Days after the Himachal Pradesh government issued directions to implement the inclusion of Hattees in the Scheduled Tribes list, the Himachal Pradesh High Court on January 4 stayed the inclusion of the community in the ST list of the State and also the letter issued by the State government for its implementation till March 2024.
A Bench of Chief Justice M.S. Ramachandra Rao and Justice Jyotsna Rewal Dua noted that there had been “manifest arbitrariness” and “glaring unconstitutionality” in including SCs OBCs, and dominant caste communities as part of the Hattee community in the ST list despite continued recommendations from the Office of the Registrar General of India (RGI) to exclude them.
The High Court said, “prima facie it appears that Parliament has acted capriciously, irrationally, and/or without adequate determining principle,” further calling for the State and Union governments and other respondents to file their replies.
It said, “We are also of the view that if interim orders are not granted, tens of thousands of ST certificates would be granted, reversal of which would be difficult.”
The court was hearing a batch of petitions filed by an association of Gujjars (the only other ST community in the area) and an association of Scheduled Castes challenging the inclusion of the Hattee community of the Trans-Giri Area of the Sirmour District in the ST list of the State, during which it issued the interim stay.
Pre-election move
The BJP-led Union government had in 2022 pushed hard for the inclusion of the Hattees in the ST list, announcing the decision months before the State went to polls, despite which the party had lost the State to the Indian National Congress. Of the five seats in Sirmour district, the BJP had lost three.
The inclusion was pushed through despite the Office of the Registrar General of India rejecting the proposal on three occasions before that in 1995, 2006, and 2017 — saying that the term “Hattees” was a general one used to describe people from Scheduled Caste and Upper Caste communities as well.
However, based on a fresh Ethnographic Report prepared in 2018, the Union government had said the Office of the RGI and the National Commission for Scheduled Tribes had agreed to the inclusion and thus brought the Bill for it accordingly, passing it in Parliament and the President assenting to it in August 2023. On January 1, the State government issued orders to implement the new classification, while excluding only SC communities from the definition of Hattees.
The High Court in its January 4 order cited the Office of the RGI’s most recent opinion on the Hattees, once again warning that the term also referred to dominant caste, priestly communities. The court said that despite this opinion of the Office of the RGI, it was “totally inexplicable” as to why they were not excluded from the ambit of the ST classification.
The court went on to note that including Brahman and Rajput communities as Hattees in the ST list would amount to treating unequals as equals.
“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 High Court ruled.
Four characteristics
It added that the Deputy Solicitor General for the Union government and the A-G for the State were unable to explain how such dominant caste communities can be recommended for inclusion in the ST list when they cannot be said to have any of the other four characteristics set forward by the Lokur Committee in 1965:primitive traits, distinctive culture, shyness of contact with community at large, and backwardness.
The petitioners had argued that the data in the Ethnographic Report of 2018 on geographical isolation were dated, further adding that it was silent on how the communities included as Hattees were backward or satisfied the other criteria set forward by the Lokur Committee.
The court also noted that it was “strange” of the National Commission for Scheduled Tribes to recommend Hattees for inclusion without excluding Brahmans, Rajputs, SCs and OBCs despite the comments of the Office of the RGI.
“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,” the court said.
The court noted that despite these red flags having been raised, the entry added to the Constitution (Scheduled Tribes) Order, 1950 was simply: “Hattees of the Trans-Giri Area of Sirmour district”.
The High Court explained that this created another problem as this put several communities in both SC and ST lists simultaneously, which as per the Union government’s own submission cannot be possible since the lists are mutually exclusive. Similarly, there were communities that were in OBC list and ST list simultaneously, which cannot be possible.
The matter will now be taken up for next hearing on March 18, 2024 after the replies have been filed.
The Gujjar community and the SC community of the area have been protesting against the inclusion of Hattees in the ST list. As the only other ST community in the area, the Gujjars argued that adding a relatively forward community like Hattees to the ST list would crowd them out of benefits.
In addition, the Scheduled Castes of the area argue that the Hattees are largely forward caste communities that allegedly perpetrate atrocities on them. As a result, they expressed concern that adding them to the ST list would embolden them to do so as they would no longer be prosecutable under the SC/ST Act.
