To better understand the controversy, it is helpful to refer to the impugned manifesto. While the Congress manifesto (Nyay Patra) talks about growing inequality in the country between richest of Indians and the large number of poor, it only says that “We will address the growing inequality of wealth and income through suitable changes in policies.” 

In the same fashion, Nyay Patra mentions that “Congress will conduct a nation-wide Socio-Economic and Caste Census to enumerate the castes and sub-castes and their socio-economic conditions. Based on the data, we will strengthen the agenda for affirmative action.” Ironically, the manifesto notes that Congress “guarantees” that it will pass a Constitutional amendment to raise the 50 per cent cap on reservations for SC, ST and OBC.

Why SC/ST reservations cannot be transferred to Muslims (legally)?

Muslims in India are given reservations only under the categories of Other Backward Classes (OBC) and/or Socially and Economically Backward Classes (SEBC), the lists for the same are prepared by the Central and State governments respectively. 

Effectively, this means that any increase in Muslim quota can be only undertaken at OBC/SEBC level, without touching the integrity of the SC/ST reservation. Furthermore, as the ST/SC reservation is a Constitutional reservation, nobody can remove these categories from the benefits of reservation unless a Constitutional amendment is made in that regard, which is politically unsustainable. Furthermore, SC/ST converts from Islam are not eligible for reservation benefits under SC/ST category, and the case is pending before the Supreme Court in this regard.

The Constitution (One Hundred and Fifth Amendment) Act, 2021 modifies Articles 338B, 342B, and 366 of the Constitution to allow state governments to prepare their own socially and economically backward classes lists for the purpose of giving reservation to these communities, apart from the ones already covered under the OBC list prepared by the Central Government. This amendment had to be carried out because after the passage of 102th amendment Act, followed by the Supreme Court judgement in Jaishri Laxmanrao Patil v. Chief Minister, Maharashtra, the court had held that due to 102th amendment Act states did not have the power to make their own SEBC lists.

How do the Muslims fare within OBC/SEBC reservation?

While the possibility of a religion, if it is proved to be socially backward, constituting a class in itself cannot be ruled out, much of OBC reservation today is also based on socio economic indicators of caste groups within communities. Thus, it is not the religious identity per se, but caste identity (irrespective of religion) on the basis of which OBC reservation is generally granted. Though Andhra Pradesh did provide reservation to Muslims exclusively on the basis of religion, the State justified it on the basis that the whole religion is backward in the state. Pertinently, Muslim quota did not affect the quotas of other OBC groups, as the former had a separate 5% reservation over and above the traditional OBC list. Similarly, Karnataka provides 4% OBC reservation to Muslims out of total 32% earmarked for OBC category, but this has not significantly affected share of other OBC groups as the proportion for Muslim reservation has remained constant throughout. 

In any case, proving backwardness of a group (caste/religion) before granting reservation remains a legal requirement, whether it is for group A or group B, irrespective of caste or religious considerations. 

In the past courts have cancelled the reservation granted to the groups for the absence of valid data to support the claims of backwardness for incorporating these groups under OBC/SEBC reservation. The most recent example of this can be found in Jaishri Laxmanrao Patil vs The Chief Minister and Ors., where the Supreme Court quashed the SEBC Act of Maharashtra state as amended in 2019 for breaching the 50% limit on reservations, as the court did not find any exceptional circumstances for giving flexibility to override the 50% limit set by the apex court in Indra Sawhney vs. Union of India.

Muslim castes under OBC/SEBC lists in Gujarat 

The list of SEBC castes/groups prepared by the state government of Gujarat has 30 entries (out of over 140 such entries) covering numerous Muslim castes under its SEBC reservation policy. Similarly, Central list of OBCs for the State of Gujarat prepared by the National Commission for Backward Classes (NCBC) has 23 entries in which various Muslim castes are provided benefit of OBC reservation. Thus, the fearmongering that Muslims will take up the space of other groups in the SC/ST/OBC categories might not be true when the PM Modi’s home state itself has generous provisions for various Muslim caste groups, quite reasonably so. 

Interesting, in 1985 when the Madhavsinh Solanki of the Indian National Congress was ruling the state of Gujarat, he increased the SEBC reservation from 10% to 28%, calculating his political moves on the basis of KHAM strategy (Kshatriyas, Harijans, Adivasis and Muslims). The move was profoundly rewarding, with the INC bagging 149 seats out of 182. 

Importantly, the Baxi Commission report –a decade before in 1975—identified around 35.5% of population in the state as backward, and the move to increase the SEBC reservation in the state was strengthened on that basis. Later, after studying that Baxi Commission report that was submitted in 1975-76, the government issued a resolution in 1978 adding 82 castes/classes/groups in the SEBC category (with 21 such entries for various Muslim caste groups). While the Solanki government benefitted from increasing the SEBC reservation from 10% to 28%, it also sparked massive protests and riots in the State, especially in Ahmedabad as the people starting opposing OBC quotas, which together with ST and SC quotas took the total reservation in the state to 49% percent. Notably, Gujarat also remains prominent in the 1980s for anti-Mandal riots, which eventually became anti-Muslim, as the opposition to KHAM gathered pace (and as Kshatriyas lost ground to their political rivals Patidars with the emergence of the BJP).

Despite changes in the fortunes and alterations in the government, with the BJP ruling the state since 1995, there has been no demand or attempt to take away reservations provided to sections of caste groups within Muslim community (which was initially provided on the basis of their backwardness alone). 

This reality –given the fact that Narendra Modi himself ruled the state for a significant 17 years — makes it even more ironical that his recent campaign claims against the Indian National Congress (INC) sound hollow. Gujarat has sat comfortably with 12-15 Muslim OBC caste groups enjoying the benefits of reservation as per the Baxi Committee report. So, in spite of Prime Minister making grand claims about Muslims’ taking away resources or reservations of the SC/ST/OBCs, the home state of the PM has since long identified and understood that large sections of Muslims are still fairly backward, and the last 25 years of BJP rule has not made any moves to exclude these Muslim caste groups from the state list of SEBCs!

