Constitutional Provisions for Protection and Advancement

The Constitution of India contains numerous special provisions aimed at protecting and promoting the interests of Scheduled Castes (SCs) and Scheduled Tribes (STs), who have historically faced social discrimination and economic backwardness. These provisions reflect the constitutional commitment to achieving social justice and equality.

Article 15(4): Special Provisions for Advancement

Article 15 prohibits discrimination on grounds like religion, race, caste, sex, or place of birth. However, Article 15(4), added by the 1st Amendment Act, 1951, provides an exception. It states that nothing in this article or in clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

This provision enables the State to implement affirmative action measures, such as reservations in educational institutions and other benefits, for the upliftment of SCs and STs.

Article 15(5), added by the 93rd Amendment Act, 2005, specifically extended this power to make reservations in educational institutions, including private unaided ones (except minority educational institutions).

Article 16(4): Reservation in Public Employment

Article 16 guarantees equality of opportunity in matters of public employment. Article 16(4) provides an exception, allowing the State to make any provision for the reservation of 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. While this clause refers to 'backward classes', it has been historically used to provide reservation for SCs and STs, who are considered backward classes.

Later amendments (Article 16(4A) and 16(4B)) specifically introduced reservation in promotion for SCs and STs and allowed for carrying forward of backlog vacancies beyond the 50% ceiling.

Article 17: Abolition of Untouchability

Article 17 directly addresses historical discrimination against the communities now largely constituting SCs. It states: "'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." This is a Fundamental Right applicable against both the State and private individuals and is implemented by the Protection of Civil Rights Act, 1955.

Article 23: Prohibition of Forced Labour

Article 23 prohibits traffic in human beings and other similar forms of forced labour. This provision is particularly relevant for protecting vulnerable groups like SCs and STs who were historically subjected to practices like 'beggar' (forced labour without payment) or bonded labour. The Bonded Labour System (Abolition) Act, 1976, gives effect to this provision.

These Fundamental Rights provide a basis for protecting SCs and STs from exploitation and discrimination and for enabling the state to take positive measures for their advancement.

Representation in Legislatures

To ensure that SCs and STs have a voice in the legislative process and national policy-making, the Constitution provides for the reservation of seats for them in Parliament and State Legislatures.

Article 330: Reservation of Seats in Lok Sabha

Article 330 provides for the reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People (Lok Sabha). The number of seats reserved for SCs and STs in any State or Union Territory shall be, as nearly as may be, in the same proportion to the total number of seats allotted to that State or Union Territory in the House of the People as the population of the Scheduled Castes or the Scheduled Tribes, as the case may be, in the State or Union Territory bears to the total population of the State or Union Territory.

This reservation ensures that the representation of SCs and STs in the Lok Sabha is proportionate to their population share at the national level.

Article 332: Reservation of Seats in State Legislative Assemblies

Article 332 provides for the reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assembly of every State. The number of seats reserved for SCs and STs in the Legislative Assembly of any State shall be, as nearly as may be, in the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes or the Scheduled Tribes, as the case may be, in the State bears to the total population of the State.

This ensures proportionate representation of SCs and STs in the state legislatures.

Article 334: Special Representation to Cease after 70 years

Article 334 originally stated that the provisions regarding the reservation of seats for Scheduled Castes, Scheduled Tribes, and the representation of the Anglo-Indian community in the Lok Sabha and the Legislative Assemblies of the States by nomination shall cease to have effect after a period of ten years from the commencement of the Constitution.

However, this period has been extended every ten years by constitutional amendments. The 104th Constitutional Amendment Act, 2019, extended the reservation of seats for SCs and STs in the Lok Sabha and State Legislative Assemblies for a further period of ten years, i.e., up to January 25, 2030. This amendment, however, discontinued the provision for the nomination of Anglo-Indian members to the Lok Sabha and State Assemblies.

Administrative Provisions

The Constitution also provides for administrative mechanisms to safeguard and monitor the interests of SCs and STs.

Article 338: National Commission for Scheduled Castes

Article 338 provides for a National Commission for Scheduled Castes. Originally, it was a special officer for SCs and STs. The 65th Amendment Act, 1990, replaced the special officer with a multi-member National Commission for SCs and STs. The 89th Amendment Act, 2003, bifurcated this joint commission into two separate commissions: the National Commission for Scheduled Castes (Article 338) and the National Commission for Scheduled Tribes (Article 338A).

The Commission consists of a Chairperson, Vice-Chairperson, and three other members appointed by the President. It has the powers of a civil court in investigating matters.

Functions of the NCSC:

• To investigate and monitor all matters relating to the constitutional and other legal safeguards for the SCs.

• To inquire into specific complaints with respect to the deprivation of rights and safeguards of the SCs.

