Why was the ‘affinity test’ not considered a litmus test for deciding a tribe claim by the Supreme Court?

In its analysis of the importance of the 'affinity test', the court's recent judgment delved into the constitution of the competent authority, the scrutiny committee and the vigilance cell, as well as the procedure to be followed in deciding a tribe claim.

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ON March 24, a Supreme Court three-judge Bench comprising Justices S.K. Kaul, A.S. Oka and Manoj Misra held that the 'affinity test' is not an essential part of the process of determining the correctness of a Scheduled Tribe (ST) claim. The judgment came pursuant to a reference posed to the Bench on the question of whether the affinity test is integral for determining the ST status of an applicant by an ST certificate scrutiny committee.

The Bench heard a bunch of petitions on whether paramount importance should be given to the affinity test while adjudicating upon a tribe claim based on an ST certificate issued by a competent authority.

An ST certificate scrutiny committee is a statutory body for verification of ST certificates issued by a competent authority indicating the ST to which the applicant belongs. After obtaining the ST certificate from a competent authority, any person who wants to avail its benefits or concessions can apply to the relevant scrutiny committee for the verification of such certificate and the issue of a validity certificate. A validity certificate issued by the scrutiny committee validates the ST certificate.

Further, a 'vigilance cell' is a body authorised to investigate ST claims by verifying and collecting all the facts of the social status claimed by the candidate or their parent or guardian. The affinity test is used to sift through distinct traits to link a person to a tribe or a tribal community.

In the judgment, the bench refers to 'tribe' interchangeably as 'caste', including the 'Scheduled Tribe' scrutiny committee referred to as 'caste' scrutiny committee and the 'Scheduled Tribe' certificate referred to as 'caste' certificate.

Background

In the present case, under the lead matter of Mah. Adiwasi Thakur Jamat Swarakshan Samiti versus The State of Maharashtra & Ors., the judgment of the Bombay High Court in Shilpa Vishnu Thakur versus State of Maharashtra (2009) was challenged. The high court, dealing with the issue of a tribe claim by the Thakur community in Maharashtra, had held that the affinity test is an integral part of determining the correctness of a tribe claim.

However, controversy followed due to two conflicting decisions rendered on the subject by coordinate Benches of the Supreme Court. In Vijakumar versus State of Maharashtra & Ors. (2010), a two-judge Bench of the court held that an ST validity certificate cannot be granted to a candidate who fails the affinity test at any stage. On the other hand, in Anand versus Committee for Scrutiny and Verification of Tribe Claims & Ors. (2011), another two-judge Bench of the court held that the affinity test is not the sole criterion to be used for deciding an ST claim based on an ST certificate issued by a competent authority, and it may be used to corroborate the documentary evidence.

In the present case, the Bench took up the hearing on reference by a division Bench comprising Justices Hemant Gupta and V. Ramasubramanian in March 2022 to address the non-uniform parameters set by courts for verification of ST certificates. The division Bench said that it wanted an "authoritative decision on the questions of the parameters which have to be taken into consideration by the scrutiny committee to verify the ST certificate", and requested the Chief Justice of India to constitute a Bench of three judges to examine and frame parameters for scrutiny committees to follow while verifying applications for tribe certificates.

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On the 'Thakur' tribe claim

The judgment remarked that as per Entry No. 44 in the list of Scheduled Tribes in Maharastra contained in the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, "Thakur, Thakar, Ka Thakur, Ka Thakar, Ma Thakur, Ma Thakar" are castes notified as STs.

The Bench observed that people with the surname 'Thakur' belong to both forward and backward classes of communities. It agreed with the Bombay High Court's decision in Shilpa Vishnu Thakur wherein it had been observed that the scrutiny committee could not conclude that an applicant belongs to the ST Thakur, or send every case to the vigilance cell, solely based on the surname 'Thakur'.

Constitution of scrutiny committee

Referring to the Supreme Court's judgment in Kumari Madhuri Patil versus Addl.Commissioner Tribal Development (1994), the instant judgment, authored by Justice Oka, highlighted the guidelines and procedure set by the Supreme Court for issuing social status certificates, their scrutiny and their approval. Kumari Madhuri Patil provided that on an application for the grant of a social status certificate, the competent authority, that is, the revenue sub-divisional officer and deputy collector or deputy commissioner is empowered to issue the certificate. The guidelines further made provision for the verification of tribe certificates by the scrutiny committee and provided for the constitution of a vigilance cell by each directorate to investigate social status claims.

With regard to Maharashtra, the judgment highlighted that the Maharashtra Scheduled Castes, Scheduled Tribes, De­notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 contained a mechanism for regulating the issue and verification of ST certificates to persons belonging to various categories of backward classes. According to the Act, on application, the competent authority issues an ST certificate, subjected to the verification and grant of validity certificate by the scrutiny committee constituted under the 2000 Act.

