Judicial Analysis – How to get a community certificate For the ” Buddhist Adi-Dravida” By R. PRATHAPAN.,MA.MPhil.ML., Advocate
I have given a Speech on 14.04.2019 regarding the procedure for getting the certifciate of community in the name of “Buddhist Adi-dravidar” –Scheduled caste in the 129th birth Anniversary celebration of Dr.B.R.Ambedkar at his statue in Corporation park near Perambur Railway Station, Chennai-11. The Meeting was arranged by the Annal Ambedkar Peravai’s President Thiru.R.Karunakaran, one of the members of the committee Installation of the said statue.
Since the olden days, from The Scheduled caste Adi-Dravida people who have embraced and following the Buddhism:
Right to Freedom of Religion – Art 25. Freedom of Conscience and the right freely to profess, practice and propagate religion (1).
Internatiional Charters (A) Universal Declaration, 1948- Art 18 declars: “Every one has the right to freedom of thought, Conscience and religion, this right includes freedom to change his religion or belief and freedom either alone or in community with others and in public or pvt to manifest his religion or belief intending, practice worship and observance (2).
As per the Hindu Sucession Act XXX of 1956 who is Hindu by Religiion including a virashaiva a Lingayat or a follower of the Brahmo, prathana or Arya Samaj the following persons are Hindus, Buddhists, Jainas or Sikh by religion (3). According to the Hindu law the Buddhism is in the same fold.
The following are the Historical back round and the need to have such an addition for the same. Thiru Pundit, Iyothee Thoss has sent a unique petition dated 8 June 1898 to the Colonel. H.S. Olcott F.T.S., Adyar, Madras as following:-
“When I read the above interpretation by Aswakosa that the so miscalled paraiahs were once followers of the Buddhist Dharma. I began to search through the literatures of these so-called paraiahs to try and discover whether they had made any mention of Buddha. Not only did I find that the word puthagam is given to the book that contains the teachings of Buddha; but I found also in the books kooral, Auttichevadi and konraivendan which teach moral lessons, in Chintamani, Cilappadhigaram, Velayapathi, Koondalakesi and Manimegalai the five kavyams, in Tholkappiyam, Agatyiam and Nannulu, the grammars and in the 12 Nighandoos, etc, that the authors touch upon the Buddha Gnanam and that the introductory stanza of each of their works contains an ascription to Buddha.
From the above facts, it is clear to us that our people once professed Buddhism, and now it is our heartfelt desire that we should be shown how to return to our old Buddhist faith only in its primitive purity. We have been planning to form a society under the designation of Dravida Buddha sangam and through its instrumentality to bring out pamphlets monthly which will show the teachings of the Lord Buddha as found in the literature of Buddhism and to circultate them as widely as possible.
For thus alone we believe, can we hope to restore our self-respect and to gain that right, to win by our own exertions, domestic comforts and untrammeled personal liberty of action, which are denied us in the Hindu social system of caste. Under the weight of which we are now and for many centuries have been crushed into the dust (4)”.
The Both colonel H.S.Olcott and Iyothee Thoss went to Srilanka in 1898 when Iyothee Thoss embrassed the Buddhism (5). The Pallikonda, Thalapathi Krishnasamy’s ancestors were early Sakya Buddhist (6).
The Babashahib Dr.B.R.Ambedkar in 1956 in which year a large number of members of the Scheduled caste including Dr.B.R.Ambedkar and his wife publically embraced the Buddhism (7).
The Babashahib Dr.B.R.Ambedkar had established the Salient feature of the Buddhism as follows:-
“Buddhism as the Crucible of Social democracy. Buddha gives freedom of thought and freedom of Self development to all. Dr.Ambedkar obscured that the rise of Buddhism in India was as Significant as the French Revolution a political event in the first place.
