Protection of Scheduled Tribes Under Indian Constitution

Author : Swapan Deb Barma

Indian Scheduled Tribes are group of Tribal communities and was given the name ‘Scheduled Tribes’ during the Post-Independence period, under the Indian Constitution . The term ‘Scheduled Tribes’ refers to specific indigenous peoples whose status is acknowlegdged to some formal degree by National Legislation. A collective term is used to locally to describe most of these peoples as ‘upajati’ (literally clans/tribes/groups). The primary criteria adopted for delimiting Indian backward communities as ‘scheduled Tribes’ include, Traditional occupation of whole range tribal modes of life i.e language, customs, traditional, religious beliefs, arts and crafts, etc, archaie traits portraying occupational pattern, economic development.

However, the Indian Constitution in Article 342(1) has provided a provision with respect to this community. This provision aimed to consider special needs for safeguarding their interest. As a result of which it become a responsible factor to protect their rights. The question is whether these rights are protected in true sense?


According to Article 342 of the Constitution of India, the President, after consulting with the State Governments concerned, has promulgated nine orders so far. This promulgation has clearly specified the Scheduled Tribes in relation to the concerned State and Union Territories. India can proudly be called the largest “tribal” population in the world. The scheduled tribes in India constituted 8.2 percent of India`s population according to 2001 census. This interprets into eighty two million people. In all, six hundred and ninety eight scheduled tribes exist at present in India.
The Fifth and Sixth Schedules under Article 244 of Indian Constitution in 1950 provided for self-governance in particular tribal majority areas. The then governmental administration issued a draft National Policy on Tribals in 1999 to meet the developmental needs of tribal populations, including the scheduled tribes. Prominence was laid on education, forestry, health care, land rights, language policy and resettlement. Efforts were also made to differentiate tribal languages such as Bodo language, Gond language and Santhali language. The then Government had established a Ministry of Tribal Affairs. It designated out the states of Chhattisgarh and Jharkhand in acknowledgment of tribal sentiment. The subsequent governmental administration drafted the `controversial` Scheduled Tribes (Recognition of Forest Rights) Bill in 2005 to deal with their needs .
“On the social plane, we have in India, a society based on the principles of graded inequality, which means elevation of some and degradation of others. On the economic plane, we have a society in which there are some who have immense wealth who live in abject poverty. On the 26th January 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life, we will have inequality. In politics we will be recognizing the principles of ‘one man – one vote and one value’. If our social and economic structure continues to deny the principle of one man – one value, how long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow the structure of political democracy which this Assembly had so laboriously built up”.
A review may be undertaken immediately to see whether Lok Sabha and Vidhan Sabha seats are reserved for SCs and STs in proportion to their population in States/UTs. In order to enable SCs & STs to vote for Lok Sabha, State Assembly and Panchayati Raj elections in a fair and fearless environment, which is desirable to attain social democracy, the poling booths should be located in Bastis/Mohallas predominantly inhabited by these communities.
Rotation of reserved Lok Sabha and Vidhan Sabha constituencies within the constituencies having not less than 10% SC population may be considered after 10 years with a view to minimize the rigidity of existing legal provisions.
The SC/ST people, who are most vulnerable on account of corruption, criminalization and communal grounds, are threatened, victimized and pressurized by unsocial elements. Necessary precautionary, protective and punitive steps should be ensured well in advance the poling takes place.
Machinery to effectively enforce provisions of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989 would need to be made more stringent at grassroots level i.e. Police Stations by creating a separate cell to be manned by SC/ST officials for dealing such cases.
Section 4 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act 1989, which relates to ‘Punishment for neglect of duties’ needs to be amended to include public servants belonging to SCs & STs.
The cases registered under the Protection of Civil Rights Act 1995 are seldom end in conviction as about 90% cases are ended in acquittal in the lower courts, which questions fairness on the part of investigations, trial and judicial decisions. There is hardly any instance where State Govts have filed any appeal before the High Courts against decision of the lower courts on PCR Act cases. There should be proper directions to the States to review all such
cases to find out why an appeal against the judgments of the lower courts could not be filed in High Courts/Supreme Courts.
