The Constitution (Scheduled Tribes) Order, 1950: A Comprehensive Legal Analysis

Introduction

The Constitution (Scheduled Tribes) Order, 1950 (hereinafter referred to as the "Order") is a pivotal instrument in India's constitutional framework for affirmative action and social justice. Promulgated by the President of India in exercise of the powers conferred by Clause (1) of Article 342 of the Constitution, this Order specifies the tribes or tribal communities, or parts of, or groups within tribes or tribal communities, which are deemed to be Scheduled Tribes in relation to different States and Union Territories. The identification and notification of Scheduled Tribes are foundational for the implementation of various protective measures, reservations in legislative bodies, government services, and educational institutions, and other welfare schemes aimed at their socio-economic upliftment and integration into the national mainstream. This article undertakes a comprehensive legal analysis of the Order, examining its constitutional basis, evolution, judicial interpretation, and the principles governing its application, drawing upon key statutory provisions and landmark judicial pronouncements.

Constitutional Framework and Evolution of the Scheduled Tribes Order, 1950

The bedrock of the Order lies in Article 342 of the Constitution of India, which delineates the exclusive mechanism for the specification and modification of the list of Scheduled Tribes.

Article 342: The Power to Specify Scheduled Tribes

Article 342(1) empowers the President, with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, to specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of the Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be. The Supreme Court has repeatedly affirmed that the power to issue the initial notification rests solely with the President (Umraosingh Jaisingh Chamargore v. The Dean, Medical College, Aurangabad And Others, Bombay High Court, 1998).

Crucially, Article 342(2) stipulates that Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification. This provision underscores the exclusive legislative competence of Parliament to amend the list of Scheduled Tribes. The judiciary has consistently held that neither the courts nor any executive authority can alter, modify, or add to this list (State Of Maharashtra v. Milind And Others, 2001 SCC 1 4; Palghat Jilla Thandan Samudhaya Samrakshna Samithi And Another v. State Of Kerala And Another, 1994 SCC 1 359). As observed in ALL INDIA BANJARA SEVA SANGH v. THE UNION OF INDIA (Karnataka High Court, 2020), sub-clause (2) of Article 342 is an important provision ensuring that any inclusion or exclusion is a parliamentary prerogative.

The Initial Order and Subsequent Amendments

The President first exercised the power under Article 342(1) by promulgating the Constitution (Scheduled Tribes) Order, 1950, notified on September 6, 1950 (Baliram v. Gajanan And Others, Bombay High Court, 2023; Subhash Chandra And Another v. Delhi Subordinate Services Selection Board And Others, Supreme Court Of India, 2009). This Order contains a Schedule listing the tribes deemed to be Scheduled Tribes in relation to specific States or parts thereof. The concept of "Scheduled Tribes" is thus a constitutional construct, dynamic and subject to change by Parliament to achieve constitutional objectives (Baliram v. Gajanan And Others, 2023).

Over the decades, the Order has been amended by Parliament through various enactments, such as the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, which, for instance, removed area restrictions for some specified tribes in Maharashtra (Baliram v. Gajanan And Others, 2023). These amendments reflect the evolving understanding of tribal identities and socio-economic conditions. The lists are state-specific, and often, historically, included area restrictions, meaning a tribe might be recognized as ST only in certain localities within a state (Shweta Santalal Lal v. State Of Maharashtra And Others, Bombay High Court, 2010).

Key Provisions of the Constitution (Scheduled Tribes) Order, 1950

The operative part of the Order, as initially promulgated and subsequently amended, contains crucial clauses defining its scope and application.

Clause 2 of the Order states: "The tribes or tribal communities, or parts of, or groups within tribes or tribal communities, specified in Parts I to [XVIII, as amended] of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Tribes so far as regards members thereof resident in the localities specified in relation to them respectively in those Parts of that Schedule." (Principal, Guntur Medical College, Guntur And Another v. Y. Panduranga Rao, Andhra Pradesh High Court, 1983; Hitesh Dasiram Murkute v. State Of Maharashtra And Others, Bombay High Court, 2007; Shweta Santalal Lal v. State Of Maharashtra And Others, 2010). This clause establishes the direct link between the Schedule, the specific State, and the locality for the purpose of ST status.

Clause 3 of the Order addresses the interpretation of territorial divisions, especially in light of states' reorganization. For instance, it originally stated: "Any reference in this order, except Part IV and VII-A of the schedule to a state or a district or other territorial division thereof, shall be construed as a reference to the state, district or other territorial division, constituted as from the 1st day of November 1956: and any reference in Parts IV and VII-A of the schedule to a state or to a district or other territorial division thereof shall be construed as a reference to the state, district or other territorial division, constituted as from the 1st day of May, 1960." (Principal, Guntur Medical College, Guntur And Another v. Y. Panduranga Rao, 1983; Shweta Santalal Lal v. State Of Maharashtra And Others, 2010, referencing the substituted Para 3).

Judicial Interpretation and Application of the Order

The judiciary has played a significant role in interpreting the scope and application of the Order, establishing clear principles through numerous pronouncements.

