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CONSTITUTIONAL PROVISIONS AVAILABLE TO SCHEDULE CASTE

AND SCHEDULE TRIBE
Written By Neha Singh* & Sujata Chauhan**
*Assistant professor, IMS Law College, Noida
**Research Scholar, Sunrise University, Alwar

ABSTRACT

The position of schedule caste and schedule tribe is always a question mark foe the society .being a
developing country we are saying that we are giving equal statue to them as compared with other
caste but in reality its not be like this . In modern time also they are facing problem but we can say
that the extent of sufferingness is less as compared to previous time. For improving their conditions
government are taking various steps like specific laws are being made for them , commissions were
made only for their betterment and by means of reservation also ,government is trying to improve
their condition .

Specifically Our Constitution guarantees justice and equality of opportunity to all its citizens. It also
recognizes that equal opportunity implies competition between equals, and not ‘un-equals’.
Recognizing the inequality in our social structure, the makers of the Constitution argued that weaker
sections have to be dealt with on a preferential footing by the state. A special responsibility was, thus,
placed upon the state to provide protection to the weaker sections of society.

Accordingly, the Constitution provided for protective discrimination under various articles to
accelerate the process of building an egalitarian social order. Thus, preferential treatment for the
depressed classes (SCs and STs), should not be understood as an act of magnanimity on the part of
the political elite at the national level but rather a strategy to give them a share in power in politics
and administration and to uplift them socially and economically .

In my research paper I just explained the condition of schedule caste and schedule tribe and what are
provisions available to them under the constitution of India. These provisions are just like a helping
hand for them to improve their condition. When all the sections of people developed then only our
country will become a developed country.

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INTRODUCTION:

These two terms schedule caste and schedule tribe in British time are known as depressed class.
“Dalits” were termed as Schedule caste and “adivasis” were termed as Schedule Tribe. According to
2011 census the Scheduled Castes comprise about16.6 percent and schedule tribes comprise about8.6
percent. They are the most neglected and exploited people India. Even though we are having Article
17 in our constitution regarding abolition of untouchability sill problems persist.

If the law is not in favors of SC & ST, they will never achieve true equality of opportunity and
freedom of choice. The nation’s unity will be at risk. This is perhaps because of the mindset of
certain sections of the society. SC & ST , together constitute the vast and not merely a section in
the society

The Constitution (Scheduled Castes) Order, 1950 lists 1,108 castes across 29 states in its First
Schedule, and the Constitution (Scheduled Tribes) Order, 1950 lists 744 tribes across 22 states in its
First Schedule.

Since independence, the Scheduled Castes and Scheduled Tribes were given Reservation status,
guaranteeing political representation. The Constitution lays down the general principles of affirmative
action for SCs and STs.

If we are having right to equality then how we can differentiate between human being. Somehow we
are decorating the very essence of our Indian constitution .The injustice to the Scheduled Castes and
the Scheduled Tribes for no reason other than the pure accident of birth have few parallels in the
history of civil society.

Historical Background

Since the 1850s these communities were loosely referred to as Depressed Classes, with the Scheduled
Tribes also being known as Adivasi ("original inhabitants"). The early 20th century saw a flurry of
activity in the Raj assessing the feasibility of responsible self-government for India.

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The Morley– Minto Reforms Report, Montagu–Chelmsford Reforms Report and the Simon
Commission was several initiatives in this context. A highly contested issue in the proposed reforms
was the reservation of seats for representation of the Depressed Classes in provincial and central
legislatures.

In 1935, British passed the Government of India Act 1935, designed to give Indian provinces greater
self-rule and set up a national federal structure. The reservation of seats for the Depressed Classes
was incorporated into the act, which came into force in 1937. The Act introduced the term "Scheduled
Castes", defining the group as "such castes, races or tribes or parts of groups within castes, races or
tribes, which appear to His Majesty in Council to correspond to the classes of persons formerly known
as the 'Depressed Classes', as His Majesty in Council may prefer". This discretionary definition was
clarified in The Government of India (Scheduled Castes) Order, 1936, which contained a list (or
Schedule) of castes throughout the British-administered provinces.

After independence the Constituent Assembly continued the prevailing definition of Scheduled
Castes and Tribes, giving (via articles 341 and 342) the president of India and governors of the states
a mandate to compile a full listing of castes and tribes (with the power to edit it later, as required).
The complete list of castes and tribes was made via two orders:

The Constitution (Scheduled Castes) Order, 1950 and

The Constitution (Scheduled Tribes) Order, 1950, respectively.

