1
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions Paper No. : 05 Tribal Culture of India
Module : 08 Constitutional Safeguards/ Provisions
Prof. Anup Kumar Kapoor Department of Anthropology, University of Delhi
Development Team
Principal Investigator
Paper Coordinator
Content Writer
Content Reviewer
Prof. Anup Kumar Kapoor Department of Anthropology, University of Delhi
Prof. A.K. Sinha and Nutan Kumari Jha Department of Anthropology, Panjab University, Chandigarh
Prof. A. Paparao Sri Venkateswar University, Tirupati, Andhra Pradesh
2
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions Description of Module Subject Name Anthropology
Paper Name 05 Tribal Culture of India
Module Name/Title Constitutional Safeguards/ Provisions
Module Id 08
3
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions PREAMBLE
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a 1[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political;
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 2[unity and integrity of the Nation];
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Notes on Preamble
It is well accepted by thinkers, philosophers and academicians that if JUSTICE, LIBERTY, EQUALITY and FRATERNITY, Including social, economic and political justice, the golden goals set out in the Preamble of the Constitution, are to be achieved, the Indian polity has to be educated and educated with excellence.
INTRODUCTION
The scheduled castes and the scheduled tribes, between them, form 24.40% of the population of India. According to 2001 census, the scheduled caste population was 166,635,700( ) or 16.20% of the total population of country i.e., 1,028,737,436. The scheduled tribe’s population in 2001 was 84,326,240 or 8.20% of the country’s population.
Constitution was adopted by the constituent assembly on 26th November, 1949 and came into force on 26th January 1950.
In our constituent assembly this twenty-sixth day of November, 1949 do hereby adopt, enact and give to ourselves this Constitution.
To facilitate the implementation of the Directive Principle the Constitution provides several safeguards. Some of these are common to both the scheduled castes and scheduled tribes, while others relate to either category only.
Further, these safeguards for the sake of convenience, can be divided into two groups: one, intended to protect the scheduled castes and scheduled tribes from social and economic exploitation and injustice, and second, those which provide for positive steps for their social, economic and political development.
4
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
The protective provisions are contained in Articles 15(4), 16(4), 17, 19(5), 23, 25, 29, 39a, 46, 164, 275, 330, 332, 334, 335 and 338, 339(1), 340, 371(A), 371(B), 371(C), fifth schedule and sixth schedule.
Article 15(4), 16(4) and 19(5) are exception to the fundamental rights of equality and freedom guaranteed under part III of the Constitution.
Provision relating to development of scheduled tribes are contained mainly in Articles 275(I) and 339(2).
The constitutional safeguards may be categorized into
i) Protective15(4), 29 Education,16(4), 320(4) Employment, 17, 25 Social, 19 (5) Tribal interest in property, 23 Bonded Labour
ii) Development39(a),46, 275, 164 iii) Political330, 332, 334, OBC 340 iv) OBC 340
It can also be categorized into Part – III Fundamental rights 15(4), 16(4), 17, 19(5), 23, 25, 29
Part – IV Directive Principles of State Policy 46
Part – VI States 164
Part – XII Finance, Property, Contracts and Suits 275
Part XIV Services under the Union and the States 320
Part – XVI Special Provisions relating to certain classes 330, 332, 334, 335, 338, 339(1)
Part – XXI Temporary, Transitional and Special Provisions 371
Constitution is a collection of principles according to which the powers of the government, the rights of the governed and the relation between the two are adjusted.
OR
Constitution has been defined as the basic law of a state which outlines framework and procedure of government, defines its power and functions, provides how constitutional changes may be made in a democracy usually guarantees the citizens certain protections against arbitrary governmental action.
Fundamental rights
Part III of the Constitution of India guarantees certain fundamental rights. These rights are called fundamental rights because they are considered necessary for the development of human personality.
5
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
These rights enable a man to chalk out his own life in the manner he likes best. The fundamental rights are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.
Difference between fundamental rights and ordinary rights
The fundamental rights have given special importance. They differ from ordinary rights in several respects. Ordinary rights are given by the ordinary law while the fundamental rights have been given by the Constitution.
Ordinary rights may be taken away or curtailed or abridged by ordinary law while the fundamental rights cannot be abrideged, curtailed or taken away except in so far as it is permitted by the Constitution itself or by amendment of the Constitution.