Buddhism is a democratic religion. The authors observe that in his historic speech of 25 Nov 1949 when Dr.Ambedkar presented the final draft of the Indian Constitution to the Constitutent Assembly, which was to pass on 26 January 1950, he pointed out that by the becoming a parlimentary constitutency, again India is back to its Buddhist roots, such an invention of the tradtion (8).
Babashahib Dr.B.R.Ambedkar has given the details of the procedure for scheduled caste and scheduled Tribes List as follows:-
“In the debates of constituent Assembly (Official Report Vol 9) while moving to add new Articles 300-A and 300-B after Articles 300 (corresponding to Articles 341 and 342 of the Constitution) Dr.B.R.Ambedkar explained as follows:
The object of these two articles as I stated was to eliminate the necessity of burdening the Constitution with long lists of Scheduled castes and Scheduled Tribes. It is now proposed that the President in Consultation with the Governor or Ruler of a State should have the power to issue a general Notification in the Gazette specifying all the casts and Tribes or Groups thereof deemed to be Scheduled castes and Scheduled Tribes for the purpose of this privileges which have been defined for them in the Constitution. The only limitation that has been imposed is this: that once a Notification has been issued by the President which undoubtedly, he will be issuing in the Constitution with and on the advice of the Government of each state, thereafter if any elimination was to be made from the List so notified or any addition was to be made that must be made by Parliament and not by the President. The object is to eliminate any kind of political factors having a play in the matter of the disturbance in the Schedule so published by the President (9)”.
The declaration of the President of India, Under Articles 341 and 342 of the Constitution with respect of Lists of the Scheduled Castes and Scheduled Tribes in relation to a state, that a particular caste or tribe is defined in Article 366 ( 24) or 366(25) respectively is conclusive subject to an amendment by the Parliament Under Article 341(2) and 342(2) of the Constitution (10)”.
The Constitution (Scheduled Caste) order 1950 as amended by Scheduled castes and Scheduled Tribes) order (Amendment) Act 1976 (11).
The circulars/resolutions/instructions issued by the State Government from time to time some times contrary to the instructions issued by the Central Government are of no consequence and could be simply ignored as the State Government had neither authority nor competency to amend or alter the Scheduled Tribes orders (12).
The Undermentioned Judgments are root cause for including and excluding the castes in the Presidential order (List) of SC and ST in the govts of State and the Central.
In (2005) 1 M.L.J. 72. The New India Assurance Company Limited, represented by its Regional Manager, Coimbatore and another…Appellants v. R.Venkataraman and others…Respondents.
The Scheduled Castes and scheduled Tribes (Lists) Notification order, 1956-Issuance of Community Certificate-The right of the Revenue Officials to consider genuieness of community certificate.
The First respondent was issued with a community certificate dated 8.3.1979 by the Tahsildar, Madurai North Taluk, certifying him to belong to ‘Kammara community’, which is recognised as Scheduled Tribe under the ‘Scheduled Castes and Scheduled Tribes (Lists) Modification Order, 1956’ (13).
In W P No2994 of 1994 D/4-09-1985 Bom Reversed. The Decisions were evidently contrary to the Constitutional provisions. All the decisions were not directly on the point relating to Scheduled Tribes orders issued Under Article 342 of the Constitution, some of the cases arose out of Civil disputes involving adoption. Even the State Government was not consistent in its stand touching the issue whether Halba-Koshitis were Halba/Halbis to Consider them as Scheduled Tribes. As early as on 20.07.1962 itself a circular was issued to the effect that Halba-Koshtis were not Scheduled tribes. Further a look at the various circulars /resolutions/Instructions/orders mates that the controversy was not settled. Hence it cannot be said that the view Halba-Koshti was Halba/Halbi ST’s was holding the field for long time. Thus arose no question of unsettling or up settling the position in law which itself was not right in invoking and applying the doctrine of stare decists on the facts and in the circumstances of the case .
On October 15, 1984, the Government of Kerala issued an order which stated that having re-considered the matter in all its aspects, the 1979 order was cancelled and Thandans throughout Kerala would be treated as members of Scheduled caste as existing in the List of SC’s of this State as per SC’s and ST’s orders (Amend) Act 1976 and community Certificate issued accordingly (14).
