11 Scheduled Caste, Scheduled Tribe And Other Backward Class & Access To Justice

Dr.M.R.K. Prasad and Andryusha Pinho

1. Introduction

One of the fundamental purposes of Law is to secure equality of all before the Law. If growth of the society is to be achived than all social groups ought to have equal access to any service provided by the State and an equal opportunity for economic, political and social mobility.

But the concept of justice can never be the same for people belonging to different strata of society and subsequently facing different levels of injustice. In an unequal society the level of victimization of people differs, depending upon not only their economic status but also location in the social ladder. Thus the meaning of justice cannot be the same for marginalized communities as it is for the dominant layers of societyi.

Therefore certain groups like the Scheduled Caste (Dalit), Scheduled Tribes (Adivasis) and Other Backward Classes who are said to be historically disadvantaged, vulnerable and socially oppressed call for certain steps to be taken to provide equal access to justice and prompt redressal.

2. Learning Outcome

After reading this unit, the reader shall be able to:

1.  Understand the basic concept of caste system in India and how the caste hierarchy developed in India.

2.Learn the meanings of various terms such as Caste, Backward Class, Scheduled Caste and Scheduled Tribes.

3.Appreciate the link between Caste and backwardness.

4.Expound the Constitutional safeguards in protection of these deprived classes and the legislative attempts in eradication social, political and economic deprivation.

5.Learn various remedies available to these section of the people in access to justice.

3.Elucidation of Key Concepts

Caste:

The caste stratification of the Indian society has its origin in the Chaturvana system.

According to the Chaturvarna doctrine, the Hindu society was divided into four main varnasii.

The basis of the Varna system which was prevalent during the Vedic period was mainly based on division of labour and occupationiii. Caste system though not synonymous to the Varna, owes its origin to the Varna system. Thus one should not take Caste and Varna system to be one and the same as Varnas are four in number whereas Castes can be found in hundreds and thousands.The term caste is difficult to define; however various thinkers and writers have defined it as under:Ketkar: “A caste is a group having two characteristicsiv

i) Membership is confined to those who are born of members and includes all person so born,

ii) The members are forbidden by an inexorable social law to marry outside the group.”

D.N Majumdar and T.N. Madanv has said that caste is a ‘closed group’. The Madras High Court judicially determining the term ‘caste’ stated that caste is a voluntary association of persons for a certain purposevi.

The Caste system also creates social hierarchy by placing certain caste higher in social status. One of the main principle on which the caste hierarchy in Indian society is decided is of purity and pollution principle. As per the social norms some occupations are pollutingvii, thereby treated as untouchable. The Scheduled Castes are placed below the line of pollution in the Hindu society and above the line of pollution are the Brahmins, Rajputs, Baniyas and Vaishyas. These castes incur pollution during life crisisviii but through proper rituals their pure status can be restored. One notable thing among the untouchables is that even they follow laws of purity and pollution as rigidly as upper caste. The Chamars i.e. the leather workers are placed higher than the Bangis i.e. scavengers in the rural society.

Scheduled Caste:

Scheduled Caste in its legal sense is a term used to denote an indigenous group of people who were treated as untouchables known as Shudras or Dalits. The term Dalit ix has been interchangeably used with the term Scheduled Castes and these terms include all historically discriminated communities of India. They occupy the bottommost stair of the social ladder. Mahatma Gandhi designated these people as Harijans, i.e., “Children of God”. The term Scheduled Caste was coined by Simon Commission in the year 1935. The same term is adopted by the framers of the Indian Constitution.

Various definitions of the term Scheduled Castes Dr. D.N. Majumdar x states that the term Scheduled Castes refers to the ‘Untouchables Castes’. The Untouchable Castes are those who suffer from various social and political disabilities many of which are traditionally prescribed and socially enforced by higher castes.

They can also be defined as those economically, socially, educationally and politically backward castes which are kept at a distance by the other castes as untouchables. They are those untouchable castes which are subject to some disabilities in every walk of life- social, religious, educational, economic and political.

