शिमला। प्रदेश हाईकोर्ट ने हाटी समुदाय को जनजाति का दर्जा देने के लिए पास किए कानून को लेकर तीखी टिप्पणी की हैं। हाईकोर्ट के मुख्य न्यायाधीश न्यायामूर्ति एमएस रामचंद्र राव और न्यायमूर्ति ज्योत्सना रेवाल दुआ ने अपने आदेश में कहा है कि पृथम दृष्टया लगता है कि संसद ने मनमौजी की तरह, अतार्किक और तय सिंद्धातों को ताक पर रख कर काम किया हैं।
हाटी समुदाय को जनजाति का दर्जा देने को चुनौति देने वाली याचिकाओं की सुनवाई के दौरान खंडपीठ ने कहा कि सामने आए तथ्यों व परिस्थितियों से प्रथम दृष्टया ऐसा लगता है कि जिला सिरमौर के ट्रांस गिरी इलाकों के राजपूतों और ब्राहमणों और अनुसूचित जाति और अन्य पिछड़ा वर्ग को Constitution ( Scheduled Tribes) Order,1950 की अनुसूचित जनजाति की सूची में शामिल करना एकतरफा हैं।
आगे खंडपीठ ने लिखा कि prima facie it appears that parliament has acted capriciously, irrationally and/or without adequate determining principle.
कायदे से हाईकोर्ट की इस टिप्पणी को लेकर हिमाचल के सभी लोकसभा व राज्यसभा सांसदों को स्थिति साफ करनी चाहिए कि जब यह कानून संसद में पास हो रहा था उन्होंने तमाम बारीकियों पर नजर क्यों नहीं रखी । हिमाचल से भाजपा के राष्ट्रीय अध्यक्ष जगत प्रकाश नडडा, सिंकदर कुमार और इंदु गोस्वामी राज्यसभा सांसद है जबकि कांग्रेस की प्रतिभा सिंह, भाजपा नेता व केंद्रीय मंत्री अनुराग सिंह ठाकुर, सुरेश कश्यप और किशन कपूर लोकसभा सांसद हैं।
इससे पहले आदेश में यह भी जिक्र हैं
We are also prima facie of the view that mere residence in a difficult geographical area would not entitle the forward castes to claim to have the disadvantage which Scheduled tribes suffer and claim the status of the Scheduled Tribes.
The learned Deputy Solicitor General of India and the learned Advocate General for the State Government are unable to explain how forward and dominant castes like Brahmins and Rajputs would merit inclusion in the list of Scheduled Tribes since prima facie they cannot also be said to be having primitive traits, shyness of contact with the community at large and backwardness.Prima facie, treating unequals as equals results in great injustice.
Counsel for the petitioners contend that several atrocities had been committed by Brahmins and Rajputs on the Scheduled Castes and that an upper caste dominated panchayat High Court of H.P. called Khumbli traditionally resolves disputes and their decisions are binding on Scheduled Castes.
They contend that Brahmins and Rajputs are very prosperous and own and control 80% of the total land in the region and also employ advanced agricultural methods, and in contrast the SC community have extreme deprivation wherein they face caste based discrimination, violence and untouchability, that they live in extreme economic and social exclusion, their lands are not fertile and are in remote locations; that all Shamlat deh ( common land) has been diverted to upper castes, that they also control the natural resources such as water, irrigation and fisheries production in the region and dominate in employment and exercise control over the means of production.
It is urged that the Brahmins and Rajputs are claiming ST status to prevent filing of cases under the SC/ST (Prevention of Atrocities) Act,1989.
We may also state that the Registrar General in para 25 of his comments on the Ethnographic report of 2018 ( Annexure P-23 dt.13.4.2022) also categorically suggested that after inclusion in STs list, the OBCs namely Bhat, Badhai etc. and the Scheduled Castes namely Badhi, Chanal, Chamar, Doom, Dumna, Dhaki, Hali, Koli, Lohar, Toori etc included in the generic term Hattee may be excluded from the High Court of H.P. list of OBCs and SCs respectively with respect to the Trans Giri Area of Sirmor District of Himachal Pradesh.
But strangely the National Commission for Scheduled Tribes, constituted under Art.338A of the Constitution of India to recommend measures for implementation of safeguards for the Scheduled Tribes passed a resolution in it’s meeting held on 10.6.2022 recommending the inclusion of the Hattee community of Trans Giri region of Sirmour district of Himachal Pradesh without recommending the exclusion of
- dominant castes like Rajputs and Brahmins or
- (ii) the castes already designated as Scheduled Castes in the Constitution (Scheduled Castes) Order, 1950 or
- castes included in the OBC list notified by the State Government.
