23 Institutional Arrangements for Minorities and Special Categories: National commission for schedule Caste

Mr. Prashant Negi

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Institutional Arrangements for Minorities and Special Categories:
Schedule Caste
Content Writer: Prashant Negi

Abstract

The paper is structured to understand the overall institutional arrangement of the Government towards special categories such as the Scheduled Castes, the Scheduled Castes and the Minorities in India. In that context, it first analyzes the basic defining political principles, structures and procedures and other instruments of state policy which necessitated the establishment of statutory bodies for safeguarding and proper implementation of the rights of marginalized social groups and minorities in India. It then undertakes an analysis of specific constitutional and statutory bodies established for the mainstreaming of the marginalized wherein it presents the historical trajectory of their evolution, outlines their functions, and demarcates the constitutional framework within which they operate.

 

Introduction

After independence, the constitution of India was adopted by the Constituent Assembly on 26 November 1949. It eventually came into effect on 26 January 1950. Broadly, the constitution besides defining basic political principles, lays down the framework for the structures, procedures, powers and duties of public sector institutions. It further delineates a set of rights and duties in the form of fundamental rights and directive principles of state policy for the citizens of India (Bakshi 2011).

 

Synchronous to the promulgation of the Indian constitution, India as a nation was extremely diverse and plural. It was a mosaic of various cultures, religions, ethnicities, identities, languages and regions. All these multicultural attributes made India truly a unique nation. However, juxtaposed with such pluralities were structural complexities which confronted policy makers and academicians alike. Cognitively speaking, the categories of caste, identity, religion, language etc. defined the temporal and spatial dimensions of the Indian society. These categories were not only pervasive but interdependent in terms of the inequality, subordination and dominance they generated (Mandelbuam 2010).

India’s diversity, on one hand, was to be celebrated while on the other, it presented a political landscape beset with differences. Normatively, democracies and associated democratic traditions justify themselves by adopting principles of egalitarianism, social justice and inclusion. The fundamental issue therefore was to ensure equal and fair treatment of all social groups. This ontological question was to a considerable extent resolved by the promulgation of the Indian constitution.

Concurrently, inter-social group differences and inequality was acute and seemingly amplifying. Social institutions characterizing India appeared to be extremely viable and an instance where simultaneously old uses were retained and were demonstrating considerable adaptability (Negi 2011). Such inconsistencies resulted in disproportionate access and representation for marginal social groups and as such there was an urgent need to address such anomalies primarily through policy and legislative interventions, broadly categorized under ‘affirmative action’. Since there is a component of discrimination towards members of marginalized social groups, such policies are also known as ‘positive discrimination’, ‘protective discrimination’, and ‘compensatory discrimination’ (Wiesskopf 2004).

Such instruments of state policy were supplemented by the establishment of statutory constitutional bodies for primarily safeguarding or protecting the various rights of the marginalized social groups and also ensuring their proper implementation.

Herein, one must place emphasis on how social policies implemented through legislations and supplemented by constitutionally mandated institutions are grounded in universal rights and how they compliment competing values, social norms, and power structures that have evolved historically (Cook 2011). Perhaps salience could also be placed on understanding the issue from changing political and social culture whereby prominence was being accorded to universal rights and empowerment of the individual. Further, given the multicultural and highly stratified complex of the Indian society, community identity retains itself at the centre stage and cultural, religious and linguistic differences stratify the society horizontally. Added to such an intricate social reality is the vertical and horizontal division of the society in terms of caste. Thus, group differentiation has been a norm in India and it in this context, it is not surprising that positive discrimination is a means whereby the Indian state has responded to the lot of the disadvantaged (Weisskopf 2004).

 

The Context

In context of inherent societal contradictions and incommensurability, the government located cumulative disadvantage of the marginalized within a broad discourse. Sociological imagination and policy imperatives apart; the strategy was concretized ‘dialogically’ in recognition of the visible social reality and as a cumulative residue of various social movements and civil society interventions. Theoretically, it must be underscored that the gamut of government’s discourse was not exclusive; rather should be viewed as mutually reinforcing.