Though there are special cells for investigation of cases registered under SC/ST atrocity act in certain states headed by Additional General of Police but they are ineffective because they have only inquiring and supervising authority. They have no authority to charge sheet the case in the court of law. The government of India provides 50% expenditure for maintaining this special enquiry cell and 50% share of expenditure is expected to be borne by the state governments, therefore, the state governments do not take much interest in strengthening this department. It is recommended that 100% expenditure on the enforcement of SC/ST Act from police station level to court level should be borne by the government of India. For pairvi of the SC/ST cases, free legal aid has been introduced. This has however, been reduced to a mere formality resulting in SC/ST people continuing to languishing in jail as under trials for long without even being prosecuted and sentenced. No one comes forward to get him or her released on bail even in petty offences. PILs conceived by Js PN Bhagwati by treating an open letter as a writ petition, has been ineffective. In fact PILs are being manipulated by the vested interests in their favor even against the interest of the SC/ST. This was evident when
someone filed a PIL in KBK district when the government on forestland was settling the tribals. On the basis of this PIL, vested interests got stay orders from the Supreme Court against the interest of the tribals. Therefore, it is suggested that either PIL should be banned under law or it should be restricted only for providing justice to the poor people.
The objective of complete elimination of scavenging by end of 6th Five Year Plan could not be achieved as yet and this practice still persists in one form or other. National Action Plan for total eradication of manual scavenging should be speedily implemented by Ministry of Urban Employment & Poverty Alleviation to ensure complete eradication of this inhuman practice and rehabilitation of remaining scavengers. Necessary enactments should be brought about in bye laws of Housing Boards/ Urban Development Authorities/ local bodies etc. which are responsible for approving housing plans, for flush latrines and existing dry latrines especially in cities & towns should be got converted by the house owners without lapse of further time.
Atrocities on SC/STs increased especially in rural areas due to the defective arms license policy. It is experienced that feudalistic persons in order to create panic in the minds of SC/STs, obtain licenses by money power or by recommendations of MLA/MPs. This creates insecurity in the minds of the dalits of the villages. When dalits apply for licenses, they are denied on several flimsy grounds i.e. not capable of handling arms, no place for the safety of the arms, no purchasing capacity and possibility of misuse of arms. It is therefore recommended that either the licenses should not be issued to any person or they should be issued to dalits also in the percentage of population in the village. This will create a sense of security in their minds. In case of lack of finances for purchase of arms, the banks should provide consumption loan by mortgaging the weapon. This suggestion seems to be funny but it may eliminate the root causes for atrocities against the SC/ST. Without licenses, there is a possibility of increased left wing extremism promotion and possession of unlicensed weapons.
The outcome of 50 years of working of reservation orders reveals that ‘qualitative’ representation is still short of the prescribed quota. The reservation policy in services for the Scheduled Castes and Scheduled Tribes has been instrumental in enhancing social and economic justice to them and at the same time its role in socially desirable better management of the affairs of the government cannot be ruled out. As long as caste-based social and economic disparities exist reservation in services must be continued.
The policy of reservation for Scheduled Castes and Scheduled Tribes in services made in pursuance of the Constitutional provisions has been challenged in various courts several times on the grounds of equality and efficiency but its validity has been maintained through judicial instrument. There is an urgent need that the existing executive orders governing the
Policy of reservation may be replaced by a suitable legislation (under Ninth Schedule of the Constitution) to ensure implementation process forcefully and expeditiously.
The Brochure on Reservation for SCs & STs in Services brought out by DOPT in 1993 has outlived its utility in the context of subsequent changes in rules and constitutional provisions, hence it needs immediate updating with clear devices/procedures to be followed by the implementing Departments/ agencies of Govt of India.
In order to obviate the biased attitude in the interview boards, identification of SC/ST candidates should be made on the basis of codes and there should not be a mention of name, caste, religion, place of birth etc. in the bio-data to be placed before the interview board. After interview is over a select list of general, SC & ST candidates is prepared on merit. SC /ST candidates falling in the merit of general candidates should not be adjusted against reserved vacancies.
Towards fulfilling prescribed reservation quota by promotions at various grades/classes expeditiously, the benchmark should be prescribed as ‘fitness’ for SC & ST candidates for promotion.
Instructions issued by DOPT on 30.1.97 stipulating that if a candidate belonging to SC or ST is promoted to a higher post/grade against a reserved vacancy earlier than his senior general/OBC candidate who is promoted later to the said immediate higher post/grade, general/OBC candidate will regain his seniority over such earlier promoted SC or ST candidate in the immediate higher post/grade, cannot be implemented in practice as the inter-se seniority is maintained from the date of appointment/joining or on the basis of merit in the panel on the higher post as per underlying principles. This will pose another problem of reckoning the eligibility of candidates (SC, ST, OBC and general) for further promotion to a higher post/grade particularly when the time lag between two promotions is 2-3 years or so. These instructions need to be withdrawn by the government immediately.
In place of vacancy-based reservation, orders issued in 1997 stipulate that post-based reservation in promotions will be given in the grades where representation of SCs & STs reached to the prescribed quota for these categories. This policy hampers the diversification of SC/ST representations in services across various disciplines/departments etc. and therefore, vacancy-based reservation may be replaced.