• To participate and advise on the planning process of socio-economic development of the SCs.

• To present reports to the President annually and at other times as it may deem fit, on the working of those safeguards.

• 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.

• To discharge such other functions with respect to the protection, welfare, and development and advancement of the SC community as the President may, by rule, specify.

Article 338A: National Commission for Scheduled Tribes

Article 338A provides for a National Commission for Scheduled Tribes. It was created by the 89th Amendment Act, 2003, separating it from the combined commission.

The NCST has a similar composition (Chairperson, Vice-Chairperson, and three other members appointed by the President) and similar functions as the NCSC, but specifically relating to Scheduled Tribes.

These commissions act as watchdogs, safeguarding the interests of SCs and STs and ensuring the implementation of protective and developmental measures.

Article 341: Scheduled Castes

Article 341 provides the constitutional basis for identifying and specifying the communities that are considered Scheduled Castes.

Provision:

Article 341(1) states that the President may, with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.

Article 341(2) states that Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

This means:

• President's Role: The initial list of Scheduled Castes for each state/UT is notified by the President.

• Parliament's Role: Only Parliament, by law, has the power to include or exclude any community from the Presidential list. The Presidential notification itself cannot be changed later except by a law of Parliament.

The list of Scheduled Castes is specific to a State or Union Territory, meaning a community listed as SC in one state may not be an SC in another state.

Article 342: Scheduled Tribes

Article 342 makes similar provisions for the identification and specification of Scheduled Tribes.

Provision:

Article 342(1) states that the President may, with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.

Article 342(2) states that Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Similar to SCs, the initial list of STs is notified by the President, and only Parliament can make changes to this list by law. The list is state/UT specific.

These articles are crucial as they define which communities are entitled to the special constitutional safeguards and benefits provided for SCs and STs.

Article 15(4): Reservation for Socially and Educationally Backward Classes

While the Constitution explicitly refers to Scheduled Castes and Scheduled Tribes, it also uses the term 'backward classes of citizens'. Other Backward Classes (OBCs) fall under this broader category, identified as socially and educationally backward.

Provision:

Article 15(4) was added by the 1st Amendment Act, 1951, primarily to enable reservations for SCs and STs in educational institutions. However, it also refers to "socially and educationally backward classes of citizens". This provision allows the State to make special provisions for the advancement of OBCs in educational institutions.

Article 15(5), added by the 93rd Amendment Act, 2005, specifically facilitates reservations for OBCs (along with SCs and STs) in educational institutions, including private unaided institutions (excluding minority institutions).

The identification of these 'socially and educationally backward classes' is a complex process, often relying on recommendations from commissions.

Article 16(4): Reservation in Public Employment

Article 16(4) is the primary provision enabling the reservation of appointments or posts in public employment for 'backward classes of citizens', which includes OBCs.

Provision:

Article 16(4) states: "Nothing in this article shall prevent the State from making any provision for the reservation of 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."

This provision allows the Union and State Governments to reserve posts in public services for OBCs who are considered inadequately represented. The implementation of this provision for OBCs, particularly at the central level, was a major political and legal issue, leading to the Mandal Commission and the subsequent Supreme Court judgment.

Mandal Commission Case (Indra Sawhney & Ors. v. Union of India, 1992)

The Second Backward Classes Commission (Mandal Commission), constituted in 1979 under Article 340, recommended 27% reservation for Socially and Educationally Backward Classes (SEBCs), in addition to the existing reservation for SCs and STs.

The Union Government's decision in 1990 to implement the Mandal Commission's recommendations led to widespread protests and legal challenges.

The Supreme Court, in the landmark Indra Sawhney case (1992), upheld the constitutional validity of the 27% reservation for OBCs in central government jobs (subject to certain conditions). However, it laid down several important principles:

• 50% Ceiling: The total reservation for SCs, STs, and OBCs should not exceed 50% of the vacancies in a year. This applies to ordinary circumstances, with an exception for backlog vacancies (later addressed by Article 16(4B)).

• No Reservation in Promotions: Reservation can only be made at the initial stage of appointment, not in promotions (this was later changed for SCs/STs by the 77th Amendment and subsequent amendments, but remains the general principle for OBCs unless state law provides otherwise).

• "Creamy Layer" Exclusion: The concept of the 'creamy layer' was introduced. The advanced sections (economically, socially, educationally) within the OBCs should be excluded from the benefits of reservation.

• Establishment of Permanent Statutory Body: Recommended the establishment of a permanent statutory body to examine complaints of wrong inclusion or non-inclusion in the list of OBCs.