The government’s approach was characterized by a multi-pronged strategy guided primarily by: one, recognizing that certain social groups in the Indian society face marginalization; two, identifying that the contexts of their marginalization were multiple in nature; three, contextualizing the disadvantage in a historical dimension; four, placing the debate within the broad principle of disparity and therefore the need to mainstream to the extent possible; and five, overcoming marginalization in the present by incorporating protective measures and promulgating safeguards in the form of affirmative action which includes among others constitutional provisions, legislations, statutes etc.

The above discussion can also be placed within the rubric of ‘anti-discriminatory and protective measures’ and ‘development and empowering measures’ (Thorat et. al. 2006). These measures ensure proportional participation of the marginalized in public spheres which otherwise would not have been possible given the entrenched and stratified form of disadvantage faced by them. In the absence of legal provisions, these measures have also been supplemented by general programs for inclusion and empowerment of the marginalized in the social, economic and educational spheres.

Notionally, the discourse can be situated within the hermeneutical3 exercise of need for institutions per se and is discursive, meant to encapsulate the processes and reasons for their emergence. Functionalism, somewhat adds value to the analysis whereby it emphasizes on the abstractness of institutions and their distinctiveness based on regulation of conduct, representation of collective will, definite procedures, specialization, formalized rules and stability etc. These aspects are particularly important as they underscore the ability of an individual or a group of individuals to enforce their will on others. Alternatively, institutions are also transformatory in their orientation.

There is abundant literature which establishes the complex relation between socially segregated societal relations and differential economic, social, cultural and civil rights of people. The continuum of disadvantage and marginality gets further severe if such complexity reflects itself in differential ‘access’ and ‘participation’ of various social groups. Incidentally, these two variables have been identified as the twin key mechanisms through which social exclusion between social groups perpetuates itself (Hills et. al. 2002).

 

National Commission for Scheduled Castes

Genesis and Historical Background

As mentioned in the preceding section, given the deeply entrenched caste prejudice in the Indian society the founding fathers of the constitution were especially concerned about the social and economic position of the Scheduled Castes. Pertinently, for their mainstreaming and for providing safeguards to the Scheduled Castes, special provisions were promulgated to promote their social, educational, economic and service interests. In order to ensure that the safeguards are properly implemented the constitution on its inception, provided for appointment of a special office under Article 338 of the constitution to investigate all matters relating to the safeguards provided for Scheduled Castes and Scheduled Tribes and report to the President about the working of these safeguards at regular intervals. In pursuance of this provision a Special Officer known as the Commissioner for Scheduled Castes and Scheduled Tribes was appointed for the first time on the 18th November, 1950. By 1965, the Commissioner for Scheduled Castes and Scheduled Tribes had 17 regional offices located in various States, headed by Assistant Commissioners for Scheduled Castes and Scheduled Tribes who were in July 1965, re-designated as Deputy Commissioners. This field organization of the Commissioner was recognized into 5 Zonal offices in June 1967 and placed under the control of the newly created Directorate General of Backward Classes Welfare in the department of Social Welfare with each Zonal office being headed by a Zonal Director. Later Backward Classes welfare and the erstwhile regional Deputy Commissioner for Scheduled Castes and Scheduled Tribes were re-designated as Deputy Directors. Backward Classes welfare was placed under the control of Zonal Directors located at Chandigarh (Northern Zone), Bhopal (Central Zone), Patna (Eastern Zone), Baroda (Western Zone) and Madras (Southern Zone). The Eastern Zone office had two branches located at Bhubaneswar and Shillong and later a branch office of the Central Zone was also set up at Lucknow. Each of these branches was headed by a Deputy Director. The Western Zone office was shifted to Ahmedabad in 1969.