Directive Principles of State Policy
Part IV of the Constitution contains certain principles, called directive principles which are fundamental in the governance of the country and the state is under duty to apply these principles in making law, although they are not enforceable by court.
These directive principles are intended for the guidance of the state. They lay down the objectives or goals which the state should try to achieve. They impose certain obligation on the state to take positive action to achieve economic democracy and to establish a welfare state. The directive principles are not enforceable by law but the real sanction behind them is the electorate.
The directive principles do not override the fundamental right but in determining the ambit of the fundamental rights the court may not entirely ignore the directive principles.
Article 15(4): Special provisions for the advancement of socially and educationally backward classes for Scheduled Castes and Scheduled Tribes.
The first protective provision is contained in Article 15 under the chapter on Fundamental Rights. It prohibits discrimination on grounds of religion, race, caste, sex or place of birth. It specifies that:
1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, restriction or condition with regard to –
6
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
a) access to shops, public restaurants, hotels and places of public entertainment; or
b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of general public.
But clause (4) of this Article (Added by the Constitution First Amendment Act 1951 S.2) provides an exception to this. It empowers the state to make any special provision for the advancement of socially and educationally backward classes of the citizens or for the scheduled castes and scheduled tribes.
This provision is in accordance with the policy envisaged in Article 46 that the state should promote with special care educational and economic interests of the weaker sections of the people and protect them for social injustice. This clause has been especially incorporated to prevent any special provision made by a state for the advancement of socially or educationally backward classes of citizens from being challenged in the law courts on the grounds of it being discriminatory.
Quantum of Permissible Reservation– As to the quantum of reservation which the courts may uphold as “reasonable” and consistent with Article 15(1), it has been laid down that:
A reservation, under Article 15(4), less than 50 per cent of the seats open to admission would be legitimate and reservation in excess thereof would be struck down.
Such reservation would not debar candidates from completing for any of the general or un-reserved seats. For the same reason, if scheduled castes/scheduled tribes candidates secure some seats from the general pool, on the basis of their individual merit, the number of all such seats secured by them cannot be taken into account for determining whether the quota of reservation made under Article 15(3) or 15(4) should be struck down as unreasonable. Conversely, it would not be legitimate for the state to fix a maximum quota for members of these classes, because that might deprive them of seats which they might secure on their own merit, beyond the quota so fixed by the state.
ARTICLE 16(4): Reservation in post and services in favour of backward class of citizens/
Equality of opportunity in matters of Public employment
Article 16 provides for equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. It further provides that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence, or any of them, be ineligible form or discriminated against in respect of, any employment of office under the State.
Article 16(4) is another exception to the right of equality of opportunity in the matters of public employment laid down in clauses 1 and 2 of Article 16.
7
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
According to Article 16(4) nothing in the Article 16 shall prevent the State from making any provision for the reservation of appointment of 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. Thus, the state can make provision for the said class is not, in the opinion of the state, adequately represented in the services under the state. The term “backward class of citizens” has been used in Article 16(4) in the same sense as in Article 15(4). Consequently, for the purpose of Article 16(4) the term “backward class of citizens” should be taken to mean socially and educationally backward class of citizens. Thus, the backwardness must be both social and educational. The condition should not be taken to mean either social or educational. It has been held that caste cannot be the sole test for determining whether or not a particular class is backward, but if the entire class is socially and educationally backward, it may be included in the list of backward classes”.
The term “backward class” includes the Scheduled Castes and Scheduled Tribes also. It is to be noted that reservation is to be made after taking into consideration the efficiency of the administration.
Article 335 provides that the claim of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State.
The words “appointment or posts” in Article 16(4) includes not only initial appointments but also posts to be filled by promotion” and therefore reservation can be made not only in the initial appointments but also in the matter of promotion.
The reservation under Article 16(4) will be valid only if (i) it has been made in favour of socially an educationally backward class of citizens (ii) in the opinion of the state the backward class is not adequately represented in the services under the State and (iii) the efficiency of the administration is not impaired by the reservation. Article 16(4) creates exception to the general rule of equality and therefore it should make the general rule meaningless. It should not be excessive. In a case the Supreme Court has made it clear that no reservation can be made under Article 16(4) to create monopoly. If there is only one post in the cadre, there can be no reservation with reference to that post either for recruitment at the initial stage o for filing up a future vacancy in respect of that post. A reservation which would come under Article 16(4), presupposes the availability of at least more than one post in that cadre. Reservation of posts for Hindus and Muslims in violation of Article 16 is not protected under Article 16(4) because this is the distribution of posts on the basis of protected under Article 6(4) because this is the distribution of posts on the basis of religion and not reservation for socially and educationally backward class of citizens.
