19 The Constitution SC/STS
D Tungdim and Dr. Mary Grace
Contents of This Unit
- The people
- Division of the people
- Article 341: The Scheduled Caste
- The Tribals / Tribes
- Article 342: Scheduled Tribe (Adivasis)
- Criterion for Recognition and Verification of Scheduled tribes
- Background of Reservation
- Constitutional Safeguards of the SC/ST
- The SC/ST (Prevention of Atrocities) Act 1989
- Offence of Atrocities
- Comparison of Scheduled Castes and Scheduled Tribes
- References & Suggested Readings
Learning Outcomes:
- The student will come to know about the people of India, its unity amidst diversity, how Castes & tribes are defined.
- The learner will also be able to grasp the Articles of the Constitution pertaining to the Scheduled Castes & Scheduled Tribes and the Constitution safeguards of SCs/STs.
The people
India is a nation of ‘Unity’ without uniformity and ‘Diversity” without fragmentation, of around 3000 castes or Jati, practicing a hereditary occupation, religion and trades. The tribals (Adivasis) are generally known for their distinct culture, hospitality and ignorance whereas the rest of the mainstream people have a different set of attitude and foresightedness. A population of more than 1.21 billion people wherein, around 72.2% of the total population lives in rural areas in about 638,000 villages, 27.8% live in around 5,100 towns and the rest live in around 380 urban agglomerations/ municipal areas. However, the people are bound together by its colourful multi-cultures, caste, religion and languages.
Division of the people
The people are broadly classified into four constitutional categories, viz.: the Scheduled Castes (SC) community, who constitute 16.6 percent, the Scheduled Tribes (ST) 8.6%, the Other Backward Classes (OBC) community. The OBCs are set up on the line of economy and educational backwardness and consist around 36 percent of the total population, amidst conflicting reports from different sources. And the rest of the people are the upper caste Hindu and the Muslim communities.
People are divided on the line of religion first, and sub-divided into castes, linguistic lines and tribes. Amongst them, the Scheduled Castes and Tribes are traditionally considered not only backward in terms of economy, education and politics, but also socially degraded and deprived of their rightful share in place of work and at home. They are also often misunderstood to be closely linked by their culture and tradition, etc, whereas, they are completely different and distinct from each other, in terms of culture, habitats, traditions, and even worshiping deities.
Article 341: The Scheduled Caste
Scheduled Caste is an official term, given to the low caste Hindu communities, who are generally referred as ‘untouchables’. Clause 24 of Article 366 of the Constitution of India defines the term Scheduled Castes as such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of the Constitution. Scheduled Castes were also called ‘the depressed Classes’ by the British, as they were persecuted, isolated and suppressed inhumanely by the higher caste Hindu communities. The practice of untouchability has its root in the Caste system. Although untouchability was long abolished by Article 17 of the Constitution of India and its practice in any form is prohibited, yet this distasteful practice is still prevalent in many parts of the country in its explicit or clandestine form. The practice of untouchability pushed down the Scheduled Castes down to the lowest stratum in the Caste hierarchy (Naval, 2001). Many of the Scheduled Caste communities increasingly prefer to call themselves ‘Dalits’ even though they are officially called Scheduled Castes (http:/www.ncdhr.org.in/dalit).
The essential criteria for recognition of a community as Scheduled Caste is viz.: one should be a Hindu by religion, belonging to one of the lowest caste in the Hindu caste system, and practicing Hindu religion. The Constitution (Scheduled Caste) Order 1950 listed 1,108 Scheduled Caste communities in 29 states and Union territories as Scheduled Caste under article 341(1) of the Constitution, as per the 2011 census report.
Article 341
(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 castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes 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 Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification (example: A particular lower caste Hindu may be recognized as Scheduled Caste and entitled for the benefits of reservation with respect to the state of Bihar where he originally resides, but not in other state, where he temporarily migrates, except, in Delhi, the National Capital Territory).
