Holding

The Court held that interim relief cannot be granted against the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002, and therefore refused the stay.

Summary

The petitioners, belonging to ten communities in Uttar Pradesh that were reclassified from Scheduled Castes (SC) to Scheduled Tribes (ST) by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002, filed a writ petition under Article 32 seeking a stay of the Act and permission to contest the upcoming state assembly elections on SC‑reserved seats. They argued that the reclassification violated Articles 14, 19, 21, 330, 332 and 341 of the Constitution and would deprive them of SC benefits without conferring ST benefits. The Union of India and the Election Commission did not file counter‑affidavits. The Court examined whether interim relief could be granted against a duly enacted law and whether the petition raised substantial questions of law. It held that granting a stay would create legal complications, amount to interference with legislation, and was inappropriate given that the Act had been in force since January 2003. Consequently, the Court refused the interim relief while admitting the petition for full hearing.

Issues considered

The constitutionality of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002 under Articles 14, 19, 21, 330, 332 and 341 of the Constitution
Whether interim relief (stay of the Act) can be granted against a legislative enactment
Whether the petitioners, reclassified as Scheduled Tribes, retain the right to contest seats reserved for Scheduled Castes in the Uttar Pradesh Assembly elections

Legislation cited

Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002

Subjects

Scheduled CastesScheduled TribesReservationArticle 32Interim reliefStay of legislationConstitutional challengeUttar PradeshElectionArticle 330Article 332Article 341

Judgment

- '
'(
VIJA Y SINGH GOND AND ORS.
A
v.
UNION OF INDIA AND ORS.

MARCH 13, 2007
B
[C.K. THAKKER AND V.S. SIRPURKAR, JJ.]

Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002:

Social status-In State of Uttar Pradesh certain communities transferred C
from list of Schedule Caste to list of Scheduled Tribes-Writ petition filed
challenging the transfer-Meanwhile, keeping in view the forthcoming State
Assembly elections, ex-parte interim order prayed/or stay of operation of the
enactment or to permit members of the communities concerned to contest
Assembly elections on seats reserved for Scheduled Castes-Rule issued-As D
regards interim stay, HELD: on/acts and in circumstances of the case, grant
of interim relief would result in complications and confusions-Virtually it
would amount to grant of interim relief against legislation as grant of such
relief would prevent legislation to operate-Besides, the Act came into force
in January 2003 whereas petition was filed in July 2006-Therefore, interim
relief refused-Interim Order-Constitution of India-Article 341. E
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No. 363 of2006.

(Under Article 32 of the Constitution of India.)

WITH F
CIVIL APPEAL NO.------------- OF 2007.

Arising out of Special Leave Petition (C) Nos. 17001-17003 of2005.

Shanti Bhushan, Anurga Dubey, Anu Sawheny, D.P. Pandey, Meenesh G
Dubey and S.R. Setia for the Appellants.

Gopal Subramanium, ASG, Dinesh Dwivedi, Raj Kumar Gupta, Kamlendra
Mishra, Rajeev Dubey, Vishwajit Singh, Meenakshi Arora, Survrajyoti Gupta,

985 H
986 SUPREME COURT REPORTS (2007] 3 S.C.R.

A Gaurav Agrawal and P. Parmeshwaran for the Respondents.
The following Order of the Court was delivered :

ORDER

I. Rule.
B
2. issue notice to the Attorney General for India.

3. We have heard learned counsel for the parties on interim relief.
Interim relief prayed by the petitioners in the present petition reads as under:
c (a) to pass an ad-interim ex-parte order staying the effect and
operation of the Scheduled Castes and Scheduled Tribes Orders
(Amendment) Act, 2002; or
(b) to pass an ad-interim ex-parte order permitting the petitioners
and other members of their communities to contest the
D forthcoming U.P. State Assembly Elections on seats reserved for
Scheduled Castes;
(c) to pass such other and or further orders as may be deemed fit
and necessary in the facts of the case.