PROBLEMS FACED BY SCHEDULE CASTE AND SCHEDULE TRIBE

1. Social Problem:
These problems pertained to the concept of purity and pollution. The untouchables were given a very
low position in the society.

The high-caste Hindus maintained a social distance from them. They were denied many basic
amenities of life which were accorded to the high-caste Hindus. They were dependent on the tradition
of Hindus for items of food and drink.

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In the Caste hierarchy the Scheduled Castes are ascribed the lowest status. They are considered to be
‘unholy’, ‘inferior’ and ‘low’ and are looked down upon by the other castes. They have been suffering
from the stigma of ‘untouchability’. Their very touch is considered to be polluting for the higher caste
people.

Hence they have been treated as the servants of the other caste people. The Scheduled Castes have
always served the other castes, but the attitude of other castes is of total indifference and contempt.

They were kept at a distance from other caste people. In some instances (in South India) even the
exact distance which an upper caste man was expected to keep between himself and the Harijans was
specified.

2. Religious Problems:

These pertained to the denial of the right of entering temples which were exclusively served by the
high-caste Brahmins. The untouchables were neither allowed to enter the temples nor served by the
Brahmins. They had no right to worship the Gods and Goddesses in the temple.

The Harijans also suffer from religious disabilities even today. They are not allowed to enter temples
in many places. The Brahmins, who offer their priestly services to some lower castes, are not prepared
to officiate in the ceremonies of the ‘untouchable’ castes. They do not even bow down to the duties
of these ‘untouchable’ castes.

The Vedic mantras which are considered to be more pure could not be listened to and chanted by the
Harijans because of the taboos. They were only permitted to make use of the upanishadic mantras
which are considered to be less pure. Burial grounds were also denied for them in many place.

3. Economic Problems:

The Harijans are economically backward and have been suffering from various economic disabilities
also. They are following :-

(A) No Right of Property Ownership:

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For centuries the Harijans were not allowed to have land and business of their own. It is only recently
their ownership to the property has become recognized. The propertied people are comparatively less
in them. Majority of them depend upon agriculture but only a few of them own land.

(B) Selection of Occupations Limited:

The Caste system imposes restrictions on the occupational choice of the members. The occupational
choice was very much limited for the Harijans. They were not allowed to take up to occupations
which were reserved for the upper caste people.

They were forced to stick on to the traditional inferior occupations such as—curing hides, removing
the human wastes, sweeping, scavenging, oil grinding, tanning, shoemaking, leather works, carrying
the dead animals, etc. These occupations were regarded as ‘degraded’ and ‘inferior’.

(C) Landless Labourers:

Majority of the Harijans are today forking as landless labourers. More than 90.1 of the agricultural
labourers in India belong to the depressed classes which include the Scheduled Castes and Scheduled
Tribes. More than 77.1% of the Scheduled Caste workers in rural areas are agricultural labourers.

A large number of Harijan families are in debts. About 64.1% of the agricultural labour households
of the Scheduled Castes were indebted during 1956-57 as against 45.1% in 1950-51.

The average accumulated debt per household increased from Rs. 47 in 1950-51 to Rs. 88 in 1956-57.
Their indebtedness is increasing day by day. The Harijans are economically exploited by the upper
caste people. Even today they are the lowest paid workers; some of them continue to suffer as bonded
labourers at the hands of the higher caste people.

They suffered from many economic problems. They had to face many economic hardships and they
were not given proper reward for their service. Traditionally, untouchables were deprived of landed
property of their own. They were not allowed to carry on any business. They were not permitted to
engage themselves in the professions which were being carried out by the people of other castes.

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The untouchables were not free to choose any occupation according to their own ability they had to
clean the streets, remove dead cattle and to undertake heavy agricultural work. Mostly they were
landless labourers. They worked in the fields of high- caste Hindus as labourers.

4. Public Problems:

Prevention from the use of Public Places . For a long time the untouchable castes were not allowed
to use public places and avail of civic facilities such as—village wells, ponds, temples, hostels, hotels,
schools, hospitals, lecture halls, dharamashalas, choultries, etc.

They were forced to live on the outskirts of the towns and villages during the early days. Even today
they are segregated from others spatially. In South India, restrictions were imposed on the mode of
construction of their houses, types of dresses and patterns of their ornamentation.

Some lower caste people were not allowed to carry umbrellas, to wear shoes or golden ornaments and
to milk cows. They were prohibited from covering the upper part of their body. The services of
barbers, washermen and tailors were refused to them.

