Shruti Sharma ((Student of II Year B.A. LL.B. (Hons.), Semester IV, Symbiosis Law School, Pune)).
On the 26th day of January, 1950, the people of India gave to themselves their Constitution which ensured to them Justice, Liberty, Equity and Fraternity. Under part III of the Indian Constitution, the fundamental rights became a necessary consequence of the declaration of the Preamble ((Preamble of the Constitution: A mirror to Society, http://www.importantindia.com/1990/importance-of-preamble-in-indian-constitution/ (last visited: May 04, 2016).))focusing on upholding the dignity of life and the basics for which the human life stands.
Since before independence, the Scheduled Caste have faced caste hierarchy and the age long suppression by the higher caste thus becoming a part of the depressed sections of the Hindus. The social injustice and stigma thus became the sole reason for the need for special protection and help for the facilitation of betterment of their socio-economic and political condition. Furthermore the Scheduled Tribe constitutes a total of 7.5 per cent of India’s total population. For the reason of the fact that they continue to practice their native norms and customs and remain inaccessible to the rest of the world, becomes an important ground for the preservation of their rights.
Through the means of this paper the researcher has studied in depth the problems faced by present day SC’s and ST’s while focusing majorly on the change in culture, lifestyle and traditional practices along with the development and appropriation of rights and reservations to alleviate their hereditarily backward position in society.
During the course of the paper, the researcher traces the history of their existence with respect to the special rights and privileges awarded to them along with the report by the Mandal Commission and its application in the globalized world. While directing the impact of globalization and the development of nongovernmental institutions towards the betterments of conditions of the SC’s and ST’s in the present day scenario.
I don’t go by my caste, creed or religion. My works speak for me – Shashi Tharoor
The caste system prevalent in the Indian society has its roots deep in the history of our nation. The age old caste system that divided the teachers and the preachers, the kings and the worriers, the merchant and the trader and the servant from the master still show their reflection in the modern times. Today the Indian republic stands divided largely on the basis of religion and further on caste into Hindu and Muslim, Scheduled Caste, Scheduled Tribe and Other Backward Classes.
The six decades of independence has changes the face of the ancient caste system giving rise to the present scenario where the Constitution provides the Right to Equality covered under the ambit of part III and works on the motives, objectives and nature of the Fundamental rights. It comprises of Article 14 to 18, of which Article 14 is the most important one. Equality is one of the magnificent corner-stone of Indian democracy ((Thommen J., Indra Sawhney v. Union of India, AIR 1993 SC 477)). The under laying object of Article 14 is to provide equality of position and opportunity to all persons, whether citizen of India or otherwise. Article 15 prohibits discrimination on the basis of cast, sex, creed, religion or place of birth. Further Article 16 guarantees to the citizen of India equality of opportunity in matters of public employment. Article 17 abolishes untouchability and 18 abolishes titles other than those awarded for rendering services to the nation [military or academician] ((Part III, Constitution of India)).
The subsequent question arising now is whether the rights coffered to individual under the Right to Equality is absolute and same for all individuals. The Supreme Court addressed this issue in the case of M.G. Badappanavar v. State of Karnataka, ((AIR 2001 SC 260))where it declared that “Equality is the basic feature of the Constitution of India and any treatment of equals unequally or unequal’s equally will be a violation of the basic structure of the Constitution of India.”
A clearer classification and differentiation between the largely mistaken divisions is explained as under:
The Scheduled Caste (herewith referred to as SC’s) have not technically been a racial, lingual or religious minority. They have been a part of the Hindu sect, usually referred to as untouchable or Harijans. ((Dalit, Harijans and Untouchables, http://mb-soft.com/believe/txo/untoucha.html (last visited: May 12, 2016).))They involved themselves in dirty jobs bestowed upon them by the caste hierarchy, and due to their age long suppression by the higher caste they have become a part of the depressed sections of the Hindus. Their social incapacity and inability thus became the sole reason for the need for special protection and help for the facilitation of betterment of their socio-economic and political condition.