Scheduled Tribes:

These are the second largest group of the backward classes of the unprivileged section. They are generally known as tribal people who were the earliest among the present inhabitants of India. They have traditionally lived in hilly and forest areas and still prefer to live there. It is a legal term designated to those aborigines who still adhere to their own tribal customs, norms and way of life.

They are known by various namesxi. The Constitution does not specify Castes or Tribes which can be termed as Scheduled Castes or Scheduled Tribes. It leaves the power to list these castes and tribes to the Presidentxii. This list may vary from State to State and territory to territory.

However the term tribe has been defined by various thinkers and writers in different ways.

Dr. D.N. Majumdarxiii : A Scheduled Tribe refers to a collection of families or groups of families bearing a common name, members of which occupy the same territory speak the same language and observe certain taboos regarding marriage, profession or occupation and have developed as well as assessed system of reciprocity and mutuality of obligations.

Imperial Gazetteer of India: A tribe is a collection of families bearing a common name, speaking a common dialect, occupying or professing to occupy a common territory and is not usually endogamous though originally it might have been so.

The Backward Classes:

Neither the Sociologist nor the Constitution makers have been able to define the term properly. They are said to be a large mixed category of persons with boundaries that are both unclear and elastic. They consist of three main categories- The Scheduled Castes and the Scheduled Tribes and Other Backward Classes.

Other Backward Classes:

They consist of majority of educationally and economically backward people. Though the Indian Constitution does not define the term, there are certain characteristics that help describe themxiv. In order to determine the conditions of the backward class the Constitution under Article 340 provided for the appointment of a Commission and accordingly The Backward Classes Commission xv was appointed under the Chairmanship of Kakasaheb Kalelkarxvi. The Commission approved of certain criteria to determine backwardnessxvii. Even after considering the criteria adopted by the Commission, finally the Commission decided to treat caste as an important factor for determining backward classes. The list made by the Commission was on the basis of caste. The Commission submitted its report on the 30th of March 1955 along with its recommendationsxviii. In his forwarding letter to the President, the Chairman opposed the important recommendations made by the Commission. But the said report was not accepted by the Central Government as no tests were laid down in identifying the Backward Classes. The Government also opposed the adoption of caste as one of the criteria for determining backward classes and preferred the application of the economic test. Thus the need arose for a second backward class Commission. The second backward class Commission was made official by the President on January 1st 1979. And the same was popularly known as the Mandal Commissionxix. It submitted its report in December 1980. The report was neither rejected nor categorically accepted. However, in the year 1990 Central Government implemented its recommendation of providing 27% reservations in public employment.

Some sociologist have defined “Backward Classes” as under Justice K. Subba Rao,xx the former Chief Justice of India, defined backward class as an ascertainable and identifiable group of persons based on caste, religion, race, language, occupation and such other with definite characteristics of backwardness in various aspects of human existence – social, cultural, economic, political and such others.

In simple words the term backward classes can be defined as social category which consists of all the socially, educationally, economically and politically backward groups, castes and tribes.

4. Pre-Constitutional Position of Safeguarding the Rights of the Depressed Classes

During the earlier days every caste used to have its own Caste Panchayat. These Caste Panchayats performed many functions xxi . But the British introduced a uniform legal, legislative and judicial system because of which the hold which the Caste Panchayat had over its members was affected. The British transferred the judicial powers of the caste council to the civil and criminal courts.

Some of the legislations which the British introduced shook the very foundation of the caste system, some of which were Caste Disabilities Removal Act of 1850xxii, The Special Marriage Act of 1856xxiii, and The Hindu Widow’s Remarriage Act of 1856xxiv. The very purpose of these measures taken by the British government was purely for administrative convenience and they had no desire to reduce the rigidity of caste system.

