Struggles of obtaining caste certificates: Reflections on the law of Gujarat

Several Indian states, including Gujarat, have grappled with the issue of fake caste certificates due to the simplistic process of obtaining them and ineligible individuals forging them. In response, Gujarat implemented a law to regulate the issuance and verification of such certificates. This article identifies significant loopholes in the new law's onerous process through months of field research and suggests necessary policy changes.

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CASTE (or community) certificates are a sine qua non (essential condition) for availing the benefits of affirmative action.

The Indian legal system has instituted various provisions for Scheduled Caste (SC), Scheduled Tribe (ST) and Other Backward Caste (OBC) communities on the basis of historical injustices faced by them.

The provisions include reserved seats in the legislature and government services, waiver or partial waiver of fees for admission to schools and colleges, quotas in educational institutions and relaxation of upper age limit for applying to certain jobs.

To avail of such provisions, one needs to have a 'caste certificate' (also referred to as 'community certificate' or 'social status certificate') as proof of  belonging to a particular caste or tribe.

Till 2018, the process of obtaining such certificates was fairly simple in Gujarat. One had to submit an application form to the office of the local revenue official, i.e., the sub-divisional magistrate or tehsildar, along with a certified copy of required documents and a specified court stamp fee.

The required documents include a ration card, proof of residence, proof of purchase of property or house, phone bill, rent receipt, school leaving certificate, caste certificate of a close family member, and an affidavit stating that the applicant belongs to a Scheduled Caste or Tribe.

However, after being burdened by a huge number of fake certificates in the state, the Gujarat government brought in a law in 2018 (and the accompanying 2020 Rules for caste certificates for STs). This drew on various office memorandum(s) (OMs) issued by the Union government and judicial pronouncements.

Through our interaction with lawyers, paralegal volunteers and social activists in various regions of southern Gujarat, we have found that the exhaustive requirement of documents for application and verification of certificates under the new law might have resulted in adverse consequences.

While the new law has indeed made it difficult for fake or dubious applicants to get caste certificates, legitimate claimants are having a hard time proving their application.

Also read: Constitutional and legal implications of the Bihar caste survey

The process of applying for caste certificates in itself repeats the same patterns of oppression of Adivasi and Dalit communities, something we will highlight in the article. The paper will show how the requirement of some documents poses a problem for legitimate applicants, and then highlight how those problems get aggravated for specific vulnerable groups and communities. We will then utilise this experience and the existing law to recommend certain policy changes.

Rule 3 of the Gujarat Rules lays down the procedure for obtaining a caste certificate. Rule 3(3) (picture of extract above) provides a list of all documents an attested copy of which has to be submitted with the application. 

Part I: Documentary proof

Errors and non-availability of key documents

While documents like birth certificate, primary school admission register, and primary school leaving certificate of the applicant are usually available, the same documents for their father, grandfather and great-grandfather are mostly unavailable.

There are cases, especially in remote areas, where the applicant's generation is the first within their family to have a birth certificate. In many cases, birth certificates for older generations, when available, are handwritten and full of discrepancies.

In the case of family trees, most people are not aware of the names of their grandparents or great-grandparents, especially the female ancestors. Even if the applicants are aware of their ancestors' names, they often have no proof of their relation to them.

Often, the applicants are first-generation learners. Where ancestors did go to school, their school leaving certificates are marred by errors, ranging from the name spelled incorrectly, to having an incorrect caste name.

The experience of a paralegal volunteer we spoke to in getting a caste certificate for his son in Ahwa, Dang is illustrative of the difficulties faced when individuals responsible for issuing different documents are unaware of the local context.

Dang district is predominantly inhabited by three tribal groups: Kokna, Bhil and Warli. While this individual belongs to the 'Kokna' group, the teacher responsible for issuing primary school leaving certificates was not a local and ended up mentioning 'Kunbi' in the caste column of his son's leaving certificate as she was unaware of the specific tribal identities of her students.

This discrepancy was copied forward in the secondary school leaving certificate and upper secondary school leaving certificate. The individual concerned ran from pillar to post to get corrections made in the three documents but to no avail.

Also read: The right to religion and the Shudra predicament

Since school leaving certificates form important evidence in terms of determining the applicant's caste status, incorrect details can gravely affect the chances of securing a caste certificate.

Teachers often spell tribe names incorrectly or draw incorrect inferences about the pupil's tribe or caste status or confuse surnames for caste names. Once an inaccuracy or discrepancy has crept into the primary school leaving certificate, it carries on throughout their schooling life.

Lack of clarity on the process that needs to be followed for corrections in the documents aggravates the situation. It leaves the applicants at the mercy of the discretion of government or revenue officials.

Often, any such request for correction is outrightly rejected without even a written Order, on the ground that there is no process for such corrections.

On the rare occasion when officials do allow correction, they make arbitrary demands such as needing a notarised affidavit or a gazette notification.

Frequently, a tribe or caste has multiple local synonyms or there are various sub-groups within a caste group or tribe. These are often confused for being different tribes themselves.

