A PROJECT ON

GOVERNMENTAL INTIATIVES AND SCHEDULED CASTE AND SCHEDULED

TRIBE: EFFICACY AND IMPEMENTATION

Submitted By
MANISH KUMAR
BA LLB (HONS)
Semester VIII Batch XIII
SEC- B
Roll No. 84

Submitted To
Mrs. Shraddha Rajput
(Faculty: Compensatory Discrimination)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR CHHATTISGARH

Submitted On 6TH APRIL 2017

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ACKNOWLEDGEMENT

First and foremost, I would like to thank my Compensatory Discrimination teacher Mrs.
Shraddha Rajput for offering this subject, Governmental Intiatives And Scheduled Caste
And Scheduled Tribe: Efficacy And Impementation and for her valuable guidance and
advice. She inspired me greatly to work in this project. Her willingness to motivate me
contributed tremendously to my project. I also would like to thank her for showing me some
example that related to the topic of my project.

Besides, I would like to thank the Hidayatullah National Law University for providing me
with a good environment and facilities to complete this project.

Last but not least, I would like to thank all my friends who helped me do this project by
sharing their ideas when we combined and discussed together.

_____________________
MANISH KUMAR
Roll No. 84 Sec. B

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 CONTENT

INTRODUCTION ..................................................................................................................04

OBJECTIVE...........................................................................................................................05

RESEARCH METHODOLOGY...........................................................................................05

Chapter 1-Constitutional Mechanism For Uplift Of Scheduled Castes and Scheduled

Tribes........................................................................................................................06

1.1 Fulfilment Of Constitutional Mandate How Far? How Fair?..................07

1.2 Untouchability and Atrocities....................................................................08

Chapter 2: Governmental Intiatives...........................................................................11

2.1 Legislations (PCR and PoA).....................................................................11

o 2.1.1 Untoucahbility and the Prevention of Civil Rights act, 1955........11
o 2.1.2 Atrocities On Scheduled Castes and Scheduled Tribes and the SC&ST
(Prevention of Atrocities) Act, 1989....................................................12
2.2 Governmental Policies .............................................................................15
o 2.2.1The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005...15
o 2.2.2 The Prohibition of Employment as Manual Scavengers and their
Rehabilitation Bill, 2012......................................................................22

CONCLUSION..........................................................................................................27

REFERENCE............................................................................................................28

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Introduction:

Scheduled Castes (SCs) and Scheduled Tribes (STs) are among the most disadvantaged
socio-economic groups in India. With its focus on faster, sustainable and more inclusive
growth the 12th Five Year Plan highlights that concerns of the poor, the Scheduled Castes,
the Scheduled Tribes, Other Backward Classes, minorities, differently abled and other
marginalised groups must be addressed for growth to be inclusive.

The Government of India has enacted progressive legislation, programmes and schemes for
the development and empowerment of the SCs and STs. The Scheduled Tribes and other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA); The Provision
of the Panchayats (Extension to the Scheduled Areas) Act, 1996; Minor Forest Produce Act
2005; and the Tribal Sub-Plan Strategy are focused on the socio-economic empowerment of
STs. The Land Acquisition Bill, which has been renamed as The Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and Resettlement Bill, 2012 has a
separate Chapter to protect the interests of SCs and STs. The Parliament of India passed The
Prohibition of Employment as Manual Scavengers and Their Rehabilitation Bill, 2013 in
September 2013. This bill aims to eliminate the inhuman practice of manual scavenging and
rehabilitation of liberated manual scavengers, all of them who belong to the Scheduled
Castes.

The Government of India also has special schemes to enable access to opportunities including
scholarships for education, financial support and skill building for setting up enterprises,
reservations in jobs, and special courts to address instances of atrocities and violence.

Through the Scheduled Caste Sub Plan (SCSP) and the Tribal Sub Plan (TSP), the
Government of India is channelling funds from the Planning Commission for the
development of SCs and STs respectively. Of the total Plan budget, as of 2001, the
Government of India has earmarked 16 per cent for the development of SCs and 8 per for the
development of STs, in the Union and State Budgets.

Observing the number of policies and plans opted by the government the scope of the project
becomes very much wider but given the limitation the project focuses on some major
legislations and policies i.e Prevention of Atrocities act 1989 and Protection of Civil Rights
Act 1955, The Prohibition of Employment as Manual Scavengers and their Rehabilitation
Bill, 2012 and The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005

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Objective:

To analyse the legislations bought government forward by the government to improve the
situation of Scheduled Caste and Scheduled Tribes in Society.
To analyse the policies bought government forward by the government to improve the
situation of Scheduled Caste and Scheduled Tribes in Society.

Research Methodology:

The objective of this project is to analyse the legislations and policies bought government
forward by the government to improve the situation of Scheduled Caste and Scheduled Tribes
in Society.

Design of the study: The research is descriptive and analytical in nature.

This research paper is descriptive and analytical based on secondary sources, i.e., books and
electronic sources (internet).

Books and other references as guided by Constitution of India have been primarily helpful in
giving this project a firm structure. Websites, dictionaries and articles have also been
referred.

