Becoming a Scheduled Tribe in India: The History,Process and Politics of Scheduling

Introduction

There are 705 communities notified as Scheduled Tribes (STs) in India, and their contemporary realities are grim. About 45.3% in rural areas and 24.1% in urban areas are below the poverty line. Among them, about 50.95% are engaged in cultivation, 32.9% are wages/salaried employment, 5.54 are in non-agricultural enterprises, 3.7% in other agricultural activities and 0.75% in livestock farming. Their representation as a social entity in Group A, B, C and D of central government services as on 1 January 2015 is 91.6% in Group C (excluding Safai Karmcharis), 5.56% in Group B, 1.08% in Group D and 1% in Group A (Darokar et al., 2020, pp. 71–74). The registered incidence of crime committed against STs in 2016 includes 974 cases of rape, 835 cases of assault on women with intent to outrage her modesty, 163 cases of kidnapping and abduction, 144 cases of grievous hurt, 139 cases of murder, 93 cases of attempt to commit murder, 15 cases of attempt to commit rape, and 3,156 of other IPC crimes which includes criminal intimidation, simple hurt, trespass, mischief and so on (India: National Commission for Scheduled Tribes, 2023).

Context

The scheduling of communities as Tribes began in 1950, with a minor addition to the principal order in 1951. Post-1956, a number of problems erupted concerning the list. The government had to handle a number of claims and counter-claims by communities seeking to be notified as ST. This issue persists to this very day. Those seeking such status included communities currently notified as OBC, SBC and NT/DNT.

In some states, there was also a massive increase in ST population after 1956. The problems mainly arose due to reorganization of states in 1956 that further led to the transfer of territories and population from then-existing to newly formed states. This also occurred when the recognition of ST became state rather than district or region centric. The assertion by claimants concerns the similarity of community names, a sub-tribe of a parent tribe, the spelling of the community name (similarity in nomenclature) and so on.

Currently, there are 210 proposals from 20 states for inclusion to the ST list that have been approved by concerned state governments. These include 86 from Odisha, 42 from Assam, 27 from Chhattisgarh, 9 from Tamil Nadu, 8 from Jharkhand, 6 from Karnataka and 6 from Madhya Pradesh and so on (RGICS Legislative Brief, 2017, p. 4).

Definition of Scheduled Tribes

The Constitution of India enjoins on the state a special responsibility for the protection and development of STs. Clause (25) of Article 366 of the Constitution defines ‘Scheduled Tribes’ as ‘such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under article 342 to be Scheduled Tribes for the purpose of this Constitution’.

The STs are notified by the Presidential Order under Clause (1) of the Article 342 of the Constitution. The procedure is as follows:

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 STs in relation to that state or union territory, as the case may be.

Article 342 of the Constitution provides for the specification of tribes or tribal communities or parts of or groups within tribes or tribal communities which are to be deemed for the purposes of the Constitution to be STs in relation to the various states and Union Territories (UTs).

The Constitution (Scheduled Tribe) Order, 1950

This 1950 order was based on an existing list of ‘backward tribes’ prepared as per the Government of India Act, 1935. In 1950, the President made two orders in relation to the then Part ‘A’ and Part ‘B’ states. One was called the Constitution (Scheduled Castes) Order 1950, and the Constitution (Scheduled Tribes) Order 1950. In the following year, two constitutional orders—the Constitution (Scheduled Castes) Part ‘C’ States Order, 1951, and the Constitution (STs) Part ‘C’ States Order, 1951, in respect of the erstwhile Part ‘C’ States were notified. It is important to note that these orders could be legislated and varied only by an Act of Parliament. The need for such variation arose when the State of Andhra Pradesh was created by the Andhra State Act, 1953, then on the creation of the new State of Himachal Pradesh by the Himachal Pradesh and Bilaspur (New State) Act, 1954.