The Gujarat state list of SEBCs may be seen here

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Equality and a Level Playing Field 

The post Why Modi’s poll histrionics accusing Congress of potentially fracturing away SC/ST quotas to Muslims is a spurious claim? appeared first on SabrangIndia.

As per the survey report, the total population in the state stood a little over 13 crore. The report has now revealed that the Other Backward Classes (OBCs) constitute 63 per cent of the state’s population. The census also shows that Scheduled Castes account for over 19 per cent of the 13-crore population, while Scheduled Tribes make up 1.68 per cent. 

As the Bihar Government released the survey months away from away from the upcoming General Election of 2024, it also clarified that the same is only a compiled data and no analysis of it has been done yet.

A detailed break-up of the caste constitution in the state

The caste survey had 17-point socio-economic indicators, including caste. Beginning from January 2023, the survey got completed in a three phased exercise in August this year with around 2.64 lakh enumerators documenting the details of 29 million registered households. The 214 castes mentioned in the survey were allotted different individual codes.

The survey has provided that the extremely backward classes (EBCs) formulate the largest segment of the population of Bihar as they comprise of about 36 per cent (4.7 crore) of the state. The backward classes constitute 27 per cent (3.5 crore) of the population. Together, these two depict that the OBCs make up 63% of the whole state’s population. Notably, the survey also revealed that among the Other Backward Class group, the Yadavas comprises 14.26% while the Kushwaha and Kurmi castes forms 4.27% and 2.87% respectively. 

It is further essential to note that the survey revealed that the Scheduled Caste population in Bihar is at 19.6518% (2.6 crore) while the Scheduled Tribe population is 1.6824% (22 lakh). Accordingly, the population of general population or “upper caste” groups has come out to be 15.52%. Among upper castes, the population of Brahmins is the highest at 3.65%. The population of Rajputs stands at 3.45% and the Bhumihars population at 2.86%.

The report also revealed that the state enjoys a Hindu majority, with Hindus comprising 81.9% of the population while the Muslim share is at 17.7%. Furthermore, Christians, Sikhs, Jains and those following other religions as also the non-believers have a miniscule presence, together making up for less than 1 per cent

“Historic Moment”- Reactions to the survey from the Bihar government

The Bihar government has maintained that conducting the survey is a necessary step towards ensuring and achieving social justice. Additionally, the process of carrying out a caste survey in Bihar has found support from all political parties. Chief Minister Nitish Kumar took over to X (formerly known as Twitter) and congratulated the survey team on the completion and release of the findings even after facing so many hurdles. CM Kumar wrote, “Today on the auspicious occasion of Gandhi Jayanti, the data of the caste based census conducted in Bihar has been published. Many congratulations to the entire team engaged in the work of caste based enumeration. The proposal for the caste based survey was passed unanimously in the State legislature.” He further informed that “All nine political parties of the State assembly will now be called for a meeting to apprise them about the caste based survey report”.

It is noteworthy that Rashtriya Janata Dal (RJD) has been demanding a caste census in Bihar since it was in opposition. Janata Dal (United) party and CM Kumar has been on the same path as well. Maintaining the same stance, CM Kumar stated that the report would aid in the state government’s initiatives for the development and upliftment of all sections. “Caste-based census also provides information about the economic condition of everyone. On the basis of this report, further action will be taken for the development and upliftment of all sections,” CM Kumar shared on ‘X’.

The last time a caste-based headcount was conducted was in the year 1931.

RJD chief Lalu Yadav and Deputy Chief Minister Tejashwi Yadav termed the occasion as a “historic moment”. Lalu Yadav wrote on ‘X’ that “Today, on Gandhi Jayanti, we all have become witness to this historic moment. Despite many conspiracies by the BJP and legal hurdles, the Bihar government released the caste-based survey.”

Deputy Chief Minister, and Rashtriya Janata Dal leader, Tejashwi Yadav said, “Bihar once again became witness of a historic moment with the compilation of caste based survey data and its release thereafter in such a short time. Bihar has now drawn a long line and set an example before the country. What has happened in Bihar today, shall have its voice heard tomorrow across the whole country. And tomorrow is not far ahead. Bihar once again has shown light to the country.”

‘Eye Wash’- Reactions of the union government, opposition

Leaders from the Bharatiya Janata Party (BJP) has termed the caste census report to be an ‘Eye Wash’. Many leaders took to ‘X’ (formerly known as Twitter) to express their opposition and criticism of the caste census survey. Bihar BJP President Samrat Choudhary said that “Lalu Prasad Yadav and Nitish Kumar play caste-based politics. Backward class plays a vital role but Nitish Kumar has not done anything for the backward class… Bihar CM has done nothing for the development of the state.”

Senior BJP leader and Union Minister Giriraj Singh further called the caste census as nothing more than “spreading ‘bhrahm‘ (misunderstanding) among the poor” of the state. The minister further stated that “They should have given a report card that Nitish Kumar ruled the state for 18 years and Lalu Yadav ruled the state for 15 years but did not develop the state. Report card of caste census is just an eye wash.”

Lok Janshakti Party chief Chirag Paswan accused the the Janata Dal (United) of trying to “divide” the people of Bihar by conducting the said survey. Paswan provided that “We had said earlier that JD(U) will be segmented and in the coming days, JD(U) will be wiped out…Some people in Bihar are creating a divide on the basis of caste and religion. People of the state do not trust CM Nitish Kumar due to his policies.”

Notably, hours after the caste census survey result was released, Prime Minister Narendra Modi delivered a speech in Madhya Pradesh wherein he accused the opposition of “trying to divide the country in the name of caste”. While he did not specifically mention the caste census, a report of the NDTV provided that through his speech, PM Modi lashed out at the opposition for having failed to secure development while in power and attacked them for “playing with the feelings of the poor”.