 

 

Setting up of the Commission for Scheduled Castes and Scheduled Tribes

It was felt that the office of the Commissioner for Scheduled Castes and Scheduled Tribes was not enough to monitor the safeguards provided to Scheduled Castes and Scheduled Tribes. Hence, giving due diligence to voice raised by Members of Parliament, a proposal was mooted for amendment of Article 338 of the constitution (46th Amendment) by replacing the single member Special Officer by multi-member system. The first Commission for the Scheduled Castes and Scheduled Tribes came into being on August, 1978. With effect from 1st of December 1978, the field offices were transferred to the newly set up Commission for the Scheduled Castes and Scheduled Tribes and the Zonal Directors, Backward Class Welfare and the Deputy Directors, Backward Class Welfare were re-christened as Directors for the Scheduled Castes and Scheduled Tribes and Deputy Directors for the Scheduled Castes and Scheduled Tribes respectively. Later, the Zonal set up was abolished and the Commission once again had 17 field offices. Since the field Directors were also working for the Commissioner for the Scheduled Castes and Scheduled Tribes, they were re-designated as Director for the Scheduled Castes and Scheduled Tribes and Ex-officio Deputy Commissioner for the Scheduled Castes and Scheduled Tribes.

The functions of the Commission for the Scheduled Castes and Scheduled Tribes and of the Office of the Commissioner for the Scheduled Castes and Scheduled Tribes co-existed till 11th of March 1992. During this period the Office of the Commissioner of the Scheduled Castes and Scheduled Tribes had submitted 30 reports.

 

Setting up of the National Commission for Scheduled Castes and Scheduled Tribes

The functions of the Commission for Schedule Castes and Scheduled Tribes as delineated in the Home Ministry’s Resolution dated 21st of July 1978 and those of the Special Officer appointed under Article 338 overlapped considerably. In July 1987, the government decided the demarcate the functions of the two organizations and to rename the Commission for Scheduled Castes and Scheduled Tribes as National Commission for Scheduled Castes and Scheduled Tribes.

This Commission being a national level advisory body advised the government on major policy and developmental issues relating to the Scheduled Castes and Scheduled Tribes. This Commission submitted 8 reports during its tenure.

The National Commission for the Scheduled Castes and Scheduled Tribes came into being consequently upon the 65th Amendment Bill, 1990 notified on 8th of June 1990, and rules there under were notified on 3rd of November 1990.

In the 89th Amendment of the constitution, it was decided to have a separate National Commission for the Scheduled Castes and separate National Commission for the Scheduled Tribes. This amendment came into effect on 19th of February 2004 and thereupon the erstwhile National Commission for the Scheduled Castes and Scheduled Tribes was bifurcated into two different Commissions on the 1st of December 2004. After bifurcation, 12 state offices come under the jurisdiction of the National Commission for Scheduled Castes and these are located at Agartala, Ahmedabad, Bangalore, Chandigarh, Chennai, Guwahati, Hyderabad, Kolkata, Lucknow, Patna, Pune and Thiruvananthapuram respectively.

 

Functions

The functions, duties and powers of the National Commission of Scheduled Castes have been laid down in clauses 5, 8 and 9 of the Article 338 of the constitution.

Clause 5 stipulates that the Commission shall:

  1. Investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes under the 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;
  2. Inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;
  3. Participate and advise on the planning process of socio-economic development of the Scheduled Castes and to evaluate the progress of their development under the union and any state;
  4. Present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
  5. 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 Castes; and
  6. Discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes as the President may, subject to the provisions of any law made by Parliament, by the rule specify.

Clause 8 stipulates that the Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause 5, have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:

  1. Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
  2. Requiring the discovery and production of any documents;
  3. Receiving evidence on affidavits;
  4. Requisitioning any public record or copy thereof from any court or office;
  5. Issuing commissions for the examination of witnesses and documents; and
  6. Any other matter which the President may by rule, determine.

Clause 9 of Article 338 stipulates that the union and every state government shall consult the Commission on all major policy matters pertaining to the Scheduled Castes implying that before any major legislative or executive decisions are taken affecting the interests of the Scheduled Castes and Scheduled Tribes, the Commission needs to be mandatorily consulted.

