National Commissions for Scheduled Castes and Scheduled Tribes

Detail

1. What these bodies are

• Constitutional body: a body created by the Constitution itself. Only a constitutional amendment can abolish it or change its basic design. An ordinary law or a government order cannot.
• Scheduled Castes (SCs) and Scheduled Tribes (STs): the castes and tribes that the President lists by order under Arts. 341 and 342. They get special protection under the Constitution.
• Safeguards: the protections that SCs and STs get under the Constitution, under laws and under government orders. Examples are reservation in jobs, seats and education, laws against untouchability and laws against atrocities.
• National Commission for Scheduled Castes (NCSC): the constitutional watchdog for SC safeguards under Art. 338. It protects the social, educational, economic and cultural interests of SCs. It also covers the Anglo-Indian community [6].
• National Commission for Scheduled Tribes (NCST): the matching watchdog for STs under Art. 338A [2].

2. How the commissions evolved

Stage	Year	Body	Legal basis
1	1950	Special Officer (the Commissioner for SCs and STs), a single person appointed by the President	Original Art. 338 [3]
2	1978	Commission for SCs and STs, a non-statutory body (it rested on a government resolution, not on a law)	Government resolution
3	1987	Renamed the National Commission for SCs and STs	Resolution
4	1990	A constitutional, multi-member National Commission for SCs and STs	65th Amendment (1990)
5	2003–04	Split into the NCSC (Art. 338) and the NCST (Art. 338A)	89th Amendment (2003)
6	2018	Backward classes taken out of Art. 338. A separate NCBC was created under Art. 338B	102nd Amendment (2018) [3][8]

• Why the split in 2003: the problems of tribes are different from those of SCs, for example land, forests and displacement. A joint body could not give tribal issues enough attention.
• Art. 338A came into force on 19 February 2004 [2]. Both commissions have worked separately since 2004.
• The 2018 change: Art. 338 had included backward classes. In 2018 it was amended to take them out [3]. The new National Commission for Backward Classes was set up "in the same manner" as the SC and ST commissions [8].

3. Composition and appointment

• Members: a Chairperson, a Vice-Chairperson and three other Members. The articles fix this number (Art. 338(2) and Art. 338A(2)) [2][3]. Parliament may make a law on the details.
• Appointment: by the President, by warrant under his hand and seal (a formal signed and sealed order) [2][4].
• Tenure and service conditions: these are not in the Constitution. The President sets them by rules. Tenure is three years.
• Exam trap: the number of members is in the Constitution. The tenure is only in the rules.

4. Functions — Art. 338(5) / Art. 338A(5)

The duties are the same in both articles. Only the community is different [2][6].

• (a) Investigate and monitor all safeguards under the Constitution, laws and government orders, and judge how well they work.
• (b) Inquire into specific complaints that people were denied their rights and safeguards.
• (c) Take part in and advise on planning for socio-economic development, and check progress in the Union and in every state.
• (d) Report to the President every year, and at other times if the commission thinks fit.
• (e) Recommend measures in those reports, so that the Union and the states put the safeguards into effect and promote welfare.
• (f) Any other functions that the President specifies by rule, subject to any law made by Parliament. The NCST's extra duties of 2005 come from this sub-clause (see §7) [5].

5. Powers

Civil-court powers — Art. 338(8) / 338A(8)

• These apply only while the commission is investigating under clause 5(a) or inquiring into a complaint under 5(b).
• In that work, the commission has the powers of a civil court trying a suit [2]:
• summon any person and force them to attend; examine them on oath;
• order documents to be found and produced;
• take evidence on affidavit (a written statement sworn as true);
• ask any court or office for public records;
• issue commissions to examine witnesses and documents;
• any other matter that the President fixes by rule.

Must be consulted — Art. 338(9) / 338A(9)

• The Union and every state government must consult the commission on all major policy matters affecting SCs or STs [2].

Reporting chain — Art. 338(6), (7) / 338A(6), (7)

• Step 1: the commission sends its report to the President.
• Step 2: the President has it laid before each House of Parliament.
• Step 3: with it goes a memorandum (a note) explaining what was done on each recommendation. For any recommendation that was not accepted, the memorandum must give the reasons [2].
• State-level reports: if a report concerns a state, a copy goes to the Governor. The Governor lays it before the state legislature with a similar memorandum [2].

Art. 338(10)

• In Art. 338, references to SCs include the Anglo-Indian community [3]. So the NCSC also protects Anglo-Indians.
• Before 2018, Art. 338(10) also covered backward classes. The 102nd Amendment (2018) removed that reference [3].

6. Limits on power

• All India Indian Overseas Bank SC and ST Employees' Welfare Assn. v. Union of India (1996): the Supreme Court held that the civil-court powers in Art. 338(8) are only for investigation and inquiry.
• The commission cannot grant injunctions (court orders stopping an action, such as a transfer or a promotion).

• Its findings are recommendations. They do not bind the government the way a court's decree does.

• Result: the commission is a watchdog and adviser, not a court. If a recommendation is ignored, its strongest tool is to make the matter public in Parliament through its report.

