As Manipur and Central governments claimed the State is returning to normalcy, Chief Justice of India D.Y. Chandrachud on Monday wondered aloud why a 23-year-old Constitution Bench judgment which clearly held that no court or State has power to “add, subtract or modify” with the Scheduled Tribes List was not “shown” to the Manipur High Court in the first place.
Chief Justice Chandrachud orally said a High Court does not have the power to direct changes in the Scheduled Tribes List. “It is a Presidential power to designate a Scheduled Caste or Scheduled Tribe,” the Chief Justice observed.
Violent clashes and deaths followed in the days after a Single Judge Bench of the Manipur High Court, on March 27, directed that the State government “shall consider the case of the petitioners for inclusion of the Meetei/Meitei community in the Scheduled Tribe list, expeditiously, preferably within a period of four weeks from the date of receipt of a copy of this order”.
Article 342(1) of the Constitution is clear. The power is entirely that of the President.
“It is not open to State governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342,” the Constitution Bench in State of Maharashtra versus Milind had held in November 2000.
The Constitution Bench had held that a notification issued under clause (1) of Article 342, specifying Scheduled Tribes, can be amended only by law to be made by Parliament.
“In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority,” the five-judge Bench had laid down the law.
The Constitution Bench had held that the Scheduled Tribes Order “had to be read as it is”.
“The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order if they are not so specifically mentioned in it,” the Constitution Bench had drawn the line.
The settled law in the Milind verdict had been referred to by a July 2017 judgment authored by Justice Chandrachud (as he was then) for a three-judge Bench of the Supreme Court in CMD, FCI versus Jagdish Balaram Bahira to note that the Presidential Order under Article 342 regarding Scheduled Tribes was always “final”.
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