Further clause 4 empowers the Commission to regulate its own procedure.

 

The Commission’s functions in clause 5 (a) regarding investigation and monitoring of all matters relating to constitutional and other safeguards provided to the Scheduled Castes and Scheduled Tribes has three components of:

Investigation: The Article provides unlimited scope for the commission to investigate any matter relating to safeguards. The phrase ‘all matters’ is a broad enabling provision and the Commission would have to take up for investigation from time to time. The procedure and methodology for investigation are to be determined by the Commission itself;

Monitoring: The Commission shall monitor the working of the safeguards. As is evident from the very exhaustive list of safeguards, meaningful monitoring requires not just a large organizational set up, personnel and processing systems but also concurrent evaluation of government programmes. It must be recalled here that the Commissions constituted in 1978 and 1987 had not been given this function; and

Evaluation: The Commission evaluates various programmes implemented by the government to access their qualitative nature and impact and also to provide constant feedback to various developmental agencies.

Clause 5(b) of Article 338 requires the Commission to inquire into specific complaints with respect to deprivation of rights and safeguards of the members of the Scheduled Castes and Scheduled Tribes. The inquiry conducted by the Commission is on the pattern ascertained under Commissions of Inquiry Act whereby the Commission may gather facts, take evidence on oath, and even call from documents from any authority including a court. The Commission also has the powers of a civil court enabling it to compel the presence of persons, production of documents and deposition under oath.

Further, clause 5(c) of Article 338 entrusts the Commission with an important function of participating in and advising on the planning process for the Scheduled Castes and Scheduled Tribes and also evaluating the progress of various schemes for their development. For the same, the Commission has to be involved with the Planning Commission, various central ministries and the Tribal Sub-Plan and the Special Component Plan for the Scheduled Castes.

 

Organizational Setup of the Commission

In order to discharge its varied functions, the Commission shall have five members including a Chairperson, two honorary members, one Secretary, one Joint Secretary, one Deputy Secretary, one Director, one Deputy Inspector General of Police, and two Superintendents of Police besides technical and administrative staff. It is also supported by three study units dealing with service safeguards, development and atrocities and a number of field offices.

 

Human Development Indices and the National Commission for Scheduled Castes

The Commission also undertakes an annual review (wherever possible) of critical human development indicators pertaining to the Scheduled Caste and Scheduled Tribe population. This largely relates to education (wherein the all India position of literacy [male and female], enrolment ratios, dropout rates etc. are ascertained besides evaluating other centrally and state sponsored schemes such as pre and post-matric scholarships for Scheduled Caste and Scheduled Tribe children and those engaged in unclean occupations, book banks, national overseas scholarships, girls and boys hostel’s schemes, admission to universities and colleges etc.); economic development (assessment and evaluation of poverty indicators, tribal sub-plan, special component plan, special central assistance to special component plan, Scheduled Caste Development Corporations, anti-poverty programmes, schemes for liberation and rehabilitation of manual scavengers, land reforms etc.); service safeguards (representation of the Scheduled Castes and Scheduled Tribes in public sector services, status report, service safeguards etc.); and atrocities (review of incidences of atrocities committed against the members of the Scheduled Caste and Scheduled Tribe, relief and rehabilitation, central and state assistance [financial and administrative], enquiries conducted, the role of Police and Forest officials etc.).

 

National Commission for Minorities

Genesis and Historical Background

Minorities Commission was envisaged in the Ministry of Home Affairs Resolution dated 12th of January 1978, which specifically mentioned that “despite the safeguards provided in the constitution and the laws in force, there persists among the minorities a feeling of inequality and discrimination. In order to preserve secular traditions and to promote national integration the government of India attaches the highest importance to the enforcement of the safeguards provided for the minorities and is of the firm view that effective institutional arrangements are urgently required for the enforcement and implementation of all the safeguards provided for the minorities in the constitution, in the central and state laws and in the government policies and administrative schemes enunciated from time to time”. Initially, the Minorities Commission was a non-statutory body and was attached to the Ministry of Home Affairs. It was subsequently placed under the newly created Ministry of Welfare in 1984.