7. NCST: extra duties under the 2005 Rules

• Legal basis: the National Commission for Scheduled Tribes (Specification of other functions) Rules, 2005, made under Art. 338A(5)(f) [5]. The Commission must look at measures for:
• giving STs who live in forest areas ownership rights over minor forest produce (forest products other than timber, such as tendu leaves, honey and lac) [5];
• protecting tribal rights to mineral and water resources;
• displacement and rehabilitation of tribal people moved out by development projects;
• preventing land alienation (tribal land passing to non-tribals) and getting such land back;
• forest protection with tribal participation;
• full implementation of PESA (Panchayats (Extension to Scheduled Areas) Act 1996, which gives gram sabhas in Fifth Schedule areas powers over local resources);

• reducing and ending shifting cultivation (farming by clearing a forest patch, using it, then moving on).

• Link to the Forest Rights Act 2006: this Act recognises the individual and community forest rights of forest-dwelling STs. Monitoring it fits the NCST's duties on forest produce and land. (See special-provisions-scheduled-areas.)

8. In practice

• Typical cases:
• service grievances of SC and ST employees, such as promotion, seniority and harassment;
• reservation-roster complaints (a roster is the register that tracks which post goes to which reserved category);

• atrocity cases: police delay, failure to register an FIR, or relief not paid.

• Laws they monitor:

• Protection of Civil Rights (PCR) Act 1955, which punishes the practice of untouchability;
• SC/ST (Prevention of Atrocities) Act 1989, which covers crimes against SCs and STs and provides special courts.

• (Detailed law: see vulnerable-sections-safeguards.)

• Reports cover several years at once: for example, the NCSC's Annual Report 2018-19 and 2019-20 [9], and its Annual Report 2020-21 and 2021-22, submitted to the President together [7].

9. Common problems

Late reports

• Reports reach Parliament years after the period they cover.
• A Parliamentary Committee on the Welfare of SCs and STs noted that even the NCST's first report had not been laid before each House of Parliament [10].
• The action-taken report on the NCST's second report (2006-07) was laid in the Lok Sabha only on 26 April 2013 [11].

Long vacancies

• The same Committee found that members' posts stay unfilled for long periods. This hurts the commission's work, even though the Ministry of Tribal Affairs knows about the gaps [10].
• On 25 July 2016, three Member posts in the NCST were vacant (Lok Sabha Unstarred Q. 1189) [4].
• Vacancies may have changed since then.

Other problems

• Recommendations are ignored: the government is only bound to explain why it rejects them, not to follow them.
• Political appointees: chairpersons and members are often former party office-bearers. This raises doubts about independence.
• Overlap: the commissions overlap with courts, the NHRC, state SC/ST commissions and the Parliamentary Committee on the Welfare of SCs and STs. Complainants often go to several of these bodies at once.

Prelims Hooks

• Art. 338 → NCSC. Art. 338A → NCST. Art. 338B → NCBC (102nd Amendment, 2018).
• 65th Amendment (1990) turned the Special Officer into a multi-member National Commission for SCs and STs. The 89th Amendment (2003) split it into two.
• Art. 338A came into force on 19 February 2004 [2].
• Composition (Chairperson, Vice-Chairperson and 3 Members) is in the Constitution. Tenure (3 years) is set by Presidential rules.
• Reports go to the President, not straight to Parliament. Reports about a state go to the Governor.
• Civil-court powers apply only while investigating or inquiring (Art. 338(8)). There is no power to grant injunctions (All India IOB SC/ST Employees' Welfare Assn., 1996).
• Trap: the NCSC also covers Anglo-Indians (Art. 338(10)). Since 2018 it no longer covers OBCs.
• NCST extra duties come from the 2005 Rules made under Art. 338A(5)(f), for example ownership of minor forest produce [5].
• Must be consulted: the Union and every state must consult the commissions on all major policy matters affecting SCs and STs (Art. 338(9)/338A(9)).

Mains Points

• Watchdog without teeth: the commissions have civil-court powers to investigate. But they have no binding orders and no injunctions (1996 ruling), and the government only has to explain non-acceptance. Reform ideas:
• fixed deadlines for laying reports and action-taken memoranda in Parliament;

• a fixed time within which governments must act on recommendations.

• Independence: vacancies stay unfilled for long periods [4][10], and appointees are often political. Reform ideas:

• a selection committee that includes the Leader of the Opposition, like the ones used for the NHRC and the CIC;

• tenure and qualifications written into a law rather than left to rules.

• Was the split right? Separate commissions (2003), with the NCST's 2005 mandate on forest produce, land alienation, PESA and displacement, give tribal issues more focus. But they also add to overlap with state commissions, the NHRC and the courts. Better coordination, with one complaint portal and clear referral rules, would cut forum-shopping (filing the same case before several bodies).

• Delays weaken Parliament's oversight: reports covering several years at once and laid years late [7][9][11] mean Parliament checks old problems. Laying reports on time is key if Arts. 338 and 338A are to work as tools of accountability.