Following the report of the India: Kaka Kalelkar Commission (1955) and its recommendations, the orders were revised by the Scheduled Castes and Scheduled Tribes Order (Amendment) Act, 1956. Further on the reorganization of states by the States Reorganization Act, 1956, and on the enactment of the Bihar and West Bengal (Transfer of Territories) Act, 1956, the orders were further modified by the Scheduled Castes and Scheduled Tribes Lists (Modification) Order, 1956. They were revised once again on the creation of the new States of Maharashtra and Gujarat by the Bombay Reorganization Act, 1960 (India: Lokur Committee Report, 1965, p. 1). Separate Orders were also made for Andaman and Nicobar Islands (1959), Dadra and Nagar Haveli (1962), Uttar Pradesh (1967), Nagaland (1970), Sikkim (1978) and Jammu and Kashmir (1989). Further modifications to the lists of STs were also carried out through Acts of Parliament—The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, and The Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 2002.

Besides this, based on the recommendations of two sub-committees; the Sub-Committee on Excluded and Partially Excluded Areas (Other than Assam) and the Sub-Committee on North East Frontier (Assam) Tribal and Excluded Areas, the Indian state created two scheduled areas populated by tribes; the fifth and sixth scheduled areas. The demarcation of these areas however required the concomitant identification of communities across the country to be notified as ST. This was brought about by ‘The Constitution (Scheduled Tribe) Order, 1950’. This order notified the name of the communities to be ‘Scheduled’ as ‘tribes’ ‘in exercise of the powers conferred by clause (1) of Article 342 of the Constitution of India’. The names of 246 tribes and sub-tribes were notified across 14 states in the 1950 order dated 6 September.

It is important to note that this 1950 order was based on an earlier existing list that was prepared as per the Government of India Act, 1935, and released as a Provincial Order in 1936. This 1936 Order consisted of names of a number of communities who inhabited various Provinces of British India. In this list, these communities were marked as ‘backward tribes’. It is important to point out that attempt to mark out tribes as distinct and separate had already taken place as early as the first Census in 1881. Census 1901, in addition to items like religion and language, provided for the first time, recording of ‘tribe’. In the 1901 census, tribes were identified as those who ‘practiced animism’ thus placing religious practices at the centre (Virginius Xaxa Committee Report, 2014, p. 52). The most serious attempt being the 1931 Census where a category called ‘primitive tribes’ was used to identify such communities.

After the 1950 order, specifically post the amendment to the Scheduled Caste and Scheduled Tribes Order (Amendment) Act, 1976, the Government of India laid out the modalities for the ‘inclusion in’ and ‘exclusion from’ the list of STs. It also stated that the process for future modification of the list if deemed necessary. The modalities require the following steps to be undertaken while processing proposals for inclusion or exclusion. First, the (a) state government concerned forwards its proposal for recognition of a community as ST to the Ministry of Tribal Affairs along with its recommendation and justification, (b) the proposal received from the state government is then sent to the Registrar General of India (RGI), (c) the RGI, if satisfied with the recommendation of the state government, forwards the proposal to the Ministry of Tribal Affairs, (d) thereafter, the Central Government refers the proposal to the National Commission for Scheduled Tribes (NCST) for their scrutiny and recommendation and finally (e) if the NCST recommends it, the matter is processed for the decision of the Cabinet (f) after the matter is decided by the Cabinet, a Bill is introduced in Parliament to make the amendments (India: Twenty-Third Report, 2011, p. 8).

Further, it is important to state that as per Clause 2 of Article 342 of the Constitution of India, any amendments in the ST list that are promulgated through a presidential order can be effected only through an Act of Parliament (India: Twenty-Third Report, 2011, p. 13).