It is high time that reservation in services for SCs & STs must be introduced in Universities, Judiciary and Defense at all levels. The Constitution of India should be suitably amended for creation of All India Judicial Service on the pattern of Indian Forest Service and Indian Administrative Service for promotion of unity, national integration and participation of SC/ST. No advocate practicing in the High Court should be elevated as a High Court Judge. All High Court judges should be appointed from this Indian Judicial Service.
There should also be reservation in Legislative Councils and Rajya Sabha to provide representation in these bodies. The Cabinet Ministers should also be appointed keeping in view the representation of SC/ST.
While sanctioning grant-in-aid to the NGOs, it should be made mandatory and conditional that they will follow rules and regulation orders of the government regarding reservation of posts for SCs & STs in services under their control.
The reservation in services should be extended to the subsidiaries of Public Sector Enterprises, Financial Institutions etc. as they hold 100 equity shares. PSUs, FIs where time bound promotion system exists is out of purview of existing vacancy/post based reservation system. Instructions should be issued to all such PSUs, FIs etc. to consider all eligible SC/ ST candidates for promotion on the basis of fitness criteria.
A though review of Special Recruitment Drive launched on the directives of the government by the central ministries, PSUs etc. should be undertaken to ascertain status of implementation so far.
Article 16 provides reservation in all matters of appointment and posts; it is recommended that reservation in short term, ad hoc, contract vacancies and reappointments should be made compulsory in all government and public undertakings.] There should also be reservation in appointment in all the boards, commissions and statutory bodies like Election Commission, Public Service Commission, Comptroller and Auditor General of India, Human Rights Commission, National Advisory Board, Planning Commission, Service Selection Board, Railway Recruitment Board, etc.
At present due to the lack of pairvi/supervision in the Supreme Court, the reservation on the single post in rotation has been stayed thus creating lot of hardship for the SC/ST. For example principals of 400-degree College could not have reservation because each principal’s post was advertised separately. Therefore, it is suggested that such type of single post should have reservation by rotation or such single posts should be grouped together to provide reservation otherwise there will be no representation for SC/STs in universities and colleges.
Of the total rural SC workers, more than 60% are wage labourers- regular /salaried. There is a significant discrimination of SCs in hiring and wage payments. There is a need to incorporate at least legal provisions in the form of Equal Employment Opportunity Act (EEOA) so that clear legal protection is guaranteed against labour market discrimination to the SCs in hiring and wage payment. Government should use both provisions of equal opportunity act and supplement it by affirmative action or reservation particularly binding on the firm /industries which receive any kind of support from the government in one form or another i.e. who get license and registration from government. The EEOA will discourage discrimination. The reservation in private undertakings will ensure fair participation of the SCs in industrial employment. In order to bring transparency in the employment pattern, all firms should be asked to register with equal employment office and provide information of social composition of their employees as is practiced in USA and Northern Ireland.
There is no objectivity and transparency in the recruitment system practiced in private sectors and candidates are selected on the basis of religion, caste and nepotism. Till reservation in private is announced by making an Act discrimination in the matter of recruitment should be made punishable in the SC/ST Prevention of Atrocities Act and recruitment should be done by a system as mentioned above in Para 14 relating to government jobs. This system will work more for national integration. In the era of liberalization and privatization, limiting employment opportunities in government and public sectors, there is added justification to introduce reservation for SCs & STs in the private sector and also in all the disinvested ventures.
The Nodal departments in Central and State Governments should recognize SC/ST Welfare Associations for redressal of their service related grievances.
A study should be undertaken to find out false SC/ST certificates and services/facilities provided to such illegitimate persons should be terminated/ withdrawn in addition to punitive actions. M/O Social Justice & Empowerment and Tribal Affairs should issue special instructions to all the District Magistrates clearly stating that certificate-issuing authorities/officials will be held responsible for such false certificates.
Funds at least in proportion to the SC/ST population of the national, state district, block and village should be earmarked out of the total respective plan outlay at these levels. And it should have separate budget head, non-diversible and non-lapsable. These earmarked funds should be placed at the disposal of one nodal Department or the Planning Department as the case may be, for formulation of the SCP and TSP. There should be separate budget for SCP and TSP and it should be monitored and evaluated separately to fulfil the constitutional obligation towards SC/ST population.
It would be desirable that the districts having population more than 30% SC/ST population should be selected as the district initiative and in these districts the villages having more than 50 % of SC/ST population should be first saturated with all the developmental activities like the development of “Ambedkar Villages” in UP.
