It was created by the
65th amendment and replaced the special officer
for SC and ST. By 89th
amendment it was bifurcated and a National commission for
SC was created.
It has chairman, vice chairman and three other members. All appointed by the president. Their condition of service and tenure is determined by the president. Currently three years.
Chairman has status of a cabinet minister and
vice chairman has a rank of a minister of state.
The functions of the
SC Commission are:
(a) To investigate and
monitor all matters relating to the constitutional and
other legal safeguards for the SCs and to
evaluate their working;
(b) To inquire into
specific complaints with respect to the deprivation of
rights and safeguards of the SC's;
(c) To participate and
advise on the planning process of socio-economic
development of the SCs and to evaluate the
progress of their development under the Union or a state;
(d) To present to the
President, annually and at such other times as it may deem
fit, reports upon the working of those
safeguards;
(e) To make
recommendations as to the measures that should be taken by
the Union or a state
for the effective
implementation of those safeguards and other measures for
the protection, welfare and
socio-economic development of the SCs; and
(f) To discharge such
other functions in relation to the protection, welfare and
development and advancement of the SCs
as the president may specify.
· To investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under the Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
· To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
· To participate and advise in 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;
· To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
· To make in such reports, recommendations as to the measures that should be taken by the Union or any State for effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes, and
· 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.
The commission submits an annual report to the president. It can submit a report on any other time as it may seem right to it. Such a report is tabled by president in parliament along with Action taken on it and reasons for non acceptance of advice. Reports belonging to states are sent by president to concerned governors who do the same in respective legislatures.
To regulate its
procedure. Acts as a civil court when it tries a suit and
can summon witness,
official records, examine a person on oath, receive
affidavits, any other
function as the president determines.
It also has to perform same functions for any backward caste as president may determine and the Anglo Indian community. Centre and states have to consult these commissions while formulating policies for SC and ST.
IT was pointed out at the outset that our Constitution, being consecrated by me ideals of equality and justice both in the social and political fields, abolishes any discrimination either against or in favour of any class of persons on the grounds of religion, race or place of birth.
It is in pursuance of this ideal that the Constitution did away with communal representation or reservation of seats in the Legislature or in the offices on the basis of religion.
It would have been a blunder on the part of the makers of our Constitution if, on a logical application of the above principle, they had omitted to make any special provisions for the advancement of those sections of the community who are socially and economically backward, for, the democratic march of a nation would be impossible if those who are handicapped are not aided at the start.
The principle of democratic equality (as envisaged in the Preamble to the Constitution), indeed, can work only if the nation as a whole is brought on the sarne level, as far as that is practicable.
Our Constitution, therefore, prescribes certain temporary measures to help the backward sections to come up to the same level with the Test of the nation, as well as certain permanent safeguards for the protection of the cultural, linguistic and similar rights of any section of the community who might be said to constitute a 'minority' from the numerical, not communal, point of view, in order to prevent the democratic machine from being used as an engine of oppression by the numerical majority.
Any discussion of the provisions of our Constitution for the protection of the interests of the minorities can hardly fail to take notice of the palpably unfair comments of Sir Ivor Jennings on this point:
"Indeed, the most complete disregard of minority claims is one of the most remarkable features of Indian federalism. The existence of competing claims on religious and ethnic grounds was one of the reasons given for the refusal of Indian independence before 1940. By reaction the Congress politicians, who were above all nationalists, tended to minimize the Importance or minority interests and emotions."
It is obvious that Sir Ivor would have been satisfied if the framers of our Constitution had perpetuated communal representation even after the country had been partitioned on the basis of a two-Nation slogan carried to the point of fanaticism, leading to a well-planned mass massacre.
It is somewhat painful to point out to an Englishman that communal representation was not a natural limb of the Indian political system which was 'blindly' amputated by the nationalist Congress leaders but was an artificial growth which had been grafted upon our body politic by the Morley-Minto plan In the name of 'reform'.
An impartial student of Indian history may be expected to testify how, once the malignant growth had been implanted into our political life, every opportunity was seized by the imperialistic power to develop It as a wedge to separate the Indian people Into two hostile camps so much so that it could eventually be advanced "as one of the reasons for the refusal of Indian Independence".
After those who were allured by the separatist vision had succeeded In dividing the motherland to create an exclusive home of their own, it must be presumed that those belonging to that very community who elected to remain in their birth-place should prefer to live with the other children of the soil as one family, after giving up all claims to separate treatment
It is only there that the objective of 'fraternity' assured by the Preamble would be fulfilled and the "integrity of the Nation" could be achieved.
That the majority community has not abolished the communal representation with any selfish motives will be apparent from the very (act that notwithstanding the abolition of reservation, members of the minority community have been appointed to the highest offices of President, Vice President, ministers, ambassadors, governors and judges of the superior courts in such numbers as can hardly be overlooked by an impartial observer.