E 4. The case of the petitioners is that they belong to ten communities
of the State of Uttar Pradesh, which have been transferred from the list of
Scheduled Castes to the list of Scheduled Tribes under the Scheduled Castes
and Scheduled Tribes Orders (Amendment) Act, 2002 (Act X of 2003)
(hereinafter referred to as 'the Act'). It is the case of the petitioners that they
belonged to Scheduled Caste. As Scheduled Caste members, they were entitled
F to exercise and enjoy all fundamental rights, constitutional rights and statutory
rights as members of Scheduled Caste. Parliament, by the impugned Act,
sought to exclude certain Scheduled Castes from the category of Scheduled
Castes and included them in the category of Scheduled Tribes in the purported
exercise of power under Article 341 of the Constitution. The petitioners
G asserted that in the State of Uttar Pradesh, before the impugned Act was ·
enacted, there were 69 Scheduled Castes and 5 Scheduled Tribes. After the
above Act had been enacted, Scheduled Castes would be reduced from 69 to
52 and Scheduled Tribes would be increased from 5 to 22. Thus, there would
be reduction of 17 Castes and sub-Castes (I 0 Castes and 7 sub-Castes) and
addition of 17 Castes in Scheduled Tribes. The impugned action, contended
H the petitioners, has prejudicially affected the petitioners and several members
VJJA Y SINGH GOND v. U.0.1. 987
~--'(
of Scheduled Castes who had all throughout enjoyed benefits as Scheduled A
Castes. Now, they would be deprived of the said benefits. It was also submitted
that though there is reduction of 17 Castes and sub-Castes from Scheduled
Castes, seats in Parliament as also in Legislative Assemblies have not been
increased or decreased and they have remained as they were, which is also
violative of the scheme of the Constitution and would be detrimental and
adversely affecting the interests of Scheduled Caste persons who were sought
B
to be converted to Scheduled Tribes. It would give additional benefit to the
remaining Scheduled Caste persons inasmuch as though such Castes would
be reduced from 69 to 52, number of seats in Parliament as ,well as in Legislative
Assemblies would not change. On the other hand, it would curtail the benefit
to which the members of Scheduled Tribe would be entitled as after the c
impugned Act, there would be increase in Scheduled Tribes from 5 to 22. The
Act is also unconstitutional and ultra vires Articles 14, 19 and 21 as also Part
XVI (Articles 330 to 342) of the Constitution. The petitioners contended that
the Legislature, while enacting the Act, failed to consider Jhe complications
likely to arise and injustice to be caused to Scheduled Castes if the Act were
to be brought into force without making necessary change in allotment of D
,, seats in accordance with the provisions of the Constitution, particularly
).
Articles 330 and 332. Such action would also violate constitutional rights of
the petitioners in Part IX (Articles 243 to 243-0) of the Constitution. The
petitioners, therefore, made representations to Hon'ble the President of India,
Hon'ble the Prime Minister of India, Hon'ble Minister for Tribal Affairs, National E
Commission for Scheduled Tribes and others requesting them to take
appropriate steps so that they would not suffer and would continue to enjoy
rights to which they are entitled but nothing was done by the respondents.
They were, therefore, constrained to approach this Court by filing a petition
under Article 32 of the Constitution.
r F
5. In Paras 8, 22, 23 and 24 of the Petition, the petitioners stated;

8. That in view of the aforesaid constitutional provisions in the
State ofU.P. (prior to its bifurcation in the Year 2000) out of the
total 425 seats, 92 seats had been reserved for Scheduled Castes

- . and one seat had been reserved for Scheduled Tribes. After the
division of the State ofU.P. into the States ofU.P. and Uttranchal,
the total number of seats in the State of U.P. came down to 403
G

and the seats reserved for Scheduled Castes came down to 89
and the seats reserved for scheduled tribes became zero.