There have been four amendments made to the ST list of 1956, 1976, 2002 and 2011. When the first list was declared in 1950, there were three types of states in India—Part A, Part B and Part C states. The ST list declared was within each part. However, with the reorganization of states in 1956, where the demarcation between Part A and Part B states was removed and Part C states were renamed as UTs,

large scale of transfer of territories from one State to another took place on the basis of linguistic distribution of the people. So far as the lists of Scheduled Tribes are concerned, no detailed exercise was undertaken by the Government of India and the state governments to ascertain as to which of the communities in an original undivided State should be retained in the lists relating to that State after the reorganization or which of the communities should be transferred from the lists of the original undivided State to the lists of the new States along with the transfer of certain territories or districts. (India: Twenty-Eighth Report, 1986–1987, p. 553)

There were glaring anomalies that arose after the reorganization of states because some STs did not exist at all in some states, yet their name remained in another state’s list. The Kaka Kalelkar Commission was tasked by the President of India in 1955 to collect detailed historical and ethnographic material for revising the list of Scheduled Caste and STs. This was considered necessary as it was observed that the statutory status of the numerous communities was indeterminate and the classification already made sometimes required revision (India: Kalelkar Commission, 1955, p. 5). The Commission examined the matter and submitted their suggestions in Volume Two of their report. The suggestions of the Commission along with the views and comments given by the States were accepted as desirable by the Parliament during the debate on the Scheduled Castes and Scheduled Tribes Orders (Amendment) Bill 1956.

Based on a report by the India: Kaka Kalelkar Commission (1955), the first revision of the list was recommended. Two important recommendations were also made by the Commission that had direct policy implications; an ST individual or community is recognized throughout the state but loses their ST status when they move to another state within the Indian Union. Later in 1965, the Government of India set up an advisory committee on the Revision of the Lists of Scheduled Castes and Scheduled Tribes under B. N. Lokur. The Committee in their resolution noted that

The Government of India have had under consideration for some time the question of revising the lists of Scheduled Castes and Scheduled Tribes. The present lists do not show a uniform pattern, and several anomalies have been brought to notice. It is, therefore, very necessary that the lists of Scheduled Castes and Scheduled Tribes should be revised in a rational and scientific manner. The Committee stated that numerous proposals for revision of the lists have been received from various States and Union Territories. In preliminary examination of these proposals by the Committee, it has been found that there are several controversial issues which require to be settled. (India: Lokur Committee Report, 1965, p. 2)

This Committee further observed that there were problems in the specification of tribal communities as STs, this challenge was even faced by social scientist who found it difficult to formulate an acceptable universal definition for a tribe and this problematique was because ‘tribes’ were in transition. To consider new demands for inclusion in the ST list, the committee noted that

care was necessary in drawing up the schedule in order to ensure that communities which had been assimilated in the general population were not at this stage invested with an artificial distinctiveness as tribes; and that communities which might be regarded as tribes by reason of their social organisation and general way of life but which were really not primitive should not now newly be treated as primitive. (India: Lokur Committee Report, 1965, p. 6)

The Committee further stated that

It will be observed that under article 341 not only castes and groups within castes but also races or tribes and groups within races or tribes can be specified as Scheduled Castes. Under article 342, however, only tribes or tribal communities or groups within tribes or tribal communities have to be specified as Scheduled Tribes.

It was evident from the above processes that the Lokur Committee received several representations from communities for their inclusion in the ST list of the respective states which has become a dominant trend across the country till today.

The Evolution of State ‘Criteria’ for Identifying Scheduled Tribes

While the Constitution does not state definitive criteria for identifying ST, yet over the years specific identity markers have emerged. The critical shift began with the Lokur Committee Report in 1965. Post this moment, a tribe is not deemed to be included in the ST list merely on the basis of the community being a ‘tribe’ alone, but it also has to qualify numerous criteria abiding to the procedures laid down by the Government of India from time to time.

In the initial years, post the first Presidential notification, several states and UT suggested to the Central government that the lists of Scheduled Castes and STs be revised. These States/UTs complained that the lists contained several anomalies and did not show a uniform pattern. In light of these assertions, the Government of India appointed an ‘Advisory Committee on the Revision of the Lists of Scheduled Castes and Scheduled Tribes’ under the chairmanship of B. N. Lokur in 1965. The Lokur Committee in retrospect stated that the concepts of ‘primitiveness’ and ‘backwardness’ were in their opinion the tests (criteria) applied in preparing the lists of STs in 1950 and 1956. Both these concepts can be traced back to the 1931 and the 1935 list, the former using ‘primitive tribes’ and the latter using ‘backward tribes’ as categories to identify tribal communities. Based on this understanding, while revising the list of ST, the committee posited a few more criteria—(a) indication of primitive traits, (b) distinctive culture, (c) geographical isolation, (d) shyness of contact with the community at large and (e) backwardness.