Finality of the Presidential Order and Scope of Judicial Review

A cornerstone of jurisprudence concerning the Order is the finality of the Presidential notification (as amended by Parliament). The Supreme Court in State Of Maharashtra v. Milind And Others (2001 SCC 1 4) definitively held that it is not permissible to hold an inquiry or let in evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name, even though it is not specifically mentioned in the concerned entry in the Order. The entries must be taken as they are and cannot be altered, added to, or amended by courts (KRISHNA BALAJI KOLEWAD v. THE STATE OF MAHARASHTRA AND OTHERS, Bombay High Court, 2017; KAVITA BABURAO DANTULWAR v. THE STATE OF MAHARASHTRA AND OTHERS, Bombay High Court, 2017; PRAVIN ANANTRAO ANMOD v. THE STATE OF MAHARASHTRA AND OTHERS, Bombay High Court, 2017). This principle was also emphasized in earlier cases like Bhaiya Lal v. Harikishan Singh (1965 AIR SC 1557) in the context of Scheduled Castes, and Palghat Jilla Thandan Samudhaya Samrakshna Samithi (1994) regarding Scheduled Castes, where the Court quashed a State Government order attempting to modify the list.

The Supreme Court in State Of Maharashtra And Another (S) v. Keshao Vishwanath Sonone And Another (S) (2020 SCC ONLINE SC 1040), while dealing with the "Gond Govari" tribe, reiterated the principles laid down in Milind, emphasizing that the Scheduled Tribes Order must be read as it is, and no evidence can be led to include or exclude any group not explicitly mentioned.

Issue of Sub-Tribes and Synonyms

The question of whether a group not explicitly named can be considered a sub-tribe or a synonym of a notified Scheduled Tribe has been a subject of considerable litigation. In Bhaiya Ram Munda v. Anirudh Patar And Others (1970 SCC 2 825), the Supreme Court, based on anthropological studies and historical records, held that "Patars" were a sub-tribe of the "Mundas" and thus eligible for ST status in Bihar, even though "Patar" was not explicitly listed. The Court opined that evidence was admissible to determine if a group was a sub-tribe of a notified tribe.

However, the stance in Bhaiya Ram Munda was significantly qualified, if not overruled on this specific aspect, by the Constitution Bench in State Of Maharashtra v. Milind And Others (2001). The Court in Milind held that it is not permissible to inquire whether 'Halba Koshti' is a sub-tribe of 'Halba/Halbi' when not specifically mentioned. This stricter interpretation now prevails, limiting the scope for including communities based on claims of being sub-tribes or synonyms unless the Order itself provides for such an interpretation or is amended by Parliament. The Bombay High Court in Chhaya v. Committee For Scrutiny And Verification Of Tribe Claims (2018) and DURVESH SHARAD TAWAR Vs THE STATE OF MAHARASHTRA AND ANOTHER (2023) dealt with complex claims involving interpretation of entries like 'Thakur' and 'Tokre Koli'/'Dhor Koli', often referring back to the principles in Milind and Anand v. Committee (AIR 2012 SC 314) regarding the affinity test and documentary evidence.

State-Specific Nature of Scheduled Tribe Status and Migration

It is a well-established principle that the status of being a Scheduled Tribe is state-specific. A person recognized as a Scheduled Tribe in their state of origin cannot automatically claim ST status and associated benefits upon migrating to another state, unless their community is also notified as a Scheduled Tribe in the state of migration for the area they reside in. The Supreme Court in Marri Chandra Shekhar Rao v. Dean, Seth G.S Medical College And Others (1990 SCC 3 130) laid down this principle, which was subsequently affirmed by a Constitution Bench in Action Committee On Issue Of Caste Certificate To Scheduled Castes And Scheduled Tribes In The State Of Maharashtra And Another v. Union Of India And Another (1994 SCC 5 244). The Court reasoned that the lists are prepared considering the historical and social disadvantages prevalent in specific regions. This position has been consistently followed (Ravindra Devi & Ors… v. Govt. Of Nct Of Delhi & Ors…, Delhi High Court, 2013).

Impact of Religious Conversion

The question of whether religious conversion divests an individual of their Scheduled Tribe status has been addressed by the Supreme Court. In State Of Kerala And Another v. Chandramohanan (2004 SCC 3 429), the Court held that conversion to another religion does not automatically result in the loss of ST status. Membership in a Scheduled Tribe is determined by adherence to tribal customs, traditions, and social traits, and whether an individual continues to be accepted by the tribal community. This is a question of fact to be determined in each case. The Court emphasized that the Constitution does not explicitly exclude individuals from Scheduled Tribes based on their religious conversion, distinguishing the position from that of Scheduled Castes where specific religious affiliations can be a bar under the Constitution (Scheduled Castes) Order, 1950.

