Scheduled Tribe Reservation

Schedule tribe(STs, Adivasis, indigenous people ) are of the most marginalized communities in the society from the decades. The marginalization of the STs in the political sphere is due to the historical injustice and discrimination faced by them. The data collated from various sources reveals the poor representation of STs in government service and they are far less than many other sections. This has compelled the state to ensure the adequate representation of them by adopting reservation policy. What are the judicial scrutinies of the reservation? what is the need for reservation? What are the provisions laid down in the Constitution? In light of these questions, this paper examines the reservation policy of the scheduled tribe, evaluates its performance, and concluded them wholly.

“It is against the fundamental principles of humanity, it is against the dictates of the reason that a man should, because of birth, be denied or given extra privileges.”

– Mahatma Gandhi

Introduction

It is important to clarify that the use of the term ‘Scheduled Tribe’ in India can be understood by the result of the historical and political process embedded in the constitutional framework of India. The Imperial Gazetteer of India, 1911, defined a tribe as a “collection of families bearing a common name, speaking a common dialect, occupying or professing to occupy a common territory. The definition of Scheduled tribes in India has never been satisfied. They were previously termed as “Adivasis”  or ‘primitive tribes” literally meaning indigenous people. The total population of Scheduled Tribes as per the Census 2001 is 84,326,240 which accounts for 8.2% of the total population of the country. The majority of the Scheduled tribe population lives in rural areas and their population is 10.4 % of the total rural population of the country.

The Indian constitution does not hold any specific definition that defined scheduled tribes but The Article 366 (25) of the Constitution of India defines Scheduled Tribes as under – “Scheduled

Tribes” means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for this Constitution.

 According to Article-342. Scheduled Tribe: – The president after consulting the governor, may specify the tribal communities or group to be scheduled concerning that state or ut .such order can be modified only act of parliament.

Background

The post-independence period has accelerated the pace of socio-economic

and political change in the life of scheduled tribes. The constitution of India Back in history, during the pre-colonial reign the Adivasis were in self-governing nation, they governed themselves particularly from the influence of the outside ruler. In general, they were notionally part of the unknown frontier. The concept of private property began with the permanent settlement of the British in 1793 and the establishment of the zamindari system that conferred control over the vast territory including Adivasis for revenue collection. This has originated the drastic relationship between the Adivasis and others.

In Asia, the migration of the tribals has been taking place for more than a thousand years. The subjugated people have been assigned to low status and isolated. This has transformed the relationship between mainstream communities and tribal communities. Not all tribal communities are alike. They are products of different historical and social conditions. They belong to four different language families. In India, the ancient and epic literature like the Vedas, Puranas, Ramayana, Mahabharata give many references of the tribal people and groups inhabited in India.

The idea of adoption of reservations policy to a certain class of people originated because of the prevalent atrocities being done on a certain class of tribal people. To uplift them socially, give them equal status, an equal opportunity in society, to bring them at par with other sections of society and to bring development in the lower strata of society, the reservation system came into existence. The basis for putting certain tribes into a schedule was the fact that they were cut off from the mainstream of social life. They lived an isolated life, remained engrossed in their own life, and untouched by social development. This was a pre-independence scenario.

 The founding father of the  Indian  Constitution was aware of the political,  social, and economic inequalities, which existed in the country due to historical reasons.  They were aware of the prevailing miserable and appalling conditions of the Scheduled  Tribes who had remained far behind and segregated from national life,  they further strengthened this tradition and legacy by providing for special status to the tribal areas and protection to the tribals as a part and parcel of provisions of the  Indian  Constitution which came into the frame in 1950 provide the right to equality (article 14)  prohibits discrimination on the ground of religion, race, caste, sex, place of birth (Article 15), gives freedom of religion (article 25-28), also addressed scheduled tribes and gives two special schedules under the Indian constitution[1]. Despite this, the struggle for the survival of tribal people remained the same and spread as never before in history.

Constitutional  Provisions related to STs

Article 46 – Promotion of educational and economic interest of depressed society

Article 244- Administration of schedule area and scheduled tribes

Article 330-  Reservation of seats for STs in Lok Sabha

Article 334- Reservation of seat in the legislative assembly.

Article 335– Service and post.

Article 338– Special officer post.

Article 339– Control the union over the welfare of the scheduled tribe.

Article 342-Schedule tribes

Constitutional  guarantee

For the protection of scheduled tribe and their socio-economic and political development, the constitution of India guarantees

Article 14 – Equality before law.

 Article 15(4) – The state to make special provisions for the advancement of any socially and educationally backward classes of citizens or the Scheduled Castes and the Scheduled Tribes.

Article 16 – Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state.

16 (4A)- The state to make provisions in matters of promotion to any class or classes of posts in the services in favor of the Scheduled Castes and the Scheduled Tribes.

Article 338 – A national commission for Scheduled Caste and Scheduled Tribes to investigate, monitor, and evaluate all matters relating to the constitutional safeguards provided for the Scheduled castes and the Scheduled Tribes in the states.

Article 339 – Appointment of a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the states.

Article 340 – deals with the need to identify those” socially and educationally backward classes” understand the condition of their backwardness and make a recommendation to remove difficulties they face.

 Article 342 – To specify the tribes or tribal communities to be scheduled tribes.