Further, the judgment specified that detailed provisions for the constitution of the scrutiny committee and the procedure to be followed by the competent authority and the scrutiny committee are laid down in the Maharashtra Scheduled Tribes (Regulation of Issuance and verification of) Certificate Rules, 2003 and the Maharashtra Scheduled Castes, De­notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012.

Functions of the scrutiny committee

The judgment rejected the argument that the scrutiny committee is not a quasi-judicial authority, reasoning that the 2000 Act provides that the scrutiny committee has various powers of a civil court under the Code of Civil Procedure, 1908.

Under the 2000 Act, and both the 2003 and 2012 Rules, the scrutiny committee is to hold an enquiry on the ST claim of the applicant, if necessary, after examining the applicant on oath, recording the evidence of witnesses, calling for documents and records, and recording reasons for granting and rejecting the prayer for the issue of ST validity certificates, the judgment explained. It concluded that "[t]he scrutiny committee has all the trappings of a quasi-judicial authority."

Further, the validity certificate has to be issued by a scrutiny committee either constituted per the direction issued in Kumari Madhuri Patil, or constituted under the 2003 or 2012 Rules. If, after enquiry, the scrutiny committee is satisfied that the material produced on record is satisfactory, it is mandated to grant validity to the tribe certificate.

The Bench emphasised that the scrutiny committee can send a case to a vigilance cell only if the committee is not satisfied with the material produced before it; hence, it does not refer every case to the vigilance cell. It can also direct a limited inquiry by the vigilance cell.

The judgement clarified that the decision of the scrutiny committee to refer to the vigilance cell depends on the nature of documents before the scrutiny committee and their probative value, including land records, school or college records, or any official records concerning the applicant or their ancestors that can provide evidence in the form of entry of the name of a community as a tribe or ST.

Report of vigilance cell

Reiterating Rule 12(7) of the 2003 Rules, the judgment noted that the vigilance cell's report is not conclusive, and that the scrutiny committee must conclude that the tribe claim is genuine after considering the report of the vigilance cell and other evidence on record.

The judgment emphasised that if the vigilance cell's report is not in favour of the applicant's claim, the applicant needs to be provided with a copy of the report and an opportunity of being heard on the report, following which the scrutiny committee may reject the tribe claim.

Reliance on validity certificate issued to blood relatives

In cases where the applicant relies on validity certificates issued to their blood relatives, the judgment states that firstly, the scrutiny committee needs to confirm whether the certificate is genuine. Further, the scrutiny committee needs to inquire whether the validity certificate was granted to the applicant's blood relative by the concerned scrutiny committee after holding a due enquiry and following due procedure.

The scrutiny committee can exercise its powers conferred under Section 9(d) of the 2000 Act by requisitioning the record of the concerned scrutiny committee that issued the validity certificate to the blood relative. If it is established that the validity certificate has been granted without holding a proper inquiry or recording reasons, the scrutiny committee cannot validate the tribe certificate solely based on such validity certificate of the blood relative.

Secondly, according to the judgment, the scrutiny committee has to decide whether the person, whose validity certificate is relied upon, is the applicant's blood relative. It states that if the applicant has not established their precise and exact relationship with the person to whom the certificate was granted as their blood relative, the scrutiny committee must refer to the vigilance cell to conduct an enquiry limited to the relationship claimed by the applicant with the person in whose favour the tribe validity certificate was issued.

If on the report of the vigilance cell, the scrutiny committee is satisfied that such a person is the applicant's blood relative, the scrutiny committee will have to issue a validity certificate even if the applicant does not satisfy the affinity test. "Only if the relationship as pleaded by the applicant is not established, the other evidence produced by the applicant and the result of the affinity test can be taken into consideration by the scrutiny committee," it stated.

Conduct of affinity test 

The judgment clarified that the question of the conduct of the affinity test arises only when the scrutiny committee is not satisfied with the material produced by the applicant. The affinity test is to be conducted by the vigilance cell and the question of conducting an affinity test arises only when a case is made out for referring a case to the vigilance cell, it said.

Relying on Kumari Madhuri Patil, the judgment in the present case states that while conducting an affinity test, the vigilance cell verifies the knowledge of the applicant about various factors including deities of the community, customs, rituals, and mode of marriage and death ceremonies in respect of a particular ST.

The judgment, though, cautioned that in situations where the applicants or their families have stayed in bigger urban areas for decades, they might not be aware of such factors. It, therefore, held that the affinity test could not be applied as a litmus test, and stated, "By its very nature, an affinity test can never be conclusive."

The judgement addressed the argument that while Rule 13(d) of the 2012 Rules provides for the Vigilance Cell to conduct affinity tests, no such provision exists in the 2003 Rules. The Bench, in its judgment, laid emphasis on Rule 12(4) of the 2003 Rules that authorises the vigilance cell to collect facts about the social status of the applicant or their parents, on the basis of which it held that an affinity test could be conducted by the vigilance cell.