In Srish Kumar Choudhury V.State of Tripura & Ors., (1990 Supp.) 220 a three Judge Bench was called upon to consider whether Laskar Community in State of Tripura is a Scheduled Tribe. After examining the Scheme of the Constitution it was held that though evidence may be admissible to verify the entries in the Presidential Order to find a caste/Tribe included in a particular tribe or caste, tribal communities the admissibility of the evidence is confined within the limitations enacted in the order. It was not open to the Court to make any addition or subtraction from the Presidential Order.
In Kumari Madhuri Patel and Ors Vs.Addl.Commissioner Tribal Development & Ors 1994 (6) SCC 241, a two Judge Bench further considered whether Kolis a Backward Class in Maharashtra would be declared as Mahadeo Koli, a Scheduled Tribe in Maharashtra. It was held that the amendment under Scheduled Castes and Scheduled Tribes Order (Amendment Act), 1976, no subtraction or addition to it by way of declaration of castes, tribes or sub-caste, parts of or groups of tribes or tribal community is permissible, and that the Presidential Notification subject to the amendment by Parliament is conclusive.
The Arunthathiyars quota expels from the Schedule caste as mentioned SC(A) as follows:-
G.O.Ms.No.50 Adi-Dravidar and Tribal Welfare Department dated 29.04.2009 came to be issued for providing internal reservation for the candidates belonging to Arunthathiyars with in the Schedule Caste Community. The Second Order in G.O.Ms.No. 65 personnal and Administrative Reforms Deaprtment dated 27.05.2009 was also issued re-vising the roster providing 3% reservation to Arunthathiyars on preferental basis (15).
The permanant community certificate issued to Scheduced Tribe by Talasildar upto 11-11-1989 is valid. After 11-11-1989 is required to be issued by the Revenue Divisional Officer (16).
Among the Dalits. The Dalit sikhs, Dalit Buddhist, Dalit Christians, Dalit muslims is separate form (17).
The following Judgments are against the petitioners due to no such caste, claimed by them in the Presidential orders. as follows:-
In B.Basavalingappa V.D.Munichinnappa 1965 (1) SCR 316 the Constitution (Scheduled Castes) Order 1950 Specified Bhovi Caste as a Scheduled Caste. The respondent a Voddar by caste contested election as a Scheduled Caste Bhovi. A Constitution Bench examined the scheme of Article 341 and upheld the contention of the appellant that in view of the stringent provisions of the Constitution with respect to a Notification issued under clause (1) it is not open to anyone to include any caste as coming within the Notification on the basis of evidence oral or documentary if the caste in question does not find specific mention in the terms of the Notification it was not open, therefore, to give evidence that a particular caste was a Scheduled Caste not mentioned in the 1950 Order.
In AIR 1979 Bambay 282, Ku.Mangala pavashram kelkar and another, Accused-Petitioner V.State of Maharashtra-Opponent, Protection of civil Rights Acts (22 of 1955) S.12-Scheduled caste-Buddhist cannot be treated as member of Scheduled caste.
The constitution (Scheduled Caste) order 1950. The said order was amended from time to time, the lastest in that behalf till now being by Act no.108 of 1976 paragraph 3 of this order relevent to this case, is as under:- Not withstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu or the sikh religion shall be deemed to be a member of a scheduled caste”
Representation of the People Act, 1951, S 5 (a) Reservation of seats for scheduled castes members of scheduled castes converted to Buddhism. They cease to be members of Scheduled Caste Proof of conversion. In absence of such proof they continue to be members of Scheduled castes and their election to reserved seats cannot be questioned.
In view of this and our finding that it has not been established that respondents 2,6 and 9 are not professing Hindusim it is unnecessary to discuss the prayer regarding declaring the appellant elected. In the result the appeal is dismissed (18).