There is no reasonable ground for apprehending that the Interests or development of the minority community have suffered because of the abolition of separate electorates on a communal basis.
The real injustice done by Sir Ivor, above all, is the omission to mention the religious, cultural and educational safeguards incorporated in the Constitution to protect the Interests of all minority groups, whether they are religious, linguistic or cultural minorities.
While some of these shall be a permanent feature of the Constitution, there are others of a temporary nature which will continue to operate only so long as the backward communities are lagging behind In the march of the nation.
Our Constitution does not contain any provision for the furtherance of any particular religion as may raise legitimate apprehensions in the minds of those who do not belong to that religion
Any section of the citizens of India having a distinct language, script or culture of its own shall have the fundamental right to conserve the same.
This means that if there is a culrural minority which wants to preserve its own language and culture, the State would not by law impose upon It any other culture belonging to the majority of the locality.
This provision, thus. gives protection not only to religious minorities but also to linguistic minorities.
The promotion of Hindi as the national language or the Introduction of compulsory primary education cannot be used as a device to take away the linguistic safeguard of a minority community as guaranteed by constitution
In fact, both the Union and State Governments have been taking active steps at Government expense, for the promotion of Urdu in order to appease Muslim sentiments
The Constitution directs every State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups and empowers the President to issue proper direction to any State in this behalf [Art. 350A).
A Special Officer for linguistic minorities shall be appointed by the President to investigate all matters relating to safeguards provided for linguistic minorities under the Constitution and report to the President [Art. 350B].
Apart from this, Parliament has enacted the National Commission for Minorities Act, 1992 for monitoring the working of the safeguards provided in the Constitution and in Union and State laws.
No citizen shall be denied admission into any educational institution maintained by the State or receiving State aid on grounds only of religion, race, caste, language or any of them [Art. 29(2)J.
This means that there shall be no discrimination against any citizen on the ground of religion, race, caste or language, In the matter of admission into educational institutions maintained or aided by the State.
It is a very wide provision intended for the protection not only of the religious minorities but also of 'local' or linguistic minorities.
And the provision is attracted as soon as the discrimination is immediately based only on the ground of religion, race, caste, language or any of them.
The Government of Bombay issued an Order which directed that, subject to certain exceptions, no primary or secondary school receiving aid from Government should admit to a class where English was the medium of instruction, any pupil other than a pupil belonging to a section of the citizens the language of which was English, namely Anglo-Indians and citizens of non-Asiatic descent
An Indian citizen other than an Anglo-Indian Citizen, was denied admission to a State-aided school, in pursuance of the above Order.
The Supreme Court held that the Immediate ground for denial of admission of a pupil to such a School where English was the medium of instruction was that the mother-tongue of the pupil was not English.
It was thus a denial of the right conferred by Art. 29(2), only on the ground of the language of the pupil. The argument that the object of the denial was to promote the introduction of Hindi or any other Indian language as the medium of instruction in the Schools was Immaterial In determining whether Art 29(2) had been contravened.
All minorities, whether based on religion or language, shall have the fundamental right to establish and administer educational institutions of their choice
While Art. 29( I) enables the minority to maintain its language or script, the present clause enables them to run their own educational institution, so that the State cannot compel them to attend any other institutions, not to their liking.
By the 1978 amendment, favourable treatment has been accorded to such minortty educational institutions In the matter of compensation for compulsory acquisition of property by the State.
While, by reason of the repeal of Art. 31, all persons have lost their constitutional right to compensation for acquisition of their property by the State, including educational institutions belonging to the majority community
Educational institutions established by a minority community lie protected.
Their property cannot be acquired by the State without payment of such compensation as would safeguard their right to exist, as is guaranteed by the constitution
The State shall not, in granting aid to educational institutions, discriminate against any educational Institution on the ground that It is under the management of a minority, whether based on religion or language
The ambit of the above educational safeguards of all minority communities, whether religious, linguistic, or otherwise, can be understood only if we notice the propositions evolved by the Supreme Court out of the above guarantees:
(a) Every minority community has the right not only to establish its own educational institutions, but also to impart instruction to the children of its own community in its own language.'
(b) Even though Hindi is the national language of India and Art. 351 provides a special directive upon the State to promote the spread of Hindi, nevertheless, the object cannot be achieved by any means which contravenes the rights guaranteed by Art. 29 or 30.
(c) In making primary education compulsory [Art. 45]. the State cannot compel that such education must take place only in the schools owned, aided or recognised by the State so as to defeat the guarantee that a person belonging to a linguistic minority has the right to attend institutions run by the community, to the exclusion of any other school.
(d) Even though there is no constitutional right to receive State aid, if the State does in fact grant aid to educational institutions, it cannot impose such conditions upon the right to receive such aid as would, virtually, drive the members of a religious or linguistic community of their right under Art. 30(l}.