The Committee further reiterated that ‘tribes whose members have by and large mixed up with the general population are not eligible to be in the list of Scheduled Tribes’. These criteria evolved by the Lokur Committee have since then been established and accepted. In this regard, the Government on 15 June 1999 (with further amendment on 25 June 2002) approved modalities for deciding claims for inclusion in, exclusion from and other modifications in the Order specifying the list of STs in relation to states/UTs (India: Twenty-Third Report, 2011, p. 8).

Legally, post the Supreme Court Judgment in the case of Dina II, Dadaji Alias Dina vs Sukhdeobabu & Ors on 7 November 1979 (India: Supreme Court Judgment, 1979), CITATOR INFO: RF 1982 SC 149 (250), it becomes clear that the Supreme Court has reaffirmed and further laid the rules of interpreting the B. N. Lokur Committee Criteria as follows:

The criteria set by B. N. Lokur are both to ‘include’ and ‘exclude’ any demands or claims for ST status by community or communities not currently in the Presidential Order List. The B. N. Lokur Committee provided the ‘method’ to write and interpret the List. The correct interpretation affirmed by the Supreme Court concerns how the procedure of writing down the numbering in the list and the interpretation of parent tribe name, synonym and sub-tribe are to be read accordingly. This was a way of simplifying and making the reading of the Presidential Order less controversial as explained by the Supreme Court.

Court Judgments with Regards to Claims to Scheduled Tribes Status

The Current Criteria and Procedures Adopted Post-1965

As mentioned earlier, after the 1950 Order, the Government of India and particularly the Cabinet Committee on SC, ST and Minorities in 1999 had set a procedure to decide on claims for inclusion in, exclusion from and other modifications in the SC and ST list. The modalities are complex because of the political nature of the subject; however, the states are expected to follow these certain steps.

It has now become common practice that most states with demands for ST status from a population within would first conduct a detailed study, both historical and ethnographic to find out the veracity of the claim. These studies are assigned to be conducted either to the tribal research institutes or reputed institutions. Based on these detailed studies, the state would formulate their recommendations to the Central Government.

Empirical evidence as provided below from the State of Maharashtra throws some light on the process (India: Supreme Court Judgment, 2000, State of Maharashtra vs Milind & Ors, pp. 5–6). The following steps have been a common practice taken before any recommendations are made to the central government. As per the Maharashtra government’s resolution, Tribal Development Department (CBC-1086/[203]/Off. 05, dated 5 February 1988), for the inclusion of any community into the state’s list of STs, a proposal must be scrutinized by a committee before forwarding its recommendation to the Central Government for the inclusion. This committee includes Hon’ble Minister, Tribal Development Department (TDD) as its Chairman; Hon’ble State Minister, TDD, as its Vice-Chairman; Secretary, TDD, as Member-Secretary; Secretary, Education and Service Scheme Department, as Member; Secretary, General Administration Department, as Member.

As per Clause (3) and (4) of the said resolution, the following are the modalities for the inclusion of any community in the list of the ST: (a) In case of any demand for inclusion by any community into the ST list, the remarks of Commissioner of the TRTI are sought. (b) Once the remarks are received, the proposal is tabled before the Committee headed by TDD. (c) Once these remarks by the Commissioner of TRTI are approved by the Committee, it is forwarded to the Chief Secretary. (d) Thereafter, the proposal in the form of a resolution is tabled before the Tribes Advisory Council headed by Hon’ble Chief Minister for Council’s approval. (e) If the Council gives the approval, it is recommended to the Ministry of Tribal Affairs.