Funds at least in proportion to the SC/ST population of the district, block and village should be earmarked out of the total plan outlay of the district, block and village. This SCP and TSP should be separately prepared, monitored and evaluated to fulfill the constitutional obligation towards SC/ST population.
Details of Schemes meant for SCs/STs should be mandatorily displayed in each Block/Taluka, other means of dissemination of information about this scheme between SC/St and others should be adopted and implemented.
80% of the SC/ST population lives on agriculture; therefore, there is a need to distribute agricultural surplus land to SCs/STs on priority basis. Although the State Government has conferred the land rights in some cases the actual possession of surplus land has been marred by legal complications. The State Governments should create a ‘Common Land Pool’ acquired under ceiling and other public land, free from legal problems and place such pool of land under control of a specific authority. This land should be distributed to the landless SC/ST without bringing any other party into the picture.
The ‘forest villages’ inhabited by the tribals over the generations should be identified on priority basis by an independent agency (not by forest departments) tenancy rights may be conferred to them as a matter of forest policy through suitable provisions in the Forest (Conservation) Act, to ensure them the right to the productive means of livelihood.
The concept of Community Participation should be translated into policy framework as a strategy to help the forest department in protecting forests in a cost effective manner.
To give legal status to the occupants/possessors of the forest villages and the land cultivated by them, they should be converted into revenue villages in all seriousness within a timeframe. Without the legal ownership proof, the tribals are unable to avail benefit of Indra Awas Yojana, irrigation schemes and financial assistance under various schemes.
To solve this problem, it is suggested that forestland should be allotted to self-help groups of 20-30 landless SC/ST. This group should be provided a package of small tractor with accessories, a tube well in the electrified villages and pump sets in non-electrified villages. They should also be provided other agricultural inputs timely like seeds, pesticides, fertilizers, etc.
In order to ensure accessibility to the capital market, there is an urgent need to set up a National Bank for Scheduled Castes & Scheduled Tribes with at least Rs1, 000 cr as equity by the government.
Government should make a policy to increase the participation of SC/ST in the private capital. Like Malaysia, the government should set up a National Equity Corporation and Foundation to help SC/ST to participate in the share capital of various companies. Malaysia has also made it mandatory for foreign companies to reserve a percentage of the share capital for the minority community. This is the best way for redistribution of private capital ownership to SC/STs. Malaysia has achieved share of private capital in favor of native Malays from 2% to 20% in two decades.
The participation of SC/ST in the trade, commerce and industry is negligible due to lack of finance advances by the state and national financial institutions and the banks. Therefore, it is imperative to reserve 25% of total loan advanced for SC/ST community for their economic development and participation in all the above activities. All round efforts are needed to ensure to make SC/ST small entrepreneurs. The debt: equity ratio and collateral guarantee conditions should be relaxed for SC/ST.
There should be 25% reservation in all licenses, permits, agencies, dealerships and contracts issued by the government. Conditions like advance Security deposit should be relaxed.
Reservation should also be extended in allotment of houses and plots (commercial, residential, institutional and industrial) developed/ being sold by agency state or central government agency.
In spite of efforts in various schemes for distribution of land and promoting small and cottage industry, up gradation of skills and small commercial ventures through IRDP and other schemes transfer of assets i.e. national wealth to SC/ST population has been negligible. Participation has only been in education and services sector.
Conceived planning and faulty loans has left them indebted. To get out of indebted, they have to sell their own hereditary land. Loan waiver scheme announced earlier did not cover loans advanced under IRDP. Therefore, it is recommended that loan waiver for IRDP loan or any other loan up to Rs10, 000 to SC/ST should be waived off or one time settlement should be done as with industrial entrepreneurs.
The MP government has taken a major initiative in making provisions of certain quotas in their purchase order to the SC/ST community. The government of India should extend it in all fields. It should also develop a policy for the purchase of agricultural products such as vegetables, flowers, fruits and other products including milk, poultry and others purchased by the government and the private parties as SC/ST farmers and retailers face discrimination in retail and wholesale markets in sale of several commodities.
On educational up liftment of Scheduled Castes and Scheduled Tribes, Ambedkar said, “I think that the means that have to be adopted for the purpose of bringing these people up are not that we should have primary schools and secondary schools for these people. Out of 100 boys, 20 remain and 80 go away. My idea is something fantastic. I would suggest that Schools should be opened for them in their own locality or some central place. I would suggest to collect the best boys from the primary schools and give them food, shelter and education in that very place, away from their parents. Up to the Matriculation examination you give them education there. As soon as they pass the Matriculation examination, send them to a college and give them tuition fee. After that select a number of students from amongst them and send them to other countries, for them to get the best of education. After
that to give them service in the Government Department. I would be quite prepared to spend one crore of rupees for the Scheduled Castes and one crore for the Scheduled Tribes for 10 years. Thus you will create a few people with high qualification and place them in high posts’. Prof. Nirmal Kumar Bose (1972: 278) analysed this statement and concluded that, “Dr. B.R. Ambedkar is quite correct when he says that we should raise the status of Backward Classes as a whole and not individually; but that can only be done by producing highly qualified people from amongst these communities and placing them in key positions of Government service” .