The Scheduled Tribe (herewith referred to as ST’s) have also been referred to as aborigines, are those sections of our society who continue to follow their native traditions and customs. They observe and continue to follow their tribal way and self-made cultural norms. The basic characterization of these people is (i) their primitive way of living and nomadic habits; (ii) love for drink and dance and (iii) habitation in remote and inaccessible area ((First Report for the Commission for Scheduled Caste and Scheduled Tribe, 3, 11(1952).)).
Today they constitute a total of 7.5 per cent of India’s total population and for the reason of the fact that they continue to practice their native norms and customs and remain inaccessible to the rest of the world, becomes an important ground for the preservation of their rights.
The SC’s and the ST’s have been those parts of the Indian society that have, over time been unable to cope with the changes and modernization of the societal order. Some have been crippled by the pressure of the general hierarchy of the Indian society while others still continue to follow their traditional customs with little changes from ancient time. On one hand, while the government continues to play its role in their development by the means of reservation, they limit the purpose of classification of the reasonability of reservation and the provisions following the principle of ‘Doctrine of Reasonable Classification’ ((The doctrine of reasonable classification states that there should be a nexus between the basis of classification and object of law and it should be based on the principle of intelligible differentia)).
Six decades and the exposure of India to the new socio-cultural and economic frontiers have resulted in the fusion of the old and historic customs and practices with the new and emerging prospects for the future. Through the course of this paper, the researcher shall study each of the above mentioned situations and provide an analysis on the effects and repercussions of adopting different policies.
2.1 Impact of globalization on SC’s & ST’s
Globalization in its very basic sense is the opening of local and jingoistic perspective to a broader outlook of an interconnected and interdependent world with free transfer of capital, goods, and services across national frontiers. ((The Business Dictionary, http://www.businessdictionary.com/definition/globalization.html (last visited on May 14, 2016).))In the words of Robert Samuelson “Globalisation is a double–edged sword. It is a controversial process that assaults national sovereignty, erodes local culture and tradition and threatens economic and social stability”. Proving the statement right, globalization has not been a welcome change in the developing countries for the fear of submission of the economy at the hand of multinational giants.
In the Indian scenario, where tribes continue to populate the mineral and natural resource rich areas of the expanse of the country, a major threat hangs in the balance as the unprecedented lobbying poses a menace to the alteration of governmental policies in favour of large scale industrial organization. It brings into question the statutes like Forest Act, the Environment protection Act and the Land Acquisition Act as they are jeopardy at the hands of industrial lobbying facing dilution, repealing or amendment. The violation of the Fifth schedule has been an immediate risk to the tribes of India, it violations in Andhra Pradesh by the means of ignorance of the Land Transfer Regulation Act by giving mining leases in scheduled areas to private companies, shows the relaxation of the governmental agencies in areas of protection of their rights ((B. Ezhilarasu , Impact Of Globalisation on Tribals in India, Volume : 4 | Issue : 10 | October 2014 | ISSN – 2249-555X (last visited on May 15, 2016).)).
In furtherance to the unjust allocation of tribal land into private hands, the privatization of the profit making Public Sector Undertakings (PSUs) like BALCO ((C. R. L. Narasimhan, The Balco privatisation, The Hindu, Friday, February 23, 2001))has not only resulted in major displacement of the indigenous tribal population from their natural habitat but also the loss of their employment opportunities at the hand of capital incentive private companies has become a big issue. Furthermore the new displacement policies for the growth of infrastructure continue to disturb the natural order of life. As a result the tribal ended up as wrecked remains of the globalised policies unable to access the resources which were their life sustaining forces or to compete with the mainstream society to be absorbed into alternate economies.
In the case of the Scheduled Caste, the evident unavailability of education and employable skills resulted in the gradual fall in employment for the lower caste as they constituted the technologically backward class of the society. With large companies took over the market, the requirement for technically advanced jobs increased thus crippling the poorly skilled backward class. In a position and caste-based hierarchical reviewed social setup where lower societal position and monetary backwardness is by all accounts coterminous, social status assumes a critical part in deciding one’s financial status. Globalization further exasperates this horrible interrelationship amongst social and financial backwardness. The rationale of financial globalization supports the rich, who can contribute and increase capital. The favoured rich are for the most part found among the purported conventional ‘Upper Class’.
