A Recognition of Diversity

 Strap: India's law recognises the need to protect and succour its tribals. The Supreme Court, as well as lower courts, have passed some landmark judgements in this regard. Mrittika Jain explores some cases with lower profiles that have had an impact over the years.

Intro: Adivasi quite literally means 'earliest inhabitant,' but their fate, lives and welfare too often rest heavily on modern readings and interpretations of law. “The State shall promote with special care the educational and economic interests of… in particular, the scheduled castes and the scheduled tribes, and shall protect them from social injustice and all forms of exploitation,” says Article 46 of the Constitution, which, along with Articles 341, 342, 16(4) and 335, delineates the treatment of SC/STs. Over the years, several government orders, amendments and legal precedents have built a path for the Adivasi to be brought into the mainstream.

Reservation has a Geography  

Andhra Pradesh migrant Marri Chandra Shekhar Rao moved court in Bombay after state-run colleges gave admission but refused him reservation, as Gouda was not a recognised ST in Maharashtra, as in Andhra.

In 1990, his plea against Dean, Seth GS Medical College, reached Chief Justice Sabyasachi Mukharji. The judge cited a home ministry circular of 1985 to establish that Rao was only entitled to reservation in his home state. He, however, also noted, that “we must do justice,” pointing out that Rao had progressed in his studies, which should not summarily end.

The judge dismissed the petition but left it open-ended for “authorities to take appropriate action about the continuance or discontinuance of the petitioner in his studies...” It is not known whether Rao continued.

A Generational Shift

The Supreme Court took a more unforgiving view four years later, in the somewhat similar matter of the Patil sisters, Suchita and Madhuri.

Elder sister Suchita applied for a reserved seat at the DYC Naik Medical College on grounds that she was Scheduled Tribe ‘Mahadeo Koli’ though she had been refused a caste certificate. By dint of filing a writ petition in high court, she secured directions allowing her to continue her studies on the seat.

Two years later, Madhuri joined a BDS course. Her application ended up with the Verification Committee cancelling both sisters' certificates. Extensive inquiry showed the Patils belonged to the Koli caste, an OBC, not an ST.

When the case reached the apex court, it came down hard on the lower court, the administration and the girls' father, Patil, accusing him of “feigned ignorance” of his ancestry. It did, though, feel “no useful purpose would be served” in stopping Suchita from appearing for her final year MBBS exams, while upholding cancellation of the social status as Mahadeo Koli “fraudulently obtained.”

However, the court said Madhuri “cannot continue her studies with her social status as Mahadeo Koli, and the concessions which she might have got on that account (unless) she was eligible for obtaining admission as a general candidate.” Madhuri was at the end of her second year of BDS at the time.

Lost in Translation

Another curious matter was that of Nityanand Sharma, stemming from what the apex court considered a wrong translation. Sharma, an assistant teacher in state service, sought promotion under ST reservation, saying his caste, Lohar, was a recognised scheduled tribe in Bihar. On being denied, he moved the high court, which dismissed his plea on August 12, 1993.

The case reached the Supreme Court based on a two-pronged premise — that the Lohars were a ST as mentioned in the Hindi version of the Schedule and the precedent set by the court in Shambhu Nath versus State of Bihar, 1990.

The state counsel, however, brought to attention the fact that while the Act mentions the Lohara/Lohra as Scheduled Tribes in both, its English and Hindi versions, Lohar is mentioned as ST solely in the Hindi version, a result of wrong translation.

On February 2, 1996, the Supreme Court dismissed the appeal, saying the court has no power to declare synonyms as equivalent to the tribes specified in the Schedule, or include or substitute any tribe. It said, “…As evidenced from the translated version, the community Lohar came to be wrongly translated for the word ‘Lohra’ or ‘Lohara’ and shown to have been included in the Schedule…”

'Treating Unequals Unequally'

In 2010, Chief Justice KG Balakrishnan heard the Union of India v Rakesh Kumar, and made a distinction between proportionate, adequate and compensatory representations. On an appeal against the provision that the panchayat chairperson in a Scheduled Area can only be a person from a Scheduled Tribe, the high court struck down various provisions of Panchayats (Extension to Scheduled Areas) Act, 1996 and the Jharkhand Panchayati Raj Act on grounds that they provided for 100% reservation in a seat of public employment, whereas the upper limit is 50%.

The Union appealed to the Supreme Court which, however, upheld the special provisions provided under Schedule V that ensure autonomy of Scheduled Tribes in administration of tribal areas. It also mentioned that article 243 M expressly empowers the Parliament to make necessary “exceptions and modifications” in enactment of legislations towards this purpose, as does the apex court’s Indira Sawhney judgement, which say 50% quota can be exceeded in exceptional circumstances.

The CJI distinguished between the objective of protection of STs, and provisions for job and education reservation of the marginalised that cannot be applied to scheduled areas. He also noted that Articles 14, 39(b) and 39(c) empower the state to treat unequals unequally to attain a social, economic and political level playing field.

Other Landmark Judgements

More high-profile than these is a series of litigation spanning nearly three decades, dealing with the issue of reservation for SC/STs in promotions. It began with the historical Indra Sawhney vs Union of India judgement in 1992, which has been reversed and reread several times since.

The Samata judgement of 1997, too, has had far-reaching consequences for STs, laying down guidelines for mining in scheduled tribal areas. It is believed that the mining industry has brought about a sea change in the social, political, cultural and legal status of tribals.

On the other hand, courts have struck notes of caution too, as in August last year, when an apex bench said “reservation for weaker sections was not contemplated by the Constitution makers in perpetuity.” Variously, courts have dealt not just with the legal, but moral aspects of ‘equality for all’ too, though the consistent legal opinion remains that modernity is encroaching upon the scheduled tribes.