“They played with emotions of the poor back then… and even today they are playing the same game,” PM Modi stated

The Prime Minister also called any attempt at “division on caste lines” a “sin”. “Earlier they divided the country in the name of caste… and today they are committing the same sin. Earlier they were guilty of corruption… and today they are even more corrupt,” he said in Gwalior. It is also essential to note that the Congress party has also promised to conduct a caste census survey if they return to power in poll bound Madhya Pradesh. 

The origin of the caste survey:

Four years ago, on February 18, 2019, the proposal for a caste based census was passed in the Bihar legislative assembly when Janata Dal (United) and Bharatiya Janata Party (BJP) were together.

Last year, on June 1, after an all-party meeting CM Kumar had announced that all nine parties including the Bihar BJP unit had unanimously decided to go ahead with the caste census. Notably, the survey was ordered last year after the Narendra Modi government at the Centre made it clear that it would not be able to undertake a headcount of castes other than SCs and STs as part of the census. Pursuant to this decision, the state’s Council of Ministers had also approved the proposal to conduct the survey using Bihar’s own resources and Rs. 500 crore from its contingency fund for the exercise.

After JDU walked out of the BJP-led National Democratic Alliance last year, CM Kumar’s government, together with its alliance partner RJD, expedited the work on caste census. The survey’s first phase, which involved counting the total number of households in Bihar, began on January 7 of this year and ended on January 21. The second and final phase kick started on April 15 to collect data on people from all castes, religions and economic backgrounds, among other aspects like the number of family members living in and outside the state. 

In May, the survey was briefly paused owing to the stay put on it by the Patna high court which was hearing a bunch of petitions challenging the exercise. As per various media reports, the petitions were allegedly being filed by supporters of the BJP party to ensure that this exercise does not get completed. Notably, the caste survey was challenged in the Patna High Court under two significant grounds: that it violated a citizen’s fundamental right to privacy and that the state had no power to carry out such a survey. 

On August 1, after hearing the arguments raised by the petitioners against the census, the Patna HC decided that the survey was “perfectly valid”. The HC noted that “the action of the State to be perfectly valid, initiated with due competence, with the legitimate aim of providing ‘Development with Justice’; as proclaimed in the address to both Houses and the actual survey to have neither exercised nor contemplated any coercion to divulge the details and having passed the test of proportionality, thus not having violated the rights of privacy of the individual especially since it is in furtherance of a ‘compelling public interest’ which in effect is the ‘legitimate State interest’”.

The said survey had concluded on August 25, 2023. 

It is crucial to highlight that both RJD and JDU have called for caste-based enumeration across the country and CM Kumar and Tejashwi Yadav had also called on Prime Minister Narendra Modi to pitch for the same.

A deep analysis of the caste based census can be read here. 

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The post Caste Census Survey Result: 63% OBCs, 19% SCs and 1.68% STs constitute Bihar’s total population appeared first on SabrangIndia.

The news of the ECI’s move also comes at a turbulent period when the parliament introduced a bill in the Rajya Sabha on Wednesday last week that will allow the PM to select a minister to replace the Chief Justice of India in the committee which will select the Election Commission members, including the Chief Election Commissioner. Raising serious questions of the union government’s intent—in this case to remote control the entire election process —it also will overturn an earlier judgement of the Supreme Court. Arguably then, if this control of the ECI itself is left unchallenged even by the Supreme Court the nationwide de-limitation process due in 2026 will itself be controlled by any government in power at the time.

The final de-limitation order, released under Section 8-A of the Representation of the People Act, 1950, marks a crucial development on Assam’s electoral map. The commission’s press release, released on August 11, detailed that its  approach involved an extensive consultative process with a wide range of stakeholders. This included three days of public hearings in Guwahati in July 2023, supplemented by pre-meetings held in March 2023. According the press note, all representations, suggestions, and objections were considered by the commission, composed of Chief Election Commissioner Rajiv Kumar and Election Commissioners Anup Chandra Pandey and Arun Goel.

As many as 30 assembly constituencies will cease to exist in their current form while 26 new ones will be created, the Economic Times had reported in June. The final order did not further change any constituency boundaries, but renamed 19 assembly constituencies and one parliamentary constituency.

Representatives from various opposition national and state parties, including Aam Aadmi Party, Indian National Congress, Communist Party of India (Marxist), and Bharatiya Janata Party, as well as state-specific parties like All India United Democratic Front (AIUDF), Asom Gana Parishad, United Peoples Party Liberal, and Bodoland People’s Front, provided their feedback and suggestions to the Commission. Additionally, the United Opposition Forum Assam, comprising of multiple parties, and Registered Unrecognized Political Parties (RUPPs) such as Raijor Dal, Bhartiya Gana Parishad, National Republican Congress, and Assam Jatiya Parishad, also took part in the discussions. Over the course of three days, the Commission engaged with more than 1200 representations from 31 districts and conducted meetings with over 20 political parties. 

The commission says it incorporated. Around 45% of the total 1222 suggestions/objections. According to the press release, while some 5 % of the demands were found to be outside the bounds of constitutional and statutory provisions, and the rest of the 50 % were not deemed suitable. According to a report by The Hindu, the poll panel has largely retained the changes that were introduced in the original draft proposal released earlier in the year. 

The current chief minister of Assam, Himanta Biswa Sarma –whose term has been marred by aggressive steps and posturing against the state’s minorities– has also given his support to the ECI earlier. Assam chief minister and BJP leader Himanta Biswa Sarma had earlier said that if the ECI’s draft proposal was approved, the “people of Assam” would have a greater say in their constituencies.

“Assam should not be taken over by unfamiliar persons, and for that we worked religiously to protect jati [community], mati [land], and bheti [foundation], so as to retain the political power in the hands of our people.”

আমাৰ লক্ষ্য – জাতি, মাটি আৰু ভেটিৰ সুৰক্ষা

We are committed to protect the interests of our indigenous communities.

If the EC’s draft on delimitation is approved, people of Assam will have a greater say in their constituencies.

