21 Constitution and Scheduled Tribes; Pseudo Tribes
Dr. Meenal Dhall
Contents:
- What is article 342?
- Issue of Scheduled Tribes Certificate – Points to be observed
- Provisions relating to scheduled tribes
- Equality of opportunity in matters of public employment
Learning Objectives:
- To know about Constitution and Scheduled Tribes; Pseudo Tribes
- To discuss in detail about Issue of Scheduled Tribes Certificate
- Provisions relating to scheduled tribes
- To study equality of opportunity in matters of public employment
The term Scheduled Tribes first appeared in the Constitution of India. Article 366 (25) defined scheduled tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution”.
What is article 342?
Article 342, which is reproduced below, prescribes procedure to be followed in the matter of specification of scheduled tribes. According to Article 342 Scheduled Tribes, The President may, with respect to any State or Union territory, and where it is a state, after consultation with the Governor there of by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall, for the purposes of this constitution, is deemed to be scheduled tribes in relation to that state or Union Territory, as the case may be.
Parliament may by law include in or exclude from the list of Scheduled tribes specified in a notification issued under clause(1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid, a notification issued under the said clause shall not be varied by any subsequent notification.
Thus, the first specification of Scheduled Tribes in relation to a particular State/ Union Territory is by a notified order of the President, after consultation with the State governments concerned. These orders can be modified subsequently only through an Act of Parliament. The above Article also provides for listing of scheduled tribes State/Union Territory wise and not on an all India basis.
The criterion followed for specification of a community, as scheduled tribes are:-
1. Indications of primitive traits,
2. Distinctive culture,
3. Geographical isolation,
4. Shyness of contact with the community at large, and
5. Backwardness.
Where a person claims to belong to a Scheduled Tribe by birth it should be verified: –
(i) That the person and his parents actually belong to the community claimed;
(ii) That the community is included in the Presidential Order specifying the Scheduled Tribes in relation to the concerned State.
(iii) That the person belongs to that State and to the area within that State in respect of which the community has been scheduled.
(iv) He may profess any religion.
(v) That he should be permanent resident on the date of notification of the Presidential Order applicable in his case.
(vi) Person who is temporarily away from his permanent place of adobe at the time of the notification of the Presidential order applicable in his case, say for example to earn a living or seek education, etc can also be regarded as a scheduled tribe, if his tribe has been specified in that order in relation to his state/ union territory. But he cannot be treated as such in relation to the place of his temporary residence notwithstanding the fact that the name of his tribe has been scheduled in respect of that are area in any Presidential Order.
In the case of persons born after the date of notification of the relevant Presidential Order, the place of residence for the purpose of acquiring Scheduled Tribe Status, is the place of permanent abode of their parents at the time of the notification of the presidential order under which they claim to belong to such a tribe.
(b) Scheduled Tribes claims on migration
(i) Where a person migrates from the portion of the state in respect of which his community is scheduled to another part of the same state in respect of which community is not scheduled, he will continue to be deemed to be a member of the Scheduled Tribe, in relation to that State;
(ii) Where a person migrates from one state to another, he can claim to belong to a scheduled tribe, only in relation to the State to which he originally belonged and not in respect of the state to which he has migrated.
(c) Scheduled Tribe claims through marriages
The guiding principle is that no person who was not a Scheduled Tribes by birth will be deemed to be a member of Scheduled Tribe merely because he or she has married a person belonging to a Scheduled Tribe.
Similarly a person who is a member of a schedule tribe would continue to be a member of that scheduled Tribe, even after his or her marriage with a person who does not belong to a Scheduled Tribe.
(d) Issue of Scheduled Tribe Certificates
The candidates belonging to Scheduled Tribes may be issued Scheduled Tribe Certificates, in the prescribed form (Annexure-III) from one of the prescribed authorities in support of their claim.
(e) Punishments for officials issuing Scheduled Tribe Certificates without proper verification
(f) Liberalization of procedure for the issue of Scheduled Tribe certificates to migrants from other States/ Union Territories.
Person belonging to Scheduled Tribes, who have migrated from one State to another for the purpose of employment, education etc. experience great difficulty in obtaining tribe certificate from the State from which they have migrated. In order to remove this difficulty, it has been decided that the prescribed authority of a State government/Union Territory Administration may issue the Scheduled Tribe certificate to a person who has migrated from another state, on the production of the genuine certificate issued to his father/ mothers origin except where the prescribed authority feels that detailed inquiry is necessary through the State of origin before issue of the certificate. The certificate will be issued irrespective of whether the tribe in question is scheduled or not in relation to the State/ Union Territory to which the person has migrated. However, they would not be entitled to ST benefits in the migrated State.
Provisions relating to scheduled tribes:-
1. The President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes, or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.
2. Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (2) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. XIX. Miscellaneous 366. Definitions In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say – (25) “Scheduled Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution; II.B – Educational, Economic and Public Employment-related Safeguards 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth 1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to a. access to shops, public restaurants, hotels and places of public entertainment; or b. the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.
3. Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.
4. Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause 1.
Equality of opportunity in matters of public employment
- There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
- No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
- Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
- Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
A. Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
B. Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause
(4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.