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Chapter 1-Constitutional Mechanism For Uplift Of Scheduled Castes and
Scheduled Tribes

The deep concern of the framers of the Constitution for the uplift of the Scheduled Castes and
Scheduled Tribes and Other Backward Classes is reflected in the elaborate constitutional
mechanism set-up for their uplift. Article 17 abolishes Untouchability. Article 46 requires
the State to promote with special care the educational and economic interests of the weaker
sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes,
and to protect them from social injustice and all forms of exploitation. Article 335 provides
that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be
taken into consideration, consistently with the maintenance of efficiency of administration, in
the making of appointments to services and posts in connection with the affairs of the Union
or of a State. Article 15(4) refers to the special provisions for their advancement. Article
16(4A) speaks of reservation in matters of promotion to any class or classes of posts in the
services under the State in favour of SCs/STs, which are not adequately represented in the
services under the State. Article 338 provides for a National Commission for the Scheduled
Castes and Scheduled Tribes with duties to investigate and monitor all matters relating to
safeguards provided for them, to inquire into specific complaints and to participate and advise
on the planning process of their socio-economic development etc. Article 330 and Article
332 of the Constitution respectively provide for reservation of seats in favour of the
Scheduled Castes and the Scheduled Tribes in the House of the People and in the legislative
assemblies of the States. Under Part IX relating to the Panchayats and Part IXA of the
Constitution relating to the Municipalities, reservation for Scheduled Castes and Scheduled
Tribes in local bodies has been envisaged and provided.

Part IX and Part IXA of the Constitution respectively permit the legislature of a State to make
provision for reservation of seats in Panchayat and Municipalities in favour of backward
classes of citizens. Article 340* of the Constitution provides for appointment of a
Commission to investigate the conditions of Backward classes. Article 16(4) and 16(4A)
respectively permit reservation of appointments or posts and in matters of promotion in
favour of backward classes not adequately represented in the services under the State. Article
15(4) permits the State to make special provision for the advancement of any socially and
educationally backward classes of citizen. In addition to these, there are also other

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Constitutional provisions for the welfare and socio-economic empowerment of the Scheduled
Caste, the Scheduled Tribes and other backward classes

1.1 Fulfilment Of Constitutional Mandate How Far? How Fair?

In spite of this manifest, avowed and determined concern of the Constitution, the objectives
have not been fully achieved and whatever has been done has been done hesitatingly, half-
heartedly and as a measure of concession forgetting that in this area we are dealing with
Constitutional rights and not concession to those classes.

It is instructive to examine how the socio-economic, legal and political factors inter-play to
generate a particular matrix of social dynamics. The text of the Constitution created a lofty
mix of Fundamental Rights and a set of Directives enjoining upon the State the obligation to
promote and to secure to the citizens, the enjoyment of rights that provide the citizen an
environment allowing his/her growth and development with social justice, equal opportunity,
right to work and access to basic needs and opportunity without discrimination. While the
text created a noble and a sanguine texture, the key players were the State, the legal system,
the dynamics of social development and the social forces generated by the socio-political
processes. The linkage between these players provides some explanations to the path that the
nation has traversed in economic growth, social development and pursuit of equal
justice. The processes of economic development do not necessarily lead to equitable income
distribution. In fact, these often result in appropriation of national and social resources by a
small percentage of the people. While over the years, the social services in the field of
education, health, transportation and tertiary sectors have increased, there has been an
inherent distortion in their universal access. Typically in this paradigm, the center has
continuously appropriated access to every aspect of development of services and resources at
the cost of vast periphery. Policy instruments loaded with different objectives produce a
paradoxical regime of results, which is fairly seen in the areas where the Constitution
assigned the role of basic font of delivery to the State.

The legal regime also confronts us with paradoxes. While the legal text is explicit in seeking
remedies, the implementation appears to evade performance. In implementation of laws and
the working of the legal system several trends emerge. Laws and legal processes are not self
executing; they depend on the players such as the administrative structure and its processes,

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the judiciary with the anticipation that the social attitudes are driven by enlightened notions -:
equity, social justice, fair play. However, the responses of the players in the implementation
of laws protecting the weak, the oppressed, women and children and the socially
disadvantaged have over the years become increasingly indifferent. The injustices have been
allowed to persist and the system has failed to provide for self-correction. In implementation
and in interpretation of the Constitution and law, distortion and denial of the rights have crept
in.

A related issue of social dynamics is the opportunity and the access to the disadvantaged to
take advantage of forums of the enforcement process and social mobilization. The
polarization of castes and classes in the recent years across the society has shown disturbing
trends, in as much as the administrative system, the judiciary, the legal processes reflect the
social reality of a given area or region. Enforcement agencies have themselves responded to
these urges for social protests and desire for enforcement using the legal and social processes
with indifferences and indeed ostensibly with resistance. Increasingly it was shown that
whereas processes were available to the disadvantaged, the weak, the oppressed, women and
children, access was denied owing to its cost and remoteness. Even when the State created
some shelters through various form of Legal Aid to Scheduled Castes, women and to the
oppressed, they were reduced to tokenism owing to the quality and availability. Indeed, the
higher levels in judiciary intervened with vigour against the injustice manifest in the system
in the form of bonded labour, child labour, crime against the women and Scheduled Castes
and tribals etc. It is pertinent to note that the legal and institutional processes of redressal
where provided are available only formally and have made a little or no impact. The
disadvantaged sections of the society have difficult access even to the shelters and sanctuaries
created for them under the law. The manner and frequency with which social protests have,
in some cases, been snuffed out by the very system created to protect it, is revealing. This is
the major challenge for the system which incorporates in its formal text the creation and the
sustenance of a civil society.

1.2 Untouchability and Atrocities

Article 17 of the Constitution abolished untouchability. The Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to prevent atrocities
against the Scheduled Castes and the Scheduled Tribes. A glance at the number of cases
registered under the Protection of Civil Rights Act, 1955 and the Scheduled Tribes

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(Prevention of Atrocities) Act, 1989 (Table 9.1) shows that though total number of cases
under these Acts show a declining trend in recent years yet the high number of cases still
registered under these Acts is a grim reminder of the unfortunate fact that atrocities against
the Scheduled Castes and the Scheduled Tribes and untouchability continue unabated even
today.