8
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions Difference between Article 15(4) and 16(4)
Both have provisions for safeguarding the interests of backward classes but while Article 15(4) enables the State to offer protective discrimination to the backward classes in all its dealings, Article 16(4) specially provides for protective discrimination in the matter of employment in the services under the State. Article 15(4), would govern the other matters, such as admission to the State educational institutions.
Article 17: Abolition of Untouchability
“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.
Article 17 abolishes untouchability. It forbids its practice in any form. It may clear that the enforcement of any disability arising out of “untouchability” shall be a offence punishable in accordance with law. Parliament has passed the untouchable (offences) Act, 1955. It prescribes punishments for practicing untouchability. The Act has been amended in 1976 by the Untouchability (Offences) Amendment Act 1976 and at present it is known as the Protection of Civil Rights Act, 1955.
The term “untouchability” has been defined in the Constitution of India or in Act. According to the Mysore High Court the term “untouchability” should not be taken in its literal sense. It should be understood the practice as it has developed historically in India in context of the caste system.”
Article 15(2) is also relevant for the purpose of abolition of untouchability which provides that no citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability restriction or condition with regard (a) access to shops, public restaurants, hotels and places of public entertainment the use of wells, tanks, bathing ghats, roads of public resort maintain wholly or partly out of State fund or dedicated to the use of the general public.
On the ground of untouchability no person can be denied – (a) Access to shops, public restaurant, hotel, etc; or (b) Use of wells, tanks, etc.
It is to be noted that Article 15(2) and Article 17 are available not only against the State but also against the private individuals. These Articles, thus, protect an individual from discrimination, not only by the State but also by the private individuals.
9
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions Article 19(5): Safeguard of Tribal Interest in Property
While the rights of free movement and residence throughout the territory of India and of acquisition and disposition of property are guaranteed to every citizen, special restrictions may be imposed by the State for protection of the interests of the members of the Scheduled Tribes under Article 19(5).
The Scheduled Tribes are economically backward and unsophisticated class of people who are liable to be easily deceived by shrewd and designing persons. Hence, there are various provisions disabling them from alienating even their own properties except under special conditions. In their own interest and for their own benefit, laws may be made restricting the right of the ordinary citizens to move freely or settle in particular areas or acquire property in them.
The specific mention of the Scheduled Tribes, along with “the interests of the general public” indicates that restrictions made for the protection of the Scheduled Tribes would be upheld under clause 5 even though such restrictions may not be in the interests of the general public.
Though the Clause is silent about the Scheduled Castes, restriction can also be imposed for their protection. As they are a backward class, prevention of their exploitation would be in the interest of the general public.
Article 23: Prohibition of traffic in human beings and forced labour
Article 23 prohibits traffic in human beings and beggar and other similar forms of forced labour and any contravention of this provision is an offence punishable in accordance with law. However, the State has the power to impose compulsory service for public purposes, and in imposing such service the State shall not move any discrimination on grounds only of religion, race, caste or class or any of them.
Article 25: Freedom of conscience and free profession, practice and propagation of religion.
Article 25 provides for Freedom of conscience and free profession, practice and propagation of religion. However, the State has the power to enforce any existing law or make any law providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. This Article thus gives the scheduled castes a right to enter into any Hindu temple of a public character. The referee to Hindus here includes a reference to persons professing the Sikh, Jain or Buddhist religion and the reference to Hindu religious institutions to be construed accordingly.
10
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
Explanation 1 – The wearing and carrying of Kirpans shall be deemed to be included in the profession of Sikh religion.
The Constitution of India envisages a secular state. Secular state means the state which treats all religions at par and favours none. However, such state is not anti-religion.
Article 25, thus, guarantees not only the freedom to have faith or belief in religious tenants of any sect but also the freedom to declare his religious faith and to practice his religion. In addition, Article 25 guarantees to every person right to propagate any religion i.e. to publicise his religious views.