The Tribals / Tribes
Tribe is an aggregate of people united or bound by ties of descent, form of common ancestor, commonality of customs, traditions, dialects and distinct from the rest of the society at large. Most tribes live in hills and are isolated from the mainstream societies in some way of the other, wherever they are. Concise Oxford English Dictionary defines ‘tribe’ as a group of families or communities linked by social, religious or blood ties, having common culture, traits and dialects. However, those communities, who accepted Hindu religion, adopt Hindu culture and Hindu ways of life, disassociate themselves from the tribal fold and wanted to place themselves in one of the upper caste of the Hindu, which seem to be not going quite well with the original Hindus. For example: The Meiteis of Manipur, the Ahoms of Assam, the Garhwalis of Uttarakhand, Himachalis, etc, can also be called tribes by their culture and way of life, but not Scheduled Tribe as they are not included in the list of Scheduled Tribe category under the Constitution of India.
Article 342: The Scheduled Tribe (Adivasis) Scheduled tribe is also an official term for constitutionally notified under article 342 of the those tribes (Adivasi/ aboriginal people) who are constitution. The term Scheduled Tribe as per Article 366(25) of the Constitution of India defines 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’.
Article 342
(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 castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes 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 Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
Criterion for Recognition and Verification of Scheduled tribes
Government of India, Vide No.35/1/72-RU (SCT.V) dated 02.05.1975 laid down five criteria for verifications and identification of certain “Tribe / community” to be constitutionally declared as Scheduled Tribe, by the president of India, under article 342 of the Constitution. A community may be a tribe by custom, tradition, trait and way of life, but unless the community is declared as scheduled tribe under article 342 of the constitution, they cannot claim to be belonging to a Scheduled tribe community as well as the entitlements.
At present the Constitution (Scheduled tribe) Order 1950 listed 744 tribes in 22 states in the first Schedule as per 2011 census, which is likely to be increase in the near future as some more tribes are believed to be considered for recognition as scheduled tribe in the near future.
The criterion followed for verification of a community for recognition as Scheduled Tribes are:-
1. Indications of primitive traits.
2. Distinctive culture.
3. Geographical isolation.
4. Shyness of contact with the community at large.
5. Backwardness.
This above criterion is not spelt out in the Constitution, but has become well established convention. It subsumes the definitions of “backward class community” contained in 1931Census, and the reports of first Backward Classes Commission 1955 i.e. the KalelkarAdvisory Committee, on Revision of SC/ST lists as per the recommendation of the Lokur Committee 1965, the Joint Committee of Parliament on the Scheduled Castes and Scheduled Tribes order 1967 and the Chanda Committee 1969.
The President, in exercise of the powers conferred by Clause (1) of Article of the Constitution of India, after consultation with the state governments concerned have promulgated 9 orders specifying the Scheduled Tribes in the states and union territories. However, only 8 orders which are given below are in operation at present in their original or amended form. The Constitution (Goa, Daman & Diu) Scheduled Tribes order 1968 has become defunct on account of reorganization of Goa, Daman & Diu in 1987. Under the Goa, Daman & Diu Reorganization Act 1987(18 of 1987) the list of Scheduled Tribes of Goa has been transferred to part XIX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 and that of Daman & Diu II of the Schedule of the Constitution (Union Territories) Scheduled Tribes Order, 1951.However, the Constitution has passed through many amendments or modifications from time to time by the President as per the conferred power.
No community has been specified as Scheduled Tribe in the states of Haryana and Punjab and Union Territories of Chandigarh, Delhi and Pondicherry.
The following points are to be observed during the Issue of Scheduled Tribes Certificate –
(a) General
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 Tribe 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 Tribe 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 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.
A person belonging to Scheduled Tribes, who have migrated from one State to another for the purpose of employment, education, etc. may obtain tribe certificate from the prescribed authority of a State government/Union Territory Administration to which State/Union Territory they have migrated on the production of the genuine certificate issued to his father/ mothers origin. However, if the prescribed authority of a State government/Union Territory Administration may deny to issue the same if 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.
Background of Reservation
The concept of implementing reservation for the inhumanly treated low caste Hindu communities, who are referred to as “untouchable” by the upper caste Hindu, and “depressed classes” by the British, was given 8.33 per cent reservation during the time of the foreign rulers in 1943. Thereafter, reservation system was formally conceived inter alia, in the Government of India Act 1935. The Britisher ’seven tried to create reserved seats for the Depressed Classes in the provincial and central legislatures during their regime. But this move was vehemently opposed by some Indian leaders for fear of ulterior motives of the British rulers at that time (Desai, 2011).