Importantly, the B.N. Lokur Committee Report on the Revision of the Lists of Scheduled Castes and Scheduled Tribes suggests that it should be assumed that any caste or tribe specified in the SC/ST list would automatically include all synonyms, variations and sub-groups.

Requirement of 'permanent residence'

Successive Presidential Orders issued under Article 341 and Article 342 of the Indian Constitution have notified groups and communities that are deemed as SCs or STs in relation to a particular state or Union territory.

The 1975 guidelines issued by the Ministry of Home Affairs specified that to claim Scheduled status, the claimant has to, inter alia, prove her "permanent residence" or the "permanent residence of a paternal relative" in the concerned region or state on the date of the relevant Presidential Order.

Also read: Reservation for converted Dalits: Supreme Court mulls biding its time till K.G. Balakrishnan Commission report is out

Hence, for the purpose of determining one's SC/ST status, the residence of the person assumes significance. This significance has also been highlighted in the OM dated March 22, 1977, which empowers only prescribed authorities concerned with the locality of the applicant's 'permanent residence' to issue certificates.

Intuitively this stress on 'permanent residence' is bound to cause complications for those with no proof of permanent residence. How these complications play out in cases of some specific groups will be highlighted in the next part.

Clause I of the 1975 guidelines issued by the Ministry of Home Affairs to give some general principles and clarification about the issuance of caste certificates.

Part II: Affected groups

Difficulties faced by denotified, nomadic and semi-nomadic tribes and pastoralists

The problem of lack of proof of 'permanent residence' most acutely besets the denotified, nomadic and semi-nomadic tribes.

The National Commission for Denotified, Nomadic and Semi-nomadic Tribes, in its 2008 report, say that denotified and nomadic communities "have become denizens" as they do not possess even basic documents such as "ration cards, voting rights, caste and identity certificates, and residential address".

Communities have been displaced, alienated, or excluded from their homelands for various reasons including the exclusionary forest conservation regime. Forest-dwelling tribes also face a similar problem of being 'document-less'. The High Level Committee On Socio-Economic, Health and Educational Status of Tribal Communities Of India constituted by the Ministry of Tribal Affairs, in its report of May, 2014, confirms this fact.

This 'document-less' and wandering nature of such communities acts  as a double whammy for their prospects of getting a community certificate:

(a) 'Permanent residence' difficult to prove, (b) It is impossible to affix responsibility of issuing certificates on prescribed authorities of one region. 

Clause 3 of the OM dated March 22, 1977 provides some clarification as to the revenue officials who are empowered to issue caste certificates for a particular region.

In Chhattisgarh, the Pardhi community, which is a denotified community, has ST status in a few districts and OBC in a few blocks of other districts. The fact that they are also a nomadic community makes the determination of their 'permanent residence' and hence caste status difficult.

Also read: Supreme Court judgment on EWS defeated constitutional objectives of creation of an egalitarian social order – I

Further, till about 30 years ago, government records mentioned Pardhi as 'Nahar'. All the land records of that time only mention 'Nahar' as the caste status. Subsequently, administratively, they started being referred to as 'Pardhi'. This has led to confusion amongst revenue officials (who are the authority responsible for issuing caste certificates) while considering applications for the issuance of caste certificates.

Since strict action can be taken against revenue officials who issue faulty caste certificates, officials prefer to outrightly reject applications in the face of small complexities than take the trouble of conducting an inquiry.

Migrant workers

The 1975 guidelines and subsequent OMs have addressed multiple issues that inter-state migrants were facing in obtaining caste certificates. These include the 1982 OM, which empowered competent authorities of the state to which one has migrated, the power to issue caste certificates to such a person.

Only the father's certificate can be submitted as proof for the issuance of the certificate now. Previously, the mother's certificate could also be submitted, but this possibility was extinguished through subsequent OMs.

Clause 2 of the 1975 guidelines gives some general principles regarding the issuance of caste certificates for migrants. 

Further, multiple OMs and Supreme Court judgments have clarified that migrant claimants to the caste certificate will only be entitled to the benefits admissible to SC/ST from the state of their origin and not from the state to which they have migrated.

The findings of the 2016 Report on the Problems of Migrant SC in Obtaining Castes Certificates show that the situation on the ground is still murky and migrants have a hard time obtaining such certificates.

Also read: Quota within quota: why did Supreme Court uphold Madras High Court's judgment quashing separate reservation for Vanniars?

Migrant workers continue to face multiple problems in this regard including difficulty in proving 'permanent residence', lack of access to the competent authorities in the state of origin, different caste status in different regions or states, unavailability of father's caste certificate, lack of clarity on caste status in case of newborn states or Union territories, father's caste certificate not being accessible or available, and so on.

Adivasis who adopt Christianity or Islam

The law is clear: religion is no bar to Scheduled Tribe status. An ST can profess any religion as per law, and still obtain a caste certificate. After speaking to local lawyers, we found that STs who practise Islam in Mangrol block of Surat district and Sagbara block of Narmada district have been unable to get ST certificates.

