On Friday, the Supreme Court has set aside a Bombay High Court judgment wherein it had declared the ‘Gowari’ community, which was a part of the special Backward Classes in Maharashtra, as Scheduled Tribe (ST) ‘Gond Gowari’ in the state, saying that they are “two distinct and separate castes”.
The bench comprising of Justices Ashok Bhushan, R Subhash Reddy and M R Shah while dealing with the constitutional provisions and the judgement of the high court in detail, has held that it was not open for the high court to adduce evidence to ascertain whether ‘Gowari’ community was ‘Gond Gowari’ and needed to be treated as Scheduled Tribe for all purposes including grant of reservation.
Earlier, the Nagpur bench of the Bombay High Court has on 14th August 2018 held that ‘Gond Gowari’ community, included as ST in the Constitution (Scheduled Tribes) Order, 1950, has become extinct before 1911 and there was no trace of its existence either in Maharashtra or in Madhya Pradesh, prior to 1956. Further, the High Court held that there did not exist any tribe known as Gond Gowari as on 29th October 1956 i.e. the date of its inclusion as 28th item in Entry No. 18 of the Constitution (Scheduled Tribes) Order, 1950 in relation to the State of Maharashtra and it has Gowari community alone shown as Gond Gowari, therein.
Aggrieved by the HC order, the State of Maharashtra filed a Civil Appeal before the Supreme Court.
Subsequently, during the hearing of the said appeal, the top court held that the High Court has “erred in declaring ‘Gowari’ as ‘Gond Gowari’ a Scheduled Tribes referred to in item 28 in Entry 18”.
“None of the reasons given by the High Court in, the judgment are sustainable to hold that ‘Gowari’ are entitled to Scheduled Tribes Certificate of ‘Gond Gowari’. The entire basis of the judgment of the High Court that tribe ‘Gond Gowari’ was completely extinct before 1911 having been found to be flawed, the entire basis of judgment is knocked out,” said the top court Justice Bhushan.
However, the apex court took a view that benefits of reservation in admissions and jobs taken by the members of ‘Gowari’ community following the high court’s judgement will not be taken away.
“We in the ends of justice direct that the admission taken and employment secured by the members of ‘Gowari’ community on the basis of Scheduled Tribe certificate granted to them between August 14, 2018 till date shall not be affected by this judgment and they shall be allowed to retain the benefit of Scheduled Tribe obtained by them.”
“However, the above Scheduled Tribe candidates shall not be entitled to any further benefit as Scheduled Tribe except their initial admission in different courses or employment at different places on the strength of Scheduled Tribe certificate given to the ‘Gowari’ Community obtained between August 14, 2018 and this day,” the bench said in its 101-page judgement.
The power to specify tribal communities or tribes as Scheduled Tribes under the Constitution is vested with the President as per Article 342(1) and courts cannot assume jurisdiction to determine whether the terms of the Presidential Order includes a particular community, asserted the top court bench. Further, it also held that the power to include or exclude, amend or alter such a Presidential Order is expressly and exclusively conferred on and vested with the Parliament as per Article 342(2) and the same can be done by enacting law.
Courts cannot and should not extend jurisdiction to deal with the question as to whether a particular caste or sub-caste or group or part of tribe is included in any one of the entries mentioned in the Presidential Order, it was held.
Consequently, the top court set aside a 2018 judgment of the Bombay High Court which had embarked upon determining the question of whether tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950.
“The conclusion is inescapable that the High Court could not have entertained the claim or looked into the evidences to find out and decide that tribe “Gowari” is part of Scheduled Tribe “Gond Gowari”, which is included in the Constitution (Scheduled Tribes) Order, 1950,” read the SC judgment.
“The caste Gowari and Gond Gowari are two distinct and separate castes. We have extracted the description of Gowari and Gond Gowari given by Russell and Hiralal in the celebrated book, The Tribes and Castes of Central Provinces of India. Russell and Hiralal have separately dealt with Gowari and Gond Gowari and have categorically stated that Gond Gowari have been treated as distinct castes from Gowari,” added the top court.