The efforts to ensure adequate representation for Scheduled Caste and Scheduled Tribe in
higher levels of public services are perceived by the disadvantaged groups as having received
a set back following certain judgements of the Supreme Court. In Preeti Srivastavas1 case, a
five Judge Bench of the Supreme Court held that there should be no reservation in admission
in Ph.D., etc. The Medical Council of India was directed to consider the percentage of
relaxation of marks for admission in post-graduation. In Vir Pal Singh Chauhans2 case and
Ajit Singhs case3, the Supreme Court by two-Judge Bench and five-Judge Bench
respectively held that reserved candidates promoted on applying the rule of reservation
should not gain seniority until the general candidates catch them up. The elbow right given
is only in cases where the reserved candidate had already been promoted to the next higher
post. Article 16(4A), was interpreted as not creating a right for reservation in favour of either
the Scheduled Castes or the Scheduled Tribes . It was further held that the reverse
discrimination begins when protective discrimination ends. In Post Graduate Institute of
Medical Institution & Research Center, Chandigarh Vs. Faculty Association* case, it was
held that single post should not be reserved.

Pursuant to judgements in Sabarwals case1 and Ajit Singhs case, etc. Government has
from time to time since 1996 amended the departmental orders providing for reservation in
services. These amendments have caused widespread dissatisfaction amongst Scheduled
Castes/Scheduled Tribes. A feeling persists amongst them that in interpreting the
words consistently with maintenance of efficiency of administration occurring in Article
335 of the Constitution, the main purpose and thrust of the provision has not been given due
consideration. It is also complained that Government has also gone beyond the mandate of
the Supreme Court in certain respects while amending the reservation orders.

There have been demands for taking remedial steps by amendment to the Constitution so as
to allay widespread dissatisfaction and apprehension amongst the Scheduled Castes and the
Scheduled Tribes. Restoration of pre-1996 position has been suggested to be necessary for

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ensuring adequate representation of Scheduled Castes and Scheduled Tribes in public
services as mandated by the Constitution.

The Constitution (81st Amendment) Act, 2000 has by introducing Article 16(4B) removed the
obstacles in the way of treating previously unfilled vacancies as a separate class of
vacancies. Further amendments to the Constitution may be necessary in case the position of
reservation as it existed prior to 1996 is to be fully restored.

Reservation for other backward communities in Central services was provided only in 1990
and became operational from 1993 onwards. Sufficient statistical data are not yet available to
draw any definite conclusions to the extent, their reservation has improved in the central
services. The adequate representation of backward classes is, however, still a far cry and
special efforts need to be made for effectively enforcing reservation of backward classes to
achieve their adequate representation in central services.

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Chapter 2: Governmental Intiatives

2.1 Legislations (PCR and PoA)

The scheduled caste and schedule tribes in our country constitute the weakest and the most
vulnerable sections of our society. The members of the scheduled castes due to centuries old
practices of untouchability, have been for been forced to occupy the lowest strata of the
traditional socio-economic structure deprived of their rights over the productive resources
and due entitlements of their equitable return. On the other hand members of schedule Tribes
have been living in geographical isolation and are thus at different stages of the so-called
economic development but with plentiful resources at their command. Framers of the
Constitution have kept in view the distinct nature of the problems of the two groups while
making provisions for their protection, development and to bring them into the mains stream.

2.1.1 Untoucahbility and the Prevention of Civil Rights act, 1955

The scheduled caste who have been known by different names at different times have been
discriminated on gronds of untouchabiity and denied access to several services open for
others Untouchability thus became the root cause of backwardness. Since untouchability still
persisted in different forms, the framers of Indian Constitution took note of this aspect and
made necessary provisions. Under article 17 of the constitution, Untouchabiltiy has been
abolished and its practice in any form is forbidden. To make the practice of Untouchability in
any form, punishable the Parliament enacted the Untoucabiltiy (offence) Act, 155. The
provisions under the Act were not found to be effective, hence more stringent punishments
were incorporated in the Act by amendment in the year 1976. The Act was also renamed as
the Protection of Civil Rights (PCR) Act, 1955.

The PCR Act, 1955 provides penalties for preventing a person on the ground of
untouchability, from entering the place of public worship and offering prayer or taking water
from any tank, well or spring. Besides, enforcing any kind of social disability such as denying
access to shop, restaurant, hotel, public hospital or educational institutions or any kind of
public entertainment or denying the use of any road, river, well, tank, water tap, bathing ghat,
cremation ground etc. Also attract punishment under the provisions of this Act. Offences
under this act are cognizable as well as non-compoundable. The Act provides for awarding
minimum punishment of imprisonment for one month and a fine of Rs. 100 to the maximum
imprisonment for six months and a fine of Rs. 500. For the second offence the punishment

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may range from imprisonment for six months and a fine of Rs, 200 to imprisonment for one
year imprisonment and a fine of Rs. 500. For the third and subsequent offences the
punishment ranges from one year imprisonment and a fine of Rs. 500 to imprisonment of
two years and a fine of Rs.1000. the offences, except when punishable with imprisonment for
a minimum term exceeding three months, may be tried summarily by a Judicial Magistrate.

The Act also provides for imposition of collective fin on the inhabitants of an area who are
concerned in, or found abetting the commission of an offence punishable under this Act. It
also empowers the State Governments to take such measures as might be necessary for
ensuring that the rights arising from the abolition of Untouchabiltiy. These include setting up
of Special Courts for trial of offences under the Act.

The Act also charged Central Government with the responsibility to coordinate the measures
taken by the state government and place a report on the table of each house of Parliametn
every year on the working PCR Act, 1955. The Central Government has so far laid 13 reports
covering period upto 1992. For carrying out the provisions of this Act Central Government
have framed Rules viz. PCR Rules, 1977.