While the State has the rtght to impose reasonable conditions, it cannot impose such conditions as will substantially deprive the minority community of its rights guaranteed by Art. 30(1).
Surrender of fundamental rights cannot be exacted as the price of aid doled out by the State. Thus, the State cannot prescribe that if an institution, including one entitled to the protection of Art, 30(1) seeks to receive State aid, it must subject itself to the condition that the State may take over the management of the institution or to acquire it on its subjective satisfaction as of certain matters,-for such condition would completely destroy the right of the community to administer the institution.
(e) Similarly In the matter of the right to establish an institution in relation to recognition by the State, though there is no constitutional or other right for an institution to receive State recognition and though the State is entitled to impose reasonable conditions for receiving State recognition, e.g., as to qualifications, it cannot impose conditions the acceptance of which would virtually deprive a minority community of their right guaranteed by Art 30(1).
Where, therefore, the State regulations debar scholars of unrecognised educational institutions from receiving higher education or from entering into the public services, the right to establish an institution under Art. 30(1) cannot be effectively exercised without obtaining State recognition.
In such circumstances, the State cannot impose it as a condition precedent to State recognition that the institution must not receive any fees for tuition in the primary classes.
For, if there is no provision in the State law or regulation as to how this financial loss is to be recouped institutions, solely or primarily dependent upon the fees charged in the primary classes, cannot exist at all.
(1) Minority instiLutions protected under Art. 30(1) are, however, subject to regulation by the educational authorities of the State to prevent mal-administration and to ensure a proper standard of education
But such regulation cannot go to the extent of virtually annihilating the right guaranteed by Art. 30(1)
No person can be discriminated against in in Public the matter of public employment, on the ground of Employment. race, religion or caste [Art. 16(2)].
(ix) While the Constitution has abolished representation on communal lines, it bas included safeguards for the advancement of the backward classes for amongst the residents of India (irrespective of their religious affiliations).
So that the country may be ensured of an all-round development.
Theseprovisions fulfl1 the assurance of "justice, social, other Backward economic and political" which has been held out by Classes.
The very Preamble of the Constitution, A major section of such backward classes has been specified in the Constitution as Scheduled Castes and Scheduled Tribes because their backwardness is patent
There is no definition of Scheduled Castes and Scheduled Tribes in the Constitution. But the President is empowered to draw up a list in consultation with the Governor of each State, subject to revision by Parliament
The President has made Orders specifying the Scheduled Castes and Scheduled Tribes in the different States in India, which have since been amended by Acts of Parliament
The Constitution makes various special provision for the protection of the interests of the Scheduled Castes and Scheduled Tribes.
Measures for the advancement of the Scheduled Castes and Scheduled Tribes are exempted [Art. 15(4)] from the general ban against discrimination on the grounds of race, caste, and the like, contained in Art. 15.
It means that if special provisions are made by the State in favour of the members of these castes and Tribes, other citizens shall not be entitled to impeach the validity of such provisions on the ground that such provisions are discriminatory against them.
On the other band, while the rights of free movement and residence throughout the territory of India and of acquisition of property are guaranteed to every Citizen, in the case of members of the Scheduled Castes and Scheduled Tribes special restrictions may be imposed by the State as may be required far the protection of their interests.
For instance, to prevent the alienation or fragmentation of their property, the State may provide that they shall not be entitled to alienate their property except with the concurrence of a administrative authority or except under specified condltions
(ill) The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of the efficiency of the administration, in the making of appointments to services and posts in connection With the affairs of the Union or of a State
(iv) There shall be a National Commission for the Scheduled Castes to be appointed by the President [Art. 338].
It shall be the duty of this Commission to investigate all matters relating to the safeguards provided for the Scheduled Castes under this Constitution and to report to the President upon the working of those safeguards annually or at such intervals as it may deem fit, and the President shall cause all such reports to be laid before each House of Parliament
A similar provision for similar purposes has been made for the appointment of a National Commission for the Scheduled Tribes by inserting Art. 338A
(v) The President may, at any time, and shall at the expiration of ten years from the commencement of this Constitution, by Order appoint a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes In the States.
The Order may define the composition, powers and procedure of the Commission and may contain such Incidental or ancillary provisions as the President may consider necessary or desirable
(vi) The executive power of the Union shall extend to the giving of directions to any such State as to the drawing up and execution of schemes specified in the direction to be essential for the welfare of the Scheduled Tribes in the State (Art, 339(2)).
With a view to associate members of Parliament and other members of the public in the due discharge of the above functions by the Government of India, three Parliamentary Committees have been set up.
Their function is to formulate and review the working of schemes for the welfare of the Scheduled Castes and Scheduled Tribes and to advise the Government of India on matters relating to these castes and tribes.
