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The Supreme Court wants to fix fool–proof parameters to determine if a person belongs to a Scheduled Tribe and is entitled to the benefits due to the community.
The judiciary is no longer sure about an "affinity test" used to sift through anthropological and ethnological traits to link a person to a tribe. There is the likelihood that contact with other cultures, migration and modernisation would have erased the traditional characteristics of a tribe.
So, an apex court Bench of Justices Hemant Gupta and V. Ramasubramanian has considered it best to refer the question of fixing the parameters to a larger Bench. The Bench emphasised that the issue was a “matter of importance” when it came to issuance of caste certificates.
According to the “Scheduled Tribes in India as revealed in Census 2011” by C. Chandramouli (Registrar General & Census Commissioner, India, Ministry of Home Affairs), there are said to be 705 ethnic groups notified as Scheduled Tribes (STs). Over 10 crore Indians are notified as STs, of which 1.04 crore live in urban areas. The STs constitute 8.6% of the population and 11.3% of the rural population.
The Supreme Court’s decision to refer the question to a larger Bench for an authoritative decision came after it realised that the courts were faced with varied opinions about the efficacy of the affinity test.
On one side, a full bench of the Bombay High Court in Shilpa Vishnu Thakur Vs. State of Maharashtra accepted the “relevance and importance of the affinity test”. The full bench, in a decision in 2009, held that the affinity test was an “integral part” of the verification process for caste certificates. Scrutiny committees could easily determine the authenticity of a claim by running an affinity test on the basis of ethnicity and anthropology.
The HC had explained that the term ‘affinity’ meant the ‘association’ of the applicant for a caste certificate with a Scheduled Tribe into which he or she has been born.
However, two years later, in 2011, the Supreme Court adopted a cautionary note. It indicated that the affinity test may have run its course.
The court in Anand Vs. Committee for Scrutiny and Verification of Tribe Claims reasoned that affinity test may have been a determinative factor “a few decades ago, when the tribes were somewhat immune to the cultural development happening around them”.
“However, with the migrations, modernisation and contact with other communities, these communities tend to develop and adopt new traits which may not essentially match with the traditional characteristics of the tribe. Hence, affinity test may not be regarded as a litmus test for establishing the link of the applicant with a Scheduled Tribe,” the apex court had reasoned.
At best, the top court said affinity test could be used to corroborate documentary evidence, but it cannot be the sole criteria to reject a claim.
“The claim by an applicant that he is a part of a Scheduled Tribe and is entitled to the benefit extended to that tribe, cannot per se be disregarded on the ground that his present traits do not match his tribes' peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. Thus, the affinity test may be used to corroborate the documentary evidence and should not be the sole criteria to reject a claim,” the apex court had warned.
Faced with the conundrum, the Bench led by Justice Gupta has, in a recent order, requested the Chief Justice of India to constitute a Bench of three judges at an early date to examine and frame parameters for scrutiny committees to follow while verifying applications for caste certificates.
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