2.1.2 Atrocities On Scheduled Castes and Scheduled Tribes and the SC&ST (Prevention
of Atrocities) Act, 1989

Inspite of the measures taken by the State Governments and the Central Government the
dimension of exploitation of Scheduled Castes and perpetration of atrocities on them
remained unabated. In 1974 broad categorisations of different "forms of atrocity" were
specified and State Governments w ere asked to famish information according to four
different categories of atrocity viz. (i) murder (ii) violence resulting in grievous hurt (iii) rape
(iv) serious mischief or arson in respect of SCSI persons and their properties . The data
received on the basis of above categorisation revealed that the netstires taken by the
governments were not effective enough to curb the incidents of atrocities on SCs/STs . Since
PCR Act, 1955 did not cover cases of atrocities on SCs/STs a vital step to prevent atrocities
on SCs & STs was taken by enactment of another law by the Parliament in 1989 viz: the
Scheduled Castes & Scheduled Tribes (Prevention of atrocities) Act, 1989 (PAA). This Mt
which received the assent of President on 11-09-1989 came into operation w.e. f. 30-1-90.

One of the salient features of this Act is that atrocity on SC & ST has been defmed (in
Section 3 of the Act) for the first time The offences under this Act are cognizable and non-

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bailable. The offences under Sub-Section 3(l) are punishable with imprisonment for a term
not less than six months but which may extend to five years and with fine . These include
forcing a SC/ST person to drink or at any inedible or obnoxious substances; dumping excreta,
waste matter, carcasses or any other obnoxious substances in his premises or neighbourhood;
forcibly removing clothes; parading naked or with painted face; wrongfully occupying or
cultivating any land owned by or allotted to SC/ST; compelling or enticing him to do bepr/
bonded labour, forcing or intimidating him not to vote or to vote to a particular candidate;
instituting false, malicious or vexatious suit or criminal /legal proceeding against SC/ST
person; intentionally insulting or intimidating with intent to humiliate in any place within
public view; outraging the modesty of or committing rape on SC/ST woman; corrupting or
fouling any source of water used by members of SC/ST; denying SC/ST people his right of
passage and causing him to least his house, village or other place of residence.

SubSection (2) of Section 3 relates to serious crimes like fabrication of false evidence,
mischief by fire or explosive substance, interfere with evidence and other matters. These
offences are punishable with imprisonment for seven years or more or for life or for capital
punishment. This sub-section also prescribes enhanced punishment for a public servant for
committing atrocities on SCs & STs . Section 4 of the Act prescribes punishment to a public
servant ,for neglect of his duties under the Act. Section 16 of the Act also provides for
community fine in cue of offences committed against SCs & ST, by a community or the
inhabitants of an area.

Another salient feature of the Act is the identification of - atrocity prone area" and of
"persons" likely to commit offence and extemment of such persons from the area included in
"Scheduled Areas" or "Tribal Areas" as referred to in Article 244 of the Constitution of India.
For the purpose of speedy that of offences under this Act State Governments are required to
set up Special Courts in each District (Section 14) and to appoint a Special Public Prosecutor
for conducting the cases under the Act in the Special Courts (Section 15).

For carrying of the provision of this Act , the Central government have also Notified Rules,
Viz. the SC & ST (POA) Rules; 1995 which prescribe measures to prevent atrocities on SC &
ST, procedure for conducting investigations by police and norms for relief and rehabilitation
of victims and their families.

Under clause 4 of Section 21 of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 the Central Government is required to co-ordinate the measures taken

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by the State Governments and to place on the table of each House of Parliament every year, a
report on the measures taken by itself and by the State Governments. After enactment of SC
and ST (Prevention of Atrocities ) Act, 1989 from 31-1-90, Ministry of Welfare, the Nodal
Ministry for matters relating to Scheduled Castes

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2.2 Governmental Policies

2.2.1The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005

HIGHLIGHTS OF THE BILL

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 was drafted to fulfill the need
for a comprehensive legislation to give due recognition to the forest rights of tribal
communities. These rights were not recorded while consolidating state forests during the
colonial period as well as in independent India. Recognizing the symbiotic relationship
between tribal people and forests, the National Forest Policy, 1988, made provisions to
safeguard the customary rights and interests on forest land of tribals. In order to implement
these provisions, the Ministry of Environment and Forest (MoEF) issued a set of six circulars
on September 18, 1990 which decreed that pre-1980 occupation of forest land would be
eligible for regularization provided the State Government had evolved certain eligibility
criteria in accordance with the local needs and conditions. The State Governments, however,
failed to implement the 1990 Guidelines. Meanwhile, a Supreme Court order led to large
scale evictions by the Forest Departments of various states. Following mass protests by tribal
communities, the MoEF issued supplementary guidelines on February 5, 2004 to address the
issue of recognizing the legal right of tribal communities to forest land and resources.
However, the Supreme Court issued a stay order on the Guidelines.

Key Features Rights of Forest Dwelling Scheduled Tribes

The Bill seeks to recognize and vest forest rights in forest dwelling Scheduled Tribes
(FDSTs), where they are scheduled, with respect to forest land and their habitat. The
forest rights in the core areas of National Parks and Sanctuaries shall be granted on
provisional basis for a period of five years from the date of commencement of this
Act. If the holders of such rights are not relocated within five years with due
compensation, the rights would become permanent. The rights can be inherited but
they are not transferable.
The Bill delineates 12 rights of FDSTs over a variety of subjects. The rights include:
(a) living in the forest for habitation or for self cultivation for livelihood, (b)
community rights such as nistar , (c) right to own, use or dispose of minor forest
produce, (d) conversion of forest village to revenue village, (e) conversion of pattas or
leases issued by any local authority or any state government on forest land to titles,

15
 and (f) other traditional customary rights. Customary rights exclude hunting, trapping
or extracting body parts of any wild animal. FDSTs also cannot indulge in any
activity that adversely affects wild animals, forests and the biodiversity in the local
area and need to ensure that adjoining catchments areas and water sources are
adequately protected.
Forest rights of FDSTs would be subject to the condition that such communities had
occupied forest land before October 25, 1980 [The Forest (Conservation) Act, 1980
came into force on this date]. The Bill specifies that no FDST shall be evicted from
forest land under his occupation till the recognition and verification procedure is
completed.
The Bill states that forest rights would be vested on such land which is occupied by an
individual or family or community when the Act comes into force. The rights would
be restricted to the area under actual occupation and shall not exceed an area of 2.5
hectares per nuclear family. The title would be registered jointly in case of married
persons and in the name of the single head in case of single member households.
Forest rights would be conferred free of conditions such as Net Present Value (NPV)
and compensatory afforestation for diversion of forest land. Under the Forest
(Conservation) Act, 1980, the state government or any other authority cannot divert
forest land for non-forest purposes without prior approval of Government of India. In
case it is diverted, a certain amount of money (NPV of the land) has to be deposited
with the government for purposes of compensatory afforestation, and the State
government has to keep aside a proportionate area of land for afforestation.