Lakhimpur#MahaJansamparkAbhiyan pic.twitter.com/sQ6ZWatM2L

— Himanta Biswa Sarma (@himantabiswa) June 23, 2023

His remarks and the delimitation proposal have been criticised as an attempt to weaken the representation of the state’s Bengali-origin Muslim community, who are often vilified as illegal immigrants from neighbouring Muslim-majority Bangladesh.

It is also not a coincidence that it is only the current ruling party BJP remains to be one party that welcomes the order, amidst many oppositions by other parties, including the Congress and AIUDF.

Gaurav Gogoi, a two term MP from the Congress party in Assam, has stated on Twitter that the Delimitation Exercise only ‘suits’ the BJP. 

Election Commission publishes delimitation of Assam in 2023 based on 22 year old census. Hence no benefit to Assam in terms of increase in Lok Sabha seats. The result is a reorganization of existing seats to suit BJP voting trends. No wonder BJP doesn’t want CJI to select ECs.

— Gaurav Gogoi (@GauravGogoiAsm) August 11, 2023

Changes in the Final Draft

The delimitation exercise is based on the 2001 Census data a move which has been largely questioned by critics. The last delimitation was carried out in Assam in 2008. The latest delimitation exercise has resulted in the allocation of 126 Assembly Constituencies (ACs) and 14 Parliamentary Constituencies (PCs) in Assam.  The commission’s final proposal includes revisions to the names of certain constituencies. Existing names such as Mankachar and South Salmara have been changed to Birsing Jarua and Mankachar respectively, amongst other changes.

Image: ECI Final Order.

When the initial draft was released, many apprehensions were made as for the new allocation of constituencies reserved for the scheduled castes (SCs). According to the final order, the SC seats are distributed among districts based on the proportion of the population of SCs in each district compared to the overall SC population in the entire state. Within each district, the priority was given to assembly seats with the highest proportion of SC population in relation to the total population of that assembly constituency. Similarly, for Parliamentary Constituencies, the one with the highest proportional SC population in relation to the total population of that parliamentary constituency was reserved for SCs. In 2001, the Scheduled Caste (SC) population stood at 1,825,949 out of the total population of 26,655,528. This proportion of SCs in the population was calculated to be 0.0685. The state had a total of 126 Assembly Constituencies (ACs), out of which 9 were to be reserved for SCs. Additionally, there were 14 Parliamentary Constituencies (PCs), with 1 PC earmarked for reservation for SCs. The ECI has argued that these changes in reservation for SC and ST communities were made according to Articles 330 and 332 of the Constitution.

According to Barak Bulletin, Silchar MP Rajdeep Roy had warned that there would be ‘Kashmirisation’ of Silchar if it becomes an unreserved constituency. Similarly, according to report, the main request of Barak Valley’s residents was to restore the Assembly representation to 15 seats. However, the Election Commission of India’s final draft stipulated 13 seats for the region. Notably, Algapur and Katlicherra, previously separate constituencies, were combined into Algapur-Katlicherra. Similarly, Badarpur merged with North Karimganj, now known as North Karimganj. Acknowledging Minister Parimal Suklabaidya’s objection, the ECI retained the name of Dholai Constituency, despite the initial proposal to rename it.

A significant development is the reduction in the size of the Silchar Legislative Assembly, both in geographic and electoral terms. Wards 1 to 7 of the current Silchar Municipal Board have been excluded from Silchar LAC. Furthermore, the ECI’s final draft confirmed that the Silchar Parliamentary Constituency, one of Barak Valley’s two constituencies along with Hailakandi-Karimganj, will continue to be reserved for SC candidates. It is notable that the Hailakandi-Karimganj constituency, formerly reserved for SC candidates, is now open to general candidates.

Opposition protests against the order

In the Supreme Court of India, writ petitions were submitted by Rajya Sabha member Ajit Kumar Bhuyan and Dr. Hiren Gohain, as well as one by the opposition parties. These petitions highlighted that the earlier postponement of the delimitation exercise was due to its reliance on outdated 2001 Census data. Given that India’s most recent Census was in 2011, it would naturally contains more current and updated data compared to the information from 2001, but there are no reports of the 2011 data included. 

On July 24, the Supreme Court declined to put a stay on the delimitation process in Assam. The Court directed the Union government and the poll panel to provide their responses to a set of pleas on this matter. A bench led by Chief Justice D Y Chandrachud, alongside Justices J B Pardiwala and Manoj Misra however decided that they will look into the constitutionality of Section 8A of the Representation of the People Act, 1950. This is the section which grants the Election Commission the power to carry out constituency delimitation. 

During the hearing for the petition, representing the petitioners, senior advocate Kapil Sibal, representing the opposition party leaders, argued against the commission stating that traditionally, this task was handled by a Delimitation Commission consisting of a retired Supreme Court judge and people’s representatives. He contended that entrusting the process to the ECI lacked a rational basis.

The proposed changes have triggered responses on the ground as well. Organisations and political parties had earlier called for a 12-hour strike in certain districts of Barak Valley in June, at the release of the ECI’s delimitation draft.

According to an earlier report by Sabrang India, a contentious aspect of the proposal centres on the potential elimination of assembly seats with Muslim-majority populations. This move has invited criticism from opposition parties, who assert that these constituencies often represent the Bengali-origin Muslim community, leading to concerns of minority representation and potential bias.

According to the report, the draft’s provisions suggest merging or incorporating such seats into newly-formed constituencies, some of which house significant Hindu populations.

India’s next nationwide delimitation is slated for 2026, while Assam’s last comprehensive delimitation was performed in 2008, with a subsequent deferral. This raises the question as to what was the hurry to perform a delimitation exercise specifically for Assam just a few years away from the all India exercise? The fact that the Lok Sabha elections are just a year further raises significant questions.

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Assam: Delimitation of Assembly, Parliamentary Seats, Merging of Districts Raise Apprehensions

Election Commission of India receives 467 suggestions and objections over the proposed delimitation exercise in Assam

Protests erupt over ECI’s new delimitation draft in Assam which is embroiled in controversy

Election Commission of India says voters’ names not to be removed without prior notice

The post ECI’s final de-limitation order seals fears of Muslim marginalisation in Assam appeared first on SabrangIndia.

