Supreme Court: In a batch of appeals against the order passed by the Bombay High Court, wherein the Court has held that the affinity test is an integral part of the determination of the correctness of the caste claim, the full bench of Sanjay Kishan Kaul, Abhay S. Oka* and Manoj Misra, JJ. held that affinity test is not a litmus test to decide a caste claim and is not an essential part in the process of the determination of correctness of a caste or tribe claim in every case
Background:
The Bombay High Court in Shilpa Vishnu Thakur v. State of Maharashtra, 2009 SCC OnLine Bom 705 has interpreted the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, (‘2000 Act’) as well as Maharashtra Scheduled Tribes (Regulation of Issuance and verification of) Certificate Rules, 2003 (‘ST Rules’). The impugned judgment discusses and lays down various procedural aspects to be followed by the Scrutiny Committee.
In the order dated 24-03-2022, a Bench of this Court noted that there was a conflict of views expressed in two decisions of coordinate Benches of this Court in Vijakumar v. State of Maharashtra, (2010) 14 SCC 489, wherein it was held that if a candidate fails the affinity test at any stage, a caste validity certificate cannot be granted to him, and Anand v. Committee for Scrutiny & Verification of Tribe Claims, (2012) 1 SCC 113, wherein it was held that the affinity test is not the only criteria for deciding a caste claim based on a caste certificate issued by a Competent Authority.
Issue:
Whether the affinity test is a litmus test for deciding a caste claim?
Analysis:
The Court took note of Dayaram v. Sudhir Batham, (2012) 1 SCC 333, wherein it was held that the directions issued in the case of Madhuri Patil v. Commr., Tribal Development, (1994) 6 SCC 241 would apply only until appropriate legislation is enacted. Hence, the Court said that after the 2000 Act came into force, only the provisions of the said enactment will prevail.
The Court interpreted the provisions of the 2000 Act, and said that under the 2000 Act, an application for the grant of caste certificates is to be made to the Competent Authority, that is mandated to follow the procedure prescribed by the Rules. After following the procedure prescribed, if the Competent Authority is satisfied that the claim made by the candidate is genuine, it can issue a caste certificate in a prescribed form.
Further, the Court said that the law contemplates very detailed scrutiny of the caste claim by the Scrutiny Committee. If both the Competent Authority and the Caste Scrutiny Committee were to make the same degree of scrutiny and detailed enquiry into caste claims, the very object of the two-tier scrutiny will be frustrated.
The Court referred to Rule 12(2) of ST Rules provides that only if the Scrutiny Committee is not satisfied with the documentary evidence produced by the applicant, it shall forward the application to the Vigilance Cell for conducting the enquiry. Therefore, in every case, as a matter of routine, the Scrutiny Committee cannot mechanically forward the application to Vigilance Cell for conducting an enquiry
The Court noted that in the impugned judgment the High Court has noted that people having the surname “Thakur” belong to both forward castes and various backward castes. Therefore, the Court said that the High Court may be right in saying that in every case, only on the basis of the surname “Thakur”, it cannot be concluded by the Scrutiny Committee that the applicant belongs to Scheduled Tribe Thakur, notified in the Entry 44 of the Maharashtra list.
The Court noted that in a case a person having the surname “Thakur”, there may be evidence in the form of entry of the name of the caste as a Tribe or Scheduled Tribe in the official records concerning the applicant or his ancestors. Only on the ground that the persons having the surname “Thakur” may belong to a forward caste as well, it is not necessary that in every case, the Scrutiny Committee should send the case to Vigilance Cell. It all depends on the nature of the documents produced before the Caste Scrutiny Committee and the probative value of the documents. Therefore, it said that whenever a caste claim regarding “Thakur” Scheduled Tribe is considered, the Caste Scrutiny Committee in every case should not mechanically refer the case to the Vigilance Cell for conducting an enquiry including affinity test. The reference to the Vigilance Cell can be made only if the Scrutiny Committee is not satisfied with the material produced by the applicant.
The Court pointed out another scenario where the applicant relies upon caste validity certificates issued to his blood relatives, and said that in such a case, firstly, the Scrutiny Committee must ascertain whether the certificate is genuine. Secondly, the Scrutiny Committee will have to decide whether the applicant has established that the person to whom the validity certificate relied upon by him has been issued is his blood relative.
Further, it said that if, on the basis of the report of the Vigilance Cell, the Scrutiny Committee is satisfied that the person in whose favour caste validity certificate has been issued is a blood relative of the applicant and lawful enquiry has been conducted before issuing the validity certificate, the Scrutiny Committee will have to issue validity certificate, even if the applicant does not satisfy the affinity test.
Moreover, the Court said that since, the 2000 Act and ST Rules were not considered, the case of Vijakumar(supra) is certainly not a binding precedent for the proposition that in every case, the Scrutiny Committee is required to take recourse to the affinity test by referring the case to the Vigilance Cell.
Thus, the Court held that:
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The Scrutiny Committee after holding an enquiry, if not satisfied with the material produced by the applicant, can refer the case to Vigilance Cell.
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While referring the case to Vigilance Cell, the Scrutiny Committee must record brief reasons for coming to the conclusion that it is not satisfied with the material produced by the applicant. Only after a case is referred to the Vigilance Cell for making enquiry, will an occasion for the conduct of affinity test arise.
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The affinity test cannot be conclusive either way. When an affinity test is conducted by the Vigilance Cell, the result of the test along with all other material on record having probative value will have to be taken into consideration by the Scrutiny Committee for deciding the caste validity claim.
[Mah. Adiwasi Thakur Jamat Swarakshan Samiti v. State of Maharashtra, 2023 SCC OnLine SC 326, decided on 24-03-2023]