Authorities for Vesting Forest Rights

The Gram Sabha, a village assembly of all adult members of a village, shall have the
authority to initiate the process of determining the nature and extent of individual or
community forest rights that may be given to FDSTs within the local limits of its
jurisdiction under this Act. The Gram Sabha is empowered to receive claims,
consolidate and verify them, and prepare a map delineating the area of each
recommended claim in such manner as may be prescribed for exercise of such rights.
It would then pass a resolution to that effect and forward a copy to the Sub-Divisional
Level Committee (SDLC).

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 The SDLC, which shall be constituted by the State Government, would examine the
resolution passed by the Gram Sabha and prepare the record of forest rights. It would
then be forwarded to the District Level Committee (DLC) through the Sub-Divisional
Officer for a final decision. The DLC would be the final authority to approve the
record of forest rights prepared by the SDLC.
A State Level Monitoring Committee would be formed to monitor the process of
recognition and vesting of forest rights. The Committee would submit returns and
reports to the nodal agency (the ministry dealing with Tribal Affairs). The SDLC,
DLC and the State Level Monitoring Committee would consist of officers from the
departments of Revenue, Forest and Tribal Affairs at the appropriate level as may be
prescribed.
If a person is not satisfied by the ruling of the Gram Sabha, he can file a petition to the
SDLC who would consider and dispose of such petition. If a person is not satisfied
by the decision of the SDLC, he can petition to the DLC within 60 days of date of
decision of the SDLC. The DLCs decision would be final and binding.

Penalties for Offences

In case a person is found guilty of contravening or abetting the contravention of the

provisions of the Act, engaging in unsustainable use of forest or forest produce,
killing any wild animal or destroying forest or any other aspect of biodiversity or
felling trees for any commercial purpose, he shall be punished with a fine which may
extend to Rs 1,000. In case the offence is committed more than once, the forest rights
of the guilty person would be derecognized for such period as the DLC, on the
recommendation of the Gram Sabha, may decide. The penalty would be in addition to
any other law for the time being in force.
If members or officers of authorities and committees commit an offence, they would
be deemed guilty and can be fined up to Rs 1,000.

KEY ISSUES AND ANALYSIS

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, aims to recognize and
enforce the rights of FDSTs to forest land and resources. The main challenge of the Bill is to
harmonize the potentially conflicting interest of recognizing forest rights of FDSTs while
protecting forests and wildlife resources.

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Lack of Data

Although the Bill proposes to recognize and vest forest land rights to FDSTs, there are no
reliable estimates of the number of families who will be benefiting from the proposed
legislation. Secondly, although the government estimates that there are around 2-3 million
people living inside Indias protected areas (national parks and sanctuaries), there is no
census of the number of FDSTs residing within the core areas of national parks and
sanctuaries1. Therefore, it is not possible to calculate how much forest land would be
required in order to implement the provisions of the Bill.

Tribal Rights vs Environmental Conservation Differing Viewpoints

There are three main streams of thought regarding this issue. Some experts say that tribal
communities have lived in forests for centuries, and granting them the formal right over
forest land is just undoing a historical injustice. On the other extreme, some conservationists
say that certain species of animals (such as the tiger) cannot co-exist with humans, and there
is a need to reserve at least some parts of forests to conserve these species. They also say that
increased human habitation in forests will cause depletion of forest cover, resulting in
significant ecological costs. A third view is that traditional forest dwellers help in preserving
forests, and giving them land rights would actually help in ecological conservation.
However, there does not appear to be any clear evidence to conclusively support any of these
views. Some of these issues are discussed below.

Allotment of Land

The Bill prescribes 2.5 hectares as the upper limit of forest land that an FDST nuclear family
may be allotted. However, there is a possibility that it might result in elimination of legal
protection for forest cover, which could lead to heavy ecological damage2. For instance, the
possible depletion of watershed forests of Central India, which allow penetration of rain
water into the sub soil, could lead to drying up of rivers such as Narmada, Tapti, Mahanadi,
Godavari, Krishna, and Cauveri. The counter-argument is that the Bill only seeks to
recognize the forest rights of FDSTs who have been cultivating the forest land for

1
M.D. Madhusudan, Of Rights and Wrongs: Wildlife Conservation and Tribal Bill, (Economic and Political
Weekly), November 19, 2005 (see
http://www.epw.org.in/showArticles.php?root=2005&leaf=11&filename=9360&filetype=html)
2
P.V. Jayakrishnan, Is there a need for this Bill?, (Seminar), No. 552, August 2005, (see
http://www.indiaseminar.com/2005/552/552%20p.v.%20jayakrishnan.htm)

18
generations. In any case, the total forest land under encroachment is estimated by the
government at 13.43 lakh hectares, which amounts to about 2% of the recorded forest area in
the country.3

It is also possible that confiscating forest land from the tribal families, who possess more
than 2.5 hectares of land, could lead to further impoverishment of tribal communities.