However, the right to propagate religion should not be taken to mean the right to convert another person to one’s own religion and, therefore, a law prohibiting conversion of a person by force or fraud or allurement is not violation of Article 25.
Article 29: Cultural and educational rights/Protection of interests of minorities
1. Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. (This provision is relevant to several scheduled tribes)
2. Noh citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
The right guaranteed by Article 29(2) is available to the all citizens whether they belong to a majority or minority group as such while the right guaranteed by Article 29(1) is available to a section of the citizen.
Reservation of seats for the residents of a particular area or maintenance of educational institution established, exclusively for women or exclusively for men is not violation of Article 29(2) because imposition of conditions or limitations by the educational institutions falling within Article 29(2) on the ground of sex or place of birth is not prohibited by Article 29(2).
Article 29(2) is controlled by the clause 4 of Article 15, incorporated in the constitution by the First Amendment Act, 1951. This has brought Article 15 and 29 in line with Articles 16(4), 46 and 340 and made is constitutional for the State to reserve seats for the backward classes of citizens in public educational institutions. According to Article 29a cultural or linguistic minority has a right to conserve its language or culture. This article provides protection to scheduled tribes communities to preserve their languages, dialects and cultures. The State would not by law enforce upon it any other culture or language.
11
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions Difference Between Article 15(1) And Article 29(2)
Article 15(1) also prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. However, there is difference between Article 28(2) and Article 15(1).
Article 15(1) protects against the discrimination generally in all matters, while Article 29(2) provides protection against a particular species of wrong, namely denial of admission into educational institution aided or maintained by the state.
Discrimination on the grounds of sex or place of birth is prohibited in Article 15(1) but discrimination on sex or place of birth is not prohibited in Article 29(2).
Discrimination on the ground of language is prohibited by Article 29(2), while Article 15(1) does not mention the language as a forbidden ground of discrimination.
Thus, the forbidden grounds of discrimination mention in Article 15(1) and Article 29(2) are not indentical.
Article 15(4) is an exception to Article 29(2) and consequently the state can make special provision for the advancement of socially and economically backward classes of citizens or for the scheduled castes and the scheduled tribes, however the quantum of such reservation must not be so excessive as to unreasonable.
Article 46: Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
The Article provides for promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
Under this Article the State is at liberty to do anything to promote the educational and economic interests of the weaker sections of the people. But this Article is subject to limitations imposed by fundamental rights.
Article 15 and 29 relating to fundamental rights have been amended by the Constitution Act, 1951, in order to give effect to this Article.
Article 46 is Directive Principle. It does not confer any justiciable right. A member of a backward class cannot obtain relief from the Court if he is denied any concession in matters of education relating to school fees, etc.
12
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
The Directive Principles lay down the policy guidelines on which the State work under this Constitution.
The Directive Principles contained in Article 46 enjoins the State to “promote with special care” the educational and economic interests of the weaker sections of the people, including the Scheduled Castes and Tribes. However, the State’s action is limited by provisions such as “maintenance of efficiency of the Administration” or the maintenance of a minimum standard in educational institutions, etc. but a temporary relaxation of the qualifications and tests for recruits from the Scheduled Castes and Tribes would not militate against any of the national interests or the provision of Article 335.
Article 164: Other provisions as to Ministers
(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:
Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.
3[(1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. Of the total number of members of the Legislative Assembly of that State:
Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve:
Provided further that where the total number of Ministers including the Chief Minister in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent. or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification4 appoint.
(1B) A member of the Legislative Assembly of House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under
13
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
paragraph 2 o the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.]
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
(5) The salaries an allowance of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.
(By the 94th constitutional (Amendment) Act, 2006 (12th June,2006) (in Article 164 of the Constitution, in clause (1), in the proviso, for the word “Bihar”, the words “Chhattihgarh, Jharkhand”
shall be substituted) to provide for a Minister of Tribal Welfare in newly created Jharkhand and Chhatisgarh states including Madhya Pradesh, Orissa)
Article – 275: Grants from the Union to certain states
Article 275(1) of the constitution provides for assistance of the states for the implementation of the provisions of the Constitution.