2.2 Role of Non-Governmental Agencies in SC and ST welfare
The NGO’s which can also be called ‘Harbingers of Change’ and ‘Partners in development’, play multifarious roles in the upliftment of Scheduled Castes and Scheduled Tribes. The rights and development of the oppressed class have received high attention on International Agenda and find an echo in the UN Charter ((Available at http://in.one.un.org/task-teams/scheduled-castes-and-scheduled-tribes (Last visited: May 14, 2016).))as well as Universal Declaration of Human Rights ((The Universal Declaration of Human Rights, http://www.un.org/en/universal-declaration-human-rights/ (Last visited: May 14, 2016).)). Post-Independence, development of Scheduled Caste and Scheduled Tribes has been a national goal and a special responsibility of both the Centre and State. The Centre has come up with various policies to strengthen their position in the society. On one hand while constitutional provisions have been made to bring them to mainstream society, on the other hand various schemes like Grant in Aid to Voluntary Organizations working for the welfare of Scheduled Tribes ((Schemes for NGO’s working with Tribal’s and Schedule Caste, http://indiamicrofinance.com/schemes-ngos-working-tribals-schedule-castes.html (Last visited: May 14, 2016).))and National Overseas Scholarship for SC’s are examples of Governmental efforts ((Ministry of Social Justice and Empowerment, http://socialjustice.nic.in/schemespro1.php (Last visited: May 14, 2016).)).
But their failure or rather underachievement breeds place for Non-State actors to come in the picture. The failure of Governmental policies has acted as a fertile ground for the NGO’s to take up the responsibility of the socio economic development issues. What is required in the context of Indian situation is the conscientisation of the Tribals about their latent capacities and to motivate them for acquiring a better life. The activities of the NGOs can be broadly summed up as to supplement the effort of the Government in such fields where the government is unable to reach the outreached; to launch a crusade against the policies and actions of the Government which result in injustice and exploitation.
In the age of Liberalisation, Privatisation and Globalisation where the state is withdrawing its authority from many of the development sectors and market is not much willing to share the burden of development, this sector has appeared on the scene as a liberator to protect the society from the onslaught and challenges of consumerism coupled with an urge for an equitable distribution of the fruits of development. They make an honest endeavour to empower the marginalised people in such a way so that they can stand on their own feet with self-reliance and depend less on charity and concessions provided by others.
The NGOs may create awareness among the Tribals by demonstrating the conservation and preservation of the medical plants. They may use the audio-visual aids for creating a lasting impression and campaign for ensuring the promotion of herbal plants in kitchen-garden and nurseries. Sharing of knowledge in workshops is also recommended where both NGO professionals and tribal counterparts would participate. The NGOs should encourage tribal youths to take up the tradition of practitioners of tribal medicine as livelihood option and encourage in research and development of their practice. There is a global dimension of this problem as well. International agencies and multinationals often pirate the age old knowledge of the Tribals for preparing drugs. Documentation of tribal knowledge becomes an urgent necessity in this case. The NGOs coupled with the Gram Panchayat can play a significant role in it. They can prepare a community register where such knowledge can be documented in the local language. They must be legally made aware of their traditional rights and move in the direction of preserving their knowledge under the auspices of Intellectual Property Right. However, there are certain grey areas in the functioning of the NGOs but they cannot be used to overlook the participation and contribution of the organizations like these. It is an undeniable fact that despite certain drawbacks NGO’s have emerged as watchdogs of the rights of depressed class and a “Universal Third Force” which has rendered Governments more accountable and inclined towards the upliftment of the same.
2.3 Women Rights
The discrimination against women runs deep and manifests itself in subtle but far-reaching ways. Today only 10% of our Parliament comprises of women is testimony in itself. If after 60 years of independence, we live in a system where women find it so difficult to get equal chances as men, then its only imaginable how the already downtrodden castes cope up with the misery. These differentiations based on social taboo and the manifestation of a patriarchal society with special inclination towards a male child have left the weaker gender further weakened with special need for protection in general.