In the year 1947, the government of India issued instruction for reservation of 12.5 percent for Scheduled Caste only. Apparently, after several debates on the issue of tribal in the parliament, the government agreed to provide 5 percent reservation to scheduled tribes after the promulgation of the constitution in 1950. As the percentage of reservation has to be in proportion with the population of the 1961 census, it was increased to 15 percent for the Scheduled Castes and 7.5 percent for the Scheduled Tribes respectively, in the year 1971. And thereafter, there is no revision of reservation for the Scheduled Castes and Tribes.
Constitutional Safeguards of the SC/ST
The Constitution of India is one of the worlds’ largest constitutions with 395 Articles and 12 Schedules added with several commissions and statutory bodies. Being a nation of more than 50 percent of its total population are economically backward and socially suppressed, there is a need of having strong laws to safeguard and empower the weaker sections of the society. Some of the prominent articles of the constitution are given as follows.
Article 16 (4)
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.
Article 17
Abolished the pract ice of untouchablit y by any cit izen to any members of scheduled caste and tribe communit ies in any manner.
Article 46
The Directive principles as contained in Article 46 of the Constitution provide that “the state shall promote the educational and economic interest of the Scheduled Castes/ Tribes and other weaker sections of the society. The state shall also protect the weaker sections from all forms of exploitation/social injustice”.
Article 244 (1)
As per the Article 244(1) of the Constitution of India, the term Scheduled Areas refer to such areas as the President may by order declare to be Scheduled areas. The Administration of Scheduled areas and tribal areas should be entrusted to the Tribe Advisory Council and the intervention of the state government should be limited to the maximum. Except in tribal states, all tribal dominated areas or region be included in the fifth scheduled and the administration and control of the area be brought under the administration of the scheduled areas.
Article 244 (2)
The administration of the Autonomous District of the tribal areas should be extended to all tribal areas in the country and allowed to make such supplemental, incidental and consequential provision as may be deemed necessary for better and effective administration.
Article 275 (1)
Expenditures for development of Tribal areas shall be paid from the consolidated Fund of India as grant –in-aid of the revenues of the state for the purpose of promoting the welfare the scheduled tribes in the state or administration of the scheduled areas.
Tribal Law and Customary practices
Section 2 (2) of Hindu Marriage Act 1955 does not include scheduled tribes defined within the meaning of article 366 (25) of the constitution into the purview of the Hindu Marriage Act. Therefore, one should keep in mind the validity of tribal law and customary practices in our judicial system.
Article 330
Seats / constituency shall have reservations for SC/STs in the Lok Sabha.
Article 332
Seats / constituency shall have reservations for SC/STs in the state Assembly.
Article 334
The stipulated time for extending reservation for the SC/STs would cease to have effect after a period of ten years from the commencement of the constitution. However this article has since been amended four times, extending the period by ten years on each occasion.
Article 335
The claims of members of SC/ST shall be taken into consideration, in consistent with the maintenance of efficiency of administration in the state union government.
Article 338
Constituting a National Commission for SC/STs to investigate and monitor all matters relating to the protection of the SC/ST communities under the provisions of the Constitution. To inquire into specific complaints with respect to deprivation of the Constitutional rights of the SC/STs; to suggest and advise on the planning process of the socio-economic development of the SC/STs and to evaluate the progress of the development, etc.
The SC/ST (Prevention of Atrocities) Act 1989
As the existing laws like Protection of Civil Right Acts 1955 and the Indian Penal Code have been found inadequate to effectively prevent atrocities against members of scheduled caste and scheduled tribe, The Parliament of India enacted an Act “SC/ST (Prevention of Atrocities) Act” 1989 or Prevention of Atrocities Act (POA).
Offence of Atrocities
1. Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:-
(i) Forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance;
(ii) Acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste, or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighborhood.
(iii) Forcibly removes clothes from the person of a member of scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;
(iv) Wrongfully occupies or cultivates any land owned by or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred;
(v) Wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water;
(vi) Compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do ‘begging’ or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government;
(vii) Forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;
(viii) Institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe.