–        Ramesh Nathan, general convener of the National Coalition for Strengthening of SC/ST PoA Act

This was the opinion of the convener of the National Coalition for Strengthening of SC/ST PoA Act and it appears he was right.

A rather horrific incident has been reported in Hasanpur village, Kotwali Dehat, Etah. The incident took place on June 1 where a Dalit man was maimed in his private parts by two Caste Hindu men who even kicked his pregnant wife in the stomach, merely over an issue of cutting a tree.

The FIR states that on June 14, accused Vikram Singh and Bhure Thakur started cutting the Babool tree which was on the victim’s land. When the victim protested, they started abusing him calling him “Ch***r” and then angered by his protest got a knife and attacked him in his crotch, thus cutting off more than half of his penis, says the FIR states this account. When the victim’s wife came out hearing her husband’s screams, Satendra attacked her with the axe in his hand. When both of them rushed to their home, scared for their lives, the accused ran behind them and pushed the victim’s pregnant wife on the floor and kicked her on her stomach. Hearing their screams, other villagers gathered on the scene and saved the victims from the accused. The accused while leaving the spot threatened them that if they complained to the police, they would kill them.

Etah Police has said that they have registered an FIR and the investigation is in progress. However, DSP Vikrant Dwivedi has stated that the allegation that the accused stabbed the victim in his crotch was wrong and that the injury was caused during a scuffle between the two.

The Dalit woman has said that when they approached the police immediately after the incident, they refused to lodge a complaint and they had to take a lawyer with them to get the FIR registered. She further said that they are not living in the village anymore since they are being threatened by the family of the accused and she also said that she does not know the condition of her unborn child, reported Navbharat Times.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been around for years and yet there has been no decline in crimes against Dalits.

On the other hand, the crimes are increasing instead and the nature of these crimes and the reasons for provocation of these crimes keep getting bizarre  by the day. Especially Uttar Pradesh sees crimes on Dalits more regularly. Since 2018, as many as 49,613 cases of atrocities and attacks on Dalits have been registered in Uttar Pradesh and these are only the cases that have been registered. The ones that don’t get reported for either being deemed trivial or due to the Caste Hindus influence on the Police are still unknown figures.

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The post UP: Dalit man allegedly maimed, his pregnant wife beaten by Caste Hindus in Etah appeared first on SabrangIndia.

Determining Scheduled Areas under the Fifth Schedule of Article 244 of the Constitution has been left largely to administrative and political interpretations. Mired in ambiguities, most often adverse, this resulted in the denial of what this constitutional provision potentially could offer the Scheduled Tribes. About sixty percent of the Scheduled Tribes are unjustly denied and kept out of the purview of this constitutional provision. Judicial pronouncements and laws such as the Provisions of the Panchayats (Extension to Scheduled Areas) Act 1996 and the Forest Rights Act 2006 clarify many of the ambiguities. These and more are attempted to be linked up here as an update to set clear well-defined tasks to address this long-standing unfinished agenda.

Introduction

Scheduled Tribe (ST) communities constitute 8.6% of the total population. STs constitute a majority in 110 districts out of 640 districts in the country, 20 to 50 % in 87 districts and 10 to 20 % in another 74 districts. Of the 5,97,483 villages, STs are a majority in 1,10,118 villages, 20 to 50 % in 45,902 villages and 10 to 20 % in another 29,800 villages (MoTA 2013).

Scheduled Areas have been notified vide Para 6 (1) of the Fifth Schedule to the Constitution in 10 States viz. Andhra Pradesh, Telangana, Odisha, Jharkhand, Chhattisgarh, Madhya Pradesh, Rajasthan, Gujarat, Maharashtra and Himachal Pradesh. They cover some 11.3 % of the total land area of the country (Wahi 2018:28). Of the 640 administrative districts, 104 districts have Scheduled Areas; 45 districts are fully notified and 63 are partially notified. They cover 77,564 villages of 22,040 panchayats in 664 blocks (MoPR 2023). These Scheduled Areas have 5.7 % of the country’s total population and 35.2 % of ST population. About 53 % of the total population in the Scheduled Areas are STs (Wahi 2018).

There are numerous ST habitations across the country that are not notified as Scheduled Areas. These STs are denied the constitutional rights and empowerment under Article 244 and the provisions in various laws as are applicable to the Scheduled Area such as the Provisions of the Panchayats (Extension to Scheduled Area) Act 1996 (PESA), 1 Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 20132, and where ‘local bodies’ are empowered as the Biological Diversity Act, 20023  and the related court orders.

There have been several sustained demands and campaigns from Adivasi (tribal) organisations to the concerned State governments for inclusion of the villages left out in the 10 States that have Scheduled Areas, and from other States that have ST populations, both large and small, but no Scheduled Area. The Bhuria Committee which was constituted to recommend provisions for the extension of panchayat raj to the Scheduled Areas had recommended to this effect. There have been a few positive initiatives from the State governments and fewer still have fructified. These tardy responses have often been explained away primarily with the argument that the demands and proposals do not consist of viable ST majority administrative units that may be considered eligible for notifying as Scheduled Areas. Parallel to this are the demands, both surreptitious and open, to denotify existing areas within Scheduled Areas. These demands have been made using the very same argument that several administrative units in existing Scheduled Areas no longer hold Scheduled Tribe majorities.

The legal basis for notifying Scheduled Area as to who can decide and what constitutes a Scheduled Area is examined here in order to determine whether the demands for inclusion of more areas as Scheduled Area and its reorganisiation, and exclusion of certain areas from Scheduled Areas are compatible with the law.

Who decides the area to be notified as Scheduled Area?

Article 244 (1) of the Constitution of India provides for the administration of the Scheduled Areas and Scheduled Tribes in States (other than Assam, Meghalaya and Tripura) in accordance with the provisions of the Fifth Schedule. ‘Scheduled Areas’ in Para 6 (1) of the Fifth Schedule to the Constitution means such areas as the President may by order declare to be Scheduled Areas. The Constitution does not provide any norm defining the administrative unit that ought to be the basis for declaration of Scheduled Area. The minimum percentage of ST population that must be contained in such area and a cut-off date for this are also not prescribed under Article 244, or in any law.

