Preamble of the Indian Constitution

Transcription

1 Page131 CHAPTER IV COMPENSATORY DISCRIMINATION IN FAVOUR OF SCHEDULED CASTES AND SCHEDULED TRIBES UNDER THE INDIAN CONSTITUTION Preamble of the Indian Constitution India begins with the Preamble of the Indian Constitution. It is the Indians Blue Print created and shaped by the Learned Master Minded, Social Engineers with a great hard work. Preamble is the master key to open the doors of the Indian Constitution, in which it is, clearly appears the visualization, objectives and the sources of the Constitution. The preamble of the Constitution no longer remained a mere decoration but became the source of the basic structure of the Constitution and state actions could be scrutinized not merely in terms of their compatibility with specific provisions but in terms of their compatibility with the broad principles of Constitutionalism such as Secularism. The basic structure of the Constitution being an inarticulate premise of the Indian Supreme Court, it articulation requires reference to the preamble and the principles that radiate from it. WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and secure to all its Citizens: Justice - Social Justice, Economic Justice, Political Justice; 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 unity and Integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURLELVES THIS CONSTITUTION. The Citizens are obligatory to understand the strength of the Indian Constitution, bring out the inner competence, and put into right direction for the

2 Page132 Man-Making and National Building. We the people of India are the spirited and united souls & hearts of India. This kind of energetic force everlastingly kept in the minds and hearts of the citizens of our Nation. As a result, Citizens of the Bharat are obligatory to think positive, encouraging, uplifting thoughts and the negative will soon disappear. That is to say, the citizens of the State have to ignite the dreams for the future, better than the past. The future belongs to those who believe in the beauty of the dreams. Compensatory Provisions Against Discrimination of Scheduled Castes & Scheduled Tribes When independence came to India Ambedkar was appointed Law Minister by Prime Minister Nehru, and subsequently Chairman of the Drafting Committee of the Constituent Assembly which had formed the government upon the granting pf independence on the appointed day 15 th August he was one of the chief architects of the 1950 Constitution, and its provisions for a system of reservations for what the Constitution termed the Scheduled Castes, Scheduled Tribes, and other Backward Classes, which sort to redress the imbalances caused by historical inequalities in the Hindu social system. Constitutional Safeguards for Dalits SAFEGUARDS IN THE INDIAN CONSTITUTION FOR SCHEDULED CASTES & SCHEDULED TRIBES The important Constitutional safeguards for Scheduled Castes & Scheduled Tribes are mentioned below: (a) Directive Principles of State Policy Article 46. Does a comprehensive article comprise both the developmental and regulatory aspects? It reads as follows: "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".

3 Page133 (b) Social Safeguards Article 17 "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. To give effect to this Article, Parliament made an enactment viz., Untouchability (Offences) Act, To make the provisions of this Act more stringent, the Act was amended in 1976 and was also renamed as the Protection of Civil Rights Act, As provided under the Act, Government of India also notified the Rules, viz., the PCR Rules, 1977, to carry out the provisions of this Act. As cases of atrocities on Scheduled Castes/Scheduled Tribes were not covered under the provisions of PCR Act, 1955, Parliament passed another important Act in 1989 for taking measures to prevent the atrocities. This act known as the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, became effective from For carrying out the provisions of this Act the Govt. of India have notified the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Rules, 1995 on Article 23 Prohibits traffic in human beings and beggar and other similar forms of forced labour and provides that any contravention of this provision shall be an offence punishable in accordance with law. It does not specifically mention Scheduled Castes & Scheduled Tribes but since the majority of bonded labour belongs to Scheduled Castes & Scheduled Tribes, this Article has a special significance for Scheduled Castes & Scheduled Tribes. In pursuance of this article, Parliament has enacted the Bonded Labour System (Abolition) Act, For effective implementation of this Act, the Ministry of Labour is running a Centrally Sponsored Scheme for identification, liberation and rehabilitation of bonded labour.

