Jammu: Ever since Home Minister Amit Shah’s cryptic half sentence revelation at his Rajouri rally of October 4, the ‘report’ of Justice G.D. Sharma Commission is much in demand but there is not a leaf of it out in public domain.
The last time Justice G.D. Sharma was heard of on March 13, 2021, when he handed over to Lieutenant Governor Manoj Sinha the ‘interim report’ of the Commission for Socially & Educationally Backward Classes.
According to a Raj Bhawan spokesman, the Lieutenant Governor had on that occasion urged Justice Sharma “to continue making the necessary recommendations to safeguard the interests of Socially and Educationally Backward Classes.” The LG, the spokesman further said, “also reiterated J&K Government’s commitment to ensure equitable development of all sections and classes of the Union Territory of Jammu and Kashmir”.
What is the G. D. Sharma Commission?
The Commission for Socially & Educationally Backward Classes may initially have been seen by many as a rehabilitation center for two former bureaucrats, particularly the high-profile cop Munir Khan, but as it emerges now, this body was essentially a part of August 5, 2019, package. Contrary to perceptions and initial reactions, August 5 was not a one-day event but the launch of a sustained process to shake up the status quo and find a new political landscape for Jammu and Kashmir. The formation of a commission for socially and economically backward classes to offer a new set of recommendations for the government to implement was clearly one of the steps in that direction.
The Home Minister’s statement that Justice Sharma Commission has made its recommendations was not anything out of the blue. The Commission was clearly tasked to make recommendations for inclusion of new communities in the list of Scheduled Tribes.
Here are the relevant paragraphs from March 19, 2020, order of the Department of Law and Justice when the Commission was ordered to be constituted:
With a view to examining the issues relating to Socially and Educationally Backward Classes, Scheduled Castes and Scheduled Tribes in the Union Territory of Jammu and Kashmir, the Government hereby constitute a Commission to be called as ‘Jammu and Kashmir Socially and Educationally Backward Classes Commission’ comprising the following- Justice (Retired) G. D. Sharma, Chairperson; Rup Lal Bharti, IFS (Retired) and Munir Ahmad Khan, IPS, as members.
The Terms of Reference of the Commission shall be as follows:-
- SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES
To determine the criteria to be adopted in considering any section of the people in the Union territory of Jammu and Kashmir as socially and educationally backward classes.
I: Using the criteria to examine the current list of socially and educationally backward classes notified by the Government from time to time for inclusion or exclusion of such classes in the list of socially and educationally backward classes;
II: Using the criteria to examine inclusion of other socially and educationally backward classes in the list of socially and educationally backward classes:
III: To categorize the socially and educationally backward classes and examine the safeguards that should be provided to ensure balance and orderly development of all sections and classes of the Union territory of Jammu and Kashmir
IV: To examine the overall question of providing reservation for recruitment to various posts under the Government and or selections to various posts consistent with the need of ensuring the efficiency in administration and minimum standards for job requirements;
V: To present to the Government of Union Territory of Jammu and Kashmir a report setting out the facts as found by the Commission and making such recommendations as it thinks proper for categorization of socially and educationally backward classes, as aforesaid and providing reservation for them and other communities;
VII: Any other matter which the Commission finds necessary to be considered and opine arising out of the aforesaid Terms of Reference.
- Additional Terms of Reference FOR SCs/STs
To examine the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956 and the Constitution (Jammu and Kashmir) Scheduled Tribes Order, 1989;
To present a report to the Government of Jammu and Kashmir which would be examined and sent to the Government of India for suitable inclusion or exclusion or modification of the Castes and Tribes in the aforesaid orders for their application to the Union Territory of Jammu and Kashmir;
Any other matter which the Commission finds necessary to be considered and opine arising out of the aforesaid Terms of Reference.
The Commission shall make its final recommendations within a period of two years.
The Commission shall, however, submit its first interim report (s) within a period of three months from the date of its constitution or by 30-06-2020, whichever is earlier.
The part B of the order outlining additional terms of references, as highlighted above, clearly tasks the Commission to make recommendations for suitable inclusion or exclusion or modification of the Castes and Tribes for their application to the Union Territory of Jammu and Kashmir.
The Commission was supposed to make interim recommendations within a period of three months or by June 30, 2020 but that didn’t happen within the deadline, mainly on account of Covid related limitations on the normal work. It was, however, on March 13, 2021, that the Commission submitted its first interim report to the Lieutenant Governor.