As a body trusted by Parliament to protect the interests of the Scheduled Tribes, it prima facie ought to have recommended such exclusion of the dominant castes, Scheduled Castes and OBCs and ensured that these communities do not get benefit of reservation in the ST quota.
Why it has not chosen to do so is not forthcoming. Moreover, it is not in dispute that previously CWP.No.5105/2022 had been filed in this Court on the same High Court of H.P. subject matter and the Union of India had asserted in it’s reply filed therein stated that lists of Scheduled Castes and Scheduled Tribes are mutually exclusive and that a community at one point of time cannot figure in more than one list in a State.
It contended as under: “12. Since the lists of Scheduled Castes (SCs) and Scheduled Tribes ( STs) are mutually exclusive, meaning thereby that a community at one point of time cannot figure in more than one list in a State, the State Government vide their letter dt.27.7.2022 recommended that those communities which are already notified in SC list for the State of Himachal Pradesh should be retained as SCs, whereas other sub-groups of Hattee community in Trans-Giri area of Sirmour District , including OBC and General Category, be considered for inclusion in Schedule tribe list.”.
In accordance with the approved modalities, the proposal was then placed before the Cabinet. On 14.9.2022, the Union Cabinet has approved the proposal to bring in a legislation to include the Hattee community of Trans Giri area of Sirmour District in ST list in respect of Himachal Pradesh, excluding those communities which are already notified as SC.”
So even the Union Cabinet had suggested exclusion of Scheduled Castes, which are already notified as SC, from the Hattee community, which is to be notified as a ST. To give effect to the Cabinet decision, a Bill namely “the Constitution ( Scheduled Tribes) Order (Third Amendment) Bill, 2022” with respect to the State of Himachal Pradesh was introduced in Lok Sabha on 9.12.2022.
The said Bill however makes no reference to the above mentioned Cabinet decision to exclude SC communities from the proposal for adding Hattee Community of Trans Giri Region of Sirmour District of Himachal Pradesh. It merely states: . In the Scheduled Cast
Scheduled Tribee schedule to the Constitution ( Scheduled Tribes) order,1950, in Part V-Himachal Pradesh, after entry 10, the following entry shall be inserted , namely: “Hattee of Trans Giri area of Sirmour District” But the “Statement of Objects and Reasons” contained in the Bill stated in para 3 as under: “… The State Government of Himachal Pradesh has requested to include Hattee community of Trans Giri area of Sirmour District in Scheduled Tribes list excluding those communities which are already notified as Scheduled Castes for the State of Himachal Pradesh.”
The Dy.Solicitor General reiterated that the SCs list and the STs list are mutually exclusive as asserted in the reply filed by the Union of India in CWP.No.5105/2022. If so, the same communities cannot be in both lists of SCs and STs.
The non-exclusion of SCs from the Hattee community of Trans Giri Area of Sirmour District included in the STs list by virtue of the impugned law, keeps the same SCs in the STs list as well. If both lists are mutually exclusive, then this is impermissible in law prima facie.
However no valid explanation was offered by the Dy.Solictor General and the Advocate General for omission to exclude the SC communities which figure in the SC list for the State of Himachal Pradesh inspite of the State Government, the Union Cabinet and the Bill seeking such exclusion.
Even the Registrar General in para 25 of Annexure P-23 had suggested that after inclusion in STs list, the OBCs namely Bhat, Badhai etc. included in the generic term Hattee may be excluded from the list of OBCs with respect to the Trans Giri Area of Sirmour District of Himachal Pradesh.
The Dy.Solicitor General and the Advocate General have not given any satisfactory explanation for the failure to exclude the OBCs also
(a) from the ST list while including some OBC communities in Hattee community or
(b) from the OBC list , if they are to be included in the ST list.
Counsel for petitioners contended that there is no practice of untouchability among Scheduled Tribes and that on the contrary, untouchability is one of the main criteria for classifying a caste as a Scheduled Caste. They contended that a Scheduled Caste person can never be a Scheduled Tribe.
इस मामले में अब मार्च में सुनवाई होनी है और बाकी तथ्य सामने आने जिस हैं। लेकिन जिस तरह के तथ्य सामने आए हैं उससे साफ है कि प्रदेश की तत्कालीन जयराम सरकार और मोदी सरकार इस कानून को जैसे-तैसे पास करने के लिए उतावली थी। लेकिन इसका नतीजा अब लोगों को भुगतना पड़ रहा हैं।
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