There is an urgent need for establishing an agricultural college in each district for imparting education in agricultural practices. It could be a government private venture. One time subsidy may also be given to a private person to establish the institute.
There should be a school up to junior high school level in every village especially in SC/ST concentrated areas. Such schools should have the scope of up gradation up to the high school level. Running the schools in two shifts can do this. Morning shift can be run up to the 8th Standard and evening shift up to the high school level. This way, education can be given to all the population particularly all the SC/ST population. Local educated youth should be employed in these schools to reduce the problem of non-availability of teachers.
There is a need of good quality ITIs for imparting employable skills to the unemployed youths for creating employment opportunities for them within and outside the State. Such institutions should have at least 75% seats for SC/ST students keeping in view their population in the region. These funds should come from special component plan meant for SC/ST welfare. 25% seats should be for others funds for which will come from general pool.
Under Sarva Shiksha Abhiyan, children belonging to SC, ST and OBC should not only be enrolled but there should be the responsibility of the teachers that they pursue their education to check alarming dropouts at primary & secondary levels. For improving quality education and effective control on the teachers performance evaluation indicators of these teachers should be based on enrollment, preventing drop outs, percentage students passed, distribution of scholarships, providing mid day meals to students, encouraging sports and making studies interesting and engrossing. There should be village vigilance committee of the people having compulsorily SC/ST members.
The statistics of Scheduled Tribe and Scheduled Caste youths who have already completed graduation level studies and are aspirant of their employment in different sectors should be collected and tried to be accommodated in government jobs, if not, they must be trained for quality self employment through vocational training.
Each block headquarter should have an educational institute consisting of a residential intermediate college/ sports college with provision for future expansion. There should also be a vocational college and coaching guidance centre in the same campus. There should be one arts and Culture College for SC/ST to preserve their arts and culture at each district headquarter.
In each village, there should be a community development centre for SC, ST. Similarly, at each district headquarters, there should be one community, multipurpose hall for SC, ST population. There is an urgent need for establishing a centre for policy research at the national level. They should be entrusted with the responsibility of research relating to SC, ST matters.
There is a need for providing medical training centres for nurses, ANMs, physiotherapists, technicians, radiologists etc in each district.
As education sector is feeder to the reservation in services, higher education in science, technology, Ph.D etc. for SC/ST students is very much needed. The schemes like Rajiv Gandhi Fellowship for SC & ST students and other government schemes for pursuing higher studies leading to M. Phil & Ph. D. should be launched countrywide. It must be ensured that out of the total of such scholarships in the country at least 25% scholarships must be awarded
to SC/ST students.
Scholarships/ Full expenditure to assist SC/ST students admitted in overseas universities for higher studies should be provided. There should not be any income criteria for getting scholarship, freeship for the SC, ST students. This income criteria has played havoc with the education of SC, ST. It is recommended that the income criteria should be abolished.
The candidates preparing for various competitive exams for IAS, IPS, etc., admission in engineering colleges and medical colleges and other services may be allowed to take admission in any reputed private coaching centres and their full fees should be reimbursed by the Government from SCP/ TSP funds.
The tuition fee of the SC and ST students studying in private colleges and institutions should be fully reimbursed by the Social Welfare/Tribal Welfare department under SCP and TSP funds.
In those villages where no land is available especially in SC and ST dominated areas, land should be purchased and allotted to homeless for construction of houses under Indira Awas Yojana. The State Government was suggested to provide Rs.25000/- towards Kanya Dhan for SC/ST girls who passed out Intermediate examination.
To provide quality self-employment to educated trained youth, group of 2-3 such educated unemployed youth should be provided interest free loan of Rs 5 –15 lakh. The interest subsidy should be borne by the state. There should be exhibition cum shopping complex constructed out of special component and tribal funds in each district headquarter to provide a shop to such groups, which will be an avenue for marketing their produce.
Urban upgraded skill trained persons of SC/ST should be provided house cum working shed for manufacturing of handicrafts with a multi purpose hall which may also work as an handicrafts exhibition center.
There should be a trading center in every city in each district for the purpose of self-employment of educated youth. More focus should be given to livelihood schemes so that incomes of very poor SC/ST and other disadvantaged groups substantially rise to make a dent on poverty.