On one hand while women face inequality with special protection granted to them under Article 15(4), ((Article 15(4), Part III, The Constitution of India))the Scheduled Caste and Scheduled Tribe women continue to face the inequality within the gender sect. The high rate of daily wage labourers being lower than national average income is a clear depiction of their plight. While SC’s and ST’s continue to sustain with a minimal income of Rs 34 to Rs. 37 as against the national average of Rs. 42, non-ST/SC earn upto Rs. 56 ((Dalit Women’s Access to Land Resources in the Context of Globalization: A Literature Review)). Defying Article 38 (2), ((Supra at note 11, Article 38 (2).))and 39(d), ((Supra at note 11, Article 39 (d).))of the Indian constitution, these statistics prove that the condition of women belonging to ST and SC community have not been improvised under the law.
In addition to the failing application of constitutional right, the justice system further continues on the path of inequality. In a survey of 500 cases it was produced that;
40.4 per cent of the victims did not attempt to attain justice.
26.6 per cent of the women were barred from filing complaints.
Only 1.6 per cent obtained ‘informal justice’.
While only 17.5 per cent of incidents of violence reached the police, but cases were left unaddressed.
13.9 per cent of cases received appropriate police or judicial action.
Only 1 per cent of the cases ended in conviction ((Supra at note 16)).
Though on a statutory front not much has been done in the field of specific women rights for the SC and ST communities, but various initiatives and the government’s attempt to bring inheritance for tribal women under the ambit of the Hindu Succession Act, 1956 has been a triumph ((Dalit women in India, International Dalit Solidarity Network, http://idsn.org/key-issues/dalit-women/dalit-women-in-india/ (Last visited on: May 14, 2016).)).
“We are Indians, Firstly & Lastly”
- B. R. Ambedkar
For long the Indian society has functioned on the principle of caste and class. The upper class always exploited and squashed the lower cast. The damage done in such process was so deep that people still remain unable to drag themselves out of the vicious circle of poverty and helplessness. The facilitation of reservation for the upliftment of the socially disabled has been a process to bring all the people of the country on an equal level of opportunity and chances. It follows the crucial principle of the Right to equality by treating equals equally and unequal’s unequally and giving a fair chance to the like. In light of the historic character of the position of the ST’s, ST’s and other backward classes the Mandal Commission worked to liberate them.
Mandal Commission, established in 1979, focused on the organization of the population on the basis of social and educational backwardness and recommend steps for the upliftment of the deprived. The report submitted by the commission presented a figure of 54 per cent people of India belonging to backward classes, consisting of 3,743 different casts and communities ((Mandal Commission Report:25 years later, The Indian Express, September 1, 2015, http://indianexpress.com/article/india/india-others/sunday-story-mandal-commission-report-25-years-later/ ( last visited: 17 September, 2015).)). The recommendation by the Committee for improving the condition of the backward classes is a follows:
Reservation of 27 per cent for those who do not qualify on the basis of their merit.
Reservation of 27 per cent for promotions at all levels.
The reservation shall be made applicable to all the public sector undertakings, banks and private undertakings receiving grants from the central and state governments, universities and colleges.
Government should make provisions for the implementation of the same ((Ibid)).
These principles were to apply equally to educational institutions and jobs. The motive behind the provision for reservation was never to provide extra benefits to the individuals; the sole motive behind the provision was to give a push to the socially incapable to make them reach the same level as the rest of the population.
While many continue to argue that reservation as a policy completely violative of the principle of equality as it provides undue benefit to some classes while depriving the other, more deserving people, from the above analysis of the present condition of the SC’s and ST’s it is evident that the policies in favour of them need rigorous implementation. The enactment and implementation of statutes to prevent atrocities against the ST’s and SC’s remain a farfetched idea with the requirement for a procedural law remaining a dire need. A procedure established by law would ensure a better protection on their rights, as was laid down in the case of Maneka Gandhi vs. Union of India ((1978 AIR 597))thus recognizing the delivery of justice to the downtrodden and the aggrieved and insuring the in the dynamic world with fast paced changes justice is reachable to the farthest hand.