Importance of Accurate Caste/Tribe Identification and Prevention of Fraud

The integrity of the affirmative action framework depends on the accurate identification of beneficiaries and the prevention of fraudulent claims. In Kumari Madhuri Patil And Another v. Addl. Commissioner, Tribal Development And Others (1994 SCC 6 241), the Supreme Court laid down comprehensive guidelines for the issuance and verification of caste/tribe certificates, emphasizing the role of Scrutiny Committees in examining anthropological and sociological data. The Court deprecated the practice of individuals falsely claiming ST status to gain undue advantages. This concern was reiterated in Director Of Tribal Welfare, Government Of A.P v. Laveti Giri And Another (1995 SCC 4 32), where the Court underscored the necessity for stringent verification to prevent the dilution of reservation benefits.

Interpretation of Entries and Discrepancies (e.g., English v. Hindi Text)

Discrepancies in the nomenclature of tribes, sometimes arising from translations, have led to litigation. In Nityanand Sharma And Another v. State Of Bihar And Others (1996 SCC 3 576), the Supreme Court addressed a discrepancy between the English and Hindi versions of the Scheduled Tribes Order concerning the "Lohar" community in Bihar. The English version listed "Lohara/Lohra," while the Hindi version erroneously rendered it as "Lohar," a community generally recognized as an Other Backward Class. The Court held that the English text of the Act (and by extension, the Order, which is made under the Constitution and amended by Acts of Parliament) would prevail. It concluded that "Lohars" were not Scheduled Tribes in Bihar. This issue had also been deliberated by the Patna High Court (Nityanand Sharma And Another v. The State Of Bihar And Others, 1993 SCC ONLINE PAT 232; Bihar Lohar (Scheduled Tribes) Utthan-Mahasabha, Samastipur & Another v. Raj Kumar Sharma, Patna High Court, 1993).

Procedural Aspects and Verification

The effective implementation of the Order necessitates robust procedural mechanisms for the issuance and verification of tribe certificates. The guidelines laid down in Kumari Madhuri Patil (1994) have been instrumental in streamlining this process, establishing Scrutiny Committees to adjudicate upon the validity of tribe claims. These committees examine documentary evidence, including pre-constitutional records (VIKRAM S/O VASANTRAO GUDHEWAR AND ANOTHER v. THE VICE-CHAIRMAN /MEMBER SECRETARY, SCHEDULED TRIBE CASTE CRTIFICATE SCRUTINY COMMITTEE, NAGPUR, Bombay High Court, 2019), conduct vigilance inquiries, and apply the affinity test where necessary.

The jurisdiction of authorities issuing caste/tribe certificates is also a relevant procedural aspect. In Niraj Kamlakar More v. Scheduled Tribe Certificate Scrutiny Committee, Aurangabad (2012 SCC ONLINE BOM 739), the Bombay High Court dealt with cases where certificates were challenged on the ground that the issuing authority lacked territorial jurisdiction. The overarching purpose of these constitutional provisions and the Order is to provide compensatory or protective discrimination to genuinely disadvantaged communities (Umraosingh Jaisingh Chamargore v. The Dean, Medical College, Aurangabad And Others, 1998).

Challenges and Contemporary Issues

Despite the established legal framework, challenges persist. The demand for inclusion in or exclusion from the list of Scheduled Tribes is a continuous process, often involving political and social dimensions. State governments may appoint commissions to study such demands and make recommendations to the Union Government, which then considers them for parliamentary action (ALL INDIA BANJARA SEVA SANGH v. THE UNION OF INDIA, 2020, referring to the Justice A.J. Sadashiva Commission in Karnataka). The dynamic nature of social structures and identities means that the list of Scheduled Tribes is not static, as evidenced by subsequent promulgations and amendments (Mr Shivanna v. The State Of Karnataka, Karnataka High Court, 2015).

A significant challenge lies in balancing the strict interpretation mandated by Milind (2001) with the socio-anthropological realities of tribal communities, especially concerning sub-tribes, phonetic variations in names, and historical records. The meticulous verification process, while necessary to prevent fraud, can also lead to hardship for genuine claimants if applied overly technically without due consideration to historical context and community recognition.

Conclusion

The Constitution (Scheduled Tribes) Order, 1950, is a cornerstone of India's commitment to social justice and the empowerment of historically marginalized tribal communities. Its constitutional foundation in Article 342 ensures a centralized and parliamentary-driven process for the identification and notification of Scheduled Tribes, thereby maintaining uniformity and preventing arbitrary inclusions or exclusions. The judiciary, through landmark pronouncements, has clarified the Order's state-specific nature, the finality of the notified list, the limited scope for judicial intervention in modifying it, and the principles governing issues such as sub-tribe claims, migration, religious conversion, and the prevention of fraudulent claims.

While the legal framework is largely settled, its application continues to present challenges, particularly in accurately identifying beneficiaries and ensuring that the benefits of affirmative action reach the genuinely deserving. The ongoing dialogue regarding inclusions and exclusions, coupled with the need for sensitive and thorough verification processes, underscores the enduring significance of the Order in India's socio-legal landscape. The principles enshrined in the Order and refined by judicial interpretation remain vital for upholding the constitutional mandate of fostering an equitable and inclusive society.