Training may also be imparted in the existing Police Training Centres or Home Guards training centres to SC and ST youth (18-21 years) who have passed Matriculation for Constables and Home Guards. While the Home Guards will look after the security of the villages as Village Defence Committee, the later may be recruited as Constables in the State
Government. Similarly training may also be given to at least 5000 SCs/STs for Conductor and Driver jobs through State Transport Corporation. It was suggested to start Pre-recruitment Training Centres for recruitment of SC/ST candidates in defence services and paramilitary forces and police.
Roti, Kapara aur Makan is basic human needs. Majority of SCs/STs households depend upon subsistence level of economy and are deprived of proper housing facilities particularly in rural areas. It is strongly recommended that Rural Housing Schemes for SC & ST people should be formulated with World Bank funding as in cases of other sectors, like health, rural sanitation etc.
In those villages where no land is available especially in SC and ST dominated areas, land should be purchased and allotted to homeless for construction of houses under Indira Awas Yojana.
Construction of Indra Awas Yojana houses for rural houseless people is very less in number. Therefore, atleast 45 lakhs houses should be constructed every year for SCs/STs.
Conversion of dry toilets to wet toilets may also be taken out of these funds in a big way so that scavenging colonies should be developed with rehabilitation program.
The State Government should improve the mechanism for sharing information with people representatives such as MPs, MLAs, PRIs and public in general to enhance the transparency and monitoring and implementation of schemes for SC/ST.
The State Government should place a strong incentive mechanism for officers and staff working in the districts so that right kind of motivation is created for them to show commitment for effective implementation of the special component plan and other developmental activities for SC/ST welfare.
Detailed information with regard to beneficiary oriented programmes should be compiled and maintained by the district authorities so that it could be shared with all members of public. This would also fulfill the purpose of implementation of schemes and Right to Information Act.
The implementation of different schemes need to be verified by district level officers for which the concerned collectors should assign 20 villages to each district level officer and should designate him as Verification Officer / Nodal Officer.
In view of the large number of villages inhabiting 55% and above of the SC/ST population, all such villages should be saturated first with physical and social infrastructure.
There is a need felt for total transparency and accountability in the implementation of the beneficiary and construction oriented schemes. A board should be displayed at the sites indicating names of the schemes, name of the implementing agency, funds involved, and source of funding, specification and duration for completion of work to enable the local people to know about the schemes. A village, block and district level list of all the beneficiary oriented schemes and construction oriented schemes should be prepared and verified by a nodal officer/ verification officer for 10-20 villages from a task force under the chairmanship of the Collector consisting all the district level officers. A punishment and reward mechanism should be inbuilt in the system.
It should be made mandatory for the administrative Ministry that a feed back /outcomes of the implementation of the scheme meant for SC/ST should be made available in the proposal seeking approval for its continuance from one Five Year Plan to the next FYP.
In the Common Minimum Programme, election manifestoes of various political parties, the government should come out with a clear policy statement about providing affirmative action in the private sector. It should, in a time bound manner, prepare an Affirmative Action Act that clearly and categorically spells out the steps that would be taken to implement this policy both at the central and state levels.
The Government may also prepare and present to the nation, a white paper on the state of affairs of the Dalits, tribals, and other weaker sections of the country, and on the discrimination that they suffer in economic, political, social, and educational realms. Based on these facts and figures, the government should also propose concrete measures to do away with these.
A serious note of the recommendations made by the Scheduled Caste and Scheduled Tribe Commission are taken and that its recommendations be implemented. It is essential to workout short-term and long-term measures to increase the representation of the SCs and STs. The government also needs to pay heed to ILO Declaration on Fundamental Principles and Rights at Work, adopted in 1998 which reiterates the need to ensure equality of opportunity to those in special needs. Keeping up with its promise, the government should implement affirmative action in the private sector, which is in favour of the weaker sections.
An Employment Opportunity Commission may be constituted to review and ensure that the weaker sections find representation at all levels. The Government should make special provisions for higher education, responsive training and multi-skilling of the Dalits and tribals, so that they are able to compete with the others for jobs. National Commission for SCs and STs should be empowered so that they work as a pressure group on the government and the private sector to ensure the right to participatory development.
A nation-wide debate on these issues be initiated at the earliest with specific orientations. Based on the outcome of the debate, the Government should introduce necessary constitutional amendments to enact affirmative action at all levels in the private sector. This would not only pave the way for ensuring equal opportunity to weaker sections, but would also contribute in the process of nation-building.