Briefly, it may be stated that Article 275(1) first proviso envisages provision for grants in aid for meeting the cost of such schemes of development as may be undertaken by a state with the approval of the Government of India for the purpose of promoting the welfare of its scheduled tribes or raising the level of administration of the scheduled areas therein to that of the administration of the rest of the area, of the State. In pursuance of this Article, provision of special central assistance has been made to the states having scheduled Tribe population. As per the provision, the grant is to be made against such specific schemes as are necessary for the welfare of scheduled tribes and are undertaken with the prior approval of the Union Government.
320(4)………..
14
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions SPECIAL PROVISIONS RELATING TO CERTAIN CLASSES
Article 330: Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People
(1) Seats shall be reserved in the House of People for- (a) the Scheduled Castes;
5[(b) the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of Assam; and (b) The Scheduled Tribes in the autonomous districts of Assam.
(2) The number of seats reserved in any State 6[or Union territory] for the Scheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State 7[or Union territory] in the House of People as the population of the Scheduled Castes in the state 6[or Union territory],as the case may be , in respect of which seats are so reserved, bears to the total population of the State 6[or Union territory].
8[(3) notwithstanding anything contained in clause (2), the number of seats reserved in the House of the People for the Scheduled Tribes in the autonomous districts of Assam shall bear to the total number of seats allotted to that State a proportion not less than the population of the Scheduled Tribes in the said autonomous district bears to total population of the state.]
9[Explanation- In this article and article 332, the expression “population” means the population as ascertained at the last preceding Census of which the relevant figures have been published:
Provided that the reference in this Explanation to the last preceding Census of which the relevant figures have been published shall, until the relevant figures for the first Census taken after the year
10[2026] have been published, be construed as a reference to the 11[2001] census.
Article 332. Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative assemblies of the states.-
(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes,12 [except the Scheduled Tribes in the autonomous districts of Assam], in the Legislative Assembly of every State13 [***]
(2) Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State of Assam.
15
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
(3) The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under clause (1) shall bear, as nearly as may be, the same proportion of the total number of seats in the Assembly as the population of Scheduled Castes in the State or the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved bears to the population of the Sate.
14 [(3A) Notwithstanding anything contained in clause (3), until the taking effect, under article 170, of the re-adjustment, on the basis of the first census after the year15 [2026], of the number of seats in Legislative Assemblies of the States of Arunachal Pradesh, Meghalaya, Mizoram and Nagaland, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly of any such State shall be-
a) if all the seats in the Legislative Assembly of such State in existence on the date of coming into force of the Constitution (Fifty-seventh Amendment) Act, 1987 (hereafter in this clause referred to as the existing Assembly) are held by members of the Scheduled Tribes, all the seats except one;
b) in any other case, such number of seats as bears to the total number of seats, a proportion not less than the number (as on the said date) of members belonging to the Scheduled Tribes in the existing Assembly bears to the total number of seats in the existing Assembly.
16 [(3B) Notwithstanding anything contained in clause (3), until the re-adjustment, under article 170, takes effect on the basis of the first census after the year 4[2026], of the number of seats in the Legislative Assembly of the State of Tripura, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly shall be, such number of seats as bears to the total number of seats, a proportion not less than the number, as on the date of coming into force of the Constitution (Seventy- second Amendment) Act, 1992, of members belonging to the Scheduled Tribes in the Legislative Assembly in existence on the said date bears to the total number of seats in that Assembly.]
(4) The number of seats reserved for an autonomous district in the Legislative Assembly of the State of Assam shall bear to the total number of seats in that Assembly a proportion not less than the population of the district bears to the total population of the State.
(5) The constituencies for the seats reserved for any autonomous district of Assam shall not comprise any area outside that district17 [***].
16
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
(6) No person who is not a member of a Scheduled Tribe of any autonomous district of the State of Assam shall be eligible for election to the Legislative Assembly of the State from any constituency of that district 17[***]
18 [Provided that for elections to the Legislative Assembly of the State of Assam, the representation of the Scheduled Tribes and non-Scheduled Tribes in the constituencies included in the Bodoland Territorial Areas District, so notified, and existing prior to the constitution of Bodoland Territorial Areas District, shall be maintained.]
Notes on Article 332
Sub-section (3B) of this article shall not affect any representation in the Legislative Assembly of the State of Tripura until the dissolution of the Legislative Assembly existing at the commencement of this Act. [section 2 of Constitution (Seventy-second Amendment) Act, 1992.]