National Commission for Minorities

With the enactment of the National Commission for Minorities Act, 1992, the Minorities Commission became a statutory body and renamed as National Commission for Minorities. The first statutory National Commission was set up on 17th May 1993 vide a Gazette notification issued on 23rd October 1993 by Ministry of Welfare, Government of India. Five religious communities that is, the Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) were notified as minority communities. As per the 2011 Census, these five religious minority communities constituted about 20.08 per cent of India’s population (Census of India 2011).

The states of Andhra Pradesh, Assam, Bihar, Chattisgarh, Delhi, Jharkhand, Karnataka, Maharashtra, Madhya Pradesh, Manipur, Rajasthan, Tamil Nadu, Uttarakhand, Uttar Pradesh and West Bengal have set up State Minorities Commissions and their offices are located in the respective state capitals. The functions of these Commissions, inter-alia, are to safeguard and protect the interests of minorities provided in the constitution and laws enacted by Parliament and the state legislatures.

Constitutional Safeguards for Minorities of India

The constitution of India does not define the word ‘Minority’ and only refers to them ‘based on religion or language’. However, it is exhaustive in its exposition of minority rights.

Two sets of rights have been delineated in the constitution for the minorities – one can be placed within the ambit of ‘common domain’ while the others in ‘separate domain’. The former are rights, which are universally applicable to all the citizens of India, while the latter are specifically applicable only to the minorities for the protection of their identity. The constitution is also clear in its distinction between the ‘common’ and ‘separate’ domain. The Preamble to the constitution is of relevance to the minorities as it declares the state to be ‘secular’ and guarantees

all citizens ‘liberty of thought, expression, belief, faith and worship and ‘equality of status and of opportunity’; the constitution in itself separately lists out rights, characterized under the ‘separate domain’.

Specifically, the rights that can be placed under the ‘common domain’ and have significant implications for the minorities are as under:

Part IV of the constitution, containing non-justiciable Directive Principles of State Policy, includes the following provisions having significant implications for the Minorities:

  1. Article 38(2): The state is obligated to endeavour to eliminate inequalities in status, facilities and opportunities amongst individuals and groups of people residing in different areas or engaged in different vocations; and

  2. Article 46: The state is obligated to promote with special care the educational and economic interests of the weaker sections of the people (besides Scheduled Castes and Scheduled Tribes).

Part IVA of the constitution, relating to Fundamental Duties as provided in Article 51A applies in full to all citizens, including those belonging to minorities stipulates as under:

  1. Citizen’s duty to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; and

  2. Citizen’s duty to value and preserve the rich heritage of our composite culture.

Part III of the constitution, which deals with the Fundamental Rights is divided into two parts: first, the rights which can be placed in the ‘common domain’ and second, those which can be demarcated under the ‘separate domain’. In the former the following fundamental rights and freedoms are covered:

  1. Article 14: People’s right to ‘equality before the law’ and ‘equal protection of the laws’;
  2. Article 15(1) and (2): Prohibition of discrimination against citizens on grounds of religion, race, caste, sex or place of birth;
  3. Article 15(4): Authority of state to make ‘any special provision for the advancement of any socially and educationally backward classes of citizens’ (besides the Scheduled Castes and Scheduled Tribes);
  4. Article 16(1) and (2): Citizens’ right to ‘equality of opportunity’ in matters relating to employment or appointment to any office under the state and prohibition in this regard of discrimination on grounds of religion, race, caste, sex or place of birth;
  5. Article 16(4): Authority of state to make 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;
  6. Article 25(1): People’s freedom of conscience and right to freely profess, practice and propagate religion – subject to public order, morality and other Fundamental Rights;
  7. Article 26: Right of every religious denomination or any section thereof – subject to public order, morality and health – to establish and maintain institutions for religious and charitable purposes, manage its own affairs in matters of religion, and own and acquire movable immovable property and administer it in accordance with law;
  8. Article 27: Prohibition against compelling any person to pay taxes for promotion of any particular religion; and
  9. Article 28: People’s freedom as to attendance at religious instruction or religious worship in educational institutions wholly maintained, recognized, or aided by the state.

