Understanding Special Provisions for Marginalized Communities in the Indian Constitution

The special provisions in the Indian Constitution aim to promote social justice and inclusivity for marginalized communities like Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). These provisions address historical inequalities and strive to create equal opportunities for these groups. By establishing various commissions, the Constitution seeks to ensure their welfare and representation in society.

Special Provisions for Social Justice

Rationale of Special Provisions

• Constitutional Provisions for Equality and Justice: In order to realize the objectives of equality and justice as laid down in the Preamble, the Constitution makes special provisions for these communities which are contained in Part XVI of the Constitution from Articles 330 to 342A.They are related to the following:

• Classification of Special Provisions: These special provisions can be classified into the following broad categories:
• • Permanent or Temporary: Some of them are a permanent feature of the Constitution, while some others continue to operate only for a specified period. 
  • Protective or Developmental: Some of them aim to protect these classes from all forms of injustice and exploitation, while others aim to promote their socio-economic interests.

Classification of Classes in the Constitution

Specification of SC, STs, and OBCs: The Constitution does not specify the castes or tribes that are to be called the SCs, STs, or OBCs. 

• Presidential Authority: The Constitution empowers the President to define and notify which castes or tribes are clas: 
  • The Constitution of India leaves it to the President to define and notify as to what castes or tribes in each state and union territory are to be treated as SCs under Article 341, STs under Article 342, and OBCs under Article 342 A. 
  • Variability Across States: Thus, the lists of the SCs or STs vary across states and union territories. 
• Consultation Process: The President issues the notification after consulting the Governor of the State concerned. 
• Parliamentary Control: Any changes to the inclusion or exclusion of castes or tribes in the Presidential notifications can only be made by Parliament, not through subsequent Presidential notifications.
• OBC Classification: The Constitution is silent on which section of Indian citizens are covered under Other Backward Classes (OBCs), SCs, and STs.
• Recent Developments: The 102nd Amendment Act of 2018 which added Article 342 A, empowered the President to specify the socially and educationally backward classes in relation to a state or union territory. 
• • However, the 105th Constitution Amendment Act (2021) restored the State governments’ power to notify the Socially and Educationally Backward Classes.

• Anglo-Indian Community: Unlike in the case of SCs, STs, and OBCs, the Constitution has defined the persons who belong to the Anglo-Indian community. 

Special Provisions Related to These Communities

Reservation for SCs and STs in Legislatures

• Article 330 of the Indian Constitution: It deals with the reservation of seats for Scheduled Castes (SCs) and Scheduled Tribes (STs) in the House of the People, also known as the Lok Sabha. 
• Proportional Representation: The number of seats reserved for SCs and STs is determined by the  proportion in the population of these communities. 
• Reservation for Anglo-Indian Community (Article 331): Till 2020, two Anglo-Indians in Parliament and one in State legislatures were nominated by the President and the Governor of the State respectively. 
• In January 2020, the Anglo-Indian reserved seats in the Parliament and State Legislatures of India were discontinued by the 126th Constitutional Amendment Bill of 2019, when enacted as the 104th Constitutional Amendment Act, 2019.
• Extension of reservation: Originally, these two provisions of reservation and special representation were to operate for ten years (i.e., up to 1960) only. 
  • But this duration has been extended continuously since then by ten years each time. The last extension was done by the 104th Constitutional Amendment Act, 2019 which extended the deadline for the cessation of the reservation of seats for members from Scheduled Castes and Scheduled Tribes in the Lok Sabha and State Legislative Assemblies by a period of 10 years (i.e. till 2030).
• Presidential Authority to Appoint Commission: As per Article 300, the President may at any time and shall, on 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.
• First Commission Appointment (1960): A commission was appointed in 1960, headed by U.N. Dhebar, which submitted its report in 1961. 
• Second Commission Appointment (2002): After four decades, the second commission was appointed in 2002 under the chairmanship of Dilip Singh Bhuria. It submitted its report in 2004.

Appointment of a Commission to Investigate the Conditions of BCs

• Presidential Authority Under Article 340: Under Article 340, the President has the power to appoint a Commission to investigate the conditions of the socially and educationally backward classes, the difficulties faced by them and give recommendations to resolve those difficulties and improve their conditions. 
• First Backward Classes Commission Appointment (1953): The first backward classes commission was appointed in 1953 under the chairmanship of Kaka Kalelkar which submitted its report in 1955. But, no action was taken on it.
• Second Backward Classes Commission Appointment (1979): The Second Backward Classes Commission was appointed in 1979 with B.P. Mandal, as chairman, submitted its report in 1980. 
• Reservation for OBCs (1990): In 1990, the V.P. Singh Government declared a reservation of 27% of government jobs for the OBCs, later it was extended to educational institutions as well.

