While framing the Constitution of India due consideration was given to that fact that certain communities in our country suffer from social, educational and economic backwardness due to lack of infrastructure, geographical isolation and various social issues. The tribal population of India as per 2011 census, is 10.43 crore, constituting 8.6% of the total population. 89.97% of them live in rural areas and 10.03% in urban areas. So, reservation must be provided to these communities.

The major policies introduced by the government to realize the spirit behind the special Constitutional provisions provided for the SCs and STs include:

1. Protective laws such as the Protection of Civil Rights Act 1955 (PCR Act) and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (POA Act);
    
2. Reservation Policy. While the protective laws are meant to protect these communities from all forms of injustice and exploitation, the Reservation policy is to ensure representation of the SCs and STs not only in august decision making bodies such as Parliament and State Legislature, and now in local bodies as well, but also in bureaucracy and in all government funded institutions and Public Sector Units (PSUs).

Under this policy the SCs and STs are entitled in proportion to their population admission in educational institutions, including Universities and colleges funded by the government. This policy has been in practice from 1950 onwards. The Hon'ble Supreme Court has also provided reservation guidelines in the case of Indra Sawhney v. Union of India, AIR 1993 SC 477. However, those never met expectations.

The Constitution of India, Article 366(25) defines Scheduled Tribes as such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under Article 342 to be Scheduled Tribes for the purpose of this constitution. Article 46 expressly lays down that the State shall promote 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.

This is further fortified by Article 15(4) and 29 whereby the State is empowered to make special provisions for advancement of other backward classes which includes STs. In the Pre-Constitutional era, British identified �Schedule Tribes� for the first time according to which Schedule Tribes consisting of different types of indigenous tribal groups. Post-independence, the Constitution-makers gave life to the special provisions for STs and continued the affirmative action for their upliftment.

The Ministry of Tribal Affairs is the Nodal Ministry for overall policy planning and coordination of programmes for development of STs. Further, another constitutional body named National Commission for Scheduled Tribes was constituted under Article 338A to oversee the implementation of various safeguards provided to Scheduled Tribes under the Constitution or under any other law and to evaluate the working of such safeguards.

Procedure of listing a particular class as (ST) Schedule Tribes

The well established criterion followed for specification of a community, as Scheduled Tribes are indications of primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large, and backwardness. Article 342 of the Constitution lays down the manner in which a community can be specified as Scheduled Tribe, but it is pertinent to mention that these communities are deemed to be scheduled tribes in relation to that state or Union Territory, as the case may be and not PAN-India.

Article 342(2) lays down the procedure for listing of Scheduled Tribes state/UT wise and not on an all India basis. Thus, list of Scheduled Tribes is State/UT specific and a community declared as a Scheduled Tribe in a State need not be so in another State. The consideration for specifying a particular caste or tribe for inclusion in the list of Scheduled Tribes in any given State depends on the nature and extent of the disadvantages and social hardships suffered by the concerned members of the class in that State. These may be absent in another State to which the persons belonging to some other State may migrate.

Article 342(1) provides that the President may with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes, or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.

Another procedure for listing a tribal community is mentioned in Article 342(2) wherein the Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (2) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.

Reservations of Scheduled Tribes in Central, State and Union Territories:

The Courts have time and again stated that the social conditions of a particular community vary from State to State and it is improper to generalize any tribe as a Scheduled Tribe for the whole country. This, however, is a different problem whether a member or the Scheduled Caste in one part of the country who migrates to another State or any other Union territory should continue to be treated as a Scheduled Caste or Scheduled Tribe in which he has migrated. That question has to be judged taking into consideration the interest and well-being of the Scheduled Castes and Scheduled Tribes in the country as a whole.

The provisions succinctly can be understood as follows:

Central Services:
For centralized recruitments of the Union, like Group A and Group B (Gazetted) categories for services in States/Union Territories, applications are invited from candidates across the country and Scheduled Tribes of all the States/Union Territories are entitled to apply for the reserved posts. For example, the members of the All India Services are common to the Union and the States and they serve, by turn, both the Union and State Governments. The members of these services although recruited by the Centre their services are placed under various State cadres.