There were various other Social Reform Movements which attacked the concept of caste system and its inequalitiesxxv. It was in the year 1873, that the Satyashodhak Samaj was founded by Jyotirao Phule and the main purpose of this Samaj was to declare the worth of a man irrespective of which caste he belonged to. In his writings he appealed to the non – Brahmins not to engage Brahmin priest to conduct their marriage rituals. He perceived the need for educating the lower caste peoplexxvi. Mahatma Gandhi relentlessly worked towards the abolition of the caste system in India. It was Dr. Ambedkar who took up the fight against caste oppression more vigorously through the All India Depressed Classes Federation. In the year 1909, the issue of untouchability attained political significance and proposals were made for special legislative representation for untouchables. In the year 1917, the Congress passed Anti- disabilities Resolution. In 1930s Anti Disabilities Bill was introduced in the Central Legislative Assembly and also in Madras and Bombay Legislatures. Madras Legislature was the first to pass a comprehensive law to remove social disabilities wherein it was stated that discrimination against untouchables was an offence. Madras also took the initiative to make it possible for the Scheduled Caste to enter temples and preventing entry to any Hindu in the temple for worshipping was considered a Criminal Offence. Similar Acts were passed in other provinces too.

However, the British Government never took a step to improve the conditions of these untouchables. Thus after Independence it was left to the Constitution of India to make a first comprehensive break with the past and to pronounce the policy of abolition of untouchability and declare total equality so as to give these so called depressed classes a life of dignity and self- respect. Thus the Constitution also laid down means to achieve these objectives.

Post-Constitution Position in Safeguarding the Rights and achieving Social Justice for the Depressed Classes pragmatism.

To achieve a welfare State and an egalitarian society there was need to do away with caste prejudice, inequality and discrimination and this need was felt by social reformers as well as the Constitution- makers. The three – pronged strategy adopted by the Indian Constitution to change the status of Scheduled Castes and the Scheduled Tribes were

1. Protectionxxvii,
2. Compensatory Discriminationxxviii and
3. Developmentxxix

The promise of Social justice finds expression in the Preamble of the Constitution itself. Article 14 of the Constitution speaks about Right to equality and equal protection of law to secure social, economic and political justice to all citizens. However, the framers of the Constitution were aware that social realities could not be whisked away by policy declaration and thus they evolved a special treatment scheme and this arrangement is called Protective or Compensatory discrimination. The phrase ‘Protective discrimination’ indicates the preference given to the vulnerable groups with respect to admissions in educational institutes, reservation in legislature, etc. Under Article 15 and 16, the Indian Constitution has provided for formal equality which requires the absence of any discrimination in the words of law.

The special provisions of the Constitution which aimed at preventing discrimination and promoting social justice are as follows:

Social Safeguards

The Constitution has also provided Constitutional remedies to enforce the fundamental rights guaranteed under Part III of the Constitution if violated by the State under Article 32 and 226 of the Constitution. The significance of Article 32 has been emphasized by Justice Bhagwati in the case Bandhu Mukti Morchaxxx (AIR 1984 SC pg. 803) case which shows that the poor and disadvantaged sections of the society, particularly the members of the Scheduled Castes and Scheduled tribes can also seek quick remedy in the Supreme Court as well as the High Court if their fundamental rights as well as other constitutional rights are violated by the State or any other private individual.

6.  Legislative Protection

In line with the new Constitution, numerous laws have been enacted by both Central and State Governments in protection of backward classes.

In the year 1955, the Parliament passed ‘Untouchability Offences Act, 1955’.xxxi This Act was enacted in pursuance of Article 17 of the Constitution. However, the Act provided inadequate punishment for offences arising out of ‘Untouchability’ and was subsequently strengthened and amended in 1976 and rechristened as Protection of Civil Rights Act, 1976. This Act defines ‘Civil Rights’ as any right accruing to a person by reason of abolition of Untouchability by Article 17 of the Constitution. The major offences punishable under the said Act are enforcing of religious disabilitiesxxxii, enforcing social disabilitiesxxxiii, refusing to admit persons to hospitalsxxxiv, refusing to sell goods or render servicesxxxv, insulting, abusing and obstructing behavior xxxvi , unlawful compulsory labour xxxvii , abetment of offence, neglecting investigation of offence by public servants and the Act has further enhanced punishmentxxxviii considerably and the State Governments have been empowered to impose collective fines on the inhabitants of any area where they are concerned in or abetting the commission of untouchability offences.