22. That the Petitioners and other similarly situated persons who H
988 SUPREME COURT REPORTS (2007) 3 S. C.R.

A prior to enactment of the Act contested the Parliament and 't--·
Assembly elections on seats reserved for Scheduled Castes
would now not be able to contest elections from these reserved
seats as these persons now belong to Scheduled Tribes and
they would also not be able to get any benefit of the provision
for reservation of seats for Scheduled Tribes as no reservation
B can be effected for Scheduled Tribes in the State of U.P. as per
the changed population till a census is conducted after 2026.
23. That the members of the ten castes and seven sub castes which
have been shifted from list of Scheduled Castes to list of
Scheduled Tribes are now faced with a grossly unfair, unjust and
c disadvantageous situation wherein they have now due to the
enactment of the Act, on one hand lost the benefits which were
available to them earlier being members of the Scheduled Castes
and on the other have not been conferred with any benefits for
being members of the Scheduled Tribes due to the explanation
D of Article 330.
24. That the Petitioners and other members of their community had
a constitutional right under Articles 330 and 332 to have seats
.(
--
reserved for them in House of People and State Assemblies.
However the said right now seems to stand defeated in view of
E the enactment of the Act. This extinguishments of their
constitutional rights is also not temporary or for a short period
but for a period of twenty six years which means that one whole
generation of these oppressed classes would stand to lose their
constitutional right of reservation in elected bodies due to
enactment of the Act.
F -\
Notice was issued by this Court on August 14, 2006. (It may be stated
that a similar grievance was made by the petitioners in Special Leave Petition
(Civil) Nos. 17001-03 of 2005 which have been filed by the petitioners against
judgment and order passed by the High Court of Judicature at Allahabad on
July 25, 2005). On November 6, 2006, the Court observed that respondents
G had not filed counter affidavit and three weeks' time was granted as prayed
for to file such affidavit. Even thereafter, affidavit was not filed. On February I-
2, 2007, learned counsel for the Union of India, State of U.P. and Election
Commission sought two weeks' time to file affidavit and the prayer was
granted. But even today affidavit is filed only by the Election Commission of
H India (Respondent No.2) and no affidavit in reply is filed either by the Union
VIJA Y SINGH GOND v. U.0.1. 989
•· I of India or by the State of U.P. A
6. Mr. Shanti Bhushan, Senior Advocate appearing for the petitioners
submitted that the impugned Act is violative of Part III of the Constitution
as it interferes with the fundamental rights of the petitioners who belong to
Scheduled Castes as also Part XVI of the Constitution as it interferes with the
constitutional rights conferred on members of Scheduled Castes. He also B
submitted that there is total non application of mind on the part of Parliament
; in not considering the effect of the Act and consequences likely to ensue.
• The counsel also urged that serious prejudice would be caused to several
castes and sub-castes which had all throughout enjoyed the status and
benefit of Scheduled Castes without conferring benefits as members of
Scheduled Tribes under Part XVI of the Constitution. He, therefore, submitted
c
that the Act is unconstitutional. A prayer is made in the petition to stay the
operation of the Act. The counsel, however, submitted that if this Court is
not inclined to grant stay against operation of the Act, limited stay may be
granted permitting the petitioners and other members of Scheduled Caste
communities who are sought to be transferred to Scheduled Tribe communities D
to enjoy benefits as they have enjoyed up to the day of passing of the
; ) impugned Act by allowing them to contest forthcoming Uttar Pradesh State
Legislative Assembly elections on seats reserved and earmarked for the
candidates belonging to Scheduled Castes. According to him, if such relief
is not granted, serious prejudice would be caused to them and they would
E
suffer irreparable loss.

7. As already stated, the Union of India has not filed counter to the
petition. So far as Election Commission is concerned, it stated that it has
"nothing to say with regard to the challenges to the vires of the impugned
Act". It was also stated that once the petitioners' community had been F
..,; ;
declared to be Scheduled Tribe under the impugned Act, they cannot be said
to belong to Scheduled Caste. The Election Commission is obliged to conduct
Assembly Elections in the State of Uttar Pradesh as per enacted laws.

