India
Why is there friction between the government and the judiciary?
The story so far: On September 14, the Union Cabinet approved a proposal to add several tribes to the list of Scheduled Tribes (ST) in States such as Himachal Pradesh, Tamil Nadu, Chhattisgarh and Uttar Pradesh, so that they can avail of benefits meant for STs, including reservation. The announcement by Minister of Tribal Affairs Arjun Munda came even as six tribal communities of Assam — Adivasi, Chutia, Koch-Rajbongshi, Matak, Moran and Tai-Ahom — threatened to launch protests over an "inordinate delay" in their inclusion in the ST list.
The communities approved for inclusion in the ST list are the Hatti tribe in the Trans-Giri area of Sirmour district in Himachal Pradesh, the hill tribes of Narikoravan and Kurivikkaran of Tamil Nadu, the Binjhia community in Chhattisgarh and the Gond community in certain districts of Uttar Pradesh. The Cabinet has approved the addition of several alternative names for already existing Scheduled Tribes in Chhattisgarh and Karnataka so that the difference in spellings and pronunciations do not result in members of these communities being left out of the benefits meant for them.
Significantly, even as the Union Cabinet has decided to include these communities under the ST list, this is not the first time they have been categorised for benefits of reservation. Most of these communities had been either included in the list of Scheduled Castes (SC) or Most Backward Classes till now.
The process begins at the level of a State or Union Territory, with the concerned government or administration seeking the addition or exclusion of a particular community from the SC or ST list. The final decision rests with the President’s office issuing a notification specifying the changes under powers vested in it from Articles 341 and 342. The inclusion or exclusion of any community in the Scheduled Tribes or Scheduled Castes list come into effect only after the President assents to a Bill that amends the Constitution (Scheduled Castes) Order, 1950 and the Constitution (Scheduled Tribes) Order, 1950, as is appropriate, after it is passed by both the Lok Sabha and Rajya Sabha.
A State government may choose to recommend certain communities for addition or subtraction from the list of SCs/STs based on its discretion. This recommendation may come from studies it commissions like in the case of classifying the Hatti community in Himachal Pradesh. Following this, the proposal to include or remove any community from the Scheduled List is sent to the Union Ministry of Tribal Affairs from the concerned State government. After this, the Ministry of Tribal Affairs, through its own deliberations, examines the proposal, and sends it to the Registrar General of India (RGI). Once approved by the RGI, the proposal is sent to the National Commission for Scheduled Castes or National Commission for Scheduled Tribes, following which the proposal is sent back to the Union government, which after inter-ministerial deliberations, introduces it in the Cabinet for final approval.
As for the communities approved for addition to the list by the Cabinet earlier last week, a Bill was introduced in Parliament by the Tribal Affairs Minister this year, specifying the exclusion of the Gond community from the SC list in four districts of Uttar Pradesh and moving them to the ST list. Similarly, another Bill was also introduced by Mr. Munda, to shift certain communities in Jharkhand from the SC list to the ST list and add synonyms and variations in spellings for certain other communities in the ST list.
To establish whether a community is a Scheduled Tribe, the government looks at several criteria, including its ethnological traits, traditional characteristics, distinctive culture, geographical isolation and backwardness. However, in March this year the Supreme Court said it wanted to fix fool-proof parameters to determine if a person belongs to a Scheduled Tribe and is entitled to the benefits due to the community. It said the judiciary was no longer sure about an “affinity test” used to sift through distinct traits to link a person to a tribe. There is the likelihood, it said, that contact with other cultures, migration and modernisation would have erased the traditional characteristics of a tribe. An apex court Bench of Justices Hemant Gupta and V. Ramasubramanian referred the question of fixing the parameters to a larger Bench, pointing out that the issue was a “matter of importance” when it came to issuing caste certificates.
According to the Scheduled Tribes in India as revealed in Census 2011, there are said to be 705 ethnic groups listed as Scheduled Tribes under Article 342. Over 10 crore Indians are notified as STs, of which 1.04 crore live in urban areas. The STs constitute 8.6% of the population and 11.3% of the rural population.
