New Delhi: The Uttar Pradesh government’s decision to include 17 communities from the Other Backward Classes (OBCs) in the Scheduled Castes list has triggered a debate, with Union Minister of Social Justice and Empowerment Thawarchand Gehlot saying in the Rajya Sabha the move is not in accordance with the Constitution.
The issue, however, is not a new one.
The Samajwadi Party (SP) government led by Mulayam Singh Yadav had issued a similar order back in 2005. The order had been, however, stayed by the Allahabad High Court. Two years later, the Mayawati government quashed the order, but subsequently wrote to the central government extending her support to it.
The proposal was once again brought by Akhilesh Yadav’s SP government in December 2016, and a formal request for the same was sent to the central government. The matter remained pending with the Union Ministry of Social Justice and Empowerment.
On 24 June, the BJP government in Uttar Pradesh directed district magistrates and commissioners to issue caste certificates to 17 OBC communities — Kashyap, Rajbhar, Dhivar, Bind, Kumhar, Kahar, Kewat, Nishad, Bhar, Mallah, Prajapati, Dhimar, Batham, Turha, Godia, Manjhi and Machua.
When the matter was raised by BSP MP Satish Chandra Misra during the Zero Hour in Rajya Sabha Tuesday, Union Minister of Social Justice and Empowerment Thawarchand Gehlot expressed disagreement and said the UP government’s decision was not in accordance with the Constitution.
ThePrint takes a look at the Constitutional status of the Scheduled Castes and Scheduled Tribes, and the procedure to include the OBCs or any other communities in the SC/ST lists.
Preparation of first SC/ST list – before Independence
The exercise began with the list of “depressed classes”, which were systematically marked in 1931 by the Census Commissioner, India. The 1931 list constituted the base for the list of Scheduled Castes under the Government of India (Scheduled Castes) Order 1936, made under the Government of India Act, 1935.
The first attempt to list “primitive tribes” was also made during the 1931 Census. This was followed by a list of “backward tribes” for the Provinces of India under the Government of India Act, 1935.
The Act provided affirmative rights and political representation for both the SCs and the STs.
SC/ST lists in Constitution
Article 341 of the Constitution allows the President, after consultation with the Governors of respective states, to specify “the castes, races or tribes or parts of or groups within castes, races or tribes”, which shall be deemed to be Scheduled Castes.
Article 342 allows the President, after consultation with the respective Governors, to specify “the tribes or tribal communities or parts of or groups within tribes or tribal communities”, which shall be deemed to be Scheduled Tribes.
The first list of Scheduled Castes and Scheduled Tribes in relation to a state or a union territory was to be issued by a notified order of the President after consultation with the state governments or union territories (UTs) concerned.
Accordingly, in 2017, the then President had notified the SCs and STs in the ‘Constitution (Scheduled Castes) Order-1950’ and the ‘Constitution (Scheduled Tribes) Order-1950’. Subsequently, several orders pertaining to states and union territories have been issued and amended.
Any subsequent inclusion or exclusion in the SC/ST lists can be effected through an Act of Parliament, under Articles 341(2) and 342(2) of the Constitution.
Criteria for inclusion in SC/ST lists
The criteria for consideration of a caste to be included in the Scheduled Castes list are “extreme social, educational and economic backwardness arising out of traditional practice of untouchability”.
As for Scheduled Tribes list, the criteria are indications of primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large and backwardness.
Procedure for inclusion
The central government had, in June 1999, laid down the modalities for modifying the SC and ST lists. The modalities have since been amended only once, in June 2002.
According to the modalities, the proposals for inclusion/exclusion/modification of orders by state governments or UTs concerned have to be agreed to by the Registrar General of India (RGI) and National Commission for Scheduled Castes (NCSC) in the case of SCs, and RGI and National Commission for Scheduled Tribes (NCST) in case of STs.
Proposals that are not supported by the NCSC or the NCST would be rejected by the Social Justice and Empowerment ministry altogether.
In case the recommendations made by the state governments or UTs are approved by NCSC/NCST but not by the RGI, then the state governments or UTs would be asked to review and further justify their proposals.
With further changes, the proposals would be referred to the RGI again. In case the RGI still does not agree, the central government would consider the proposals to be rejected.
However, once the recommendations are accepted and approved by all the authorities, they would be processed in accordance with Articles 341(2) and 342(2) of the Constitution. Following this, amendments to the state/UT orders need to be proposed to the Cabinet to modify the SC/ST lists.