24 Institutional Arrangements for Minorities and Special Categories: National commission for Schedule Tribe

Mr. Prashant Negi

Institutional Arrangements for Minorities and Special Categories:

National commission for Schedule Tribe

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 hermeneutical 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).

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 19906, and rules there under were notified on 3rd of November 1990.

In the 89^th 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.

National Commission for Scheduled Tribes

Genesis and Historical Background

The National Commission for Scheduled Tribes was established by amending Article 338 and inserting a new Article 338A in the constitution through the Constitution (89th Amendment) Act, 2003. With this amendment and as per the notification dated the 19th of February 2004, the erstwhile National Commission for Scheduled Castes and Scheduled Tribes was bifurcated and replaced by two separate Commissions: the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes (see the section on National Commission on Scheduled Castes for details on historical evolution).

Functions

The National Commission for Scheduled Tribes is required to perform the following functions:

1. To investigate and monitor matters relating to safeguards provided for the Scheduled Tribes under the constitution or under other laws or under government orders, to evaluate the working of such safeguards;

2. To inquire into specific complaints relating to rights and safeguards of the Scheduled Tribes;

3. To participate and advise in the planning process relating to the socio-economic development of the Scheduled Tribes, and to evaluate the progress of their development under the union and any state;

4. To submit an annual report to the President and at such other times as the Commission may deem fit, upon working of safeguards, measures required for effective implementation of programmes and schemes relating to the welfare and socio-economic development of the Scheduled Tribes;

5. To discharge such other functions in relation to the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify;

6. Measures that need to be taken over conferring ownership rights in respect of minor forest produce to the Scheduled Tribes living in forest areas;

7. Measures to be taken to safeguard the rights to the Scheduled Tribes over mineral resources, water resources etc. as per law;

8. Measures to be taken for the development of the Scheduled Tribes and to work for more viable livelihood strategies;

9. Measures to be taken to improve the efficacy of relief and rehabilitation measures for the Scheduled Tribes displaced by development projects;

10. Measures to be taken to prevent alienation of the Scheduled Tribes people from land and to effectively rehabilitate such people in whose case alienation has already taken place;

11. Measures to be taken to elicit maximum cooperation and involvement of the Scheduled Tribes for protecting forests and undertaking social afforestation;

12. Measures to be taken to ensure full implementation of the provisions of Panchayats (Extension to the Scheduled Areas) Act, 1996 (40 of 1996);

13. Measures to be taken to reduce and ultimately eliminate the practice of shifting cultivation by the Scheduled Tribes that lead to their continuous disempowerment and degradation of land and the environment; and

14. Further, the union and the state governments are required to consult the Commission on all major policy decisions affecting the Scheduled Tribes.

Constitutional Safeguards for the Scheduled Tribes

Educational & Cultural Safeguards

1. Article 15(4): Special provisions for advancement of other backward classes (which includes the Scheduled Tribes);

2. Article 29: Protection of interests of the minorities (which includes the Scheduled Tribes);

3. Article 46: The State shall promote, with special care, the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes, and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation;•

4. Article 350: Right to conserve distinct language, script or culture; and

5. Article 350: Language to be used in representation for redress of grievances.

Social Safeguards

1. Article 23: Prohibition of traffic in human beings and begar and other similar form of forced labour; and

2. Article 24: Prohibition of child labour.

Economic Safeguards

1. Article 244 (1 and 2): Clause 1 stipulates that provisions of Fifth Schedule shall apply to the administration and control of the Scheduled Areas and the Scheduled Tribes in any state other than the states of Assam, Meghalaya, Mizoram and Tripura, which are covered under Sixth Schedule, under Clause 2 of this Article; and

2. Article 275: Grants in-Aid to specified States (the Scheduled Tribes and Scheduled Areas) covered under Fifth and Sixth Schedules of the Constitution.

Political Safeguards

1. Article 164 (1): Provides for Tribal Affairs Ministers in Bihar, Madhya Pradesh and Orissa;

2. Article 330: Reservation of seats for the Scheduled Tribes in Lok Sabha;

3. Article 337: Reservation of seats for the Scheduled Tribes in state legislatures;

4. Article 334: Provides for 10 years period for reservation (this provision has been amended several times to extend the period);

5. Article 243: Reservation of seats in Panchayats; and

6. Article 371: Special provisions in respect of Northeastern States and Sikkim.

Service Safeguards

1. Article 16(4): Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens

which, in the opinion of the State, is not adequately represented in the services under the State;

2. Article 16 (4A): Nothing in this article shall prevent the State from making any provision for reservation (in matters of promotion, with consequential seniority, to any class) or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State;

3. Article 164 (B): Provision for the appointment of a Minister for Tribal Affairs in the states of Bihar, Madhya Pradesh and Orissa, who may in addition be in charge of the welfare of the Scheduled Castes and Other Backward Classes and any other work;

4. Article 335: The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a state; and

5. Article 320 (4): Nothing in Clause (3) of Article 320 shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in Clause (4) of Article 16 may be made or as respects the manner in which effect may be given to the provisions of Article 335.

Safeguards under Various Laws

The other prominent safeguards for the Scheduled Tribes include the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Rules 1995 framed there under;

the Bonded Labour System (Abolition) Act 1976 (in respect of Scheduled Tribes); and the Child Labour (Prohibition and Regulation) Act 1986.

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