Revenue officials seem to be of the mistaken belief that once a hitherto ST person has adopted a 'new' religion (or even stopped practising their traditional occupation), they have forsaken their 'original' religion. Revenue officials in most regions seem to have the notion that tribals are a monolith and their way of living, the religion they follow, the deities they worship, their rituals and customs, etc., are uniform and unchanging, without realising their diversity and dynamism.

Such a notion also runs contrary to the law and has the potential of dividing the Adivasi community further. There is politicisation of the fact that Scheduled Tribes also practise Christianity and many groups have been demanding that they should be stripped off of their ST status based on the flawed reasoning that both identities cannot simultaneously exist.

Offspring of single, divorced and deserted women

Union government's OM dated October 3, 2019 draws on the Delhi High Court's and Supreme Court's judgments to clarify the caste status of offsprings of single, divorced or deserted women.

The removal of the mother's certificate as one of the proof of a migrant's caste status is a reflection of the larger problem of downgrading a mother's caste status.

This is most acutely reflected in the problems that single, divorced or deserted women have been facing to procure caste certificates for their children. We spoke to lawyers who highlighted multiple cases where ST/SC women along with their children are deserted or abandoned by their husbands and left to fend for themselves when it comes to proving their child's caste status.

Also read: Constitutional and legal implications of the Bihar caste survey

Often, officials demand for the caste certificate of the father as proof or in case the father is from outside Gujarat, ask the applicant to get the certificates from the father's state of origin.

An ST woman, for instance, from the Kukarmunda block of Gujarat has been unable to get a caste certificate for her daughter after her husband, belonging to an ST community, abandoned them and crossed the state boundary to Nandurbar district in Maharashtra.

Even when the multiple OMs and judgments allowing the offspring to take the caste of the mother are brought to revenue officials' attention, women continue to face administrative apathy.

Things get especially difficult if the parents have had an inter-caste marriage and the mother belongs to an SC/ST community. This is despite the fact that the Supreme Court in Rameshbhai Dabhai Naika versus. State of Gujarat and Ors has specifically held that a child will get the caste status of the mother if it can be proved that:

(a) The child has been brought up by the SC/ST mother.

(b) The child has suffered the deprivations, indignities, humiliation and handicaps like any other member of the mother's community.

(c) The child was always treated as a member of the community by both people within and outside the community.

The Union and Gujarat governments have issued OMs reiterating this judgment. Despite this, revenue officials have stubbornly refused to give certificates on the basis of the mother's certificate.

This situation gets especially precarious in tribal regions where there is a history of privileged men marrying and later abandoning or deserting tribal women and their children without any financial and familial support.

While these OMs and judgments state that offspring can belong to the mother's caste if certain conditions are fulfilled, there are no mechanisms in place to ensure that revenue officials implement this notification as the Rules do not explicitly provide for it

Part III: Policy recommendations

Powers of discretion

Unless revenue officials start using their own discretion, which the Rules allow for, to decide on claims and take the ground realities into account, most legitimate claimants would struggle to satisfy the strict requirement of the law to get the certificates.

Also read: Caste is in the very air we breathe

While Rule 3(4) of the Gujarat Rules allows for using direction, its application has been minimal and allows room for biases. The state government should promptly take steps to create awareness about this Rule amongst the revenue officials as well as the public.

The state legal service authority, district legal service authority and the taluka legal service authority can be roped in for such sensitisation, awareness and legal aid as well.

Rule 3(4) of the the Gujarat Scheduled Tribes (Regulation of Issuance and Verification of Certificates) Rules, 2020.

Conflict between the state Act/Rules and OMs, and judicial Orders/judgments

A review of the 2020 Caste Certificate for Scheduled Tribe Rules should be urgently undertaken and necessary amendments should be made therein to incorporate the latest legal position.

The countless government OMs, judicial decisions as well as the state Act and Rules have led to a situation where ground-level revenue officials are themselves confused about the correct position of law.

An expert committee should be constituted to clarify the law as it stands now and suggest amendments to the Rules after public consultation. 

Certificates to be given on the basis of the mother's caste

Despite the unequivocal position of the law on this aspect, revenue officials have only followed this in violation. An amendment in the Rules should be made to incorporate a mechanism to give certificates on the basis of the mother's caste.

Instituting process for defects

The state government should notify a process for the correction of typographical errors and discrepancies in various documents. This would require necessary amendments to be brought into the Rules.

Written, reasoned Order to be made mandatory

A notification should be issued making it mandatory for all revenue officials to give a written Order with reasons before rejecting an application. Very often, claimants are left with no recourse of appeal as their applications are rejected without any proof of such rejection. 

It is hoped that the above suggestions will help usher in a new paradigm for the issuance of caste certificates and enable a fair and justifiable system for persons who need to avail of such benefits but fail to, either due to erroneous documents or the lack of cooperation from government officials.

Sardar Vasava, Ramesh Dhoom, Sahdev Vasava, Jayashri Gaikwad, Ashish Vasava, Manjhi Vasava, Sonu Padvi, Hamza Tariq, Aditya Gujarathi and Anahita Surya, associated with Kanuni Lok Sahayta Kendra, co-authored this piece.