Further, Para 6 (2) of the Fifth Schedule confers powers exclusively on the President to declare any area as Scheduled Area. The Andhra High Court concluded that ‘neither the Executive Government nor the State Legislature, much less this Court, can declare an area to be a Scheduled Area’. Para 6 does not impose any limitation or restriction on the power of the President as to which areas are to be included or excluded in the Scheduled Area. This power is absolute and left to the discretion of the President. Therefore, the decision regarding the areas which are to form Scheduled Areas is not open to question or judicial scrutiny.

The Fifth Schedule unambiguously states that: ‘The President may at any time by order —

(a) direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area;

(aa) increase the area of any Scheduled Area in a State after consultation with the Governor of that State;

(b) alter, but only by way of rectification of boundaries, any Scheduled Area;

(c) on any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled Area;

(d) rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas’.

The Supreme Court has held that ‘the identification of Scheduled Areas is an executive function and we do not possess the expertise needed to scrutinize the empirical basis of the same,’ that ‘there has been a considerable influx of non-tribal population in some of the Scheduled Areas’ and ‘that persons belonging to the Scheduled Tribes should occupy at least half of the seats in Panchayats located in Scheduled Areas, irrespective of whether the ST population was in a relative minority in the concerned area’.

A  Public Interest Litigation challenging the 2007 notification declaring the Scheduled Area in Jharkhand on the ground that the percentage of ST population is less than 50 % in some blocks was dismissed by the Jharkhand High Court observing that the declaration of Scheduled Area ‘being within the exclusive discretion of the President neither violates any constitutional provisions, nor is the exercise of power has been done on extraneous considerations so as to be amenable to judicial scrutiny’.

The criteria for determining Scheduled Areas

The 1961 Dhebar Commission Report (GoI 1961) suggested four criteria for declaring new areas as Scheduled Area. They are:

(a) the preponderance of tribal population,

(b) compactness and reasonable size of the area,

(c) under-developed nature of the area and

(d) marked disparity in the economic standard of the tribals living in the areas.

The Ministry of Tribal Affairs largely agreed to the above recommendations9 which have generally been used for declaring Scheduled Area resulting in the Constitutional Orders since 1950 till 2007. All that the above recommendations mean is that the

• STs are to be greater in number, preponderant, not a majority, as compared to other social categories of peoples as the Other Backward Classes (OBC), Scheduled Castes (SC) and the residual ‘Other’ category. and
• that the area proposed should be a viable administrative entity. Therefore, the administrative entity or unit to be considered for scheduling is left to political and administrative decision grounded in social reality.

The Scheduled Areas and Scheduled Tribes Commission 2002 constituted under the Article 339 (1) of the Constitution had recommended that ‘All revenue villages with 40 % and more tribal population according to 1951 census may be considered as Scheduled Area on merit’ (GoI 2004). The Tribal Affairs Ministry communicated this recommendation in 2018 for consideration by the States for declaration of Scheduled Areas.10

The Bhuria Committee in 1995 (MoRD 1995) recognised the face-to-face community in the tribal areas managing its affairs to be the basic unit of the system of self-governance in tribal areas. A hamlet, or a group of hamlets or a village, as the case may be, is the natural unit of the community; this is distinctly different from the administrative units as the revenue village, the Panchayat, Taluk or the District. The Committee observed that the present administrative boundaries were drawn during the British period keeping their administrative convenience in mind. It took no note of the tribal situation in the country. Most of the country’s tribal population is located on the margins of different administrative units.

Moreover, the recommendations of various Government-appointed Committees were to include the remaining Tribal Sub-Plan (TSP) applicable in 21 States and 2 Union Territories with 193 Integrated Tribal Development Projects/ Integrated Tribal Development Agencies, Modified Area Development Approach (MADA) areas numbering 259, as well as similar pockets of 82 clusters, under the Scheduled Areas notification. Most states have ignored this till date.

The ambiguity in deciding on what should be the basic unit for consideration for notifying as Scheduled Area was finally settled when the fundamental administrative unit was defined under the PESA 1996.  PESA defined ‘village’ as: ‘a village shall ordinarily consist of a habitation or a group of habitations, or a hamlet or a group of hamlets comprising a community and managing its affairs in accordance with traditions and customs’. Following this, the ‘Gram Sabha’ got defined as ‘consisting of persons whose names are included in the electoral rolls’ of the village thus defined. This radically departs from the definition of the village which is generally the revenue village with a number of habitations, and the Gram Sabha which is at the Gram Panchayat level with a number of revenue villages and numerous habitations, resulting in a totally unwieldly area and population that intrinsically makes such Gram Sabhas non-functional, at best nominal.

The definition of ‘village’ under PESA, 1996 was adopted in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA) applicable across the country making their Gram Sabha as the statutory administrative entity with reference to forest. Further FRA requires all ‘forest villages’, whether notified as a village or not, to be treated as ‘village’ in FRA and converted to revenue village. The definition of the village as the habitation or group of habitations as defined in PESA has now expanded its application beyond the Scheduled Area to the forest fringe areas and forest villages inside the forest.

Geographical jurisdiction and compactness of area

The territorial jurisdiction or the geographical limit of the ‘village’ has expanded under FRA to include the ‘Community Forest Resource’ (CFR). CFR is defined as the ‘customary common forest land within the traditional or customary boundaries of the village or seasonal use of landscape in the case of pastoral communities, including reserved forests, protected forests and protected areas such as Sanctuaries and National Parks to which the community had traditional access’ where FRA is applicable. The collective control of the Gram Sabhas and command over the CFR and its resources has now become lawful, although limited to forest land. The traditional or customary boundaries on revenue lands remain to be determined and demarcated by the Gram Sabhas.