Article 334: Reservation of seats and special representation
Reservation of seats and special representation to cease after [seventy years](the period of ten years prescribed in the original Constitution was extended to twenty years by the Constitution (8th Amendment) Act 1959 (date of enforcement since 5th January, 1960) till 1970; and then to thirty years by the Constitution (up to 1980), by the Constitution (23rd Amendment) Act 1969 (date of enforcement since 23rd January, 1970), on the ground that the object of the safeguard had not yet been fulfilled.
This has been further extended to forty years (i.e. up to 1990) by the Constitution (45th Amendment) Act 1980 (date of enforcement since 26th January, 1980); and to fifty years (i.e. up to 2000) by the Constitution (62nd Amendment) Act 1989 (date of enforcement since 20th December, 1989); and again to sixty years (i.e. up to 2010) by the Constitution (79th Amendment) Act 1999 (date of enforcement since 25th January, 2000); further to seventy years (i.e. up to 2020) by the Constitution (95th Amendment) Act 2009 (date of enforcement since 25th January, 2010). Notwithstanding anything in the foregoing provisions of this Part [Part XVI], the provisions of this Constitution relating to—
(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States; and
(b) the representation of the Anglo Indian community in the House of the People and in the Legislative Assemblies of the States by nomination, shall cease to have effect on the expiration of a period of [seventy years] from the commencement of this Constitution:
17
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
Provided that nothing in this article shall affect any representation in the House of the People or in the legislative Assembly of a State until the dissolution of the then existing House or Assembly, as the case may be.
Article 335: Claims of Scheduled Castes and Scheduled Tribes to services and posts
The claims of 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 connection with the affairs of Union or State:
19[Provided that nothing in this article shall prevent in making of any provision in favour of the members of the scheduled castes and the scheduled tribes for the relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.
Notes on Article 335
Article 335 is to be read with article 46,which provides(as a directive principle) 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 Scheduled Tribes and shall protect from social injustice and all forms of exploitation.
In the leading case of Mandal Commission, relating to other backward classes the implication of articles 14, 15, 16, 335, etc., have been examined at length. According to the majority judgment there is need to maintain a balance between reservation and efficiency and not only with reference to Scheduled Castes and Scheduled Tribes but also with reference to other backward classes. Since sacrifice of merit may have to be made for social justice.
Whether a particular class is adequately represented in the services under the state is adequately represented in the services under the State is a matter within the subjective satisfaction of the appropriate government based on the materials in the possession of the Government and the existing condition in Society.
20[338. National Commission for Scheduled Castes].---21[22[
(1) There shall be a Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes.
18
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the condition of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.]
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure.
(5) It shall be the duty of the Commission---
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes 23[****] under this 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;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes 23[****];
(c) to participate and advice on the planning process of socio-economic development of the Scheduled Castes 23[****] and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendations as to the measures that should be taken by the Union and the State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Castes 23[****]; and (f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes 23[****] as the President may, subject to the provisions of any law made by Parliament, by the rules specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of State who shall cause it to be laid before the Legislature of the State along a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
19
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:-
(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 documents;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public 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.
(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes 23[***].]
24[(10)] In this article, references to the Scheduled Castes 23[***] shall be construed as including references to such other backward classes as the president may, on receipt of the report of a Commission appointed under clause (1) of article 340 by order specify and also to the Anglo-Indian community.
25[338A. National Commission for Scheduled Tribes
(1) There shall be Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes.
(2) Subject to the provision of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice- Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice- Chairperson and other Members so appointed shall be such as the President may be rule determine.
(3) The Chairperson, Vice- Chairperson and other Members of the Commission shall be appointed by the President by Warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure.
(5) It shall be the duty of the Commission---
20
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this 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;
(b) To inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
(c) To participate and advice on the planning process of socio-economic development of the Scheduled Castes Tribes and to evaluate the progress of their development under the Union and any State;
(d) To present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) To make in such reports recommendations as to the measures that should be taken by the Union and the State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and
(f) 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 the rules specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of State who shall cause it to be laid before the Legislature of the State along a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:-
(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 documents;
(c) Receiving evidence on affidavits;
(d) Requisitioning any public 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.
21
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes.
