Observing that it was “without merit”, the Bombay High Court on Friday dismissed a batch of petitions which sought Scheduled Tribe (ST) status for the Dhangar (shepherd) community in Maharashtra. The petitioners, including Maharani Ahilyadevi Samaj Prabodhan Manch, claimed that the community in the state got listed as ‘Dhangar’ instead of ‘Dhangad’ due to a typographical error and hence was excluded from the ST category.
Court's observations
In a day-long dictation of the verdict in the open court, the division bench of Justices Gautam Patel and Kamal Khata noted that the petitioners failed to establish that the ‘Dhangad’ community did not exist in the erstwhile state of Bombay, at the time of issuance of Presidential Order (PO) on September 6, 1950. Hence, this showed that it was an “empty class” or a “zero member”.
The bench said that the contest between ‘Dhangad’ and ‘Dhangar’ was not only a jurisprudential issue, but has a much wider “social and perhaps even political impact”. The issue was over entry in the PO of 1950 which included ‘Dhangad’ as ST category and the subsequent Government Order (amendment) of October 29, 1956.
Petitioners' claims
According to the petitioners, Dhangars form nearly 9% of the state’s population, which is approximately 1.5 crore and they should be given ST status in Maharashtra because in other states like Madhya Pradesh and Bihar, Dhangars are part of the ST list.
Counsels for the petitioners, Darius Khambatta and Abhinav Chandrachud, also sought an investigation into their claim of non-existence of ‘Dhangad’ tribe in the state and that there were only Dhangars. The bench, however, refused to pass such an order.
Opposing claims
The petitions were opposed by Advasi Samaj Kruti Samiti and other tribal leaders contending that ST enjoy mere 7% reservation whereas, Dhangars already enjoy 3.5% quota under the Nomadic Tribe category. If they are included in STs, they will corner 3.5% of the quota, said their advocate Uday Warunjikar.
After going through three affidavits filed by the State Government, the HC noted that the sum and substance of them is that there is “not a single instance of Dhangad in the state of Maharashtra”.
Replies received under the Right To Information from caste validity committees from Nashik, Nagpur and Thane showed that they have not issued or validated caste certificates of Dhangad community. The solitary instance on Khillare from Aurangabad bench had obtained certificates under the Dhangad category, which they disavowed in 2023.
The PO was issued under Articles 341 and 342 of the Constitution. Such Articles are special provisions for affirmative action for certain communities to get special protection and reservation and other advantages, the bench noted.
Bench's reasoning
“The PO is sacrosanct and it is inviolate and it cannot even be modified by subsequent notification. Its entries can be included or excluded only by act of parliament,” the bench noted.
It reasoned, “Rationale for this, in a country as diverse as ours, to define obligation and duties, the law clearly demarcates factual position. If these entries are to be constantly modified, changed or chopped, it will result in chaos in administration and no person will know whether benefit availed today is liable to be taken away by judicial fiat tomorrow or what the consequences are likely to be.”
Referring to a Supreme Court judgement, the HC said that the petitioners failed to show that no Dhangad tribe member existed in Maharashtra when the PO was issued or that it was “zero member class” in the state. Only then, the court could enter into the question of analysis of the legislative intent behind the PO of 1950.
It referred to the “interesting and classic” case of Bhausaheb Namdeo Khillare family from Aurangabad which filed affidavits claiming that they were Dhangars under the Nomadic Tribe category. The judge, however, questioned certain entries, including school leaving certificates from 1952 and validity certificates showing that they had applied through the ST category as ‘Dhangad’.
Khillare’s affidavit claimed that they were under the “strong impression” that Dhangad and Dhangar are one and the same and it was a spelling mistake in the words, hence, their initial documents mentions Dhangad. The family filed affidavits in which it disavowed ‘Dhangad’ status.
The affidavits were filed in 2023, whereas the petitions have been pending since 2017. “Only now after petitions filed, these disavowals were made. It means the class ‘Dhangad’ in 1950 was not a zero member class. Later disavowals are infinitely problematic,” the bench said.
