Provisions For Scheduled Castes, Tribes And Minorities (1)

Provisions for scheduled castes, Tribes and Minorities

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:

Art. 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%.

Art. 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.
Art. 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.
Art. 16 (4A): This allows the state to implement reservation in the matter of promotion for SCs and STs.
Art. 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

Art. 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.

Art. 19(5): It allows the state to impose restriction on freedom of movement or of residence in the benefit of Scheduled Tribes.
Art. 40: Provides reservation in 1/3 seats in Panchayats to SC/ST.
Art. 46: Enjoins the states to promote with care the educational and economic interests of the weaker sections, specially SC and STs.
Art. 164: Appoint special minister for tribal welfare in the states of MP, Bihar, and Orrisa.
Art. 275: Allows special grant in aids to states for tribal welfare.
Art. 330 & 332: Allows reservation of seats for SC/ST in the parliament as well as in state legislatures.
Art. 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.
Art. 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.
Art. 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;

Provisions for scheduled Minorities

The Constitution of India provides three sets of rights to the minorities:

Right to preserve their culture and language
Administer and manage minority institutions and
Provide religious education in an institution which is managed and aided by the minority communities.

However, the ‘common domain’ of the constitutional rights comes under both-the Fundamental Rights (Part III of the Indian Constitution) and the Directive Principles of State Policy (DPSP) (Part IV of the Indian Constitution).
The DPSP, is a set of non-justifiable rights which are connected with the social and economic rights of the people.
These rights are legally not binding upon the State, but are ‘fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws’ (Article 37 of the Indian Constitution).
The DPSP includes the following provisions which have significant implications for the minorities of our country:

Obligation of the State ‘to endeavor to eliminate inequalities in status, facilities and opportunities’ amongst individuals and groups of people residing in different areas or engaged in different vocations’ [Article 38 (2)];
Obligation of State ‘to promote with special care’ the educational and economic interests of ‘the weaker sections of the people’ (besides Scheduled Castes and Schedule Tribes [Article 46];

Part IV A of the Indian Constitution, which deals with the Fundamental Duties applies to all citizens, including those belonging to Minorities. Article 51A, which is of special relevance for the Minorities, has the following provisions for them:

Citizens’ 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
Citizens’ duty to value and preserve the rich heritage of our composite culture

Part III of the Indian Constitution, which deals with the Fundamental Rights, is divided into two parts:

Rights which come under the common domain and
Rights which fall under the ‘separate domain’.

In the ‘common domain’, the following fundamental rights and freedoms are guaranteed for the minorities in India:

People’s right to ‘equality before the law’ and ‘equal protection of the laws’ (Article 14);
Prohibition of discrimination against citizens on grounds of religion, race, caste, sex or place of birth [Article 15 (1) & (2)];
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) [Article 15(4)];
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 [Article 16(1) & (2)];
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 [Article 16(4)];
People’s freedom of conscience and right to freely profess, practice and propagate religion-subject to public order, morality and other Fundamental Rights [Article 25 (1)];
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 and immovable property and administer it ‘in accordance with law’ [Article 26];
Prohibition against compelling any person to pay taxes for promotion of any particular religion [Article 27];
People’s ‘freedom as to attendance at religious instruction or religious worship in educational institutions’ wholly maintained, recognized, or aided by the State [Article 28].

The Constitution guarantees the following minority rights which fall under the ‘separate domain’:

Right of ‘any section of the citizens’ to ‘conserve’ its ‘distinct language, script or culture’ [Article 29(1)];
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’ [Article 29(2)];
Right of all religious and linguistic minorities to establish and administer educational institutions of their choice [Article 30(1)];
Freedom of minority-managed educational institutions from discrimination in the matter of receiving aid from the State [Article 30(2)];
Special provision relating to the language spoken by a section of the population of any State [Article 347];
Provision for facilities for instruction in mother-tongue at primary stage [Article 350 A];
Provision for a Special Officer for linguistic minorities and his duties [Article 350 B]; and
Sikh community’s right of ‘wearing and carrying kirpans [Article 25].

Minority Commission:

The “Minorities Commission”, aimed to safeguard and protect the interests of the minorities, was set up by the Government of India in January, 1978.
This Commission became a statutory body and was renamed as the “National Commission for Minorities” with the enactment of the National Commission for Minorities Act, 1992.
Under Section 2(C) of this Act, the Government of India, vide notification dated 23rd October, 1993, notified five religious communities, namely, Muslims, Christians, Sikhs, Buddhists and Zorastrians (Parsis) as minority communities in India.
Similarly, in the Sixth Plan (1980-85) it was acknowledged that the minorities were a separate socioeconomic group and hence special provisions were made for them through the Minimum Needs Programme

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