Article 339: Control of the Union over the Administration of scheduled areas and the welfare of Scheduled Tribes
Article 339 provides that (1) the President may at any time and shall, at the expiration of ten years from the commencement of the 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. [Such a commission was appointed by the President in 1960 with Shri U.N. Dhebar as Chairman, and they submitted a very valuable and comprehensive report.] Clause (2) of this very Article is significant as it provides that 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.
Special provisions with respect to tribal areas and hill areas of Nagaland, Assam and Manipur:
Article 371 in the Constitution Of India 1949
371. Special provision with respect to the States of Maharashtra and Gujarat
(2) Notwithstanding anything in this Constitution, the President may by order made with respect to the State of Maharashtra or Gujarat, provide for any special responsibility of the Governor for
(a) The establishment of separate development boards for Vidarbha, Marathwada, and the rest of Maharashtra or, as the case may be, Saurashtra, Kutch and the rest of these boards will be placed each year before the State Legislative Assembly;
(b) The equitable allocation of funds for developmental expenditure over the said areas, subject to the requirements of the State as a whole; and
(c) An equitable arrangement providing adequate facilities for technical education and vocational training, and adequate opportunities for employment in service under the control of the State Government, in respect of all the said areas, subject to the requirements of the State as a whole
3.1 Article 371 A {Special provision with respect to the State of Nagaland}
3.2 Article 371 B {Special provision with respect to the State of Assam}
3.3 Article 371 C {Special provision with respect to the State of Manipur}
22
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
3.4 Article 371 D {Special provisions with respect to the State of Andhra Pradesh}
3.5 Article 371 E {Establishment of Central University in Andhra Pradesh}
3.6 Article 371 F {Special provisions with respect to the State of Sikkim}
3.7 Article 371 G {Special provision with respect to the State of Mizoram}
3.8 Article 371 H {Special provision with respect to the State of Arunachal Pradesh}
3.9 Article 371 I {Special provision with respect to the State of Goa}
FIFTH SCHEDULE [Article 244(1)]
PROVISIONS AS TO THE ADMINISTRATION AND CONTROL OF SCHEDULED AREAS AND SCHEDULED TRIBES
PART A GENERAL
1. Interpretation.—In this Schedule, unless the context otherwise requires, the expression ‘State’
26[***] does not include the 27[States of Assam] 28[ 29[, Meghalaya, Tripura and Mizoram]].
2. Executive power of a State in Scheduled Areas.—Subject to the provisions of this Schedule, the executive power of a State extends to the Scheduled Areas therein.
3. Report by the Governor 30[***] to the President regarding the administration of Scheduled Areas.—The Governor 30[***] of each State having Scheduled Areas therein shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas.
PART B
ADMINISTRATION AND CONTROL OF SCHEDULED AREAS AND SCHEDULED TRIBES
4. Tribes Advisory Council.—(1) There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as
23
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State:
Provided that if the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.
(2) It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor 31[***].
(3) The Governor 30[***] may make rules prescribing or regulating, as the case may be,
(a) the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof;
(b) the conduct of its meetings and its procedure in general; and (c) all other incidental matters.
5. Law applicable to Scheduled Areas
(1) Notwithstanding anything in this Constitution, the Governor 31[***] may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.
(2) The Governor 31[***] may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.
In particular and without prejudice to the generality of the foregoing power, such regulations may—
(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area; (b) regulate the allotment of land to members of the Scheduled Tribes in such area;
(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.
(3) In making any such regulation as is referred to in sub-paragraph (2) of this paragraph, the Governor 30[***] may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.
24
Anthropology Tribal Culture of India
Constitutional Safeguards/ Provisions
(4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect.
(5) No regulation shall be made under this paragraph unless the Governor 30[***] making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council.
SIXTH SCHEDULE
The Sixth Schedule applies to tribal areas within the states of Assam, Meghalaya, Mizoram and Tripura. Among the main features of the tribal areas are (a) their full autonomy in respect of matters falling within their jurisdiction. In other words these areas may be described as ‘states within a state’.
(b) power of self management to the tribals through autonomous districts and autonomous regions and (c) autonomy of these areas to such an extent that the writ of the Parliament or the state legislature does not run automatically unless the acts in whole or part are specifically extended too the tribal areas by the notification of the Governor.
There are 9 autonomous districts in tribal areas of the four above mentioned states. The Governor enjoys unique position vis-à-vis autonomous districts. In several respects his position may be equated to that of the President’s in relation to states.