Minority rights, which can be placed in the category of ‘Separate Domain’ are:

  1. Article 29(1): Right of any section of the citizens to conserve its distinct language, script or culture;

  2. Article 29(2): Restriction on denial of admission to any citizen, to any educational institution maintained or aided by the State, on grounds only of religion, race, caste, language or any of them;

  3. Article 30(1): Right of all Religious and Linguistic Minorities to establish and administer educational institutions of their choice;

  4. Article 30(2): Freedom of Minority-managed educational institutions from discrimination in the matter of receiving aid from the State;

  5. Article 347: Special provision relating to the language spoken by a section of the population of any State;

  6. Article 350A: Provision for facilities for instruction in mother-tongue at primary stage;

  7. Article 350B: Provision for a Special Officer for Linguistic Minorities and his duties; and

  8. Explanation 1 below Article 25: Sikh community’s right of ‘wearing and carrying of kirpans.

 

Functions

As per Section 9(1) of the National Commission for Minorities Act, 1992, the Commission is required to perform following functions:

  1. Evaluation of the progress of the development of minorities under the union and states;

  2. Monitoring of the working of the safeguards for minorities provided in the constitution and in laws enacted by Parliament and the state legislatures;

  3. Making recommendations for the effective implementation of safeguards for the protection of the interests of minorities by the central government or the state governments;

  4. Looking into specific complaints regarding deprivation of rights and safeguards of minorities and taking up such matters with the appropriate authorities;

  5. Getting studies to be undertaken into the problems arising out of any discrimination against minorities and recommending measures for their removal;

  6. Conducting studies, research and analysis on the issues relating to socio-economic and educational development of minorities;

  7. Suggesting appropriate measures in respect of any minority to be undertaken by the central government or the state governments;

  8. Making periodical or special reports to the central government or any matter pertaining to minorities and in particular the difficulties confronted by them; and

  9. Any other matter, which may be referred to it by the central government.

Section 2(C) of the National Commission for Minorities Act, 1992 stipulates that ‘Minority’ for the purposes of the Act, means a community notified as such by the central government. Therefore, all the functions of the Commission as laid down in Section 9(1) of the Act are related to the five notified communities.

 

Organizational Setup of the Commission

The Commission shall consist of a Chairperson, a Vice Chairperson and five Members to be nominated by the central government from amongst persons of eminence, ability and integrity; provided that five Members including the Chairperson shall be from amongst the minority communities.

New Initiatives

On the recommendations of the Sachar Commission, the Prime Minister initiated the ‘15 Point Programme for the Welfare of the Minorities’. It incorporated a host of initiatives, which included enhancing opportunities in education (equitable availability of Integrated Child Development Services, improving access to school education, greater resources for teaching Urdu, modernizing Madarsa education, making available scholarships for meritorious students from minority communities and improving educational infrastructure through Maulana Azad Education Foundation); expanding the share of the minorities in economic activities and employment (self and wage employment, upgradation of skills through technical training, provision of enhanced credit support and increasing recruitment in public sector services); improving the living conditions of the minorities (providing equitable access to rural housing schemes and improving the conditions of slums inhabited by minorities); prevention and control of communal riots (this includes prevention of communal incidents, prosecution for communal offenses and rehabilitation of victims of communal riots).

Further, the government is also actively considering the establishment of an ‘Equal Opportunities Commission’ and creation of ‘Diversity Index’ whereby; access and participation of minorities and other marginalized social groups will be ascertained and corrected accordingly.

Alienation and Restoration of Land belonging to the Scheduled Castes: States Acts

Prominent among these Acts are the Forest Conservation Act (1980); the Panchayati Raj (Extension to Scheduled Areas) Act (1996); and the Minimum Wages Act, (1948).

 

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