Is single OBC mother's child entitled to OBC tag? SC lens on paternal link

NEW DELHI: Should an individual's eligibility to OBC quota be solely determined by his father's caste? A Supreme Court bench of Justices K V Viswanathan and N Kotishwar Singh agreed to examine the issue raised by a single OBC mother for her son.

Significantly, additional solicitor general S D Sanjay, representing the Centre, also favoured the apex court looking into the important issue thrown up by the petition by a woman who is separated from her husband and lives with her child. He had initially said the issue of how to determine one's caste was the prerogative of states.

Not inclined to leave it to individual states to decide such cases, the bench said, "We will lay down guidelines."

The petitioner challenged the current guidelines that provide for consideration of grant of OBC certificate to a person if he shared paternal blood relationship with a man who is already recognised as an OBC.

"Considering the important issue raised by the petitioner, and subject to the orders passed by the CJI, let the matter be placed for final hearing in the month of July," the bench said. It also wondered whether children of an OBC woman, who had an inter-caste marriage, would also be entitled to OBC certificate.

In testing the validity of the patriarchal guidelines, the SC may have to refer to a 2012 judgment of the top court which had dealt with a case relating to a tribal woman marrying an upper caste man. In its judgment in 'Rameshbhai Dabhai Naika vs Gujarat', a two-judge bench of the SC had ruled, "The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case.

"In an inter-caste marriage or a marriage between a tribal and a non-tribal, there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal, the husband belongs to a forward caste."

"But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Castes/Scheduled Tribes. 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, humiliations and handicaps like any other member of the community to which his/her mother belonged. Additionally, he was always treated as a member of the community to which his mother belonged not only by that community but by people outside the community as well," it had said.

In the current case under consideration, Centre said the petitioner, Santosh Kumari, is a retired teacher from Municipal Corporation of Delhi. The Union govt said it was of the view that any child born to an OBC parent, whether the parents are separated or divorced, should be entitled to an OBC certificate based on the credentials of either the OBC father or OBC mother, depending on who has custody or is actively raising the child.

"In cases where an OBC certificate is to be issued based on the mother's credentials alone, it must be clearly established that the child has been living with and has been brought up solely by the mother. Additionally, a preventive mechanism should be in place to prevent any potential misuse of this benefit," the ministry of social justice and empowerment said in its affidavit.

"OBC castes and its related subjects are matters of individual states in the country and the states need to roll out the mechanism for the same. This court may issue guidelines or/and directions to the states and its officers to process the application of wards of single OBC mothers without document proof from the parental side," it said.