article (341 and 342) are meant to eliminate the necessity of burdening the constitution with a long list of schedule tribes.
(b) the president in consultation with the Governor may have power to issue general notification specifying all castes of scheduled casts and scheduled tribe for the purposes of privilege conferred by the constitution
(c) Undoubtedly issuing consultation with and on the advise of Governor for any addition so made must be made by parliament and not by president.
(d) Object to eliminate any kind of political factor and having a play in the matter of disturbance in schedule so published by the president.

It is well settled proposition of law that where the intention and object of she Got is contrary to mandate issued by the constitution and it is with extraneous and other political consideration as was condemned by Dr. B.R Ambadkar in the debate of constituent assembly (official guardian of the citizen at large may rise of the occasion for issuing the direction to the cabinet Secretary and Register General of the Scheduled tribe s commissions to place the matter before the parliaments on the basis of recommendation of state Government.


(Surya Lal)

KOL ADIVASHI VIKASH SAMITI , U.P. ALLAHABAD
THROUGH ITS PRESIDENT SRI RAM KHILAVAN,
20/3B , CHAKDAUD NAGAR, KAZIPUR ROAD , NAINI , Allahabad




Dated
YOGESH KUMAR SAXENA
Advocate, High court
Through the petitioner’s counsel