Hon’ble Mr.Justice R.Subbiah and Hon’ble J.R.Pongiappan in W.P.No. 6546 of 2018 : G.J.Tamilrasu Vs. The State of Tamilnadu Rep by its Secretary Adi-Dravida and Tribal Welfare Department and others. In the High Court of Judicature at Madras.
Further there is no entry as Buddhist Adi Dravida in the Presidential Order issued in accordance with the Procedure prescribed Under Articles 341 and 342 of the Constitution of India. In the absence of any notification by the Government of India listing “Buddist Adi-Dravidar as a Caste in the schedule, no such community certificate could be issued. The Community Certificates could be issued only in the name of the communities which are mentioned in the presidential order issued under Art 341 of the Constitution of India it is only Adi Dravidar Community whcih has been mentioned in the list of Scheduled Caste relating to the State of Tamilnadu. Moreover there is no calegeory in the nomenclature “Buddhist Adi-Dravidar”. There is no infirmity in the impugned order passed by the Second respondent –District Collector hence the WP is dismissed.
Till recently Muslims, Hindu and Sikh used to call themselves Rajput Muslims, Rajput Sikhs, Muslim Jats and Hindu Jats (19).
The persons from Adi-dravida scheduled caste community who have embraced Buddhism and continue to fallow the Buddhism may joint together and make a representation to the state and central govts to include a separate name/nomanclature, viz., “Buddhist Adi-dravida/Buddhist paraiah” Scheduled caste in the list of Sc under the presidential Scheduled caste order.
Food Note:
(1). Commentary on constitution of India by Acharya Dr.Durga Das Basu, Eigth Edition Volume 3- 2008, Win offset printers, B-193 Okhla Industrial Area, Phase-I, New Delhi -110020. P.3419.
(2). Ibid.P. 3444
(3). N.R.Raghavachariar’s Hindu law principles and precedents by prof. S.Venkataraman BA.ML., Seventh Edition 1980. Vol-II. Published by the Madras law Journal office, Madras-40. P.816.
(4). Iyotheethasar sinthanaigal-11 Edited by G.Aloysius, published by Folklore Resources and Research centre palayamkottai, Tamilnadu- 1999. P.10.
(5). Thamizhan Iyothi Thasar pundithar by Dr.G.Thangavelu, Thamizh Kudi Arasu Pathipakkam, 4/11, C.N.K. Lane, Chepauk, Chennai-05. P.40.
(6). Hot copy: Chapter-VI Profile of Prominant Dalit Leaders.
(7). AIR 1975 Supreme Court 420. P.422.
(8). Dr.B.R.Ambedkar and Democracy an Anthology, Edited by Chirstophe Jaffarelot and Narender Kumar, published in india by Oxford University Press, New Delhi. 2018. P.XIV.
(9). AIR 2001 Supreme Court 393. P. 401.
(10). AIR 1997 SC 1199 : Manu/SC/0272/1997. P.2.
(11). AIR 1984 SC 600. P.600.
(12). AIR 2001 SC 393. P.395.
(13). (2005) 1 M.L.J. 72. PP.72,73
(14). AIR 2007 SC 295. P.299.
(15). W.P.Nos. 12552, 10336, 10337 & 17543 of 2009 and M.P.No. 1 to 1 of 2009 N.Sathya and others Versus The Chairman TRB, Chennai and others. The Hon’ble Justice K.Chandru, High Court of Judicature at Madras: comparative citation 2010 (4) MLJ 995.
(16). 1997 (7) SCC 505. P.3.
(17). Asian Dalit Solidarity Laxmi N.Berwa Published for Dalit liberation Education Trust, Chennai by ISPCK, Delhi-2000. P.186.
(18). AIR 1975 SC 420. P.425.
(19). Ibid Pg.424.
By R.Prathapan., MA.Mphil.ML.,
Advocate
Date: 07-09-2019
No. 240, New Addl. Law Chambers,
High Court Buildings, Chennai-104.
Cell No: 9361924242.