4 Page134 Article 24 Provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. There is Central and State laws to prevent child labour. This article too is significant for Scheduled Castes & Scheduled Tribes as a substantial portion, if not the majority; of child labour engaged in hazardous employment belong to Scheduled Castes & Scheduled Tribes. Article 25(2) (b) provides that Hindu religious institutions of a public character shall be thrown open to all classes and sections of Hindus. This provision is relevant as some sects of Hindus used to claim that only members of the concerned sects had a right to enter their temples. This was only a subterfuge to prevent entry of SC persons in such temples. For the purpose of this provision the term Hindu includes Sikh, Jaina and Budhist. Educational and Cultural Safeguards Article 15(4) Empowers the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for SC and ST. This provision has enabled the State to reserve seats for Scheduled Castes & Scheduled Tribes. In educational institutions including technical, engineering and medical colleges and in Scientific & Specialized Courses. In this as well as in Article 16(4) the term 'backward classes' is used as a generic term and comprises various categories of backward classes, viz., Scheduled Castes, Scheduled Tribes, Other Backward Classes, Denotified Communities (Vimukta Jatiyan) and Nomadic/Seminomadic communities. Article 330 Provides for reservation of seats for Scheduled Castes & Scheduled Tribes in the Lok Sabha.

5 Page135 Article 332 Provides for reservation of seats for Scheduled Castes & Scheduled Tribes in the State Vidhan Sabhas (Legislative Assemblies). Article 334 originally laid down that the provision relating to the reservation of seats for Scheduled Castes & Scheduled Tribes in the Lok Sabha and the State Vidhan Sabhas (and the representation of the Anglo-Indian community in the Lok Sabha and the State Vidhan Sabhas by nomination) would cease to have effect on the expiration of a period of ten years from the commencement of the Constitution. This article has since been amended four times, extending the said period by ten years on each occasion. This provision was to expire in January Service Safeguards Article 16(4) Empowers the State to make "any provision for the reservation in 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". Article 16(4A) Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State". Article 335 "The claims of the 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 the Union or of a State".

6 Page136 Article 320(4) Provides that nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision under Article 16(4) & 16(4) A may be made or the manner in which effect may be given to the provisions of Article 335. STATUTES AND LEGISLATIONS There are a number of laws, both Central and State, which provide for safeguards to Scheduled Castes & Scheduled Tribes. Some of these emanate from the various Constitutional provisions. An illustrative list of such laws is given below: The Protection of Civil Rights Act, The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, The Bonded Labour System (Abolition) Act, The Child Labour (Prohibition and Regulation) Act, Acts and regulations in force in different States to prevent alienation of land belonging to Scheduled Castes & Scheduled Tribes. In some States, such provision exists in the Land Revenue Code. Acts in different States for restoration of alienated land to Scheduled Castes & Scheduled Tribes. 3. National Commission for Scheduled Castes and Scheduled Tribes Establishment of National Commission for Scheduled Castes and Scheduled Tribes, 89 th Amendment 2003:--- The Constitution (89 th Amendment,) Act has amended Art. 338 and added a new Article 338-A which provides for the establishment of National Commission for Scheduled Tribes. Prior to this amendment, there was a single Commission for both the Schedule Casts and Scheduled Tribes. National Commission for Scheduled Caste: -- The amended Article 338 provides for the establishment of a National Commission for the Schedule Caste.

7 Page137 A] Composition of the Commission: The Commission shall consist of s Chairman, Vice Chairman and three other members. The President of India shall appoint the Chairman, Vice Chairman and members of the Commission. The conditions of service and tenure of office of the members of Commission shall be such as President may be rule determine. [Clauses (2) and (3)] B] Duties of the Commission: Article 338 (5) -- It shall be the duty of the Commission --- (a) (b) (C) (d) (e) To investigate and monitor all matters relating to the safeguards for SCs and STs under the Constitution and any other law or any order of the Government and to evaluate the working of such safeguards, To inquire into specific complaints with respect to the deprivation of rights and safeguards of SC and ST, To participate and advice on planning process of socio-economic development of SCs and STs and to evaluate the progress of their development under the Union and any State, To present to the President reports upon the working of those safeguards annually and at such other times as the Commission deems fit, To make recommendations as to the measures that should be taken by the Centre and States for the effective implementation of those safeguards and other measures for the protection, welfare and socioeconomic development of the SCs and STs, (f) To discharge such other functions for protection, welfare, development, and advancement of SCs and STs as the President may, subject to the provisions of any law made by Parliament, by rule specify. [Clause (5)]. 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. The