The Commission was further asked to submit its final recommendations within a period of two years, but it is already over six months behind the schedule. Two years of the constitution of the Commission completed in March 2022. Since the first interim report itself was nine behind later the demanded time, the final report may still take more time.
It is reliably learnt that shortly before Home Minister’s visit earlier this month, the Justice Sharma Commission submitted yet another interim report which recommended the inclusion of Pahari speaking people, besides a few other smaller communities and areas to be included in the list of Scheduled Tribes.
Paddar in Kishtwar district and certain areas in Baramulla and Kupwara districts and a few lesser talked about communities are also believed to have been recommended for declaring them as STs. The original terms of references clearly say that the Commission can submit more than one interim reports.
What are the criteria for listing, de-listing STs?
The criteria for listing Scheduled Tribes is complex and in many ways appears vague too. One can understand that the governments in the past have exploited the grey areas in the constitutional provisions for political expediency. The criteria generally followed for specification of a community as a Scheduled Tribe are: (i) indications of primitive traits, (ii) distinctive culture, (iii) geographical isolation, (iv) shyness of contact with the community at large, and (v) backwardness.
However, the Ministry of Tribal Affairs told the Parliament in 2017 that it has reformed the process as the above listed “criteria were not spelt out in the Constitution”.
Here is what the constitution says:
The term ‘Scheduled Tribes’ first appeared in the Constitution of India. Article 366 (25) defined 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 purposes of this constitution”. Article 342, which is reproduced below, prescribes procedure to be followed in the matter of specification of scheduled tribes.
The President may, with respect to any State or Union territory, and where it is a state, after consultation with the Governor there of 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, is deemed to be scheduled tribes in relation to that state or Union Territory, as the case may be.
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.
Thus, the first specification of Scheduled Tribes in relation to a particular State/ Union Territory is by a notified order of the President, after consultation with the State governments concerned. These orders can be modified subsequently only through an Act of Parliament. The above Article also provides for listing of scheduled tribes State/Union Territory wise and not on an all India basis.
The criterion followed for specification of a community, as scheduled tribes are indications of primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large, and backwardness. This criterion is not spelt out in the Constitution but has become well established. It subsumes the definitions contained in 1931Census, the reports of first Backward Classes Commission 1955, the Advisory Committee (Kalelkar), on Revision of SC/ST lists (Lokur Committee), 1965 and the Joint Committee of Parliament on the Scheduled Castes and Scheduled Tribes orders (Amendment) Bill 1967 (Chanda Committee), 1969.
In exercise of the powers conferred by Clause (1) of Article 342 of the Constitution of India, the President, after Consultation with the State Governments concerned have promulgated so far 9 orders specifying the Scheduled Tribes in relation to the state and union territories. Out of these, eight are in operation at present in their original or amended form. One order namely the Constitution (Goa, Daman & Diu) Scheduled Tribes order 1968 has become defunct on account of reorganization of Goa, Daman & Diu in 1987. Under the Goa, Daman & Diu reorganization Act 1987 (18 of 1987) the list of Scheduled Tribes of Goa has been transferred to part XIX of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 and that of Daman & Diu II of the Schedule of the Constitution (Scheduled Tribes) (Union Territories) Order, 1951.
Article 342 provides for specification of tribes or tribal communities or parts of or groups within tribes or tribal communities which are deemed to be for the purposes of the Constitution the Scheduled Tribes in relation to that State or Union Territory. In pursuance of these provisions, the list of Scheduled Tribes are notified for each State or Union Territory and are valid only within the jurisdiction of that State or Union Territory and not outside.
The list of Scheduled Tribes is State/UT specific and a community declared as a Scheduled Tribe in a State need not be so in another State. The inclusion of a community as a Scheduled Tribe is an ongoing process.
The essential characteristics of these communities are:
- Primitive Traits
- Geographical isolation
- Distinct culture
- Shy of contact with community at large
- Economically backward
Tribal communities live, in various ecological and geo-climatic conditions ranging from plains and forests to hills and inaccessible areas. Tribal groups are at different stages of social, economic and educational development. While some tribal communities have adopted a mainstream way of life, at the other end of the spectrum, there are certain Scheduled Tribes, 75 in number known as Particularly Vulnerable Tribal Groups (PVTGs), who are characterised by
- pre-agriculture level of technology
- stagnant or declining population
- extremely low literacy
- subsistence level of economy