Harijans had to face many public indignities because they were denied the right to use the services of
public utilities like wells, public transport as well as educational institutions.

5. Educational Problems:
Traditionally the untouchables were deprived of getting education. They were not allowed to use
public educational institutions. Even today most of the illiterates are untouchables.

The Harijans were forbidden from taking up to education during the early days. Sanskrit education
was denied for them. Public schools and other educational institutions were closed for them. Even
today majority of them are illiterate and ignorant.

Describing the conditions of Harijans, K.M. Pannikar has remarked, their position, when the system
functioned in its pristine glory, was in many ways worse than that of slavery. The slave at least was

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a chattel of the master and therefore, he stood in an individual relation to his owner. Considerations
of economic self -interest and even human feeling modified the barbarism of personal slavery.1

6. Political Problems:

The untouchables hardly participated in the political matters. They were not given any place in the
politics, administration and the general governance of India; they were not allowed to hold any public
post.

Political rights and representation were denied for them. Under the British rule, they were given the
right to vote for the first time. After independence equal political opportunities and rights have been
provided for the Harijans also. Politically, the Harijans are yet to become an organized force.

Steps Taken By The Government for the Improvement of SC and ST

The Constitution provides a three-pronged strategy to improve the situation of SCs and STs:
1. Protective arrangements: Such measures as are required to enforce equality, to
provide punitive measures for transgressions, to eliminate established practices that
perpetuate inequities, etc. A number of laws were enacted to implement the provisions in the
Constitution. Examples of such laws include The Untouchability Practices Act, 1955,
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, The Employment
of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, etc.
2. Affirmative action: Provide positive treatment in allotment of jobs and access to
higher education as a means to accelerate the integration of the SCs and STs with mainstream
society. Affirmative action is popularly known as reservation.
3. Development: Provide resources and benefits to bridge the socioeconomic gap
between the SCs and STs and other communities. Major part played by the Hidayatullah
National Law University.

National commissions

1
http://www.yourarticlelibrary.com

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To effectively implement the various safeguards built into the Constitution and other legislation, the
Constitution under Articles 338 and 338A provides for two statutory commissions: the National
Commission for Scheduled Castes, and the National Commission for Scheduled Tribes. The
chairpersons of both commissions sit ex officio on the National Human Rights Commission.

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:

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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 . 2 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 3, 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 19934, 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.

2
AIR 1951 SC 226
3
AIR 1963SC 649
4
AIR 1993 SC 477

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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 Rights5 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 6, SC upheld the conviction for preventing a lower
caste person from filling water from a bore well.

In Asiad Projects Workers Case 19827, 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.

5
1955
6
AIR 1993 SC 1126
7 AIR 1982 SC 1473

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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.

Scheduled castes distribution map in India by state and union territory .According to 2011 Census.
Punjab had the highest % of its population as SC (32%), while India's island territories and two

northeastern states had 0%

8. 1982(1) SCR 759

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Scheduled Tribes distribution map in India by state and union territory according to 2011 Census.
Mizoram and Lakshadweep had the highest % of its population as ST (95%), while Punjab
and Haryana had 0%.

CONCLUSION

In spite of this manifest, avowed and determined concern of the Constitution, the objectives have not
been fully achieved and whatever has been done has been done hesitatingly, half-heartedly and as a
measure of concession forgetting that in this area we are dealing with Constitutional rights and not
concession to those classes.

It is instructive to examine how the socio-economic, legal and political factors inter-play to generate
a particular matrix of social dynamics. The text of the Constitution created a lofty mix of
Fundamental Rights and a set of Directives enjoining upon the State the obligation to promote and to
secure to the citizens, the enjoyment of rights that provide the citizen an environment allowing his/her
growth and development with social justice, equal opportunity, right to work and access to basic
needs and opportunity without discrimination. While the text created a noble and a sanguine texture,
the key players were the State, the legal system, the dynamics of social development and the social
forces generated by the socio-political processes. The linkage between these players provides some

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explanations to the path that the nation has traversed in economic growth, social development and
pursuit of equal justice. The processes of economic development do not necessarily lead to equitable
income distribution. In fact, these often result in appropriation of national and social resources by a
small percentage of the people. While over the years, the social services in the field of education,
health, transportation and tertiary sectors have increased, there has been an inherent distortion in their
universal access. Typically in this paradigm, the center has continuously appropriated access to every
aspect of development of services and resources at the cost of vast periphery.

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