The Extent of Reservation in India

Affirmative action deciphers in India in the form of quota-based reservations in the three major and prominent areas viz., education, jobs, and legislative bodies.

Article 15 – (4), (5), and (6) – Educational Institutions (like IITs, IIMs, etc)

 Article 16 – (4) and (6) – Jobs (like IAS, IPS, etc) 

Article 334 – Legislative bodies ( Parliament, state legislature, etc)

Why the reservations of  Tribal people are important?

1-To uplift the marginalized sector.

2-To correct the historical injustice faced by the weaker section.

3-To ensure the adequate representation of the backward class.

4- To ensure equality as the basis of a meritocracy.

5-For advancement of the backward class in society

6- To ensure their participation in the legal framework of the country by granting them equal rights, opportunities, and special reservations

Study & Analysis

The stance of Indian  judiciary in reservation

1951

  • The first major verdict of the Supreme Court on the issue of Reservation was the State of Madras v. Smt.Champakam Dorairajan. This case led to the First Amendment in the constitution.
  • Article 15 has been amended in this case and SC orders the insertion of clause (4) in article 15.

1992

  • In Indra Sawhney v. Union of India, the court inspect the scope and effectiveness of Article 16(4).
  • The Supreme court observed that the Backward class of citizen in Article 16(4) could be identified based on the caste system & not on an economic basis further the same Article is not an exception of Article 16(1). Backward classes mentioned under Art 16(4) are not similar to socially & educationally backward in Article 15(4), further, it was observed Creamy layer must be excluded and reservation shall not exceed 50% of the total limit with no reservation in promotion.
  • The Parliament responded by the 77th Constitutional Amendment Act which introduced Article 16(4A).
  • It allows the state to make any provision to reserve the seat in favor of SC ST in the promotion of public service if the communities are not adequately represented.

2006

  • The Supreme Court in M. Nagaraj v. Union Of India  while upholding the 77th amendment act held while justifying each attempt to provide reservation in promotions, the state would have to Demonstrate :
  • Backwardness 
  • Inadequacy of representation and
  • Maintenance of efficiency

2018

  • Supreme Court in Jarnail Singh vs Lachhmi Narain Gupta case of 2018, holds that reservation in promotions does not require the state to collect quantifiable data on the backwardness of the Scheduled Castes and the Scheduled Tribes.
  • The Court held that creamy layer exclusion extends to SC/STs and, hence the State cannot grant reservations in the promotion to SC/ST individuals who belong to the creamy layer of their community.

2019

  • The Supreme Court has upheld the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted based on Reservation (to the Posts in the Civil Services of the State) Act 2018.

2020

  • In Chebrolu Leela Prasad Rao and others vs State of Andhra Pradesh[2].
  • A 5-Judge Constitution Bench of the Apex Court held that the Andhra Pradesh Governor’s move affirming absolute reservation to teachers belonging to the ST community was constitutionally invalid, and therefore struck it down.
  • The Court had followed the Indira Sawhney judgment, according to which Reservations would be constitutionally valid only as long as they do not go beyond 50%.
  • It was ruled that the concept of reservation is adequate but not proportionate, as held in Indira Sawhney [supra].
  • The court also held that 100% reservation to ST is unconstitutional as it is discriminatory against not just open categories but has also deprived the SC and other backward classes.
  • The court concluded the action thus violative under Articles 14,15 and 16 of the constitution.

An Implementation Issue in Reservation

Since reservation has been an integral part of the Indian legal system for a long time, its necessity has come under scrutiny. The framers of the Constitution ensured themselves that the reservation of jobs and places was in place to make the improvement of these weaker sections and guarantee their legitimate rights. Affirmative actions are often seen as conflicting political measures and a bone of contention[3]. Significantly, the social condition of the untouchables has not changed even after 70 years. An examination of the socio-economic data of the scheduled tribes shows that there has been no marked improvement in their social condition even after five decades of implementation of reservation policies .literacy rate indicates that even planned intervention has not improved the education level of tribal areas.

The quantum reservation shows that the scheduled tribes are fixed based on population percentage but the figures show that the legal provisions have been grossly violated. There are some fundamental issues about reservation which have continued to haunt the political sociology of India. India has several laws and constitutional provisions to protect the tribal people such as the fifth scheduled for mainland India and sixth schedule for certain areas of the northeast which aimed at protecting them but their implementation and numerous shortcomings are far from satisfactory[4]. The recent five-judge bench Supreme Court judgment in  Chebrolu Leela Prasad Rao and others vs State of Andhra Pradesh [supra].shows the inadequacy of the fifth schedule of the Indian constitution which is meant to protect Adivasi rights.

Conclusion

The constitution of  India has many articles and provisions,  which favors the development and welfare of tribes,  and several examples indicate the relevance of these provisions.  The reservation policy was introduced to provide equal resources to the unprivileged communities but despite all the economic and social progress, they continue to remain disadvantaged. There is a consistent lack in the implementation of reservations which led to the problem in social and economic backwardness in the level of tribal development. In order to meet the justice and equality for the tribal people, India needs to filter out the truly economically deprived sections.

Frequently Asked Questions ( FAQs)

  1. What are the key provisions of the Tribal reservation policy?
  2. Are reservations consistent with the principle of equality?
  3. Why have the scheduled tribe is historically disadvantaged?
  4. What are the recent developments regarding the schedule tribe?

References


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