8. Having heard learned counsel for the parties, in our opinion, no
interim relief can be granted as prayed for by the petitioners. It is no doubt G
-~
true that Part III of the Constitution confers certain fundamental rights and
for the observance and enforcement of such rights, an aggrieved party may
approach a High Court under Article 226 or this Court under Article 32 of the
Constitution. It is also true that 'Special provisions relating to certain classes'
have been made in Part XVI. Article 330 provides for reservations of seats
H
990 SUPREME COURT REPORTS [2007) 3 S.C.R.

A for Scheduled Castes and Scheduled Tribes in the House of People. The said
Article reads as under:

330. Reservation of seats for Scheduled Castes and Scheduled Tribes
in the House of the People. -(I) Seats shall be reserved in the House
of the People for - ..
B
(a) the Scheduled Castes;

(b) the Scheduled Tribes except the Scheduled Tribes m the
autonomous districts of Assam; and

(c) the Scheduled Tribes in the autonomous districts of Assam.
c
(2) The number of seats reserved in any State or Union territory for
the Scheduled Castes or the Scheduled Tribes under clause (I) shall
bear, as nearly as may be, the same proportion to the total number of
seats allotted to that State or Union territory in the House of the
People as the population of the Scheduled Castes in the State or
D Union territory or of the Scheduled Tribes in the State or Union
territory or part of the State or Union territory, as the case may be,
in respect of which seats are so reserved, bears to the total population
of the State or Union territory.

(3) Notwithstanding anything contained in clause (2), the number of
E
seats reserved in the House of the People for the Scheduled Tribes
in the autonomous districts of Assam shall bear to the total number
of seats allotted to that State a proportion not less than the population
of the Scheduled Tribes in the said autonomous districts bears to the
total population of the State.
F ....
Explanation. -In th is article and in article 332, the expression
"population" means the population as ascertained at the last preceding
'
census of which the relevant figures have been published:

Provided that the reference in this Explanation to the last preceding
G census of which the relevant figures have been published shall, until
the relevant figures for the first census taken after the year 2026 have
been published, be construed as a reference to the 200 I census.

9. Likewise, Article 332 provides for reservations of seats for Scheduled
Castes and Scheduled Tribes in the Legislative Assembly of the States.
H Clause (I) of Article 341 enables the President by a notification to spedfy the
VIJA Y SINGH GOND v. U.0.1. 991
- ,, Castes, Races or Tribes or parts or groups within Castes, Races or Tribes A
which shall for the purposes of the Constitution be deemed to be Scheduled
Castes in relation to that State or Union Territory, as the case may be.

I0. Clause (2) of Article 341 empowers Parliament by law to include in
or exclude from the list of Scheduled Castes specified in a notification issued
under clause (I) any caste, race or tribe or part of or group within any caste, B
race or tribe.

11. The contention of the learned counsel for the petitioners i.; that
Article 330 mandates that the number of seats reserved in any State or Union
Territory for Scheduled Caste or Scheduled Tribe must be on the basis of
population of such Scheduled Castes or Scheduled Tribes. It was, therefore, C
submitted that once there is change and either reduction or addition in
population of Scheduled Castes or Scheduled Tribes, as the case may be,
there must necessarily be decrease or increase in seats in Parliament as also
in the Legislative Assembly. Such a constitutional requirement cannot be
overlooked or ignored. Parliament, by enacting the impugned Act, had made D
certain members of Scheduled Castes as members of Scheduled Tribes without
implementing and giving effect to Articles 330 and 332 of the Constitution,
which is clearly illegal and against the scheme of the Constitution. It is also
submitted that for the purpose of Articles 330 and 332, the expression
'population' would mean the population as ascertained in the last preceding
census of which the relevant figures have been published which is 2001 E
census. The counsel also relied upon the proviso to Article 330 which declares
that the reference in the Explanation to the last preceding census of which
the relevant figures had been published shall until the relevant figures for the
first census taken after the year 2006 have been published, be construed as
a reference to the 2001 census. It was, therefore, submitted that the impugned p
Act is inconsistent with the provisions of Articles 330 and 332 of the
Constitution.