Having identified the villages where STs are the major social group, the notion of compactness of the area is generally equated to whether the villages constitute a contiguous area, or are contiguous to existing Scheduled Area, if any. The Constitution does not prescribe that the area that is being scheduled has to be compact and contiguous. Contiguity is not a mandatory criterion adopted for demarcating administrative units. Rather, it is flexible though desirous, contingent on the ground reality. For instance, the Union Territory of Dadra and Nagar Haveli, and Daman and Diu are not contiguous. The Union Territory of Puducherry consists of four small geographically unconnected districts, namely Puducherry and Karaikal (enclaves of Tamilnadu), Mahé (an enclave of Kerala) and Yanam excluding Chandranagar (an enclave of Andhra Pradesh). There are enclaves of non-Autonomous District Council areas within the Tripura Tribal Areas Autonomous District Council Area.

Moreover, by policy recommendations, the Scheduled Area is to be coterminous with Tribal Sub-Plan and MADA areas. Many of these are not contiguous with each other, and to the existing Scheduled Areas in the States that have Scheduled Areas. In effect, contiguity is not a required criterion for notification of Scheduled Area. The Government of Kerala proposed the notification of Scheduled Area in 2015 comprising of 2,133 habitations, also called colonies or oorus, 5 Gram Panchayats and 2 wards which are enclaves in 5 different districts. This proposal is awaiting Union Government approval and Presidential notification. These are not contiguous areas.

Conclusion

The basic building unit of Scheduled Areas that is now well established in law applicable to Scheduled Areas is the ‘village’. A ‘village’ is defined as ‘a habitation or a group of habitations, or a hamlet or a group of hamlets’. All such villages outside of the existing notified Scheduled Areas in any State and UTs, where STs are greater in number as compared to other social categories of peoples as the OBC, SC and the residual ‘Other’, are to be notified as Scheduled Area. This step has to be initiated post-haste as the majority of STs continue to be denied the constitutional rights and empowerment under the Fifth Schedule provisions regarding the administration and control of Scheduled Areas and STs under Article 244 (1) despite the Constitution coming into force in 1950, and the passage of PESA a quarter century ago.

The geographical limit of these villages extend to the Community Forest Resource area in Scheduled Area and outside it as well on forest land under FRA where applicable. Therefore, the Gram Sabhas of the villages in Scheduled Areas should be empowered in law through suitable amendments to the relevant State/Union Territory laws, rules, regulations and manuals to determine and demarcate the geographical limit on revenue lands based on their customary and traditional boundaries. This has to be followed up by redrawing the geographical limits at the Gram Panchayat, Sub-Divisional and District level whether contiguous or not in the Scheduled Area.

The completion of the unfinished task of identifying villages and the area to be covered under the Fifth Schedule by the State and Union governments is a constitutional requirement that ought not to be delayed any further.

(The author examines natural resource conflicts and governance issues)

1     See https://tribal.nic.in/actRules/PESA.pdf

2     See https://www.indiacode.nic.in/handle/123456789/2121?sam_handle=123456789/1362

3     See https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf

4     Andhra High Court, WP Nos. 15688 OF 2011, Mandava Rama Krishna & Seven Ors vs State Of Andhra Pradesh & Eight Ors on 17 April, 2014, https://indiankanoon.org/doc/127746566/

5     Patna High Court, Amarendra Nath Dutta And Ors. vs State Of Bihar And Ors. on 23 December, 1982, AIR 1983 Pat 151, 1983 (31) BLJR 609, https://indiankanoon.org/doc/201364/

6     See https://www.mea.gov.in/Images/pdf1/S5.pdf

7     Supreme Court of India. Union Of India vs Rakesh Kumar & Ors on 12 January, 2010,  Civil Appeal Nos. 484-491 of 2006, https://indiankanoon.org/doc/1356187/

8     Jharkhand High Court. Md.Ashique Ahamed vs Union Of India & Ors. on 10 February, 2016,  W.P. (PIL) No. 689 of 2010, 2016https://indiankanoon.org/doc/1356187/

9     Ministry of Tribal Affairs, Government of India. Criteria for declaring Scheduled Areas, Declaration of Scheduled Areas, https://tribal.nic.in/Clm.aspx

10    Ministry of Tribal Affairs, Letter No. 18016/04/2017-C&LM dated 1 January 2018 on redefining criteria for declaration of Scheduled Areas under Fifth Schedule of the Constitution.

11    See https://tribal.nic.in/downloads/FRA/FRAActnRulesBook.pdf

12   Principal Secretary, SC/ST Development Department, Government of Kerala. Declaration of Scheduled Area, Letter to Ministry of Tribal Affairs, Government of India No. 3432/D1/15/SCSTDD dated 07-04-2015.

13   Land and land revenue are subjects of State list (List II), listed at Sl. No.18 & 45.

References

1. Government of India (GoI) (1961): “Report of the Scheduled Areas and Scheduled Tribes Commission”, Vol. 1, 1960- 61, p.63, https://indianculture.gov.in/flipbook/1761
2. GoI (2004): “Report of the Scheduled Areas and Scheduled Tribes Commission”, Vol. 1, 2002-2004, p.76, https://ncst.gov.in/sites/default/files/2021/Report/Report.pdf
3. Ministry of Panchayati Raj, Government of India (MoPR) (2023): “Annual Report 2022-23”, p.120, https://panchayatgyan.gov.in/documents/448457/0/Annual+Report+2022-2023+%28English%29.pdf/4b1a9e49-0832-8138-7ab7-f5c8165b1e4b?t=1677130886320
4. MoPR (2023): “State-wise details of notified Fifth Schedule Areas”, https://cdnbbsr.s3waas.gov.in/s316026d60ff9b54410b3435b403afd226/uploads/2023/03/2023032444.pdf
5. Ministry of Rural Development, Government of India (MoRD) (1995): “Report of the Committee of Members of Parliament and Experts Constituted to make Recommendations on Law Concerning Extension of Provisions of the Constitution (Seventy-Third Amendment) Act, 1992 to Scheduled Areas”, https://ncst.nic.in/sites/default/files/2021/Report/Report_1.PDF
6. Ministry of Tribal Affairs, Government of India (MoTA) (2013): “Statistical Profile of Scheduled Tribes in India”, p.8, https://tribal.nic.in/downloads/statistics/StatisticalProfileofSTs2013.pdf
7. Wahi, Namita and Ankit Bhatia (2018): “The Legal Regime and Political Economy of Land Rights of Scheduled Tribes in The Scheduled Areas of India”, Centre for Policy Research, p.28-9, https://cprindia.org/wp-content/uploads/2021/12/The-legal-regime-and-political-economy-full-200418.pdf

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Photo credit: Gosselin Blog

A report prepared by UN Special Rapporteur on adequate housing which is to be presented today in UN Human Rights Council, highlights the extreme scarcity in availability of proper housing to 58.6 million households.

