CHAPTER – IV
COMPENSATORY DISCRIMINATION IN FAVOUR OF
SCHEDULED CASTES AND SCHEDULED TRIBES
UNDER THE INDIAN CONSTITUTION
Preamble of the Indian Constitution
India begins with the Preamble of the Indian Constitution. It is the Indians
Blue Print created and shaped by the Learned Master Minded, Social Engineers
with a great hard work. Preamble is the master key to open the doors of the Indian
Constitution, in which it is, clearly appears the visualization, objectives and the
sources of the Constitution.
The preamble of the Constitution no longer remained a mere decoration but
became the source of the basic structure of the Constitution and state actions could
be scrutinized not merely in terms of their compatibility with specific provisions but
in terms of their compatibility with the broad principles of Constitutionalism such
as Secularism.
The basic structure of the Constitution being an inarticulate
premise of the Indian Supreme Court, it articulation requires reference to the
preamble and the principles that radiate from it.
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and secure to all its
Citizens:
Justice
- Social Justice, Economic Justice, Political Justice;
Liberty
- of thought, expression, belief, faith and Worship;
Equality - of status and of opportunity; and to promote among them all
Fraternity - assuring the dignity of the individual and the unity and Integrity of
the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November
The Citizens are obligatory to understand the strength of the Indian
Constitution, bring out the inner competence, and put into right direction for the
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CONSTITUTION.
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1949, do HEREBY ADOPT, ENACT AND GIVE TO OURLELVES THIS
Man-Making and National Building. We the people of India are the spirited and
united souls & hearts of India. This kind of energetic force everlastingly kept in the
minds and hearts of the citizens of our Nation. As a result, Citizens of the Bharat
are obligatory to think positive, encouraging, uplifting thoughts and the negative
will soon disappear. That is to say, the citizens of the State have to ignite the
dreams for the future, better than the past. The future belongs to those who believe
in the beauty of the dreams.
Compensatory Provisions
Against Discrimination
of Scheduled Castes & Scheduled Tribes
When independence came to India Ambedkar was appointed Law Minister
by Prime Minister Nehru, and subsequently Chairman of the Drafting Committee of
the Constituent Assembly which had formed the government upon the granting pf
independence on the “appointed day’ 15th August 1947. he was one of the chief
architects of the 1950 Constitution, and its provisions for a system of reservations
for what the Constitution termed the ‘Scheduled Castes, Scheduled Tribes, and
other Backward Classes’, which sort to redress the imbalances caused by historical
inequalities in the Hindu social system.
Constitutional Safeguards for Dalits
SAFEGUARDS IN THE INDIAN CONSTITUTION FOR SCHEDULED CASTES &
SCHEDULED TRIBES
The important Constitutional safeguards for Scheduled Castes & Scheduled
Tribes are mentioned below:
(a) Directive Principles of State Policy
Article 46. Does a comprehensive article comprise both the developmental
and regulatory aspects? It reads as follows:
"The State shall promote with special care the educational and economic
all forms of exploitation".
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Castes and the Scheduled Tribes, and shall protect them from social injustice and
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interests of the weaker sections, of the people, and in particular, of the Scheduled
(b) Social Safeguards
Article 17
"Untouchability" is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of "Untouchability" shall be an offence
punishable in accordance with law.
To give effect to this Article, Parliament made an enactment viz.,
Untouchability (Offences) Act, 1955. To make the provisions of this Act more
stringent, the Act was amended in 1976 and was also renamed as the Protection of
Civil Rights Act, 1955. As provided under the Act, Government of India also
notified the Rules, viz., the PCR Rules, 1977, to carry out the provisions of this Act.
As cases of atrocities on Scheduled Castes/Scheduled Tribes were not covered
under the provisions of PCR Act, 1955, Parliament passed another important Act in
1989 for taking measures to prevent the atrocities. This act known as the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989, became effective from 30.1.1990. For carrying out the provisions of this Act
the Govt. of India have notified the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Rules, 1995 on 31.3.1995.