Once it reaches the Central Government, two key institutions, the RGI and the NCST, are responsible for proper scrutiny of the proposal from the state government. It is important to note that the RGI follows a certain set of recommendations given by the Lokur Committee for accepting or rejecting the proposals. The Lokur Committee, in 1965, was the first to make a systematic attempt to list castes and tribes in the schedule according to generic names, synonyms and sub-groups. This was done by rearranging the list of individual states scientifically with the cooperation of the office of RGI, respective state governments and tribal research institutes. The RGI studies the report given by the state government with reference to existing ethnographic literature which have been published in the 1950s and 1960s. Furthermore, if the report does not cite any fresh study or ethnographic data, they have no option but to reject the report as they cannot accept or reject relying only on secondary data (India: Twenty-Third Report, 2011, pp. 13–14).

The NCST, however, empirically verifies the claims through their field visits to concerned areas in the state. It also relies on ethnographic and anthropological studies of the Tribal Research and Training Institute in the state and several other sources in the field. It also conducts public hearing in the field to interact with members of different communities. The NCST sends their recommendations to the Ministry of Tribal Affairs.

The Ministry of Tribal Affairs strictly follows the provision under Article 342 of the Constitution. It states that the STs are notified by Presidential Order under Clause (1) of the Article 342 of the Constitution. Accordingly, the first specification of STs in relation to a particular state or UT is by a notified Order of the President, after consultation with the state governments or UT concerned. Any subsequent inclusion in or exclusion from and other modifications in the list of STs can be made only through an Act of Parliament, in consultation with the state governments/UTs concerned. It further adds, sociological or anthropological studies, if required in any case, are conducted by the state government/UT Administration for supporting the proposal. It is the Minister of Tribal Affairs who, after collating all the proposals, submits the same to a Parliamentary standing committee. The Standing Committee then scrutinizes each of the proposals, giving their views on each based on comments made by the RGI and NCST. The same is then submitted to Parliament as a Bill for debate. Whatever is contained in the Bill is opened for debate on the floor of the house, whether for inclusion, exclusion or modification in the ST list. After debating the technicalities of each submission either for or against by parliamentarians, asserting the merits and demerits of each case, the submissions are put to vote. If approved for inclusion, it becomes an Amendment Act and a gazetteer is issued by the GOI. If not approved, reasons for the same are given which is also minuted in the proceedings of parliament regarding why the case is negative. The same is then taken up by the MTA and communicated to the concerned state government regarding negativization, providing reasons for the same of why it was not accepted by Parliament. It is often noted that reasons such as improper anthropological evidence, no fresh study done to substantiate claims, no adequate evidence given in support of the claims made are made by the MTA.

However, concerned state government can make a fresh submission if they are able to provide new evidence. If on the other hand, new evidence is not provided the MTA will not entertain the claims for a second time and thus such submissions are disqualified for further submission. The MTA while rejecting the submission will clearly note that in the stated criteria of the GOI, the same does not fit and cannot be reconsidered (India: Twenty-Third Report, 2011, p. 14).

However, there have been cases (TISS Report, 2020) where a particular community has sought the intervention of the judiciary. Often a writ petition is filed in the High Court or the Supreme Court seeking recognition for ST status. However, in one of the judgments of the Supreme Court (India: Supreme Court Judgment, 2000, State of Maharashtra vs Milind & Ors, pp. 5–6), the honourable court has clearly stated that the Court has nothing to do with the same and only parliament has rights to modify, include or exclude any community from the ST list. It is often observed that a particular community will go to Court as a means to keep the demand alive and to pressurize the state government to send a fresh proposal to the MTA. The Court entertains such submissions but it is observed that the Court generally based its judgment on the Article 342 Clause 1 and 2. The Court interprets the same and also studies the merits and demerits of the case as submitted by the petitioner. Precedent is the key in the final judgment of the Courts especially related to the challenge against the status of an individual with an ST certificate or a claim for ST seats in educational institutes on grounds of similarities of surname and so on.