All these provisions facilitate in the eradication of all the social evils of untouchability. In spite of the said Act, atrocities against the Scheduled Castes and Scheduled Tribes increased and there was a need to provide more safety and security and thus the Parliament altogether enacted a new law i.e. ‘The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This Act was a bold step in the direction of meaningful implementation of the Constitutional Directives and protection of rights of Scheduled Castes and Scheduled tribes.

The objectives of the Act clearly state that the intention of the Government was to deliver justice to these communities through positive efforts to enable them to live in the society with dignity, self- esteem and without fear of violence or suppression from the dominant class. The Preamble of the Act states that the Act is enacted to prevent atrocities against Scheduled Castes and Scheduled Tribes, to provide Special Courts for the trial of offences of atrocities against the members of Scheduled Caste and Scheduled Tribes and for rehabilitation of the victims of such offences. The atrocities against which protection is granted to Scheduled Castes and Scheduled Tribes under the Act can be broadly divided under five headsxxxix. The provisions of the Act can be divided into three categories i.e. the first category contains provisions of Criminal law, second provides for relief and compensation to victims of atrocities and third contains provisions which establish special Authorities for the implementation and monitoring of the Act.

The practice of untouchability is made both a cognizable and non-compoundable offence, and strict punishment is provided for any such offence. The Act does not define the term atrocity but Section 3xl of the Act lists twenty two offences relating to various patterns of behavior which destroy the self- respect and self- esteem of the Scheduled Caste and Scheduled Tribes and provides punishment. The most essential pre-requisite for commission of offence under any of the sub-section of section 3 is to establish by strong evidence that the victim was a member of Scheduled Caste or Scheduled Tribe community.

The Act created new types of offences which do not find any mention in the Indian Penal Code or in the Protection of Civil Rights Act 1955. The Commission of offence is only by specified persons i.e. atrocities must be committed by non SCs and non ST on the members of Scheduled Caste and Scheduled Tribes. Crimes among Scheduled Castes and Scheduled Tribes or between Scheduled Tribes and Scheduled Castes are not covered under the Act. The investigation of any offence mentioned under Section 3 of the Act has to be carried out by a Police Officer not below the rank of Dy. Superintendent of Policexli.

Section 14 of the Act provides for establishment of Special Courts for the purpose of providing speedy trial and trying of offences under the Act. This Special Court has to be manned by a Sessions Judge. Section 15 of the Act also provides for Special Public Prosecutors – senior advocates practicing law for not less than seven years to conduct cases in these courts.

Every State Government has an obligation to periodically survey the working of the provisions of the Act in their State so as to suggest further measures for effective implementation of the provisions of the Actxlii. The Special Court can take cognizance of a matter of atrocity only when the case is committed to them by a Judicial Magistrate as per Section 193 of the Cr.P.C. The Supreme Court decision in Gangula Ashok and others v. State of Andhra Pradeshxliii made it mandatory to send the cases under the Act to the Magistrate’s Court to observe the committal procedure and only then to Court of Sessions or to the Exclusive Special Court.

The procedure followed by the Judicial Magistrate is as under:

The Special Public Prosecutor and the Defence Advocate will present their arguments on the charges framed by the Police. If the court rejects the charge framed by the police, the Court will close the case and the accused will be discharged. If the Court rejects the final report of the Police, the Court can direct further investigation in the case. It is only when a prima facie case exists, the Court will take cognizance of the case, frame the charges and post the case for trial before the Special Court.