8 Page138 Governor of the State will take similar action if it is concerned with any matter relating to a State. [Clauses (6) and (7)]. C] Powers and Functions of the Commission: While investigating any matter under sub-clauses (a) and (b) of clause (5), the Commission shall have all the powers of a civil court and in particular in respect of the following matters--- (a) (b) (C) (d) (e) (f) Summoning and enforcing the attendance of any person from any part of India and examining him on oath; Requiring the discovery and production of any document; Receiving evidence on affidavit; Requisitioning any public record or copy thereof from any court or office; Issuing commissions for the examination of witnesses and documents; Any other matter which the President may, by rule, determine [clause (8)]. The Union and State Governments shall consult the Commission on all major policy matters affecting SCs and STs [clause (9)]. (4)]. The Commission shall have power to regulate its own procedure. [Clause In this article reference to the Schedule Castes shall be construed as including references to such backward classes as the President may, on the report of a Commission appointed under clause (1) of Article 340 by order specify and also to the Anglo-Indian Community (Clause 10). National Commission for Scheduled Tribes (Article (338-A): ---- Article 338-An added by the constitution 89 th Amendment, 2003 provides for the establishment of a National Commission for the Scheduled Tribes. Constitution of Commission: -- The Commission shall consist of a Chairman, Vice-Chairman and three other members. The President shall appoint

9 Page139 the members of the Commission. The conditions of service and tenure of the members of Commission shall be such as the President may by rule determine for Schedule Tribes. The duties and powers of the Commission for Scheduled Tribes are the same as that of the Commission for the Scheduled Caste under Art. 338 of the Constitution. The President may at any time and shall at the expiration of ten years from the commencement of the Constitution, appoint a Commission to report on the administration of the Scheduled areas and the welfare of the Scheduled Tribes in the State [Art. 339 (1)]. The order of the President may define the composition, powers and procedure of the Commission and may contain such incidental or ancillary provisions as the President may consider necessary or desirable. The Central Government is also authorised to give directions to a State as to the drawing up and execution of Scheduled specified in the direction to be essential for the welfare of the Scheduled Tribes in the State [Art. 339 (2)]. How to approach the National Commission by Scheduled Castes and Scheduled Tribes? As per the text of MHA, O.M. No /76 SCT(1), dt.8/4/1976. It is not necessary for the Scheduled Castes and Scheduled Tribes Government employees to see prior permission of the concerned administrative Ministries / Department of the Government of India for sending their representations to the Commission for Scheduled Castes and Scheduled Tribes. Can Scheduled Castes and Scheduled Tribes employees may write direct to National Commission for Scheduled Castes and Scheduled Tribes? As per the text MHA S OM, No. 8/2/69-(SCT) (I), dated 1/10/1974 & O.M. No /76 SCT(1), dt.8/4/1976, and Departmental of Personnel and Training O.M. No /25/92-Estt.(SCT), employees may be permitted to write to the Nation Commission for Scheduled Castes and Scheduled Tribes direct on matters relating to appointment against the reserved quota. It is not necessary for Scheduled Castes and Scheduled Tribes Government employees to seek prior permission of the concerned administrative Ministries/ Departments for sending

10 Page140 their representation to the National Commission for Scheduled Castes and Scheduled Tribes. All Ministeries/Deparments may please issue appropriate institutions their subordinate formations. They may also apprise Scheduled Castes and Scheduled Tribes employees of the above instructions. <<<<<<<<<<>>>>>>>>>>