Union Territory Services:

The recruitments under the Union Territories though under the Union, are treated as recruitments under the respective Union Territories. The procedure for recruitments to various posts for the services of Union Territories is different, for example in Chandigarh, the reserved posts are filled up by the candidates from all over India, whereas in Puducherry, the reserved posts are filled up by the local reserved candidates. However, the Apex Court mandated Pan-India Reservation Rule for subordinate services of the National Capital Territory of Delhi, by its majority view in Bir Singh v. Delhi Jal, (2018) 10 SCC 312.

By holding that the subordinate Services in the NCT of Delhi clearly are General Central Services, bench stated:
The services in connection with the affairs of the Union is concerned (Central Services), wherever the establishment may be located i.e. in the National Capital Territory of Delhi or in a State or within the geographical areas of Union Territory, recruitment to all positions is on an All India basis and reservation provided for is again a pan- India reservation.

However, Justice Banumathi dissented and in her minority opinion held that "If the reservation to the SCs and STs are to be extended to all categories of SC/STs all over India or to migrants then there is every possibility of the SCs and STs of other developed states and UTs squandering reservations to SCs/STs who are disadvantaged in the respective states/UTs including UT of Delhi." The Court, however, did not comment on the reservation subordinate services of other Union Territories.

State Services:

The Apex Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S. Medical College and Ors., (1990) 3 SCC 130 & Bir Singh (supra) has held that a person who is recognized as a member of Scheduled Tribes in his original State, will be entitled to all the benefits of reservation under the Constitution in that State only and not in other States/UTs and not entitled to the benefits of reservation in the migrated State/UT. The ST status is State-specific under Articles 342 of the Constitution and therefore, someone who is an ST in one State cannot avail of reservation benefits in another State.

A person belonging to a Scheduled Tribe in one State/UT cannot be deemed to be a Scheduled Tribe person in relation to any other State to which he migrates for the purpose of employment or education. The reasoning given by the Courts is that the enabling provision of Article 16(4) of the Constitution has to yield to the constitutional scheme of Article 341 and Article 342 of the Constitution.

It is responsibility of each State/UT to provide for such reservation by positive discretion to bring Scheduled Tribes in the respective States/areas to provide socio-economic empowerment. If the reservation to the Scheduled Tribes is to be extended to all categories of Scheduled Tribes all over India or to the migrants then there is every possibility of the Scheduled Tribes of other developed States/UTs squandering reservations to the Scheduled Tribes who are disadvantaged in the respective States/UTs. If this is permitted, it would defeat the very object of providing reservation to the disadvantaged Scheduled Castes and Scheduled Tribes in a particular State or Union territory.

Inter-State Migrants:

The rule of thumb is that if the job or college seat is under the power of the central government, then migration makes no difference to a person's caste status. The Supreme Court has said so in cases like Bir Singh (Supra) and Subhash Chandra v. Delhi Subordinate Services Selection Board (2009).

This can be explained by the following three situations:

1. The first could be a scenario in which an ST person migrates from State X to State Y and her caste or tribe is only on the list in State X.
    
2. Secondly, there could also be a situation where the caste of this person is on the list in both State X and State Y. In neither of these cases is the migrant entitled to the benefit of reservations. This was the Supreme Court's conclusion in cases like Marri Chandra Shekhar Rao v. Dean (1990) and Action Committee v. Union of India (1994). In other words, an ST person in State X cannot apply under the reserved category for a job or college seat controlled by the State Y, whether or not his caste is listed as ST on the list of STs in State Y.
    
3. Thirdly, a person who migrates from State X to State Y, but whose caste is listed as ST on the ST list in State Y but not State X, will probably not get the benefit of ST status by migrating to State Y.

The legislative intent is that social disabilities are not the same everywhere. A caste or community might suffer from a very severe social handicap in State X, but may not have any such problems in State Y. An ST person who migrates from State X to State Y may not, therefore, face the same social stigma that she would have faced in State X for belonging to her caste. Further, allowing outsiders to take up reserved seats in State Y will deprive the reserved communities in State Y that suffer from serious social disabilities.

