Special Provisions Relating to Certain Classes
Under Articles 330 and 332 of the Constitution, seats are reserved for Scheduled Castes and Scheduled Tribes in the House of the People and the Legislative Assemblies in proportion to their population. Parliamentary Acts provide for such reservations in the Union Territories having legislatures. There is no reservation of seats in the Upper House of Parliament and the State Legislatures.
There are 131 reserved seats in the Lok Sabha : of these, 82 are reserved for the Scheduled Castes and the rest (49) for the Scheduled Tribes.
Reservation of prescribed number of seats in the Lok Sabha and the State Legislative Assemblies does not mean that the maximum number of seats available to the Scheduled Castes and Scheduled Tribes is limited to such reservation. On the contrary, members of these communities are free to contest as many additional seats as they choose to do.
Article 331 of the Constitution empowers the President to nominate a maximum of two members of the Anglo-Indian community to the Lok Sabha, if he is of the opinion that the community is not adequately represented. Similarly, the Governor of a State is empowered under Article 333 to nominate such number of members of the Anglo-Indian community as he considers appropriate, to the State Legislative Assembly if, in his opinion, the community needs representation in the State Assembly.
Special Consideration In Services
Under Article 335, a general direction to the Union and State Governments is given for giving special consideration to the members of the Scheduled Castes and Scheduled Tribes consistent with the maintenance of efficiency in administration. This means that candidates from the Scheduled Castes or Scheduled Tribes should satisfy at least the minimum educational and other qualifications prescribed for various posts of the different services under the State. It must be noted, however, that there is no fixity of a percentage of jobs in the Constitution for these communities. There is also no fixed period for the continuation of this preferential treatment. Naturally, the State is expected to continue such treatment until these communities make substantial progress educationally and economically and reach a certain level of equality with the rest of the Indian society.
In the light of the Constitutional provisions, the Government of India reconsidered the position of the Scheduled Castes and Scheduled Tribes and as a result their share of reservation in recruitment was fixed at 22.5% (15% for SCs and 7.5% for STs) for the All-India Services on the basis of open competition. The maximum age limit prescribed for them for appointment was also raised. All these provisions are also in conformity with the exception provided under Article 16(4) related to the Fundamental Right of Equality of opportunity in matters of public employment.
In addition to the job quota of 22.5% provided for direct recruitment of Scheduled Castes and Scheduled Tribes, 27% reservation for the Other Backward Classes has been provided in Government jobs consequent upon the approval given by the Supreme Court in 1992. Although the Supreme Court had in 1992 ruled that reservation quotas could not be applied to Government employees in promotions beyond 1997, Parliament has, through the Constitution (86th Amendment) Bill, restored reservation for the Scheduled Castes and Scheduled Tribes in promotion. This protection was not simultaneously given to the Other Backward Classes (OBCs). Besides, 10% reservation in government jobs and educational institutions to Economically Weaker Sections (EWS) of General Category has been provided through the Constitution (103rd Amendment) Act, 2019, in January 2019.
Further, there is a special provision in the Constitution under which in the States of Bihar, Madhya Pradesh and Odisha, there will 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. At present, there are separate Ministries or Departments for the welfare of these communities in most of the States. There are also Ministers belonging to these communities in the State Governments as well as in the Central Government.
Under Article 338, the President is empowered to appoint a Special Officer for the Scheduled Castes and Scheduled Tribes to investigate all matters relating to the safeguards provided for them under the Constitution, namely, (i) representation in legislatures; (ii) claims to representation in services; and (iii) the operation of the Fundamental Rights; and to report to him on these at regular intervals. Under this provision, the Special Officer is also entrusted with the interests of the Backward Classes as well as the Constitutional safeguards of the Anglo-Indian community.
The first Special Officer, designated as the ‘Scheduled Castes Commissioner’ was appointed under this provision in November 1950. He was assisted by ten Assistant Regional Commissioners, each in charge of a region. The Commissioner submits to the President every year a report which is laid before each House of Parliament.