12. Mr. Gopal Subramanium, Additional Solicitor General submitted that
an Act has been enacted by competent Legislature i.e. Parliament. If the Court
is of the view that the challenge to constitutionality of law requires G
consideration, the petition may be admitted. Regarding interim relief, however,
he stated that normally a Court would not grant interim relief against legislative
action. Even with regard to limited interim relief, he submitted that once the
Act has been enacted and has been brought into force, interim relief of
interfering with an action taken in pursuance of a legislation may not be H
992 SUPREME COURT REPORTS [2007) 3 S.C.R. <--

A granted. He submitted that the Act has come into force with effect from 'r •
January 7, 2003. The Schedule thereof excludes certain Scheduled Castes into
Scheduled Tribes under the Act. If interim relief sought by the petitioners is
granted and irrespective of the provisions of the Act, members of Scheduled
Castes to be treated as members of Scheduled Tribes would be deemed to be
treated as Scheduled Caste members, virtually the Court would be granting
B interim stay against operation of the Act. He also submitted that the operation
of the Act is not limited to elections to Parliament, Legislative Assemblies or
Local Bodies. The Act is general in nature and deals with status of members •
of 'certain classes'. In fact, Part XVI of the Constitution itself deals with ,
matters other than election. For instance, Article 335 relates to claims of
C Scheduled Castes and Scheduled Tribes to services and posts. The Act has
already been implemented and has come into force. Persons belonging to
certain Scheduled Castes have been treated, under the impugned Act, as
members of Scheduled Tribes.

13. In our opinion, Mr. Gopal Subramanium is right in submitting that
D grant of interim relief may create complications. For instance, a member of a
particular Scheduled Caste who has now been treated und.er the impugned
legislation as member of Scheduled Tribe, may be able to claim certain benefits
as member of Scheduled Tribe under the Act. How can he at the same time
-
claim benefits as a member of Scheduled Caste also? Again, can it be said
E that a person originally belonged to Scheduled Caste and required to be
treated as belonged to Scheduled Tribe under the impugned Act will continue
to be treated as belonged to Scheduled Caste for the purpose of election
under Articles 330 and 332 of the Constitution, but such person will be treated
as member of Scheduled Tribe for the purpose of other provisions of the
Constitution, for instance, under Article 335 of the Constitution? Such
F dichotomy, in our opinion, is not envisaged. Since we are of the view that
serious questions of law have been raised by the petitioners, the petition
deserves to be admitted and accordingly we have issued Rule. But in the facts
and circumstances of the case, in our opinion, grant of interim relief would
result in complications and confusions. Virtually it would amount to grant of
G interim relief against legislation as grant of such relief would prevent legislation
to operate. Moreover, the Act is of 2002 and came into force in January, 2003
whereas the petition under Article 32 of the Constitution was filed by the
petitioners in this Court in July, 2006. It is no doubt true as submitted by Mr.
Shanti Bhushan that before filing the petition, representations were made by
the petitioners but no heed was paid by the authorities. It is also true that
H even after July, 2006, respondents, particularly Union of India, had not done
VIJAY SINGH GOND v. U.0.1. 993

~. i anything in the matter, not even filed affidavit in reply by clarifying the A
position as to injustice likely to be suffered by a section of the society. At
the same time, however, grant of interim relief would create more problems,
complications and confu~ions. In our opinion, therefore, interim relief, as
prayed for by the petitioners, cannot be granted at this stage. Hence, interim
relief is refused.
B
Special Leave Petition (Civil) Nos. 17001-1700312005

14. Leave granted.

15. To be heard with Writ Petition No. 363 of2006.
RP. Interim relief refused.
c
Appeal to be heard with
Writ Petition No. 363 of2006.

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