Formation of the National Commission for Scheduled Castes and National Commission for Scheduled Tribes

• 1978: The Government established a non-statutory, multi-member Commission for Scheduled Castes and Scheduled Tribes, while the Office of Commissioner continued to operate.
• 1987: The 1978 Commission was renamed the National Commission for Scheduled Castes and Scheduled Tribes.
• 1990: The 65th Constitutional Amendment replaced the Commissioner for SCs and STs with a multi-member National Commission for SCs and STs.
• 2003: The 89th Constitutional Amendment split the National Commission into two separate bodies: the National Commission for Scheduled Castes (under Article 338) and the National Commission for Scheduled Tribes (under Article 338-A).
• 2004: The National Commission for Scheduled Castes was formally established, consisting of a Chairperson, a Vice-Chairperson, and three other members.
  • Similarly, the National Commission for Scheduled Tribes (NCST) was constituted on February 19, 2004. 
  • It is important to recognize that Scheduled Castes and Scheduled Tribes differ in culture, tradition, and other aspects, necessitating a dedicated constitutional body to focus specifically on the needs of the Scheduled Tribes community in India.

National Commission for Backward Classes (NCBC)

Initial Constitution: The NCBC was first established by the National Commission for Backward Classes Act, 1993 (27 of 1993) on April 2, 1993. It has been reconstituted seven times up to 2016.

• Repeal of Previous Act: The National Commission for Backward Classes Act, 1993 was repealed by the National Commission for Backward Classes (Repeal) Act, 2018, dated August 14, 2018.
• Constitutional Status: The current (8th) NCBC has been granted constitutional status through “The Constitution 102nd Amendment Act, 2018,” enacted on August 11, 2018. 
  • This act added Article 338B, establishing a Commission for socially and educationally backward classes.
• Commission Structure: The NCBC consists of a Chairperson, Vice-Chairperson, and three other members, all of whom hold the rank and pay of Secretary to the Government of India. Their conditions of service and tenure were notified by the Ministry of Social Justice and Empowerment on August 23, 2018.

Challenges Faced by the Commissions

• Issues with NCSC: It often favors the elite of these communities, experiences delays in conducting inquiries and delivering judgments, annual reports to Parliament often face delays and lack of discussion, undermining their importance, etc.
• Issues with NCST: The National Commission for Scheduled Tribes (NCST) has been largely dysfunctional for the last 4 years, failing to deliver a single report to Parliament according to a Parliamentary report. 
  • The reports of the NCST since 2018 are still under process in the Ministry of Tribal Affairs and have not been presented to Parliament. 
  • As per the Commission’s website, in the financial year 2021-22, it met only four times. 
  • The rate of unresolved complaints and cases is also close to 50%​.
• Issues with NCBC: It suffers from manpower shortage, delay in reports submission, lack of funds, challenges of various caste groups demanding inclusion in the Backward Classes (BCs) list, etc.
• Short-staffed: The Commissions are short-staffed, as well as underfunded and therefore unable to deal satisfactorily with the volume of cases.
• Docile Commissions: The Commissions are reluctant to use the power of summons and mostly just write letters asking for clarification. 
• • Example: As per the Centre for Policy Research, there has been less than 10 summons by each of these commissions in the last 2 years.

Recommendations for Improving the Performance of Commissions: Insights from the Centre for Policy Research

• Strengthening the Role of Commissions: The government should follow the Constitution in the spirit it envisaged, among other things, by strengthening the role of the commissions as a truly independent watchdog body with punitive powers.
• Reviewing Commission Composition: The composition of the Commissions needs to be examined, in particular, the implications of commissions composed entirely of political appointments by the ruling party. 
  • The qualifications of the Chairperson and Members should be publicly available.
• Enhancing Regional Offices: The Regional offices need to be strengthened, along with an independent investigating mechanism. 
  • This should replace the standard operating procedure of asking for clarification as the dominant mode of functioning. 

Conclusion

The welfare credentials of the government dictate that the well-being and development of these vulnerable sections at the last mile should not be compromised. 

• The implementation and effectiveness of these provisions continue to be a subject of debate and scrutiny. 
• Policymakers and civil society must evaluate their impact and take necessary measures periodically. 

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