By virtue of the Constitution (Sixty-fifth Amendment) Act, 1990, the Special Officer’s post under Article 338 of the Constitution was substituted by the National Commission for Scheduled Castes and Scheduled Tribes. The Commission consisted of a Chairperson, a Vice Chairperson and five other Members appointed by the President. The duties of the Commission include : (a) investigation and monitoring of all matters relating to the safeguards provided for the SCs/STs under the Constitution or any other law; (b) Enquiry into specific complaints relating to the deprivation of rights and safeguards of SCs/STs; (c) Planning and evaluating the socio-economic development of the SCs and STs; (d) Presenting to Parliament annually a report on the working of various safeguards, etc.
Consequent upon the Constitution (Eighty-ninth Amendment) Act, 2003 coming into force w.e.f February 19, 2004, the National Commission for Scheduled Castes and Scheduled Tribes was replaced by (1) National Commission for Scheduled Castes, and (2) National Commission for Scheduled Tribes.
Earlier, in pursuance of the Supreme Court’s direction on November 16, 1992 [Judgment Writ Petition (Civil) No. 930 of 1990—Indira Sawhney and Others vs. Union of India and Others], the Government of India enacted the National Commission for Backward Classes Act, 1993 (Act No. 27 of 1993) for setting up a National Commission for Backward Classes at the Centre. Subsequently, the Commission was constituted for a tenure of three years. Former Supreme Court judge, Justice Mr. S. Ratnavel Pandian was appointed as the new Chairman of the National Commission for Backward Classes, for a period of three years, on August 7, 2006.
Parliament is supposed to take suitable note and action on the reports submitted by the National Commission for Scheduled Castes, National Commission for Scheduled Tribes and National Commission for Backward Classes.
Commission Of Investigation
Under Articles 339 and 340 of the Constitution, there is provision for the appointment of two Commissions by the President, one to investigate and report on the administration of the Scheduled Areas and welfare of the Scheduled Tribes, and the other to investigate the conditions of Socially and Educationally Backward Classes and make recommendations as the steps that should be taken by the Union or any State to remove difficulties faced by these classes. The reports shall be laid before both the Houses of Parliament together with statements explaining the Government’s action on them.
The Constitution vests in the President the power to notify the castes, races and tribes to be included in the Scheduled Castes list of a State. But once the notification is issued, his power comes to an end and he cannot revise or modify the list. Any such revision or modification can be made only by Parliament. The same procedure is prescribed for the determination of the Tribes and Tribal communities.
The drive towards the rapid all-round progress of these communities is directed mainly through four channels—the political, the social, the economic and the educational. We have read the special Constitutional provisions to safeguard their political interests. In the social field, the campaign for the removal of untouchability is gathering momentum and has already produced excellent results. The general awareness that the members of the Scheduled Castes are fellow citizens with equal rights and privileges and are entitled to the same courtesy and consideration is fast growing among the so-called upper castes.
In the economic field, with the enactment of many labour welfare laws, minimum wage laws, cooperative and land distribution laws, they are making substantial progress.
The greatest stress has been laid on the provision for educational facilities and the progress in this field has, indeed, been remarkable. Thousands of fellowships, scholarships, studentships and freeships are given every year to the members of these communities by the Union and the State Governments. Special allocation of funds is made in each Five-Year Plan for the welfare of these communities. Thus, with the active interest of the State in the rapid advancement of these communities, there is every reason to hope that they will soon catch up with the rest of the Indian society and play an equally vital role in the all-round progress of the nation.
The ten-year period of safeguards, particularly the reservation of seats in the legislatures, was later extended four times by Constitutional amendments, each time by ten years. Under the Constitution (109th Amendment) Act, 2009, the reservation for SC/ST and nomination of 2 Anglo-Indians to the Lok Sabha has been extended to 2020. It may now be hoped that the progress that these communities have made all these years will take the country to another milestone in its all-round progress.
Amendment Of The Constitution
Federal Constitutions, as a rule, are rigid as most of them have extremely difficult and even complicated procedures of amendment. Amending a federal constitution like that of the United States is perhaps the most difficult. Under the Australian Constitution too, the amending
process is complex. In contrast, the Constitution of India presents a much simpler picture.
