ALL ASSAM TRIBAL SANGHA AT ITS WITS’ END

                                                                                                      Hira Charan Narjinari

The General Secretary of All Assam Tribal Sangha appears to be at his wits’ end as to the statements he made in his Affidavit-in-Opposition submitted before the Hon’ble High Court of Gauhati on 18^th July 2014 in connection with Writ Petition(C) 2580/2014. Therefore, he had hurriedly withdrawn the said Affidavit-in-Opposition and submitted a fresh Affidavit-in-Opposition before the Hon’ble High Court of Gauhati on 30^th July 2014. In his new Affidavit-in-Opposition, he removed the following words from paragraph 3 “then in the same breath the petitioners nos. 1 and 2, being “Basumatary” and “Brahma”, also not being enlisted tribes/castes under the scheduled Castes and Scheduled Tribes Orders, 1950, cannot also claim to be members of Boro-Kachari community of Assam.” He must have perceived that his above statement was illogical and would invite severe criticism against him. In fact, his irresponsible statement has already aroused resentment among the Borokachari community.

    In his fresh Affidavit-in-Oppostion, Mr. Khakhlari has however, reiterated that “Basumatary”, “Brahma”, “Saikia”, “Majumdar”, “Das”, and “Deka” etc. who belong to Boro-Kachari community on account of their origin and place of residence without such surnames being indicated in the Constitution Order, 1950, the same is the case in respect of certain individuals having surnames like “Sarania”, as in the case of Respondent No. 7” (Naba Kumar Sarania). In order to prove that those persons bearing the surname Saikia, Sarania, Das, Deka belong to Boro-Kachari community, he annexed 6 (six) Tribe Certificates. It is interesting to note that All Assam Tribal Sangha’s Bajali District Unit had issued a Tribal Certificate to one Dharanidhar Sarania stating that he belongs to “Bodo-Kachary” caste, vide Certificate No. BDTS/STC/1105/92 dated 9/11/1992. It is beyond our comprehension as to what prompted AATS to use the term “Bodo-Kachary” while issuing a social status certificate to above-named person. Any individual could check the list of Scheduled Castes and Scheduled Tribes in Assam in order to ascertain the fact. The Constitution (Scheduled Castes) Order, 1950, C.O. 19, Part II Assam does not contain the name “Bodo-Kachary” as a Caste. Neither has the community “Bodo-Kachary” been listed as Scheduled Tribe in the Constitution (Scheduled Tribes) Order, 1950, C.O. 22 “Part II Assam II”. It is not comprehensible as to where AATS has imported the above unscheduled tribe name from.  

    The Mangaldai District unit of AATS has issued a certificate to one Kamala Sarania, Certificate No. 308 dated 3 April 1990. In the Certificate Kamala Sarania’s caste has been written thus: “Sub-Caste Kachari under The Constitution (Scheduled Caste) Order, 1950”. Rangia Unit of AATS issued certificates to Miss Surabhi Baruah stating that she belongs to Kachari community (Certificate No. 916 dated 22 December 1984), to Debajit Saikia as Boro-Kachari (Certificate No. 8727 dated 3 August 1994; to Rabi Ram Deka as Boro-Kachari (Certificate No. 4599 dated 25 June 1992); and Nalbari Unit to Bhabendra Das as Boro-Kachari (Certificate No. 673 dated 26 June 1999). Usually, members belonging to Borokachari community use Narzary Basumatary, Boro, Brahma, etc. as their surnames while members of the Sarania Kacharis generally use Das, Deka, Mahalia, Saikia, Sarania, Deka Sarania, etc., as their surnames (According to Sarania Kachari Development Council). Therefore certifying members of Sarania Kachari with surnames like Sarania, Saikia, Deka, Das, etc., either as Kachari or Boro Kachari appears to be unjustified and unlawful.

In his Affidavit-in-Opposition dated 30 July 2014 at paragraph 6 Mr. Khakhlari states that “they (i.e. Sarania) squarely belong to Kachari/Boro Kachari tribe”. However, the Constitution (Scheduled Tribes) Order, 1950, C.O. 22, and subsequent amendments and modifications do not list “Kachari/Boro Kachari” as Scheduled Tribe as stated by Mr. Khakhlari. The Order under reference does list “Boro, Borokachari” at Serial Number 2, and “Kachari, Sonowal” at Serial Number 5 as Scheduled Tribes, but not “Kachari/Boro Kachari” as stated by Mr. Khakhlari.    

    It is equally mysterious as to why the Government of Assam, WPT & BC Department, Dispur, authorised AATS by a Notification No. TAD/BC/265/2009/07 dated 22^nd June 2009 to identify the status of Scheduled Tribes Communities and issue Caste Certificate to the Scheduled Tribes (P) and Scheduled Tribes (H) when Government of India had issued a number of circulars from time to time indicating the authorities who would issue Caste Status Certificates. As far back as 22 March 1977 Government of India issued a letter to all State Governments and Union Territory Administrations clarifying the position. A relevant part of the letter reads as under:

    “It is understood that some State Governments/ U.T. Administrations have empowered all their Gazetted Officers to issue such certificates and Revenue Authority issue certificates on the basis of the certificates issued by Gazetted Officer, MPs and MLA etc. If such a practice is followed there is a clear danger of wrong certificates being issued, because in the absence of proper means of verification such authorities can hardly ensure the intrinsic correctness of the facts stated in such certificates. In order to check the issuance of false certificates, the question of verification assumes all the more importance.”