Trial before the Special Court is the same as that followed in the regular Criminal Courts. But The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and Rules lays down additional guidelinesxliv. The hardship faced at the time of trial of a case of atrocity is that some of the sections under the Act require proof that the offence was committed against a victim on the ground that such person is a member of the Scheduled Caste or Scheduled tribe. The Supreme Courtxlv has clearly stated that “the Criminal law primarily concerns social protection, prescribes rules of behavior to be observed by all persons and punishes them for deviance, transgression or omission. That mens rea is not an essential ingredient in social legislations is the settled law.” Further the Act under Section 3 (1) (x) states that the offence must be committed in a place within public view and if the same is not committed in a place of public view then the Act is not applicable. But the meaning of public view is well settled by the Supreme Court in the case of E. Tirupem Reddy v. Deputy Superintendent of Policexlvi. The SC/ST (Prevention of Atrocities) Rules 1995 also spell out a number of monitoring and implementation mechanisms for cases under trial in the Special Courtsxlvii.

Besides this under Section 21xlviii of the Act, State Governments are required to take various measures to avoid any possible impediments in the implementation of the provisions of the Act. Any person affected by the practice of untouchability has to approach the Police Station nearest to the area where such incident occurred and register a FIR (First Information Report) as per provision under Section 3 to 7 of Protection of Civil Rights Act 1955. In cases where any atrocity is committed on any person belonging to Scheduled Caste or Scheduled Tribe FIR has to be registered under Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989. The maximum punishment provided for offence under Section 3 of the Act is imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.

There are various other additional lawsxlix which provide for protection of Scheduled Castes and Scheduled Tribes to put an end to humiliating practices. A special mention has to be made to the Safai Karamcharis Act 1993. The said Act defines the term Safai Karmacharil as a person engaged in, or employed for manually carrying human excreta or any sanitation work. Section 3 of the Act prescribes for the constitution of National Commission for Safai Karamcharis. Chapter III of the Act under Section 8 lays down the functions and powers of the Commission as recommendation of programmes towards elimination of inequalities in status facilities and opportunities to Safai Karamcharis, to evaluate and implement various schemes for their social and economic rehabilitation, investigation of specific grievances and measures for social and economic upliftment.

7. Commissions to monitor the effective implementation of Constitutional Safeguards

The National Commission for Scheduled Caste and Scheduled Tribes was set up by a notification dated 1st September 1987 and the same was given Constitutional Status by the (65th Amendment) Act 1990. The First National Commission for Scheduled Caste and Scheduled Tribes was constituted on 12th March 1992. It was a body set up pursuant to Article 338 of the Constitution. It is entrusted with a responsibility to ensure that the safeguards and protection given to Scheduled Castes and Scheduled Tribes are implemented. The Commission receives complaints and investigates matters that come to its attention through newspapers or any other means. The Commission has powers of Civil Court and can call any person for evidence to ensure that the laws are implemented. But later it was brought to the notice of the Government that geographically and culturally the Scheduled Tribes were different from the Scheduled Caste and the problems faced too were different, thus the need was felt to have a separate National Commission for Scheduled Tribes to be set up to safeguard the interests of the Scheduled Tribes more effectively. Therefore the National Commission for Scheduled Tribes was established by amending Article 338 and inserting a new Article 338A. li By this amendment the previous National Commission for Scheduled Castes and Scheduled Tribes was replaced by two separate Commissions namely National Commission for Scheduled Castes ( NCSC) and the National Commission for Scheduled Tribes (NCST).

The National Commission for Schedule Castes (NCSC) and the National Commission for Scheduled Tribes

These Commissions are committed towards the full implementation of various Acts like Protection of Civil Rights Act 1955, The SC and ST (POA) Act 1989. The main functions of these Commission are investigation and monitoring of matter relating to safeguards provided for the Scheduled Caste under the Constitution or under any law in force and to evaluate the working of such safeguards and to inquire into specific complaints with respect to violation of rights of the Scheduled Castes. Participation 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, to present annual reports to the President with respect to the working of the safeguards, to discharge functions in relation to protection, welfare, development and advancement of Schedule Caste and Schedule Tribes. The Commissions while investigating into the matters will have all the powers of the Civil Court and lastly the Union and every State Government shall consult the Commission on all major policy matters affecting Schedule Castes and Schedule Tribes.