Core Areas

The Bill grants forest rights to FDSTs in core areas of National Parks and Sanctuaries
provided they are relocated within five years. If relocation does not take place within the
prescribed time period, the holder would get permanent right over forest land. Therefore,
there would either be large scale relocation of tribal communities or they would get
permanent right over land in core areas. Given Indias poor track record in relocating people
affected by development projects, such as the Narmada Dam, or from sanctuaries such as
Sariska and Gir,4 the possibility of large scale relocation from core areas raises the spectre of
loss of livelihood and hardship for FDSTs.

There could also be an argument against advocating coexistence between wild animals and
tribal communities. Certain species such as tigers, rhinos, and elephants are vulnerable to
pressures from human land use. These species are typically large-bodied, slow breeding, need
large areas, and vast resources for survival. Some experts argue that it might be more
realistic to identify protected areas, which consist of National Parks and Sanctuaries (about
4.7% of Indias geographical area) as inviolate while areas outside such reserves could be
utilised to serve the needs of tribal communities.5

Coverage

1980 cut-off date: The Bill takes October 25, 1980 as the cut-off date for vesting and
recognizing forest land rights of the tribal community. However, the Bill does not specify the
kind of evidence that FDSTs would require to prove their occupancy of forest land before
1980. Although states such as Maharashtra have adopted more effective procedures than just
3
Bela Bhatia, Competing Concerns, (Economic and Political Weekly), Nov 19, 2005 (see
http://www.epw.org.in/showArticles.php?root=2005&leaf=11&filename=9359&filetype=html
4
Ghazala Shahabuddin, Ravi Kumar, Manish Shrivastava, Pushed over the Edge, (Economic and Political
Weekly), Aug 6, 2005 (see
http://www.epw.org.in/showArticles.php?root=2005&leaf=08&filename=8950&filetype=html)
5
Valmik Thapars Dissent Note in the Report of the Tiger Task Force (Joining the Dots) set up by the Ministry
of Environment and Forest (see http://projecttiger.nic.in/TTF2005/pdf/full_report.pdf).

19
documentary evidences (oral testimonies, evidence of elders of the village etc.) for verifying
claims, it is not mandatory for every state to adopt such practices. Therefore, there might be
a case for specifying a set of admissible evidences in the Bill itself. Also, it is unlikely
that FDSTs would have the required documentary evidence to prove their occupancy over
forest land before 19806. Thus, in order to minimize evictions, a case could be made for
settling the claims of FDSTs on the basis of current occupancy of forest land.

Exclusion of certain communities: The Bill only recognizes forest rights of FDSTs who are
defined as Scheduled Tribes who primarily reside in forests and includes the Scheduled
Tribes pastoralist communities and who depend on the forests or forest lands for bona fide
livelihood needs. Other communities who depend on the forest for survival and livelihood
reasons, but are not forest dwellers or Scheduled Tribes, for instance in large sections of
Chattisgarh and forest tracts of Uttaranchal22, are excluded from the purview of the Bill.
This could lead to large-scale eviction of such people and increase social tension among the
various forest communities. The Bill also specifies that FDSTs would be granted forest rights
only in places where they are scheduled. However, such a clause could lead to denial of
rights to tribal communities on the ground that they do not reside in the area where they are
scheduled even though many tribal people have been displaced due to development projects
and creation of protected areas23.

Role of Gram Sabha

Although the Gram Sabha has been given the power to initiate the process of determining
forest rights, the final decision rests with the DLC. The DLC is also the authority that would
decide the period for which an FDSTs forest rights is to be derecognized in case of repeated
contravention of the provisions of the Act. Although the Statement of Objects and Reasons
of the Bill envisages involvement of democratic institutions at the grassroots level, the Gram
Sabha does not have the power to recognize forest rights or enforce such rights.

Eviction and Relocation

The Bill does not place any explicit restriction on the methods that can be used to remove
non-eligible forest dwellers. This is a concern, given the history of cases where brutal force
has been used to evict tribal families. The Bill mentions that FDSTs would be relocated from

6
Madhuri Krishnaswamy, One Step Forward, Two Steps Back, (Economic and Political Weekly), Nov 19,
2005 (see http://www.epw.org.in/showArticles.php?root=2005&leaf=11&filename=9362&filetype=html

20
core areas of National Parks and Sanctuaries with due compensation. However, the Bill does
not clarify exactly what kind of compensation would be offered to the tribal people, what
recourse they would have if such compensation is not satisfactory or is altogether denied.

Definitions

Certain terms mentioned in the Bill have not been defined. It could lead to difficulty in
implementing the provisions of the Bill. Clause 3 (j) mentions the right to protect, regenerate
or conserve or manage any community forest resource which they have been traditionally
protecting and conserving for sustainable use. The term community forest resource is not
defined, and hence, it is not clear whether these also include resources within government
owned forests including National Parks and Sanctuaries. The term nuclear family has also
not been defined, though each nuclear family has a right up to 2.5 hectares of forest land.
FDSTs are defined as those members or community of the Scheduled Tribes who depend
on the forests or forest land for bonafide livelihood needs. The term livelihood needs is
not defined which leaves the scope of activities allowed open to interpretation.

Penalties

The Bill imposes a fine of Rs 1,000 on FDSTs in case of contravention of provisions of the
Act. If the offence is repeated, the persons forest rights might be derecognized for such
period as decided by the DLC on the recommendation of the Gram Sabha. However, the Bill
does not specify whether an FDST has the right to appeal such a ruling of the DLC to a
higher authority (such as the State Level Monitoring Committee) other than to a court. The
member of a committee is also required to pay a fine of Rs 1,000 if found guilty of
contravening the provisions of the Act. However, this amount might not be a sufficient
deterrent.