    The Ministry of Home Affairs, which was earlier looking after the work relating to SCs/STs had issued a checklist for issue and verification of SC/ST certificate vide their letter No. 35/1/72-RU (SCT.V) dated 2 May 1975. According to the checklist, before issuing SC/ST certificate it should be verified that the persons and his/her parents actually belong to the SC/ST community as claimed by him; the caste/community is included in the official SC/ST list of the concerned State/UT; the person actually belongs to the State in respect of which the community has been scheduled; the person claiming to be SC should profess Hindu, Sikh or Buddhist religion whereas a person claiming to be member of ST  may profess any religion; the person or his/her parents should have been permanent residents of the place mentioned in the certificate on the date of notification of Presidential order applicable in his/her State. AATS has not followed this procedure or guideline which induces us to state that  it has shown its vindictive nature. 

    The Supreme Court of India in Civil Appeal No. 5854 Kumari Madhuri Patil vs. Government of Maharashtra, 1994, relating to a false certificate, had laid down the procedure and guidelines, which should be followed in issuing the caste/tribe certificates. Some of the important procedure and guidelines are being summarised below:

1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than the Officer at the Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. All the State Governments shall constitute a Committee of three officers, namely, (i) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (ii) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and in the case of Scheduled Caste another officer who has intimate knowledge in the verification and issuance of the social status certificate. In the case of Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, part of or groups of tribes or tribal communities.
4. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims.
5. The High Court would dispose of these cases as expeditiously as possible within a period of three months.
6. In case, the certificate obtained or social status claimed is found to be false the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.

    The Seventh Report (2001-2002) of the National Commission for Scheduled Castes and Scheduled Tribes, submitted to the then President of India Dr. A.P.J. Abdul Kalam by Dr. Bizay Sonkar Shastri remarked that the false social status certificate is “serious problem which not only deprives but robs the Scheduled Castes and Scheduled Tribes of their rights and safeguards provided under the Constitution and various laws as well as the opportunities made available by the Government for their welfare.” The Commission, vide its D.O. No. 1/3/2003-ESDW/C. Cell dated 19 February 2004, recommended to the President of India stating, “In the case of elective offices such as Parliament/Legislative Assembly/Municipal Corporation/Panchayet the false Caste Certificate holder should be immediately sacked from the post/chair and must be debarred from contesting election for at least 6 years besides the punishment provided under law.”

    According to IPC 197 whoever issues or signs any certificate required by law to be given or signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence. What is the punishment for false evidence? IPC 193 states: “Whoever intentionally gives false evidence in any stage of a judicial proceedings, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall also be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”  

    It is known to all that Sarania Kachari is a separate community, independent of Borokachari community. Had it not been so the Government of Assam would not have sanctioned them a Development Council and named it Sarania Kachari Development Council which was formed on 12 October 2010 by a notification, vide, Notification No. TAD/BC/491/07/117 dated 4 May 2010 issued by the Principal Secretary to the Government of Assam, WPT&BC Department. Furthermore, the Sarania Kachari community considers Naba Kumar Sarania, Kokrajhar MP as one of the famous personalities among the Sarania Kachari community.

    According to the Representation of the People Act, 1951 Part II, 4(c) the required qualification for membership of the House of the People is that a person shall not be qualified to be chosen to fill a seat in the House of the People unless “in the case of a seat reserved for the Scheduled Tribes in the autonomous districts of Assam, he is a member of any of those Scheduled Tribes and is an elector for the Parliamentary constituency in which such seat is reserved or for any other Parliamentary constituency comprising any such autonomous district.” The Election Commission of India in its Handbook For Candidates, 2009, has also spelt out the same qualification for election to the Lok Sabha from a reserved seat for Scheduled Tribes.  In other words, only Scheduled Tribes are eligible for contesting election from a reserved seat.

    However, as Sarania Kachari is not recognised as Scheduled Tribe in the Bodoland Territorial Areas District, Naba Kumar Sarania was not qualified to contest election to the Lok Sabha from No. 5 Kokrajhar Parliamentary Constituency which is reserved for Scheduled Tribes. Hence, he managed to obtain an ST status impersonating himself as Borokachari which is recognised as Scheduled Tribe in Assam including BTAD, vide, his Caste Certificate No. 316097 dated 12^th October 2011, issued by All Assam Tribal Sangha, Tamulpur District Unit and countersigned by Sub-Divisional Officer (Civil), Tamulpur on 17 October 2011). Can a person claim to be a Sarania Kachari and a Borokachari simultaneously?  In his Affidavit dated 4 April 2014 filed before the returning officer to the House of People from No. 5 Kokrajhar Constituency, Naba Kumar Sarania declared that he was approximately 45 years old. In other words, he obtained his caste status certificate when he was about 42 years old in 2011. It appears that Naba Kumar Sarania never disclosed his tribe to be “Borokachari” for at least more than 42 long years and suddenly in 2011 he obtained a tribe certificate claiming himself as Borokachari.

    Since Naba Kumar Sarania contested election against a reserved seat on a fake Tribe Certificate and won the election, his membership from Lok Sabha is liable to be void as per the Representation of the People Act, 1951, Part II, 4(c) and the Election Commission of India’s Handbook for Candidates, vide Ch. II, 2.(4)(c). As he obtained benefit of reservation based on false tribe certificate, his tribe certificate should be cancelled immediately and necessary action be taken against him as per the relevant law of the land.