SUNIL KUMAR RAI & ORS. versus THE STATE OF BIHAR & ORS.

Citation: [2022] 3 S.C.R. 1111 · Decided: 21-02-2022 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2022] 3 S.C.R. 1111
1111
SUNIL KUMAR RAI & ORS.
v.
THE STATE OF BIHAR & ORS.
(Writ Petition (Civil) No. 1052 of 2021)
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)
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
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
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
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.
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.
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SUPREME COURT REPORTS
[2022] 3 S.C.R.
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
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
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
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
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
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
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
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1989 Act. That apart, it directly impinges upon the rights of the
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
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