The Politics of Definition

Tribes are communities that practice a form of rationality that is generally tempered by consensus. Rationality and reason are not superior and over and above the common good of the community. The tribal peoples in India constitute of diverse and heterogeneous socio-cultural entities and politico-historical nations. Many of the tribes in India have their own language, some with their own script while some are still oral. The population size varies from one tribe to another and they inhabit various regions of the country. The 2011 census identifies 705 tribal communities within and across the states. Generalizations of any form do not really stand, there are more differences than commonality among tribes.

In the first Report of the Commissioner for Scheduled Castes and Scheduled Tribes (1951), it was stated that the state governments were requested to suggest a test for determining as to which of the tribes should be treated as STs. In the Appendix of that report, the criteria suggested by 14 state governments were indicated. They offered conflicting views. However, the following appeared to be the features common to the tribes in various states: tribal origin, primitive way of life and habitation in remote and less easily accessible areas and general backwardness in all respects (India: Twenty-Eighth Report, 1986–1987, pp. 551–552).

In the preamble to their questionnaire regarding STs, the Backward Classes Commission (India: Kaka Kalelkar Commission) observed as follows:

The Scheduled Tribes can also be generally ascertained by the fact that they live apart in hills, and even where they live on the plains, they lead a separate, excluded existence and are not fully assimilated in the main body of the people. Scheduled Tribes may belong to any religion. They are listed as Scheduled Tribes because of the kind of life led by them. (India: Lokur Committee Report, 1965, pp. 6–7)

The idea that ‘special treatment’ was engrained in state’s conception can be traced back to 1931 and 1935, as well as in 1950 and 1956. Within this framework, primitiveness and backwardness were perceived by the state as common features running across such communities. The later additions of ‘primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large and backwardness’ as markers of tribal identity has further affirmed and solidify existing pejorative notions. Nonetheless, at the very core of these processes lies the assimilation of the tribal population into a mainstream. This was also affirmed by Lokur (1965) who noted ‘we have considered that tribes whose members have by and large mixed up with the general population are not eligible to be in the list of Scheduled Tribes’ and the specification of tribes and tribal communities as STs presents some problems. The difficulty in setting out formal criteria for defining a tribe arises from the fact that the tribes in India are, and have been for some decades, the tribes in transition (India: Lokur Committee Report, 1965, pp. 6–7).

Conclusion

For a caste-ridden society like India, the category ST is both an opportunity to gain access to protective, developmental and political constitutional provisions guaranteed by the Indian state and a way out of caste. Over the years, there has been a marked increase in communities seeking this route. Some of the reasons, especially among those listed under the OBC category, are that most of these communities find the OBC list highly crowded. Also, since they have historically resided in close vicinity of the tribes and have similarity in nomenclature, this social condition provides some basis for them to claim ST status, mostly to avail education and employment opportunities and also get political reservation in state and central legislature. There is also a belief among them that the tribals have yet to fully avail the facilities provided by the reservation policy leading to a lot of backlog of educational and employment opportunities, thus the felt need to fill these gaps and make the best use of these ‘free available’ spaces.

This has created challenges for the state, having to engage with these relentless demands from various communities. At the same time, these demands have also fuelled stiff resistance from existing STs against any further inclusion of new groups into the ST list. The reasons for resistance against inclusion by tribes are as complex as the reasons seeking inclusion by others. Many STs have often experienced domination by these communities who historically perceived themselves as superior caste vis. tribes. Further, difficulty in clearly identifying these communities as distinct because of their social assimilation into the larger caste society is another reason. But above all these, the struggle for resources and welfare opportunities is a key reason for resistance by tribes against any further inclusion of other communities into the ST list.

Every government, state or central, that comes to power has to face this situation, the latest being submissions from Maharashtra and Assam. The issue is so vibrant that it can swing elections and electoral victory from one party to another. With such wide repercussions, the scheduling process is indeed a very political issue. There is also a tense relationship between communities, those who are staking claims and those who resist such demands. Violent street protest has been observed by either group.

The issue concerning the politics of scheduling will persist. What we have tried to do in this article is to clarify how such processes take place and how the current conditions are panning out within the given historical-political context.