Sunday, 29 March 2020

Janjatis And Judicial Pronouncements By Bhupender Yadav

Updated: August 25, 2012 10:27 am

The Constitution of India provides for a comprehensive framework for the socio-economic development of Scheduled Tribes and for preventing their exploitation by other groups of society. It provides the necessary safeguards for the rights of tribal people in Articles 15, 16, 17 and 23 of the Constitution. Article 46 of the “directive principles of the state policy” which are “fundamental in the governance of the country” states: “The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.”

Despite these safeguards, exploitation of tribals has not stopped rather it is increasing day-by-day. We must confess that intrusion in the tribal culture is not only due to poor implementation of law, but we being the citizens of India are also equally responsible as we have failed to understand the ethnic value of the tribals. In Kailas vs State of Maharashtra (2011(1) SCC,793), the apex court has observed. “Hence it is duty of all people who love our country to see that no harm is done to the Scheduled Tribes and that they are given all help to bring them up in their economic status, since they have been victimised for thousands of years by terrible oppression and atrocities. The mentality of our countrymen towards these tribals must change, and they must be given the respect they deserve as the original inhabitants of India.”

As long back as 1947, report of a sub committee on Assam had cautioned about the exploitation of tribes stating: “The tribes themselves are for the most part extremely simple people who can be and are exploited with ease by plains folk, resulting in the passage of land formerly cultivated by them to money-lenders and other erstwhile non-agriculturists.” Further also, “Considering past experience and the strong temptation to take advantage of the tribals’ simplicity and weakness, it is essential to provide statutory safeguards for the protection of the land which is the mainstay of the aboriginal’s economy life and for his customs and institutions which, apart from being his own, contain elements of value.”

B Shiva Rao in his book The Framing of India’s Constitution has stated: “From the beginning the objectives of the government policy in regard to tribes and tribal areas were primarily directed to the preservation of their social customs from sudden erosion and to safeguarding their traditional vocation without danger of their being pauperised by exploitation by the more sophisticated elements of the population.”

The question of who would come under the category of ST is essential for the purpose of ensuring that the privileges or benefits provided to Scheduled Tribes are actually enjoyed by those who deserve it. Only if it can be exactly determined as to who is an ST, only then can we make sure that the benefits extended to them are not used fraudulently.

The only way to ascertain whether a certain tribe, tribal community or part of a tribe can be considered ST is by looking at the public notification issued by the President under Art 342 of the Constitution. An important issue that arises here is whether a particular tribe could lay its claim to the same benefits as those provided to the tribes specified in the Presidential notification on the grounds that they are sub-tribes. This came before consideration of the Hon’ble Supreme Court in the case of Srish Kumar Choudhury vs State Of Tripura And Ors 1990 AIR 991, 1990 SCR (1) 576. The same question with regard to SC had come up earlier before a constitution bench of five judges of this Hon’ble Court in the case of Bhaiyalal vs Harikishan Singh And Others 1965 AIR 1557, 1965 SCR (2) 877. In this case the court came to the following conclusion:-

“It is obvious that in specifying castes, races or tribes, the President has been expressly authorised to limit the notification to parts of or groups within the castes, races or tribes, and that must mean that after examining the educational and social backwardness of a caste, race or tribe, the President may well come to the conclusion that not the whole caste, race or tribe but parts of or groups within them should be specified. Similarly, the President can specify castes, races or tribes or parts thereof in relation not only to the entire State, but in relation to parts of the State where he is satisfied that the examination of the social and education are backwardness of the race, caste or tribe justifies such specification. In fact, it is well-known that before a notification is issued under Art. 341(1), an elaborate enquiry is made and it is as a result of this enquiry that social justice is sought to be done to the castes, races or tribes as may appear to be necessary, and in doing justice, it would obviously be expedient not only to specify parts or groups of castes, races or tribes, but to make the said specification by reference to different areas in the State. Educational and social backwardness in regard to these castes, races or tribes may not be uniform or of the same intensity in the whole of the State; it may vary in degree or in kind in different areas and that may justify the division of the State into convenient and suitable areas for the purpose of issuing the public notification in question.”

