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KHADC SOCIAL CUSTOM AND LINEAGE ACT’1997: THE LEGAL VIEWPOINT
By H Nongrum
The intention of the KHADC in passing the Khasi Social Custom and Lineage Act of 1997, was to make provisions for the protection and preservation of the Khasi Social Custom of Lineage. The Act passed in 1997 only received the assent of the Governor in February 23, 2005 and was published in the official Gazette on February 25, 2005. The Rules for the effective implementation of the provisions of the Act were framed in 2007 and officially notified on December 31, 2007. Thus the implementation of the provisions of the Act and the Rules made there-under went on smoothly without any hindrance. The contentious issue that has evoked public criticisms is, however with regard to the proposed amendment of Section 3 of the Act by inserting new Sub – Sections 3 (d) which provides inter alia that, “Any Khasi woman who marries a Non-Khasi as well as the offspring born out of such marriage, shall be deemed as Non-Khasi, who shall lose the Khasi status and all privileges or benefits as members of Khasi Scheduled Tribe who cannot claim preferential privileges under any law.”
It is noted that the Provision of Section – 3 in its original form, is descriptive of the characteristic of persons or persons who shall be a Khasi. The description is inclusive of all those categories of person/persons enumerated therein. It is structurally harmonious in approach and adherent to the social norms and practices prevailing in Khasi community as a whole. Hitherto there was no hindrance from any quarters.
That being the Scheme of Section 3 of the Act, the insertion of the new Sub-Section 3 (d), by the proposed Amendment is inappropriate and uncalled for as the disqualification by the deemed provision prescribed therein, tends to interfere and abrogates the legitimate Scheme of Section 3 in bringing about social harmony amongst the members of Khasi Community.
What is not to be lost sight of is the embodiment of the provisions of Section 3 (b) (v) in the Principal Act which states “(v) had not lost or been deprived of Khasi status by Judgment or Order of any competent court or by the operation of any such judgment or order, or under the provision of this Act, or……”
This provision had raised certain questions which need to be answered, namely; (a) what is the underlying reason to make such a provision (b) for which person or type of person is this provision is intended to apply (c) whether there is any social/political/or legal expediency necessitating the provision of this kind.
The answer to the above questions is not far to seek if we go back to the socio – political history of this region in mid 1950’s. In 1958, there was a famous Court decision known as the Willson Reade case. In that case, Mr. Willson Reade, a very prominent Khasi leader took the matter to the Court, on being aggrieved that his nomination papers to contest the Assembly Seat in 1957 from Nongpoh Constituency under the composite state of Assam was rejected on grounds that he was an Anglo Indian whose father was a European and thus not a member of the Scheduled Tribe and was therefore not entitled to be nominated as Candidate for the reserved seat for the members of the Tribe.
The Division Bench of the Hon’ble High Court of Assam in that Judgment as reported in AIR 1958, Assam 128, held at Para 25 that, “In the absence of any definition which will show that an Anglo Indian cannot be a member of the Khasi Community, there was no reason to hold that because the person fulfills the definition of an Anglo Indian, he was necessarily a non-Khasi. Whether an Anglo Indian Khasi can be regarded as a member of the Khasi community within the meaning of the order issued under the Constitution (Scheduled tribes) Order 1950, issued by the President under Article 342 will depend upon the factors above indicated and there was nothing in the Constitution which debarred an Anglo-Indian from being a member of the Khasi community.”
Para 35: “Held further that the person had fully established that he was a member of the Khasi Community and thus his nomination paper was wrongly rejected and under S. 100 (1) (c), representation of the People Act, it by itself is a valid ground for declaration of the election of the returned candidate to be void, and it was necessarily to be held that the results of the election had been materially affected by such a wrongful rejection”.
So, inevitably, keeping in view the operation of the Judgment in personam, (the judgment binds only the parties or privies to the suit. It does not bind entire world), pronounced by the Division Bench of the Hon’ble High Court of Assam in Willson Reade Case, the KHADC while passing the Khasi Social Custom and Lineage Act’1997 in its wisdom felt it imperative to incorporate the provision of Section 3 (b) (v).
In the case of the Scheduled Tribe status of the offspring of a tribal woman born out of the wedlock with a non-Tribal, vis-a-vis their Constitutional rights came up for consideration before the Division Bench of the Hon’ble Supreme Court in the case of Anjan Kumar versus Union of India as reported in A.I.R 2006, S.C. 1177. In that Appeal, the Apex Court held that the objective of Article 342, 15 (4), 16 (4) and 16 (4) (a) is to provide preferential treatment for Scheduled Castes and Schedule Tribes having regard to the economy, educational backwardness and other disabilities from which they suffer. So, also considering the typical characteristics of the Tribal including the common name, simplistic way of life and a tradition of common descent, their Transplantation of the outsiders as members of the tribe or Community may dilute their way of life, apart from the fact that such persons do not suffer any disabilities. Therefore, the precedent for a person to be brought within the purview of the Constitution (Schedule Tribe) Order 1950, is that one must belongs to a Tribe and suffer disabilities where form they belong.
The Apex Court also held that the Circular issued by the Ministry of Home Affairs to the effect that the children belonging to the Schedule Tribe woman marrying a non-Scheduled tribe man may be treated as members of the Scheduled Tribe community, if the marriage is accepted by the community and the children are treated as members of their own community is not Law within the meaning of Article 13 of the Constitution of India.
It is further held that the situation will however stand on a different footing in a case where a tribal man marries a non-tribal woman (forward class). The offshoots of such wedlock will obviously obtain tribal status. However, the woman (forward class) cannot automatically attain the status of tribal unless she has been accepted by the community as one of them. Such acceptance will not entitle the woman (forward class) to claim appointment to the post reserved for the ST/SC category. It would be a negation of the Constitutional goal.
Analytically, unlike the decision of the Division Bench of the Hon’ble High Court of Assam as reported in A.I.R 1958 (Assam) 128, which was the Judgment in Personam, the decision of the Division Bench of the Hon’ble Supreme Court as reported in A.I.R 2006 (SC) 1177 is the Judgment in Rem (A judgment in rem is an adjudication, pronounced upon the status of some particular subject-matter, by a tribunal having competent authority for that purpose). The Hon’ble Supreme Court in its Judgment as referred to herein above had laid down the law and set at rest all matters on the Issue. Being the Judgment in Rem of the Hon’ble Supreme Court, it is enforceable as the law of the land and will prevail, unless over-ruled by the larger Bench.
In 2012 however, there was another decision of the Division Bench of the Supreme Court in the case of Rameshbhai Dabhai Naila – versus – State of Gujarat and others, bearing similar facts on the matter, as reported in (2012) 3 SCC 400 which by its Judgment had clarified that although the decision of the earlier Division Bench of the Supreme Court reported in A.I.R 2006 SC 1177 had laid down the rule as enunciated therein, yet there is always an exception to the rule if it is proven by evidence in Court to the contrary, that by virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged.
That being the legal position, it is incumbent upon the KHADC, to consider the amendment of Section 10 and 10 (e) of the Khasi Social Custom of Lineage Act’1997, which deals with the Disqualification and Deprivation of Khasi status or Scheduled Tribe status in respect of a Khasi woman and her offsprings whose father was a non-tribal or a member of the forward class, keeping in view the Dictum of the 2 (Two) Judgments of the Supreme Court referred to herein above.
(The writer is Retired District Judge / Registrar, Gauhati High Court, Shillong Bench).