Even where a caste is on the list in both states, the Supreme Court has held that the conditions for including that caste on the list might be different in each state and the degree of disadvantages might be varied.

The Ministry of Home Affairs in its circular dated 06.08.1984 addressed to all the State Governments and Union Territories administration stated that SCs and STs on migration from the State of his origin to other State will not lose his status as SCs/STs; but will be entitled to the concession/benefits to the SCs/STs from the State of his origin and not from the State where he has migrated. The same thing was reiterated in the letter dated 22.02.1985 of the Ministry of Home Affairs, Government of India.

Critique and Way Ahead
In a federal structure, the State Governments by the mere virtue of funding universities have the power to make such laws which favor individuals residing in their State. It is true that with respect to subjects set out in List II of the Seventh Schedule to the Constitution, the States have the power to make laws and subject to the overriding power of Parliament, the State can also make laws with respect to subjects enumerated in List III of the Seventh Schedule to the Constitution, but the legal system under the rubric of which such laws are made by the States is a single legal system which may truly be described as the Indian legal system.

It would be absurd to suggest that the legal system varies from State to State or that the legal system of a State is different from the legal system of the Union of India, merely because with respect to the subjects within their legislative competence, the State has power to make laws. Education appears both in the Union List as also in the Concurrent List. Now, in a democratic set-up, the mere fact that a national university is being funded by a State Government does not give the State Government the power or privilege to reserve seats for individuals' resident within its territory.

The federal structure of India is one of cooperative nature where the powers are distributed between the Centre and the States and exercised in cooperation with each other. Under the Indian Constitution, there are certain provisions which authorize federal supervision of local execution of national laws. These provisions reflect the supremacy of the Union over the States.

Article 1, which describes India as a Union of States reflect the kind of federalism prevalent in India. Article 258 of the Constitution empowers the Union to confer powers in the State in certain cases.

In funding and managing the educational institutions in their respective territories, the State Governments are carrying out the functions of the Centre in allegiance to the federal structure. The States are simply alleviating additional burden on the Centre and by doing so, cannot and should not confer themselves with power to an extent of creating a separate power as strong as the Centre.

If the State Governments make laws to favor their students on a national platform, this would be like the State becoming a separate entity from the Union which is forbidden. This would defeat the whole purpose of having a State as an organizational set-up. The State is a politically organized society and each organization within the State is expected to cooperate with every other organization for the achievement of the State's objectives.

The State here is the Union of India and its objectives are to holistically ensure benefits to every section of the society. Also, in achieving such ends, importance must be given to the basic philosophies of human existence i.e. to give every individual what he deserves. Universities, admission to which is done through merit at an all-India examination are universities of national importance and takes aspiring students from throughout India.

So, where reservations for Scheduled Castes and Scheduled Tribes are for the whole of the country, reservations on the basis of residence or domicile in a particular State is unjust. Thus, although some reservations may still be necessary for the socio-political condition in India, reservation on the basis of domicile or residence within a State for admissions to universities of national importance would be highly discriminatory and utterly perverse.

India is a diverse country. There is Unity in Diversity, in terms of language, culture, demography, geographical area, development of regions, opportunities available to individuals for education and to make social and economical advancement etc. The object of reservation for the Scheduled Tribes is to bring them into the mainstream of national life, while the objective in respect of the backward classes is to remove their social and educational handicaps. The Apex Court in Indra Sawhney held that reservations contemplated in Article 16 (4) should not exceed 50 per cent except in certain extraordinary situations.

This Court in Indra Sawhney was of the opinion that extreme caution has to be exercised and a special case must be made out for exceeding the limit of 50 per cent. Recently in Dr.Jaishri Laxmanrao Patil v. The Chief Minister, 2020 SCC OnLine SC 727, Apex Court has referred to a larger bench, the substantial question of the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 and various other issues related to Reservations.

It is a wise man who said that there is no greater inequality than the equal treatment of unequals. - Felix Frankfurter

* The content of this article is intended to provide a general guide to the subject matter.

Written By: Bhawna Gandhi, Advocate
Email: [email protected]