A Constitution is a fundamental document. Naturally, such a fundamental document should not undergo too frequent and easy changes as that would undermine the confidence of the citizens in the abiding nature of the Constitution. Further, it would make it impossible to provide a reasonably ascertainable standard against which the conduct of the various organs of the Government could be measured. The case of a federal Constitution is particularly significant in this context because it delimits not only the powers of the different organs of the Government, but also achieves a balance, which is often delicate, between the Centre and the units of the federation. These considerations are powerful enough to preserve intact the original document, which gives expression to the manner in which the governmental system is to be ordered into existence. As such, any amendment of the Constitution should be justified by compelling reasons and circumstances.
It should be understood at the same time that a Constitution is a dynamic document. It should grow with a growing nation and should suit the changing needs and circumstances of a growing and changing people. Sometimes, under the impact of new powerful social and economic forces, the pattern of the Government will require major changes. If the Constitution stands as a stumbling block to such desirable changes, it may, under extreme pressure, be destroyed.
As Dr. B. R. Ambedkar had pointed out in the Constituent Assembly, the provisions for amendment, while they embodied a certain measure of rigidity with regard to some parts of the Constitution, were flexible and afforded facilities for a simple process of amendment with regard to others.
“We propose to divide the various articles of the Constitution into three categories. In one category, we have placed certain articles which would be open to amendment by simple majority (Provisions such as those which deal with the establishment or abolition of Upper House in the States are examples of this type). The second set of articles for amendment requires a two-thirds majority of Parliament (Parts III and IV of the Constitution, which deal with the Fundamental Rights and Directive Principles, respectively belong to this category). The third category requires a two-thirds majority of Parliament plus ratification by the States. The States are given an important voice in the amendment of these matters. These are fundamental matters where States have important powers under the Constitution and any unilateral amendment by Parliament may vitally affect the fundamental basis of the system built up by the Constitution (Provisions dealing with the division of legislative powers between the Union and the States fall in this category).”
The procedure for amendment is detailed under Article 368 of the Constitution. According to this, an amendment may be initiated only by the introduction of a Bill for the purpose in either House of Parliament. When the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent. When the President gives his assent, the Constitution stands amended in accordance with the terms of the Bill. But, as pointed out earlier, in the case of certain amendments, ratification by the legislatures of not less than one-half of the States by resolutions to that effect is required before the amending Bill is presented to the President for assent. The following provisions of the Constitution fall under this category:
(1) Article 54 (Election of President), Article 55 (Manner of Election of President), Article 73 (Extent of Executive Power of the Union), Article 162 (Extent of Executive Power of the State) and Article 241 (High Courts for Union Territories).
(2) Chapter IV of Part V (Union Judiciary), Chapter V of Part VI (High Courts in the States), Chapter I of Part XI (Legislative relations between the Union and the States).
(3) Any of the Lists in the Seventh Schedule.
(4) The representation of States in Parliament.
(5) The provisions dealing with amendment of the Constitution (Article 368).
There is hardly another federal Constitution which provides a comparable example, combining both rigidity and flexibility in the manner exemplified in the above-mentioned provisions. During the first sixteen years of the Constitution, it was amended twenty times. Such rigid succession of amendments, during such a short time in the life of the Constitution, has been attacked by many of its critics as a sign of weakness in the Constitution. Some of them thought that the Constitution should not be made so cheap as to admit amendment so quickly and easily. There is an element of truth in the criticism. Yet, on close examination, it will be seen that there were compelling circumstances which led to Constitutional amendments during the momentous period of stabilisation and consolidation of the political freedom won just a decade earlier. While some of the amendments were a natural product of the eventual evaluation of the new political system established under the Constitution in 1950, others were necessitated by practical difficulties in the working of certain provisions of the Constitution. The reorganisation of States and the consequent Constitutional amendment are the best example of the former type while the amendment dealing with the Right to Property provides a good example of the latter type.