(vii) Financial aid for the implementation of these welfare schemes is provided for in Art. 275(1) which requires the Union to give grants-in-aid to the States for meeting the costs of schemes of welfare of the Scheduled Tribes and for raising the level of administration of the Scheduled Areas in a State to that of the administration of the areas of that State.
(viii)Constitution lays down that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare, who may also be in charge of the welfare of the Scheduled Castes and other backward classes.
In practice, such Welfare Departments have been set up not only in these three States as required by the Constitution, but also in other States.
(ix) Special provisions are laid down in the Fifth and Sixth Schedules of the Constitution, read with Art. 244, for the administration of areas inhabited by Scheduled tribes.
Over and above all these, there is a general Directive in Art. 46 that the State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
Besides, there are temporary provisions for special representation of and reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislatures which will be treated separately, hereafter.
By amending Art. 338 the Constitution (65th Amendment) Act, 1990, a National Commission has been set up for investigating and reporting on the working of the foregoing safeguards regarding the Scheduled Castes and Scheduled Tribes
Not contented with making special provisions for the Scheduled Castes, who form a specific category of Socially depressed people our constitution has made separate provistons for the amelioration and advancement of all 'backward classes', in general.
Of course, the Constitution does not define 'backward classes'.
The Scheduled Castes and Scheduled Tribes are no doubt backward classes, but the fact that the Scheduled Castes and Scheduled Tribes are mentioned together with the expression 'backward classes' in the foregoing provisions shows that there may be other backward classes of people besides the Scheduled Castes and Scheduled Tribes.
The Constitution provides for the appointment of a Commission to investigate the conditions of backward classes' [Art. 340].
Such a Commission was appointed in 1953 (with Kaka Saheb Kalelkar as Chairman), with the following terms of appointment-
(a) To determine the tests by which any particular class or group of people can be called 'backward'.
(b) To prepare a list of such backward communities for the whole of India.
(c) To examine the difficulties of backward classes and to recommend steps to be taken for their amelioration.
This Commission submitted its report to the Government in 1955, but the tests recommended by the Commission appeared to the Government to be too vague and wide to be of much practical value;
Hence, the State Governments have been authorised to give assistance to the backward classes according to the lists prepared by the State Governments themselves.
The second Backward Classes Commissioner, Mr. B.P. Mandal, submitted his report in 1980. The Government declared reservation of 27% seats in government service on the basis of this report.
This was challenged as unconstitutional, A nine-Judge Bench has decided this case In November, 1992, rejecting that challenge.
The Court has not Itself enumerated the 'backward classes' but has directed the GovernmenL to set up a Commission to specify, the backward classes, in the light of the principles laid down by the Court.
Following the recommendations of the Commission the Central Government has reserved 27% seats in all recruitments to be made from 9th September 1993.
It has already been pointed out that the Proviso to Art. 164{ 1) provides for a Minister in charge of the welfare of backward classes and that departments for such welfare have, in fact, been opened in all the States.
Even apart from the foregoing safeguards, provisions were made in the Constitution in the interests of the Anglo-Indian community, in view of their peculiar position in Indian society
An Anglo-Indian is defined In Art. 366(2) as- "a person whose father or any of whose other male progenitors in the male line Is or was of European descent but who Is domiciled within the territory of India and Is or was born within such territory of parents habitually resident therein and not established there for temporary purposes only.
The Special Officer for Scheduled Castes and Scheduled Tribes was to investigate into and report on the working of the foregoing safeguards relating to the Anglo-Indian community
This provision has been repealed by the 65th Amendment Act, 1990.
Let us now advert to other provisions for the advancement of the Scheduled Castes and Scheduled Tribes as well as the Anglo-indian community which were intended to be of a temporary duratlon
Just sufficient to enable them to come up to the level of the general body of citizens:
(a) Seats shall be reserved in the House of the People for
(a) The Scheduled Castes;
(b) The Scheduled Tribes except the Scheduled Tribes in the tribal areas of Assam; and
(c) The Scheduled Tribes in the autonomous districts of Assam
Seats shall also be reserved for the Scheduled Castes and the Scheduled Tribes, except the Scheduled Tribes in the tribal areas of Assam, in the Legislative Assembly of every State
Such reservation will cease on the expiration of sixty year from the commencement of the Constitution
(b) The President may, if he is of opinion that the Anglo-Indian community is not adequately represented in the House of the People, nominate not more than two members of that community to the House of the People
The Governor has a similar power in respect of the Legislative Assembly of the State, but in the case of a Governor, the maximum quota, fixed by the Constitution is-one member of the community for the Legislative Assembly
Such power shall cease after sixty years from the commencement of the Constitution.
(c) The provisions for reservation for Anglo-Indians in certain services of the Union [Art. 336] or for special educational grants [Art. 337] have already expired.
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