In the case of Srish Kumar (supra), a three-judge bench after taking into consideration the views held in case of Bhaiyalal as well as various other judgments maintained that entries in the Presidential Order had to be taken as final. The notification of the President is exhaustive and the only authority that has any power to bring on any change in the notification is the Parliament. The reason why the notification by the President is not open to any change is because an elaborate enquiry is made before the inclusion of names of any tribe, sub-tribe or part of a tribe in the notification and also the President has express authority to limit the notification to any specific area within a State as per the specific requirement in areas of the State.

Following this is the question of the status of an SC/ST person if he migrates to another State and whether he is entitled to the same benefits that he had received earlier. The court took the view that merely because a given caste is specified in State A as Scheduled Caste, it does not necessarily mean that if there is another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State.

In answer to a question by Mr Jaipal Singh during the Constitutional Assembly debates, Dr Ambedkar answered as under: “He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local government, within whose jurisdiction he may be residing, the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practically impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them.”

The next crucial question that requires examination is regarding the status acquired by birth. The specific question whether the offshoot of a marriage between a tribal woman and a non-tribal husband could be given ST status was held in the case of Anjan Kumar vs Union of India & Ors. 2006 AIR SCW 888. In this case, the benefits of the ST certificate was not given to child of the marriage between a tribal mother and a forward-class father and the court held: “The condition precedent for granting tribe certificate being that one must suffer disabilities wherefrom one belongs. The offshoots of the wedlock of a tribal woman married to a non-tribal husband—forward class (Kayastha in the present case) cannot claim Scheduled Tribe status. The reason being such offshoot was brought up in the atmosphere of Forward Class and he is not subjected to any disability.”

However, in a recent judgment in the case of Rameshbhai Dabhai Naika vs State Of Gujarat & Ors (2012) 3 SCC 400, Supreme Court has taken different view on the vital and settled issue. In the said matter the son of a marriage of a tribal mother and a forward-class father was given ST status because of the fact that the son had to face all the disadvantages of being a tribal during his upbringing. In this case the Hon’ble Supreme Court at Para 43 came to the following conclusion:

“In view of the analysis of the earlier decisions and the discussion made above, the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a non-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a non-tribal cannot be determined in complete disregard of attending facts of the case. In an inter- caste marriage or a marriage between a tribal and a non-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a non-tribal the husband belongs to a forward caste. But by no means the presumption is conclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he/she was brought up by the mother who belonged to the Scheduled Caste/Scheduled Tribe. By virtue of being the son of a forward caste father he did not have any advantageous start in life but on the contrary suffered the deprivations, indignities, humilities and handicaps like any other member of the community to which his/her mother belonged. Additionally, that he was always treated as a member of the community to which her mother belonged not only by that community but by people outside the community as well.”

In this recent judgment the Supreme Court has not considered the crux of Bhaiyalal’s case, a constitution bench case and came to such conclusion which is not in consonance with constitutional provisions as well as legal and social theory of Scheduled Tribes.

The consistent view of the Hon’ble Supreme Court regarding the inclusion of ST is that it can be done only by the Presidential order and even court cannot substitute itself to be an authority to include any tribe in the list. However, the Hon’ble Supreme Court by its latest judgment in Rameshbhai Dabhai Naika vs State Of Gujarat & Ors has deviated from this legal principle and despite the settled law that offshoots of a marriage between ST and non-ST cannot be treated as ST, held that in these types of marriage the offshoot can still get the benefit of tribal status. This principle will open a Pandora’s box and a new class would likely get ST status which would create imbalance in the very social atmosphere of different Scheduled Tribes.

 

By Bhupender Yadav

(The author is Member of Parliament, Rajya Sabha)

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