Procedure for Inquiry into specific cases and cases of atrocities

Inquiry into specific complaints with regard to deprivation of rights and safeguards of Scheduled Tribes

Complaint should clearly state how there has been a violation of the rights and safeguards.

Address the complaint to Chairman/Vice Chairman/ Secretary, National Commission for Scheduled Tribes New, Delhi.

Complainant to disclose full identity and complaint to be duly signed, without which the complaint will not be taken into account.

Wherever necessary, the complaint has to be supported with authenticated documents.

Inquiry in cases of atrocity

Whenever information is received by the Commission about incident of atrocity against a Scheduled Tribe or Schedule Caste, the Commission will immediately get in touch with the law enforcing and administrative machinery of the concerned State and the district to ascertain the details of the incident and the action taken by the District administration. Whilst doing the same, the Commission looks into various aspects, viz.,

a.Visit by Collector and Supdt. of Police of District at the scene of offence.

b.Proper registration of FIR; whether names of all those persons involved is mentioned.

c.Investigation is undertaken by Senior Police Officer as mandated in the provisions of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act) 1989.

d.Whether case is tried by Special Court.

e.Appointment of Special Public Prosecutor for these cases.

f.Assistance given by the Police in bringing forth witnesses and to see that culprits are punished.

g.To ensure that medical assistance, protection and proper compensation is paid to victims as per provisions of law.

National Commission for Backward Classes

This Commission was established on 14th August 1993 under the National Commission for Backward Classes Act 1993 (Act No. 27 of 1993).lii This Commission was the outcome of the direction of the Supreme Court in the Mandal Case judgment. The Commission sees to the inclusion and exclusion from list, of communities notified as Backward for the purpose of job reservation and tenders advice to the Central Government.

8. Summary

Caste is a phenomenon unique to India. Humiliation, suppression and exploitation socially and economically became integral part of caste system in India. Caste being determined purely by chance as it is decided by the birth, social stratification based on the caste hierarchy entwined socio, economic and political disabilities. Though there were several efforts to disengage this entwinement, they proved to be inadequate. Particularly the efforts during colonial period through legal frame work seem to be not only inadequate but also show reluctance among the ruling class in interfering with this socially complicated yet ever growing demand of equality of status. It is the adoption of Indian Constitution with liberal ideologies and Rule of Law firmly engrossed in its letter and spirit, that meaningful efforts were made in providing equality and securing human dignity. Special provisions such as providing special treatment in the form of reservations both in education and public employment provided a shot in arm to the backward classes in fighting against the exploitation. Prohibition of untouchability under the Indian Constitution gave direction to the Legislature, and the several legislations that were enacted provided much needed protection to the Scheduled Caste and Scheduled Tribes. Providing reservations in Lok Sabha, State Legislative Assemblies and Local Self-Government made some serious efforts in provided political equality. Establishment of National and State Commissions for the protection of Scheduled Caste, Scheduled Tribes and Backward Classes and giving them Constitutional status was another milestone in providing access to justice to these vulnerable groups.

REFERENCES:-

1.B.Raju, “Social Justice and the Constitution of India”, Serials Publications, 2007New Delhi

2. R.N.Choudhry and S.K.A.Naqvi, “Commentary on the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 along with Rules and allied Legislations”, Orient Publishing Company New Delhi Second Edition 2014 Reprint.

3. Dr. Ankit Tiwari, “Dalit and Constitutional Protection”, Cyber Tech Publications, 2014

4. Jain M.P., “Indian Constitutional Law”, Lexis Nexis Butterworths Wdhwa, Nagpur, 2011.

5. Shankar Rao C.N., “Principles of Sociology with an Introduction to Social Thought”, 2010 Reprint.

6. Lohit D.Naikar, “Law Relating to Human Rights”, Puliani and Puliani Bangalore 2014.

7. Dr. Jayshree Mangubahi, Adv. Rahul Singh, “Justice under Trial: Caste Discrimination in Access to Justice before Special Courts”, National Dalit Movement for Justice, 2014.