The framers of the Constitution took note of the fact that certain communities in the country were suffering from extreme social, educational and economic backwardness arising out of age-old practice of un touchability and certain others on account of this primitive agricultural practices, lack of infrastructure facilities and geographical isolation, and who need special consideration for safeguarding their interests and for their accelerated socio-economic development. These communities were notified as Scheduled Castes and Scheduled Tribes as per provisions contained in Clause 1 of Articles 341 and 342 of the Constitution respectively.
Article 338A of the Constitution provides for a National Commission for Scheduled Tribes-
(1) There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice- Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure.
(5) It shall be the duty of the Commission—
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this 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;
(b) To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
(c) To participate and advise on the planning process of socio- economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
(d) To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to 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 socioeconomic development of the Scheduled Tribes; and
(f) To discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
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
(a) Summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) Requiring the discovery and production of any document;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public record or copy thereof from any court or office;
(e) Issuing commissions for the examination of witnesses and documents;
(f) Any other matter which the President may, by rule, determine.
(9.) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes.
Despite being a constitutional body, the NCST has not been able to emerge as an effective and independent mechanism to safeguard the frights of the Scheduled Tribes it is primarily because of the inherent flaws in Article 338A which set up the NCST. Some of the inherent flaws are-appointment of Chairperson and other member is not based on defined criteria lack of powers to enforce its rulings or recommendation, and lack of resource-finance as well as manpower event after more than three years of is coming into existence, the NCST des not have an adequate and well furnished office.
Its mandate, though broad, remain fully unused. More often, it seems that the NCST is another agency of Government instead of it being a constitutional body to safeguard the rights of the Scheduled Tribes
The National Commission for Scheduled Tribes (NCST) has, inter alia, the mandate “to investigate and monitor all matters relation to the safeguards provided for the Scheduled Tribes under this Constitution 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 Tribes”, “to participate and advise on the planning process of socio- economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State”, and to “present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards”.
There is no “restrictive clause” in the Constitution (Eighty-Ninth Amendment) Act, 2003. The NCST has been given unlimited powers including the power to “summoning and enforcing the attendance of any person from any part of India and examining him on oath”. This means that the NCST has powers even to investigate violations by the members of the armed forces over whom the National Human Rights Constitution (NHRC) does not have any jurisdiction.
Often lack of funds is commonly cited by constitutional as well as statutory bodes/commissions as one of the major problems for non-implementation of a proposed welfare scheme. It is a fact that unlike the National Human Rights Commission and the Election Commission of India, the National Commission for Scheduled Tribes do not get adequate amount of funds enough to meet the desired targets. But there are problems within the FNCST itself. It does not have the ability or willingness to utilize the whole of the sanctioned grant received annually .
Shortage of adequate number of staff is also often cited by the NCST as one reason for its failure in fulfilling its mandates. That the NCST face acute shortage of staff is a face. As per official documents/ information received from NCST its sanctioned strength of staff is only 124 in its Hedquater in Delhi as well as the 6 Regina Offices in Shillong, Jaipur, Bhubaneswar, Ranchi, Bhhopa and Raipur. But the actual strength of staff never reached the sanctioned strength during the last five years of its functioning. There were only 89 staff in position as on 1 December 2004; only 85 staff in position as on 31 December 2005; only 83 staff in position as on 31 December 2006; and only 83 staff in position as on 31 December 2007
Except the Bhoapal Regional Office, all the five Regional Offices face acute shortage of staff. In the Regional Office in Raipur, there is only 1 staff against sanctioned strength of 8 as on 1 February 2008 while there was a shortage of 6 staff against sanctioned strength of 12 in Shillong Regional Office; shortage of staff against sanctioned strength of 15 in Jaipur Regional Office; shortage of 4 staff against sanctioned strength of 12 in Bhubaneswar Regional Office; shortage of 5 staff against sanctioned strength of 8 in Ranchi Regional Office ad shortage of 1 staff against sanctioned strength of 13 in Bhopal Regional Office.
The strength of staff in position during the last four years shows a sharp decline. Lack of adequate staff seriously affects the effectiveness of the NCST as national institution mandate with the onerous responsibility of protecting and promotion of rights of Scheduled Tribes.
Clause (20) of Article 338A of the Constitution (Eighty-Ninth Amendment) Act, 2003 the NCST shall consist of a Chairperson, a Vice-Chairperson and three Members.
Rule 46 of the Rules of Procedures of the NCST provides, “Presence of at least three members including the chairperson and/ or Vice-Chairperson shall constitute the quorum for holding meeting of the Commission.”