21
2.2.2 The Prohibition of Employment as Manual Scavengers and their Rehabilitation
Bill, 2012

Manual scavenging is defined as the manual cleaning of latrines or the disposal of human
excreta. Currently, manual scavenging is prohibited by the Employment of Manual
Scavengers and Construction of Dry Latrines (Prohibition) Act, 1993, which was passed by
Parliament after six states passed resolutions requesting the centre to frame a law. Over time,
the Act was adopted by 23 states and all union territories. Two other states have enacted their
own laws, which are similar to the central Act. Yet, as per the 2011 Census, about 23 lakh pit
latrines (which are insanitary latrines) continue to exist in the country. The central
government implemented two schemes, namely, the Integrated Low Cost Sanitation Scheme
(ILCS) in 1981, and the Self-Employment Scheme for Rehabilitation of Manual Scavengers
(SRMS) in 2007. ILCS seeks to provide funds to poor urban households to convert dry
latrines to water flush latrines. SRMS was launched to provide manual scavengers with skill
training, a loan and subsidy for undertaking alternative occupations. In 2003, the Safai
Karamchari Andolan filed a writ petition requesting the Supreme Court to direct the centre
and states to take effective steps to eliminate manual scavenging and implement the 1993
Act. In 2011, the National Advisory Council recommended steps to eradicate manual
scavenging and prohibit the employment of manual scavengers.7 On September 3, 2012, a
Bill was introduced in the Lok Sabha to create more stringent provisions for the prohibition
of insanitary latrines and the rehabilitation of manual scavengers. The Standing Committee
examining the Bill submitted its report on March 4, 2013.

Key Features

The Bill prohibits: (a) the employment of a person as a manual scavenger, (b) the
employment of an individual for the hazardous cleaning (manual cleaning without
protective gear and other safety precautions) of a sewer or a septic tank, and (c) the
construction of insanitary latrines. It provides for the rehabilitation of people
currently engaged in the profession.
A manual scavenger is a person who manually cleans or disposes of human excreta
in an insanitary latrine, an open drain, or a railway track. An insanitary latrine
requires human excreta to be cleaned manually.

7
Note on Recommendations for Follow-Up Measures to Eradicate Manual Scavengers, National Advisory
Council, June 9, 2011

22
 The Bill shall override the 1993 Act and state laws on manual scavenging.

Identification of insanitary latrines and manual scavengers.

Every local authority (municipality, Panchayat, cantonment board or railway

authority) has to carry out a survey of insanitary latrines within its jurisdiction. The
authorities have to publish a list of such latrines within two months of the law coming
into force and give notice to the occupiers to either demolish or convert them into
sanitary latrines within six months.
The Chief Executive Officer of a municipality or a Panchayat may conduct a survey
to identify manual scavengers. Individuals may also self-identify as manual
scavengers.

Prohibition and conversion of insanitary latrines

Every occupier (and in some cases, owner) of an insanitary latrine shall demolish or
convert the latrine into a sanitary latrine at his own cost within six months of the Act.
If he fails to do so, the local authority shall convert or demolish the latrine and be
entitled to recover the cost from the occupier.
State governments may provide assistance to occupiers for converting latrines.
However, non-receipt of assistance shall not be a valid ground to use an insanitary
latrine beyond nine months of the law in force.
Each local authority shall carry out an awareness campaign to enforce the above
provisions of the Bill.

Prohibition and rehabilitation of manual scavengers.

Existing contracts with manual scavengers shall be void once the law is in force.
However, the employer shall retain full-time scavengers on the same salary and assign
them to different work.
All persons listed as manual scavengers shall be rehabilitated with a one time cash
assistance, scholarship for their children, and a residential plot with financial
assistance for constructing a house. One adult member of the family will be trained in
a livelihood skill and given a monthly stipend of at least Rs 3,000 during training. A
subsidy and concessional loan shall also be given for taking up an alternative
occupation

23
Implementing authorities

Each District Magistrate and local authority is responsible for ensuring that: (i) no
person within his jurisdiction is engaged as a manual scavenger, (ii) no insanitary
latrines are constructed, and (iii) manual scavengers are rehabilitated.
The Bill creates provisions for the construction of an adequate number of sanitary
community latrines and the use of appropriate technological appliances for cleaning
sewers and septic tanks.
The state government may appoint inspectors. They shall be responsible for
examining premises for latrines, persons employed as manual scavengers and seizing
relevant records. Central and State Monitoring Committees, and Vigilance
Committees in each district shall be established to oversee implementation. The
National Commission for Safai Karamcharis (a statutory body) shall monitor
implementation and inquire into complaints again contraventions of the Act.

Penalty

The penalty for employing manual scavengers or failing to demolish insanitary

latrines is imprisonment of one year and/or a fine of Rs 50,000 for the first offence.
Subsequent offences will be punished with imprisonment up to two years and/or a
fine of Rs one lakh. The penalty for the hazardous cleaning of septic tanks and
sewers is imprisonment of two years and/or a fine of Rs two lakh for the first offence,
and five years and/or a fine of Rs five lakh for subsequent offences.
Offences under this Bill are cognizable and non-bailable. The Bill permits the state
government to confer powers of a Judicial Magistrate of the first class on an
Executive Magistrate to conduct trials. Complaints have to be made before the court
within three months of the offence.

KEY ISSUES AND ANALYSIS

Jurisdiction of Parliament to legislate on manual scavenging: In 1993, six states passed

resolutions under Article 252 of the Constitution requesting the centre to formulate a law on
manual scavenging, an issue under Item 6 of the State List, public health and sanitation.

24
Since the previous law was enacted under the State List, the question arises whether
Parliament has the jurisdiction to enact this Bill. It could be argued that the objective of the
Bill is to protect weaker sections of society, including Scheduled Castes and Scheduled
Tribes from the practice of manual scavenging, that is, it is primarily about preventing
employment in hazardous occupations. In view of this interpretation, Parliament may be
empowered to legislate on the issue through Entry 23 (employment and unemployment) and
Entry 24 (welfare of labour including condition of work) of the Concurrent List.