Article 23
Prohibits traffic in human beings and beggar and other similar forms of
forced labour and provides that any contravention of this provision shall be an
offence punishable in accordance with law. It does not specifically mention
Scheduled Castes & Scheduled Tribes but since the majority of bonded labour
belongs to Scheduled Castes & Scheduled Tribes, this Article has a special
significance for Scheduled Castes & Scheduled Tribes. In pursuance of this article,
Parliament has enacted the Bonded Labour System (Abolition) Act, 1976. For
effective implementation of this Act, the Ministry of Labour is running a Centrally
Sponsored Scheme for identification, liberation and rehabilitation of bonded
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labour.
Article 24
Provides that no child below the age of 14 years shall be employed to work
in any factory or mine or engaged in any other hazardous employment. There is
Central and State laws to prevent child labour. This article too is significant for
Scheduled Castes & Scheduled Tribes as a substantial portion, if not the majority; of
child labour engaged in hazardous employment belong to Scheduled Castes &
Scheduled Tribes.
Article 25(2) (b)
provides that Hindu religious institutions of a public character shall be
thrown open to all classes and sections of Hindus. This provision is relevant as some
sects of Hindus used to claim that only members of the concerned sects had a right
to enter their temples. This was only a subterfuge to prevent entry of SC persons in
such temples. For the purpose of this provision the term Hindu includes Sikh, Jaina
and Budhist.
Educational and Cultural Safeguards
Article 15(4)
Empowers the State to make any special provision for the advancement of
any socially and educationally backward classes of citizens or for SC and ST. This
provision has enabled the State to reserve seats for Scheduled Castes & Scheduled
Tribes. In educational institutions including technical, engineering and medical
colleges and in Scientific & Specialized Courses. In this as well as in Article 16(4)
the term 'backward classes' is used as a generic term and comprises various
categories of backward classes, viz., Scheduled Castes, Scheduled Tribes, Other
Backward
Classes,
Denotified
Communities
(Vimukta
Jatiyan)
and
Nomadic/Seminomadic communities.
Article 330
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the Lok Sabha.
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Provides for reservation of seats for Scheduled Castes & Scheduled Tribes in
Article 332
Provides for reservation of seats for Scheduled Castes & Scheduled Tribes in
the State Vidhan Sabhas (Legislative Assemblies).
Article 334
originally laid down that the provision relating to the reservation of seats
for Scheduled Castes & Scheduled Tribes in the Lok Sabha and the State Vidhan
Sabhas (and the representation of the Anglo-Indian community in the Lok Sabha
and the State Vidhan Sabhas by nomination) would cease to have effect on the
expiration of a period of ten years from the commencement of the Constitution.
This article has since been amended four times, extending the said period by ten
years on each occasion. This provision was to expire in January 2000.
Service Safeguards
Article 16(4)
Empowers the State to make "any provision for the reservation in
appointments or posts in favour of any backward class of citizens which, in the
opinion of the State, is not adequately represented in the services under the State".
Article 16(4A)
Nothing in this Article shall prevent the State from making any provision for
reservation in matters of promotion to any class or classes of posts in the services
under the State in favour of the Scheduled Castes and the Scheduled Tribes which,
in the opinion of the State, are not adequately represented in the services under the
State".
Article 335
"The claims of the members of the Scheduled Castes and the Scheduled
Tribes shall be taken into consideration, consistently with the maintenance of
efficiency of administration, in the making of appointments to services and posts in
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connection with the affairs of the Union or of a State".
Article 320(4)
Provides that nothing in clause (3) shall require a Public Service
Commission to be consulted as respects the manner in which any provision under
Article 16(4) & 16(4) A may be made or the manner in which effect may be given to
the provisions of Article 335.
STATUTES AND LEGISLATIONS
There are a number of laws, both Central and State, which provide for
safeguards to Scheduled Castes & Scheduled Tribes. Some of these emanate from
the various Constitutional provisions. An illustrative list of such laws is given below:

The Protection of Civil Rights Act, 1955.

The Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989.

The Bonded Labour System (Abolition) Act, 1976.

The Child Labour (Prohibition and Regulation) Act, 1986.

Acts and regulations in force in different States to prevent alienation
of land belonging to Scheduled Castes & Scheduled Tribes. In some
States, such provision exists in the Land Revenue Code.
Acts in different States for restoration of alienated land to Scheduled Castes
& Scheduled Tribes.
3.
National Commission for Scheduled Castes and Scheduled Tribes
Establishment of National Commission for Scheduled Castes and Scheduled
Tribes, 89th Amendment 2003:--- The Constitution (89th Amendment,) Act. 2003
has amended Art. 338 and added a new Article 338-A which provides for the
establishment of National Commission for Scheduled Tribes.
Prior to this
amendment, there was a single Commission for both the Schedule Casts and
provides for the establishment of a National Commission for the Schedule Caste.
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National Commission for Scheduled Caste: -- The amended Article 338
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Scheduled Tribes.
A] Composition of the Commission:
The Commission shall consist of s Chairman, Vice Chairman and three other
members. The President of India shall appoint the Chairman, Vice Chairman and
members of the Commission. The conditions of service and tenure of office of the
members of Commission shall be such as President may be rule determine. [Clauses
(2) and (3)]
B] Duties of the Commission:
Article 338 (5) -- It shall be the duty of the Commission --(a)
To investigate and monitor all matters relating to the safeguards for
SCs and STs under the Constitution and any other law or 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 SC and ST,
(C)
To participate and advice on planning process of socio-economic
development of SCs and STs and to evaluate the progress of their
development under the Union and any State,
(d)
To present to the President reports upon the working of those
safeguards annually and at such other times as the Commission deems
fit,
(e)
To make recommendations as to the measures that should be taken by
the Centre and States for the effective implementation of those
safeguards and other measures for the protection, welfare and socioeconomic development of the SCs and STs,
(f)
To
discharge
such
other
functions
for
protection,
welfare,
development, and advancement of SCs and STs as the President may,
subject to the provisions of any law made by Parliament, by rule
of Parliament along with a memorandum explaining the action taken or
proposed to be taken on the recommendations relating to the Union. The
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The President shall cause all such reports to be laid before each House
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specify. [Clause (5)].
Governor of the State will take similar action if it is concerned with any
matter relating to a State. [Clauses (6) and (7)].
C] Powers and Functions of the Commission:
While investigating any matter under sub-clauses (a) and (b) of clause (5),
the Commission shall have all the powers of a civil court and in particular in
respect of the following matters--(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 affidavit;
(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
[clause (8)].
The Union and State Governments shall consult the Commission on all major
policy matters affecting SCs and STs [clause (9)].
The Commission shall have power to regulate its own procedure. [Clause
(4)].
In this article reference to the Schedule Castes shall be construed as
including references to such backward classes as the President may, on the report
of a Commission appointed under clause (1) of Article 340 by order specify and also
to the Anglo-Indian Community (Clause 10).
National Commission for Scheduled Tribes (Article (338-A): ----
Constitution of Commission: -- The Commission shall consist of a
Chairman, Vice-Chairman and three other members. The President shall appoint
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the establishment of a National Commission for the Scheduled Tribes.
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Article 338-An added by the constitution 89th Amendment, 2003 provides for
the members of the Commission. The conditions of service and tenure of the
members of Commission shall be such as the President may by rule determine for
Schedule Tribes.
The duties and powers of the Commission for Scheduled Tribes are the same
as that of the Commission for the Scheduled Caste under Art.
338 of the
Constitution.
The President may at any time and shall at the expiration of ten years from
the commencement of the Constitution, appoint a Commission to report on the
administration of the Scheduled areas and the welfare of the Scheduled Tribes in
the State [Art. 339 (1)]. The order of the President 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. The
Central Government is also authorised to give directions to a State as to the
drawing up and execution of Scheduled specified in the direction to be essential for
the welfare of the Scheduled Tribes in the State [Art. 339 (2)].
How to approach the National Commission by Scheduled Castes and
Scheduled Tribes?
As per the text of MHA, O.M. No. 17016/76 –SCT(1), dt.8/4/1976. It is not
necessary for the Scheduled Castes and Scheduled Tribes Government employees to
see prior permission of the concerned administrative Ministries / Department of
the Government of India for sending their representations to the Commission for
Scheduled Castes and Scheduled Tribes.
Can Scheduled Castes and Scheduled Tribes employees may write direct to
National Commission for Scheduled Castes and Scheduled Tribes?
As per the text MHA’S OM, No. 8/2/69-(SCT) (I), dated 1/10/1974 & O.M.
No. 17016/76 –SCT(1), dt.8/4/1976, and Departmental of Personnel and Training
O.M. No. 36012/25/92-Estt.(SCT), employees may be permitted to write to the
Nation Commission for Scheduled Castes and Scheduled Tribes direct on matters
Scheduled Castes and Scheduled Tribes Government employees to seek prior
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permission of the concerned administrative Ministries/ Departments for sending
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relating to appointment against the reserved quota. It is not necessary for
their representation to the National Commission for Scheduled Castes and
Scheduled Tribes.
All Ministeries/Deparments may please issue appropriate institutions their
subordinate formations. They may also apprise Scheduled Castes and Scheduled
Tribes employees of the above instructions.
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