Further, Rule 47 of the Rule of Procedure provides, “The following matters shall be brought up before the commission at a meeting for consideration and decision:
(i)Any amendment to these Rule of Procedure;
(ii)Matters to be investigated by the Commission directly;
(iii)All the reports that are required to be considered by the Commission as provided in these rules;
(iv)Any matters that a Member may like to bring to the meeting, with the approval of the Chairperson;
(v)Important matters relating to planning and developing for the welfare and advancement of Scheduled Tribes and specially references received under Article 338 A (9) of the Constitution; and
(vi)Any matter that the Chairperson may direct to be placed at a meeting of the Commission.”
Upon a con-joint reading of Clause 920 of Article 338 of the Constitution (Eighty-Ninth Amendment) Act, 2003 and Rules 46 and 47 of the Rules of Procedure of the NCST it is mandatory that any resolution/ decision of the NCST with regard to the all matters provided under Rule 47 to legally binding and effective has to be passed/ taken by at least three members including the Chairperson and / or Vice-Chairperson.
However, since the constitution of the first Commission in February 2004, there were a number of occasions when the NCST did not have the number of Members required to constitute the quorum. During 4-10 March 2007, after the resignation of Smt. Prem Bai Mandavi, Member on 03 March 2007, the NCST had only two Members namely Shri Gajendra Singh Rajukheri, Vice-Chairperson and Shri Buduru Srinvasalu, Member and during 11 March-31 May 2007, Shri Gajendra Singh Rajukheri, Vice-Chairperson was the only Member of NCST after the resignation of Shri Buduru Srinvasalu, Member on 10 March 2007. At present the post for Chairperson is vacant .
As stated above, most of the time, the NCST remain without quarum because on non-appointment of either the Chairperson or the Vice-Chairperson or the Members on time. The non-appointment of the Members on time has been seriously affecting the constitutional obligations of the NCST for protection of right of the members of Scheduled Tribes across India. As result, the NCST has become a vehicle without a driver.
The government of India enacted the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1898 to combat discrimination and violence. The Act provided for establishment of special courts. Replying to an unstarred question no 3615 to be answered on 18.08.2005, Minister of State for Social Welfare stated that “Exclusive Special Courts have been set up in the States of Andhra Pradesh (08 courts), Bihar (11 courts), Chhatisgarh (07 courts), Gujarat (10 courts), Karnataka (07 courts), Madhya Pradesh (29 courts), Rajasthan (17 courts), Tamil Nadu (04 courts) and Uttar Pradesh (40 courts)”. The other states notified the existing courts as special courts.
Although the tribal peoples have been living in the forests from time immemorial, they have been dumped as illegal encroachers and evicted under various forest and wildlife protection laws. They have been denied access to traditional means of survival.
In December 2006, the government of India passed the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act to recognize the rights of the tribals over their forest lands. The Ministry of Law & Justice published the “Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” in the Gazette of India on 2 January 2007 but it failed to notify the Rules of the Act by the end of 2007. In addition, many writ petitions have been filed challenging the constitutional validity of the Forest Rights Act. Due to delay in the implementation of the Forest Rights Act, the tribals have been deprived of their forest and land rights throughout 2007.
The tribal peoples have to pay a heavy price for accessing minor forest produce. The indigenous peoples continued to face eviction from their traditional habitat under the Forest Conservation Act of 1980.
The Constitution of India, under the 5th and 6th Schedules, protects the land rights of the Indigenous peoples. In addition, various state governments have adopted state-level laws prohibiting the transfer of lands from indigenous peoples to “non-tribal”. Some of these laws were adopted during British rule. Yet such guarantees have proved ineffective in preventing widespread land alienation.
From the above discussion it can be clearly understood that there lies ground where more power or function of the body established under the status lack proper power and authority also independence in exercising their autonomous power. Below is the list of recommendations to the Parliamentary Committee on the Welfare of the Scheduled Castes and Scheduled Tribes
1.To assigning each member with a specific job so that each of the members may perform their duty with full attention to the subjects allocated to them.
2.To look up the issues affecting members of the Scheduled Tribes both in the Central level as well as sate level
3.The Government should take earnest and credible steps to make NCST more strong and effective. The Committee also recommended that the Government should ask the Department of Personnel & Training (DOP&T) to submit its study report on performance of NCST immediately so that timely corrective action is taken.
4.To set up more regional offices according to the present need, upgrade the four regional offices and augment the existing staff strength of NCST accordingly on a priority basis.
5.To prevent and protect young tribal girls who migrate to cities from exploitation exploited for want of proper shelter and opportunity, the Committee strongly recommended that proactive action should be taken expeditiously.
6.To examine the measures suggested by the NCST in their report to control the problems of alienation of tribal land and proper rehabilitation of tribals on acquisition of their land.
7.The Committee strongly recommended that there should not be any laxity in investigation relating to safeguards provided to STs.

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