Answering as to what will be the basis of Caste Certificate of a woman, her marriage or birth, the Kerala High Court has held the latter to be an apt criterion.
The Bench comprising of single bench of Justice G.S. Ahluwalia noted that Caste Certificate of a person is to be decided on the basis of her birth in the said community and her marriage to a person to another community has no bearing on the grant of caste certificate.
The petitioner herein is a woman belonging to Hindu-Kurvan community, a Scheduled Caste. After acquiring the requisite qualifications, the petitioner applied for the post of Lower Primary School Teacher
The Tahsildar however refused to issue the certificate on the ground that the petitioner had married a person belonging to the Christian community.
The petitioner asserted that she was born as a Hindu - Kuravan and is not a person who had an advantageous start in life being born in a forward caste. According to the petitioner, just because she married a Christian man will not wipe off the benefit of reservation granted to persons such as the petitioner. It is contended that all through her life she has been suffering all handicaps and disadvantages for having been born as a member of the scheduled caste. The petitioner asserts that she is a Hindu by birth and conscience and has not embraced Christianity.
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She further contended that the Ministry of Home Affairs, Government of India have issued a Circular to all the Chief Secretaries of the State Governments and Union Territory Administration giving guidance for those authorities who are empowered to issue Scheduled Caste and Scheduled Tribe Certificates. In Ext.P7 Circular dated 2.5.1975, it has been stated in emphatic terms that a person who is a member of a Scheduled Caste or a Scheduled Tribe would continue to be a member of that of Scheduled Caste or Scheduled Tribe, as the case may be, even after his or her marriage with a person who does not belong to a Scheduled Caste or a Scheduled Tribe.
Being aggrieved by the non-consideration of the request, the petitioner approached High Court seeking a direction to the Tahsildar to issue community certificate.
The Court at the outset noted that this is not a case where the children or grandchildren of “inter-caste married couple” of whom, one belongs to Scheduled Caste or Scheduled Tribe, claim to be members of such caste or tribe for the purpose of availing the privileges, protections, concessions, special rights and other benefits as applicable to the members of the Scheduled Caste.
The Court went onto state:
"Article 342 is a similar provision dealing with Scheduled Tribes. Article 366(24) of the Constitution defines "Scheduled Castes" to mean such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution. Article 366(25) deals with scheduled Tribes. In order to determine whether a particular caste or tribe would come within the meaning of Articles 341 and 342 respectively for the purpose of reservation under Article 15(4) or 16(4), the Presidential order will have to be looked into. Once a Presidential order has been issued, the President has no power to vary it by any subsequent notification. That can only be done by the Parliament by law under Article 341(2) of the Constitution as well as under Art.342(2) of the Constitution."
The Presidential notification issued under Article 341 shows that members of the Hindu-Kuravan community are entitled to be treated as Scheduled Caste. The basis of reservation under Article 15(4) and 16(4) of the Constitution is to provide additional protection to the members of the Scheduled Castes and Tribes as a class of persons who have been suffering for a considerable length of time due to social and economic backwardness.
The Court pointed out Clause (3) of the enclosure issued by the Ministry of Home Affairs with respect to its Circular issued on 2.5.1975 which deals with “Claims through Marriage.”
The Court in view of the above went onto note that since the petitioner was born as a Hindu Kuravan, there was no justification on the part of the respondents in rejecting the application on the ground that she had married a person belonging to the Christian community. It cited Sunita Singh Vs. State of Uttar Pradesh and others, 2018 Latest Caselaw 24 SC wherein the Supreme Court observed that the caste or community of a person is to be decided on the basis of her/his birth in the said community.
The petition was accordingly allowed.
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