5. * * * * 19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; [and]
(g) to practise any profession, or to carry on any occupation, trade or business. [(2)
2. Seats shall be reserved also for the autonomous districts in the Legislative Assemble of the State of Assam.
3. The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved bears to the total population of the State. [(3A) Notwithstanding anything contained in clause (3), until the taking effect, under article 170, of the readjustment, on the basis of the first census after the year [2026], of the number of seats
in the Legislative Assemblies of the States of Arunachal Pradesh, Meghalaya, Mizoram and Nagaland, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly of any such State shall be,— (a) (b) [(3B) (4) (5) (6) if all the seats in the Legislative Assembly of such State in existence on the date of coming into force of the Constitution (Fifty-seventh Amendment) Act, 1987 (hereafter in this clause referred to as the existing Assembly) are held by members of the Scheduled Tribes, all the seats except one; in any other case, such number of seats as bears to the total number of seats, a proportion not less than the number (as on the said date) of members belonging to the Scheduled Tribes in the existing Assembly bears to the total number of seats in the existing Assembly.] Notwithstanding anything contained in clause (3), until the re-adjustment, under article 170, takes effect on the basis of the first census after the year [2026], of the number of seats in the Legislative Assembly of the State of Tripura, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly, shall be, such number of seats as bears to the total number of seats, a proportion not less than the number, as on the date of coming into force of the Constitution (Seventy second Amendment) Act, 1992, of members belonging to the Scheduled Tribes in the Legislative Assembly in existence on the said date bears to the total number of seats in that Assembly.] The number of seats reserved for an autonomous district in the Legislative Assembly of the State of Assam shall bear to the total number of seats in that Assembly a proportion not less than the population of the district bears to the total population of the State. The constituencies for the seats reserved for any autonomous district of Assam shall not comprise any area outside that district. No person who is not a member of a Scheduled Tribe of any autonomous district of the State of Assam shall be eligible for election to the Legislative Assembly of the State from any constituency of that district: [Provided that for elections to the Legislative Assembly of the State of Assam, the representation of the Scheduled Tribes and non-Scheduled Tribes in the constituencies included in the Bodoland Territorial Areas District, so notified, and existing prior to the constitution of the Bodoland Territorial Areas District, shall
be maintained. Reservation of seats and special representation to cease after sixty years Notwithstanding anything in the foregoing provisions of this Part, the provisions of this Constitution relating toa. the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States; and b. the representation of the AngloIndian community in the House of the People and in the Legislative Assemblies of the States by nomination, shall cease to have effect on the expiration of a period of sixty years from the commencement of this Constitution: Provided that nothing in this article shall affect any representation in the House of the People or in the Legislative Assembly of a State until the dissolution of the then existing House or Assembly, as the case may be. IX. The Panchayats 243D. Reservation of seats 1. Seats shall be reserved for- a. the Scheduled Castes; and b. the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat. 2. Not less than onethird of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes. 3. Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat. 4. The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide: Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State: Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women: Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
5. The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334. 6. Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens. IXA. The Municipalities 243T. Reservation of seats 1. Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved
shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality. 2. Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the
Scheduled Tribes. 3. Not less than one-third (including the number of seats reserved foromen belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality. 4. The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide. 5. The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons
(other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334. 6. Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens. II.DAgency for monitoring safeguards [338A. National Commission for Scheduled Tribes- (1) There shall be a Commission for the Scheduled Tribes to be known as the National Commission
for the Scheduled Tribes. (2) (3) (4) (5) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may be rule determine. The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
The Commission shall have the power to regulate its own procedure. It shall be the duty of the Commission—
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
(c) to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine.
FIFTH SCHEDULE [Article 244(1)] PROVISION AS TO THE ADMINISTRATION AND CONTROL OF SCHEDULED AREAS AND SCHEDULED TRIBES PART A GENERAL
1. Interpretation.—In this Schedule, unless the context otherwise requires, the expression “State” does not include the [States of Assam 3 [, 4 [ Meghalaya, to Tripura and Mizoram.]]]
2. Executive power of a State in Scheduled Areas.—Subject to the provisions of this Schedule, the executive power of a State extends to the Scheduled Areas therein.
3. Report by the Governor to the President regarding the administration of Scheduled Areas.— The Governor of each State having Scheduled Areas therein shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas.
PART B ADMINISTRATION AND CONTROL OF SCHEDULED AREAS AND SCHEDULED TRIBES
4. Tribes Advisory Council.—(1) There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State: Provided that if the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.
(2) It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor.
(3) The Governor may make rules prescribing or regulating, as the case may be,
(a) the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof;
(b) the conduct of its meetings and its procedure in general; and
(c) all other incidental matters. 5. Law applicable to Scheduled Areas.—
(1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect. (2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.
In particular and without prejudice to the generality of the foregoing power, such regulations may—
(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;
(b) regulate the allotment of land to members of the Scheduled Tribes in such area;
(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area. (3) In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor may repel.
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REFERENCE
URL CITED
- http://lawmin.in/id/subord/rule9a.html
- tribal.nic.in/writereaddata/userfiles/cp/provision
- http://tribal.nic.in/content/IntroductionScheduledTribes,aspx