Concept of "Creamy Layer"

The 'Creamy Layer' refers to the relatively affluent and well-educated individuals or groups within the backward classes (OBCs) who have achieved a certain level of social and economic advancement. The Indra Sawhney judgment mandated their exclusion from OBC reservation benefits to ensure that the benefits reach the truly disadvantaged within the backward classes. The criteria for identifying the creamy layer are determined by the government and are based on factors like income, status of parents (e.g., parents in Class I/II government service, holding constitutional posts), and certain professions.

The creamy layer principle applies to OBC reservations and generally not to SC and ST reservations (though debates exist regarding its applicability to SC/STs in promotions).

Article 340: Commission to investigate conditions of Backward Classes

Article 340 provides for the appointment of a Commission to investigate the conditions of socially and educationally backward classes.

Provision:

Article 340(1) states: "The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition..."

Article 340(2) and (3) deal with the procedure of the Commission and the laying of its report before Parliament.

This article is the constitutional basis for the appointment of commissions like the Kaka Kalelkar Commission (First Backward Classes Commission) in 1953 and the B.P. Mandal Commission (Second Backward Classes Commission) in 1979, which played a significant role in identifying OBCs and recommending welfare measures, including reservations.

The 102nd Amendment Act, 2018, gave constitutional status to the National Commission for Backward Classes (NCBC), originally a statutory body established by an Act of Parliament. Article 338B now deals with the composition, powers, and functions of the NCBC, similar to the commissions for SCs and STs.

The 102nd Amendment also inserted Article 342A, empowering the President to specify the socially and educationally backward classes in relation to a state or union territory (similar to Articles 341 and 342 for SCs and STs) and Parliament to include or exclude communities from this list by law.

Article 339: Control of the Union over Administration of Scheduled Areas and Welfare of Scheduled Tribes

Article 339 grants certain powers to the Union and imposes obligations on the States regarding the administration of Scheduled Areas and the welfare of Scheduled Tribes.

Provision:

Article 339(1) states: "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..."

Article 339(2) states: "The executive power of the Union shall extend to the giving of directions to a 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."

This implies:

• Appointment of Commission: The President can appoint a commission to report on the administration of Scheduled Areas and the welfare of STs. This ensures periodic review of the conditions in these areas.

• Union's Directional Control: The Union Government can give directions to the States regarding the implementation of schemes for the welfare of Scheduled Tribes. This allows the Centre to ensure that necessary measures are taken for the development and protection of STs, even though 'Welfare of Scheduled Tribes' is largely a State subject.

This article, along with the Fifth Schedule (dealing with the administration and control of Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram) and the Sixth Schedule (dealing with the administration of Tribal Areas in the states of Assam, Meghalaya, Tripura, and Mizoram), provides a framework for the special governance and welfare of tribal populations and areas.

Article 331: Anglo-Indian Community Representation in Lok Sabha

The Constitution originally provided for special representation for the Anglo-Indian community in the Lok Sabha through nomination by the President, recognizing their unique position.

Original Provision:

Article 331 stated: "Notwithstanding anything in Article 81, 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."

This provision allowed the President to nominate up to two members from the Anglo-Indian community to the Lok Sabha if their representation through elections was deemed inadequate.

Status since 2020:

Article 334 originally limited this special representation to 10 years, but it was extended every decade. The 104th Constitutional Amendment Act, 2019, which extended the reservation for SCs and STs in legislatures for another 10 years, did not extend this provision for the Anglo-Indian community. Consequently, the provision for the nomination of Anglo-Indian members to the Lok Sabha and State Legislative Assemblies ceased to have effect from January 25, 2020.

Article 333: Anglo-Indian Community Representation in State Legislative Assemblies

Article 333 made a similar provision for the representation of the Anglo-Indian community in the State Legislative Assemblies.

Original Provision:

Article 333 stated: "Notwithstanding anything in Article 170, the Governor of a State may, if he is of opinion that the Anglo-Indian community needs representation in the Legislative Assembly of the State and is not adequately represented therein, nominate one member of that community to the Assembly."

This allowed the Governor to nominate one member from the Anglo-Indian community to the State Legislative Assembly.

Status since 2020:

Similar to Article 331, this provision for nomination of Anglo-Indian members to State Legislative Assemblies also ceased to have effect from January 25, 2020, as it was not extended by the 104th Constitutional Amendment Act, 2019.

While the Constitution provided special provisions for the representation of various groups historically, the discontinuation of Anglo-Indian nomination reflects a change in approach, likely based on the assessment of their current representation or other factors.

Apart from these, the Constitution also contains special provisions for certain states (e.g., Article 371 and 371A-J for states like Maharashtra, Gujarat, Nagaland, Assam, etc.) providing for special administrative arrangements, regional committees, development boards, etc., taking into account their unique historical, social, or economic circumstances. These provisions also cater to specific needs and demands of certain regions or groups within those states.