(ix) Gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe;
(x) Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in anyplace within public view;
(xi) Assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or outrage her modesty;
(xii) Being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;
(xiii) Corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Castes or a Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used;
(xiv) Denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to;
(xv) Forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
2. Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:-
(i) Gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death;
(ii) Gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;
(iii) Commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
(iv) Commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;
(v) Commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
(vi) Knowingly or having reason to believe that an offence has been committed under this section, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence; or
(vii) Being a public servant, commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence
Comparison of Scheduled Castes and Scheduled Tribes
Scheduled Castes and Scheduled Tribes are the traditional backward communities in the country; both the communities are generally considered to be closely related by culture and traditions and divided by religion. Such assumption is wrong and misunderstood as both the communities are of two different entities and not related in any manner. Some of the major differences between the two communities are briefly given below:
1. Scheduled castes are those communities who originally belong to the lowest caste of the Hindu caste system, who are considered “outcaste or untouchable” by the upper caste Hindus, which is still prevailing in some pockets of the Hindu society.
Scheduled tribes are those communities who have their own traditional customary laws and did not accept the Hindu caste system. They disassociate themselves from the Hindu fold and the mainstream society since time immemorial. The Scheduled tribes are still demanding for self determination from the central government and subjugation by the mainstream society. The tribes’ movement in the Northeast and Central India are examples of tribal unrest in the country.
2. Belonging to any of the low caste Hindu and practicing Hindu religion is an indispensable criterion for recognition of a community as Scheduled caste. The Constitution (Scheduled Castes) Order 1950 says, a non-Hindu cannot be a Scheduled Caste (even if belonging to a particular low caste in the official list of Scheduled Castes) if he ceased to be a Hindu by religion. The 1956 constitutional amendment extend the term Hindu to Buddhists, Jains and Sikhs. The Supreme Court has held in many cases that a Scheduled Caste Hindu, on ceasing to be a Hindu, also ceases to be a Scheduled Caste, until he reconverts to Hinduism.
3. There is no religious restriction for recognizing a community as Scheduled Tribe community. A Scheduled Tribe community must have their own customary laws, economically backward and have shyness of contact with other communities at large. The status of Scheduled Tribe can only be acquired by birth from the father, and mother in case of a matriarchal society like the Khasis Garos, no matter what religion they practice.
4. Most Scheduled Caste lives in urban areas or adjacent to the settlement areas of the upper Caste Hindu communities within the limit of the caste barrier.
5. Most Scheduled Tribes settle in remote and hill areas and generally confine to the circle of their tribal society, cultures, and hardly interacted with other communities at large.
6. The Scheduled Caste communities, being in the mainstream society, are far more socially and economically advanced and educated than the Scheduled Tribes. They are also politically strong and able to withstand any challenges confronting their common interest in the parliament with 84 members in the LokSabha. Moreover, they are far more aware about their rights and opportunities, than the scheduled tribe communities.
7. The Scheduled Tribe communities, being historically and sociologically segregated from the mainstream society and further secluded amongst themselves on the lines of tribes and dialects, find it extremely difficult to assimilate with the mainstream society. The Scheduled Tribes are unable to consolidate their political strength even with around 47 members of Parliament in the Loksabha.
8. The Scheduled Caste communities have no option other than the Hindu laws in case of family related disputes as they are a practicing Hindu religion. Every matter will be dealt under the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoption and Maintenance Act 1956.
9. Unlike the Scheduled Caste communities, the Scheduled Tribes always have the option to be tried either under the Hindu or tribal customary laws in family related cases. They have the option to be trialed under the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and the Hindu Adoption and Maintenance Act 1956. There are several cases in which judicial decisions specifically affirmed that the four Hindu laws do not extend to the Scheduled Tribe communities.
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References & Suggested Readings
- Basu DD (2013). Introduction to the Constitution of India. Lexis Nexis India.
- Census of India (2011).Office of the Registrar General & Census Commissioner, Government of India, India.
- Desai M. (2011). The Rediscovery of India. Penguin Books, Thomson Press India Ltd., New Delhi.
- Gazette of India (1950).Ministry of Law notification No. S.R.O. 385, dated the 10th August , 1950, Gazette of India, Extraordinary, 1950, Part II Section 3, page 163.
- Naval T.R. (2001).Law of Prevention of Atrocities on the Scheduled Castes and the Scheduled Tribes. Concept Publishing Company, New Delhi.
- http:/www.ncdhr.org.in/dalit
- http://tribal.nic.in/Content/DefinitionpRrofiles.aspx