A deeper study of the report brings out that among this large community, schedule castes and schedule tribes, homeless people, Muslims and manual scavengers are the worst hit. Access to housing is abysmally below the national average for this segment.

Around the same time when the Report was being prepared, housing rights activists comprising of 70 representatives from 9 different states of India had gathered to share experiences and evolve strategies to solve the housing problem, in a meeting called by National Alliance of People’s Movements and Ghar Bachao Ghar Banao Andolan on 8^thJanuary this year.

Major point of discussion of this Coalition of Housing Rights Groups that met on January 8^th, was addressing the challenges posed by rampant evictions, denial of land rights, livelihood opportunities and basic services to poor communities living in informal settlements which goes unchecked in the absence of any legal prudence.

The UN Report and the deliberation of the Coalition, both seek to build upon the orders of the Supreme Court of India in the matter of ‘right to housing’. The Supreme Court of India in 1995 in the Chameli Singh vs. State of UP matter emphasised the centrality of the right to housing as precursor to all rights. Successive judgements on similar matters in the Supreme Court, reiterate the similar concerns.

Proof that very little has been done in over two decades by various governments is borne out from the fact that the need for housing has more than doubled to 58.6 million units (Special Rapporteur report 2017) from 23.90 million in 1991 (Government of India – National Buildings Organisation, Ministry of Urban Affairs & Employment). It also proves that all the governments over the decades had ignored the order and sentiments of the highest court of India.
 
The UN report as well as the deliberation of the Coalition also concluded that the ‘Pradhan Mantari Awas Yojana’ under the ‘Housing for All Mission’ of the central government of India, will only cater to the demand of one particular section and recognized the possibility of discrimination in implementing the policy.
 
An important thing that emerged from the experiences shared by the Coalition was that what very often is overlooked while estimating the shortage of housing is the connection between housing and livelihood. Livelihood is a key factor which defines the need, affordability and character of housing.  So, any solution that seeks to protect housing right should consider livelihood as the integral part of the problem.
 
As far as ‘Smart Cities Mission’ of the central government in the ambit of housing is concerned, the inference of the Coalition was that the mission is highly exclusionary in its approach which will give minimum space to the poor, reduce citizenship into consumers, highly expensive and the principle of democracy will be compromised at every level of planning and implementation of the mission.
 
One of the strongest recommendations of the Report is a need for a national legislation that will address problems relating to housing rights. This very recommendation in the Report is in resonance with the demand that was raised by the Coalition at the end of the deliberation. The Coalition finally concluded that a campaign would be chalked out at a national level in near future to demand a law which would protect the housing rights keeping livelihood as its integral part.  
 
 

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The MPs have also brought to notice that there is an outstanding amount of Rupees 11,267.61 crores that needs to be paid for the Post-Matric Scholarships, given to poor SC students, from the previous years. They have recommended that this amount be accounted and reallocated in this year’s budget.

Sabrangindia had reported on February 4, how the next year's budget had severe cuts for allocations to India's Dalits and Adivasis.
 
Some MPs, who were signatories to the letter, participated in a ‘Roundtable Discussion on Budget and the SCP/TSP’ held on February 9, 2017- in New Delhi.  Paul Divakar from the Dalit Arthik AdhikarAndolan (DAAA), stressed that, with the Planning Commission disbanded, the Jadhav Committee guidelines of allocating 4.63% for SCs and 2.39% for STs from total budget expenditure should have been followed.

While commenting on the budget, P S Krishnan, Former Secretary to GoI said “Plan should be built into the SCP/TSP funds. Even the big corporates have a plan [strategy] to grow their business. A task force should be constituted in every block and village to monitor the schemes.”

General Secretary, CPI(M) Sitaram Yechury, said, “Rights have been given but there is no plan to back those rights.” He underlined that there is a need to build a broad based movement to fight against the anti-Dalit policies of the present regime. Jitendra Chaudhury, President, Adivasi Adhikar RastriyaManch, MP, said that they would talk to all the MPs and raise the issue when the Parliament reconvenes on March 8 to discuss the Budget. He also said that like mined members would also bring this up at the SC/ST Parliamentarians Forum to mount pressure on the government to bring back the TSP/SCP and fight for a union law to protect the economic rights of the Dalits/Adivasis.

D. Raja, MP, “NITI Aayog is for transferring public money to private sector. A law should be legislated to give backing to SCP/TSP in the absence of Planning Commission.”

B V Raghavulu, Polit Bureau Member of CPM, brought to the notice of the gathering that a circular was sent from the NITI Aayog to State Governments to dilute the SCP/TSP laws. “This is nothing but Developmental Discrimination by the state,” he stressed. When the house was opened for discussion Satyendra Kumar, CSEI, said that due to the non-payment of the Post-Matric Scholarship nearly 15000 students dropped from their courses just from the state of Bihar alone.

Representatives from different peoples’ movements participated in the round table discussion. Members of the All India Democratic Women’s Association (AIDWA) Punyavati and Maimoona Mollahsaid that their organisation would join hands to take the message to the  grassroots. Srinivas Rao, Dalit Shoshan Mukti Manch, said they would continue to support such initiatives and would mobilise people to save the rights of the Dalits and Adivasis.

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