Cost of converting insanitary latrines borne by occupiers The Bill places an obligation on
every occupier of an insanitary latrine to convert or demolish the latrine within six months or
be penalised with imprisonment up to one year and/or a fine of Rs 50,000. The Bill does not
make it mandatory for states or the central government to provide financial assistance for
conversion or demolition. This is at variance with the current policy on conversion of
insanitary latrines. Under the Integrated Low Cost Sanitation Scheme, the owner has to bear
only 10 percent of the cost, while the centre bears the remaining 75 percent and the state 15
percent of the cost. The Standing Committee recommended that the centre coordinate with
states to fund the entire cost of conversion to sanitary latrines.8 In the absence of financial
assistance from the government, implementation of the Bill might be affected adversely.

Offences and procedure for trial

Applicability of summary procedure to trial of offences: Offences under the Bill are non-
bailable, and in some cases, punishable with imprisonment up to five years. The Bill allows
offences to be tried summarily. The concept of summary trials was introduced in India
through an amendment to the Code of Criminal Procedure (CrPC) in 2008. Summary trials
were permitted for certain types of offences, particularly those of a minor nature for which
the maximum imprisonment was two years.9 According to the CrPC, the maximum sentence
of imprisonment for an offence that is tried summarily cannot exceed three months.10 Given
the nature of summary trials under the CrPC, it is unclear how offences carrying punishment
of five years, as is the case in the Bill, will fit into this framework.

8
Thirty Second Report: The Prohibition of Employment as Manual Scavengers and their Rehabilitation Bill,
2012, Standing Committee on Social Justice and Empowerment, April 3, 2013.
9
Section 260, Code of Criminal Procedure, 1973.
10
Section 262, Code of Criminal Procedure, 1973

25
Conflict of interest between implementing and judicial authorities: The Bill permits state
governments to grant an Executive Magistrate the power of a Judicial Magistrate of the first
class to conduct trials for offences under the Bill. The District Magistrate is the authority
responsible for implementing the provisions of the Bill. Often, the District Magistrate is a
member of the civil services (and in some states, the same person as the District Collector)
and has powers of an Executive Magistrate. Several other Executive Magistrates would be in
his chain of command. Granting the Executive Magistrate the power to try cases for non-
implementation of provisions of the Bill could lead to a situation where the judge is trying a
case against himself or against a person who falls within the same administrative set-up. It is
unclear how this conflict of interest will be resolved.

Comparison with the 1993 Act and state Acts:

Twenty-three states and all union territories have adopted the 1993 Act. Two other states,
Rajasthan and Himachal Pradesh, have enacted their own laws that are similar to the 1993
Act. In case of any inconsistency, the provisions of this Bill will override the 1993 Act and
the state laws. Some of the Bills features include:

Prohibiting the cleaning of sewers or septic tanks without protective gear.

Prohibiting insanitary latrines in comparison to the Act, which prohibited dry latrines.
A survey of manual scavengers and insanitary latrines, and conversion of insanitary
latrines.
Provisions for the rehabilitation of manual scavengers.
Offences under the 1993 Act were cognizable, now they shall be non-bailable as well.
The penalty for offences have been increased from a year of imprisonment and fine up
to Rs 2,000 to up to a maximum penalty of five years of imprisonment and/or a fine
up to Rs five lakh.
Extending its application to railways and cantonment boards.

26
CONCLUSION

SC and ST population had been subjugated historically. Constitution of India has recognised
the fact and hence affirmative actions with respect to representation, security social and
political have been given due place.

Effectiveness-

Abolition of Untouchability(Art 17) , has severe implications for violators, though

publicly admonished but practiced by large number of people in India especially in
rural area. Such cases goes unnoticed either due to lack of awareness or due to lack of
proper actions.
Forcing to dumping excreta(an offence under Sc and St act 1989) , Govt. is itself an
offender in the case though it does not force anyone, but due to lack of opportunity
almost all the staffs of municipality, railways are from SC/ST category. We can say it
as 'financially forced'
Voting riots of SC and STs are many a times infringed by the dominant caste, we
have seen examples where SC and ST people were not let t vote by the dominant caste
people. Moneyed/Landed people threatens them of abandonment in the times of need
and they relent their secret riots. Unfortunately the law is silent in such scenario.
Temple entry/Ponds reservoirs usage/even allowing SC ST to sit on Horse's' back
during his marriage is regulated by local influential caste and surfaces in the news
every now and then.
PoA is inot that effective when one SC/ST caste subjugates another, we have
examples of how Gond tribes in AP has been subjugated by Scheduled caste people.
Intra-community mechanism should also be there.In Rajasthan we have eg of conflicts
b/w Meena and Bhil tribes.
Police/Public servant (Noida case of undressing of a family) resorts to atrocities on
SC/STs.
Govt.'s intentions has not shown its result on the ground, it can be seen. As the act
many a times is also used by the SC/ST people too to settle their personal scores of
enmity.

27
Sensitising the bureaucracy/police to curb this menace and educating people, inculcating the
young minds about these things and bringing the equality concept at the fore should be the
strategy.

28
 REFERENCE

Websites

http://www.insightsonindia.com/2015/10/21/2-critically-discuss-the-effectiveness-of-
the-scheduled-caste-and-scheduled-tribes-act-in-stopping-atrocities-against-sc-st-
communities-in-india/
http://in.one.un.org/task-teams/scheduled-castes-and-scheduled-tribes/
http://www.prsindia.org/billtrack/the-scheduled-tribes-and-other-traditional-forest-
dwellers-recognition-of-forest-rights-bill-2005-431/
http://www.prsindia.org/billtrack/prohibition-of-employment-as-manual-scavengers-
and-their-rehabilitation-bill-2012-2449/

29