CONSITITONAL PROVISIONS FOR Scheduled Tribes

CONSITITONAL PROVISIONS FOR SC & ST

Constitutional History

• In the original Constitution, Article 338 provided for a special officer (the Commissioner for SCs and STs) responsible for monitoring the implementation of constitutional and legislative safeguards for SCs and STs and reporting to the president.
• Seventeen regional offices of the Commissioner were established throughout the country.
• There was an initiative to replace the Commissioner with a committee in the 48th Amendment to the Constitution, changing Article 338. While the amendment was being debated, the Ministry of Welfare established the first committee for SCs and STs (with the functions of the Commissioner) in August 1978.
• These functions were modified in September 1987 to include advising the government on broad policy issues and the development levels of SCs and STs. Now it is included in Article 342.
• In 1990, Article 338 was amended for the National Commission for SCs and STs with the Constitution (Sixty fifth Amendments) Bill, 1990. The first commission under the 65th Amendment was constituted in March 1992, replacing the Commissioner for Scheduled Castes and Scheduled Tribes and the commission established by the Ministry of Welfare’s Resolution of 1989.
• In 2003, the Constitution was again amended to divide the National Commission for Scheduled Castes and Scheduled Tribes into two commissions: the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes.
• Due to the spread of Christianity and Islam among schedule caste/Tribe community converted are not protected as castes under Indian Reservation policy. Hence, these societies usually forge their community certificate as Hindus and practice Christianity or Islam afraid for their loss of reservation

The following are the measures prescribed in the Constitution for the welfare of the Scheduled Castes and Scheduled Tribes:

• 15(4):
• Clause 4 of article 15 is the fountain head of all provisions regarding compensatory discrimination for SCs/STs. This clause was added in the first amendment to the constitution in 1951 after the SC judgment in the case of Champakam Dorairajan vs State of Madras .
• It says thus, “Nothing in this article or in article 29(2) shall prevent the state from making any provisions for the advancement of any socially and economically backward classes of citizens or for Scheduled Castes and Scheduled Tribes.” This clause started the era of reservations in India.
• In the case of Balaji vs State of Mysore , the SC held that reservation cannot be more than 50%.
• Further, that art. 15(4) talks about backward classes and not backward castes thus caste is not the only criterion for backwardness and other criteria must also be considered.
• Finally, in the case of Indra Sawhney vs Union of India AIR 1993, SC upheld the decision given under Balaji vs State of Mysore that reservation should not exceed 50% except only in special circumstances.
• It further held that it is valid to sub-categorize the reservation between backward and more backward classes. However, total should still not exceed 50%. It also held that the carry forward rule is valid as long as reservation does not exceed 50%.
• 15 (5): This clause was added in 93rd amendment in 2005 and allows the state to make special provisions for backward classes or SCs or STs for admissions in private educational institutions, aided or unaided.
• 16(4): This clause allows the state to reserve vacancies in public service for any backward classes of the state that are not adequately represented in the public services.
• 16 (4A): This allows the state to implement reservation in the matter of promotion for SCs and STs.
• 16(4B): This allows the state to consider unfilled vacancies reserved for backward classes as a separate class of vacancies not subject to a limit of 50% reservation
• 17:
• This abolishes untouchability and its practice in any form. Although the term untouchability has not been defined in the constitution or in any act but its meaning is to be understood not in a literal sense but in the context of Indian society.
• Due to the varna system, some people were relegated to do menial jobs such as cleaning toilets. Such people were not to be touched and it was considered a sin to even touch their shadow. They were not even allowed to enter public places such as temples and shops.
• The constitution strives to remove this abhorring practice by not only making the provision a fundamental right but also allows punishment to whoever practices or abets it in any form.
• Towards this end, Protection of Civil Rights was enacted. It has implemented several measures to eradicate this evil from the society. It stipulates up to 6 months imprisonment or 500 Rs fine or both. It impresses upon the public servant to investigate fully any complaint in this matter and failing to do so will amount to abetting this crime.
• In the case of State of Karala. vs Appa Balu Ingle, SC upheld the conviction for preventing a lower caste person from filling water from a bore well. In Asiad Projects Workers Case 1982, SC has held that right under Art 17 is available against private individuals as well and it is the duty of the state to ensure that this right is not violated.
• 19(5): It allows the state to impose restriction on freedom of movement or of residence in the benefit of Scheduled Tribes.
• 40: Provides reservation in 1/3 seats in Panchayats to SC/ST.
• 46: Enjoins the states to promote with care the educational and economic interests of the weaker sections, specially SC and STs.
• 164: Appoint special minister for tribal welfare in the states of MP, Bihar, and Orrisa.
• 275: Allows special grant in aids to states for tribal welfare.
• 330 & 332: Allows reservation of seats for SC/ST in the parliament as well as in state legislatures.
• 335: Allows relaxation in qualifying marks for admission in educational institutes or promotions for SCs/STs. In the case of State of MP vs Nivedita Jain 8 , SC held that complete relaxation of qualifying marks for SCs/STs in Pre-Medical Examinations for admission to medical colleges is valid.
• 338,338A & 339: Establishes a National Commission of SCs and STs. Art. 339 allow the central govt. to direct states to implement and execute plans for the betterment of SC/STs.
• 340: Allows the president to appoint a commission to investigate the condition of socially and economically classes and table the report in the parliament

Duties and Functions of the NCSC Commission:

Constitution of India under Article 338 has assigned the following duties and functions to the Commission.

• To 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;

• to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes;