REPRESENTATION OF MARGINALIZED COMMUNITIES (SC/ST/DNT/OBC &
WOMEN) IN LEGAL PROFESSION
Binitha M Abi
17BLA1047
I. Introduction
The Scheduled Caste, scheduled Tribe and women are the vulnerable groups that face discrimination. In
earlier times during the time of 1921 women were barred from practicing law and after the Legal
Practitioners' (Women) Act, XXIII of 1923 the bar against women were abolished, and later through restless
battle for women’s right the entry for women were allowed in the profession of law. But the question that
concerns is whether there has been a great change within those discriminatory norms.
The constitution of India has given its people right to equality and right against discrimination on the basis
of their gender from acquiring any education and on any profession of their choice. So even after the
adaptation of the constitution and its independence, for the first three decades there was no Dalit or Adivasi
was appointed in the Honorable Supreme Court. Only later in 1983, out of nearly 400 high court judges,
only 6 of them were from the Scheduled Castes. And the situation has not much improved till date, only 5
judges totally from the Dalit community, only 1% from Adivasi community and only 2% of all the judges
were sitting on the bench.
II. Discrimination against members of marginalized communities:
A. Legal Involvement and protection
The Constitution of India includes several provisions that aim to eliminate the pervasive discrimination that
members of Scheduled Caste (SC), Scheduled Tribe (ST), and Other Backward Class (OBC) groups have
historically encountered .Specifically, the Constitution requires the national government to advance the
interests of “weaker sections” of society, referring directly to ST and SC communities .It also prohibits
restrictions on the access of SC, ST, and OBC community members to commercial institutions,
entertainment venues, and sanitation facilities; forbids caste-based discrimination in state employment
processes; and enacts proportional reservations for SC, ST, and OBC group members within educational
institutions and across governmental positions. Individuals from SC and ST communities are also
guaranteed a proportional number of spots within local legislative bodies in both rural and urban areas, as
well as a certain number of seats in the Lok Sabha, the lower house of the Indian Parliament (Gopinath,
2018)
Additionally, the Constitution establishes a political body, termed the National Commission for Scheduled
Castes, that wields civil and judicial powers in ensuring the legal rights of SC communities and formulating
schemes for the social and economic advancement of such communities. Similar bodies, called the National
Commission for Scheduled Tribes and the National Commission for Backward Classes, have been
constituted to formulate updated lists and promote the interests of ST and OBC communities respectively
Several protections apply specifically to ST communities. For example, the Constitutions directs the
appointment of a Minister of Tribal Welfare in specific states and outlines the ways in which areas
designated for the residence of ST groups in particular states are to be administered.
It also creates Tribes Advisory Councils in states that do not set aside land for ST groups, stipulating that
three-fourths of the individuals constituting such bodies must represent members of local ST communities.
Additionally, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act of 2006 seeks to protect the land rights of STs and requires that ST communities freely consent to their
removal from any given area. The Land Acquisition Act of 2013, while not specific to ST groups, mandates
that entities conduct social impact assessments and resettle evicted households in instances of land
acquisition (United Nations Office of the High Commissioner for Human Rights, 2016).
The marginalization of Denotified Tribes (DNT), Nomadic Tribes (NT), and Semi-Nomadic Tribes (SNT)
partly stems from inadequate classification and exclusion from the national census. In fact, the last census
that acknowledged and included specific DNT, NT, and SNT groups was conducted in 1931 .Thus, reliable
estimates of the total population of communities belonging to these three categories do not exist, though a
2008 government commission provided an approximation of 100 million individuals. Though some DNT,
NT, and SNT communities are recognized as SC, ST, or OBC groups, such classifications are not uniformly
implemented .As a result, many of the former three types of groups are deprived of the benefits ascribed to
the latter three: constitutional recognition; accompanying legislative protections; and associated social,
economic, and political opportunities, such as quotas .Specifically, members of 94 DNT groups, 171 NT
communities, and 2 SNT groups lack access to quotas due to exclusion from SC and ST lists .Even those
communities that are registered as ST, SC, or OBC groups are often unable to avail of social welfare
measures .The diversity of the groups encompassed by DNT, NT, and SNT categories also complicates the
enactment of comprehensive legislation aimed at securing their rights.
In fact, beginning with the Fifth Five-Year Plan (1974-1978), the national government discontinued its
practice of disbursing funds allocated for the purpose of promoting the resettlement and rehabilitation of
historically criminalized tribes .In the past, the Government of India has made several attempts to study and
address the distinctive challenges and barriers to opportunity that members of DNT, NT, and SNT
communities face. However, as noted by one media source, “little seems to have changed for those for
whom” prior committees and commissions issued recommendations .Government representatives have also
acknowledged the inefficacy of past initiatives in promoting substantive change. In 2015, the national
government appointed and provided a three-year mandate to the National Commission for Denotified,
Nomadic, and Semi-Nomadic Tribes, led by Chairperson Bhiku Ramji Idate. The Idate Commission was
requested to enumerate on a state-by-state basis DNT and NT communities that had and had not been
registered as SC, ST, or OBC groups by the state or national governments; support the inclusion of DNT
and NT groups within existing lists of SC, ST, and OBC communities; determine areas in which large
populations of DNT community members resided; report on the social and economic welfare of DNT, NT,
and SNT communities; and make recommendations to the state and national governments regarding ways
in which to advance opportunities available to and conditions of such groups. Within a press release that
announced the formation of the Idate Commission, the Ministry of Social Justice and Empowerment also
noted that that central government had initiated two new schemes. Such initiatives aimed to facilitate the
access of members of DNT communities that had not been registered as SC, ST, or OBC groups to
educational and residential programs and facilities (Ministry of Social, 2015). As of the date of publication
of the press release, the states of Maharashtra and Karnataka have been awarded funds within the scope of
these schemes (Ministry of Social, 2015). The Idate Commission released its final report in 2018. It
references the ways in which DNT, NT, and SNT communities have been negatively impacted by the
historical and more recent enactment of legislation that has promoted their criminalization, as well as
threatened their land rights and ways of life. The Commission has exhorted the national government to
“provide strong legal protections and constitutional safeguards” for DNT, NT, and SNT groups (“Idate
Commission,” 2018). Specifically, it has recommended that the Indian Constitution, which currently
acknowledges SC and ST groups within separate schedules or categories, be amended to include a third
schedule or category reserved specifically for DNT, NT, and SNT communities (“Idate Commission,”
2018;). It has also suggested that DNT, NT, and SNT communities be awarded sub-quotas within the scope
of educational and occupational reservations applicable to SC, ST, and OBC groups.
In response to such suggestions, Ramdas Athawale, India’s Minister of State for Social Justice and
Empowerment, has noted that “the government is seriously considering the suggestion for separate
categorization so that benefits of reservations in government jobs and education can be extended to” DNT,
NT, and SNT communities .Additionally, the Idate Commission has advised the national government to
repeal the Habitual Offenders Act of 1952 for the purpose of mitigating the stigma with which DNT, NT,
and SNT groups are burdened. In order to ensure that individual groups are recognized by a common name
in all states, the Commission has also recommended the implementation of a government survey of different
communities. Significantly, the Idate Commission has also called for the results of the Socio-Economic
Caste Census (SECC), conducted alongside or within the scope of the broader national census of 2011, to
be publicly released .On a related note, it has advocated for the incorporation of a comprehensive and
dedicated caste-focused component within the 2021 national census .Such suggestions stem from a
recognition that the central government has provided only “symbolic reparations” to DNT, NT, and SNT
group members in the past, and seek to promote the formulation of evidence-based policies concerning
these communities.
In response to a request made by the Ministry of Social Justice and Empowerment for feedback regarding
the conclusions of the Idate Commission, several government ministries and agencies have endorsed the
Commission’s census-related recommendations and described ways in which they might seek to advance
social and economic opportunities for DNT, NT, and SNT community members within the scope of their
specific mandates. The Ministry of Finance, for example, has noted that the collection of accurate census
data regarding DNT, NT, and SNT groups serves as a prerequisite to the enactment of constitutional
protections and sub-quotas for such communities. Additionally, the Registrar General and Census
Commissioner of India have highlighted the importance of making public the results of the 2011 SECC,
remarking that an emphasis within the census process on the identification of SC and ST groups may hinder
the inclusion of DNT, NT, and SNT communities within the 2021 census.
As of 2018, other entities that have responded to the official request for comments include the Ministries
of Health, Rural Development, Culture, Human Resource Development, and Housing and Urban Affairs;
the Indian Council of Social Science Research (ICSSR); and the National Institution for Transforming
India, or NITI Aayog. The national government appears to be awaiting the suggestions of additional
ministries, upon receipt of which it will design formal policy measures. Bodies that have yet to provide
feedback include, among others, the National Commission for Scheduled Castes, the National Commission
for Scheduled Tribes, and the Ministry of Tribal Affairs (Nair, 2018b).
B. Scheduled Castes
Scheduled Castes (SC) may be defined as “sub-communities within the framework of the Hindu caste
system who have historically faced deprivation, oppression, and extreme social isolation in India on account
of their perceived ‘low status’” .Historically, individuals belonging to SC groups were often ascribed the
derogatory term of “Untouchables” and were not permitted to access the same facilities, rights, and services
of which individuals from higher castes freely availed .
Despite the enactment of the above-mentioned safeguards, both structural and interpersonal discrimination
against members of SC communities persists. As of 2011, 53% of SC households own a telephone, as
compared with 63.2% of all households in India. The 2011 census also revealed that almost 25% of SC
households are not able to access safe sources of drinking water, while 62.1% do not have access to a toilet
facility. A drinking water source is present on the household premises of only 57% of SC households
(National Campaign on Dalit Human Rights, 2017). The results of 2013 study in the state of Haryana
corroborate the above statistics in revealing that 58% of respondents lack access to fundamental amenities
that are readily available to other caste groups (Society for Participatory Research in Asia (PRIA), 2013).
Marginalization is particularly visible in the sphere of education. According to statistics provided by the
Ministry of Human Resource Development for the year 2007-2008, 72.2% of boys and 66.6% of girls from
SC communities drop out of school between Class One and Class Ten .Sexual harassment by students from
dominant castes contributes to relatively higher dropout rates for girls from SC groups (Society for
Participatory Research in Asia (PRIA), 2013). As of 2014, the elementary school dropout rate alone is 51%.
Moreover, data from 2009-2010 reveals that youth literacy rates are also low among SC groups (83.8%)
relative to other social groups (96.5%). Female youth from SC communities present lower rates of literacy
(77.9%) relative to male youth (89%), and the literacy rate for women from SC groups (56.6%) lags behind
that of women overall (64.6%) (Mamgai, 2013; Navsarjan Trust, All India Dalit Mahila Adhikar Manch,
& International Dalit Solidarity Network, 2014).
Discrimination against children from SC communities by fellow students, teachers, and administrative
officials in educational facilities also remains common, and contributes to high dropout rates. For example,
students from SC groups are often subject to corporal punishment by teachers, denied access to drinking
water facilities, and prohibited from eating with other students. Evidence also reveals that SC community
members are often made to clean school toilet facilities (International Dalit Solidarity Network, 2015).
Additionally, many attend government schools that lack adequate infrastructure and resources (Society for
Participatory Research in Asia (PRIA), 2013). In higher education settings, discrimination also manifests
in “social exclusion and physical abuse,” as well as in a lack of educational support (International Dalit
Solidarity Network, 2015). Poor educational quality and outcomes restrict the range of employment options
available to members of SC communities, who already face occupational discrimination due to their social
status (Society for Participatory Research in Asia (PRIA), 2013).
SC groups are also particularly vulnerable to debt-related bondage and bonded labor, which often entails
harsh and unsafe working conditions. Bonded labor manifests in industries and settings ranging from granite
quarries to cottonseed harvesting to vegetable seed production (International Dalit Solidarity Movement,
2015). As of 2009-2010, 51.2% of individuals from SC groups work as casual wage laborers, with the
proportion rising to 60% in rural areas. In such settings, low and irregular wages are often the norm
(National Campaign on Dalit Human Rights, 2017).
One study reveals that discrimination in the sphere of employment affects women from SC communities.
Those who work as landless laborers are often addressed by caste labels, cheated of adequate wages, and
prevented from drinking from wells belonging to landowners. Overall, the rate of women from SC
communities who live below the poverty line ranges between 50 and 60%. Women from SC groups also
face higher rates of unemployment than other social groups (Society for Participatory Research in Asia
(PRIA), 2013). A 2016 analysis of National Sample Survey Organization (NSSO) data reveals that, in 2011-
2012, workers from SC groups earned 15 to 18% less than those from dominant or forward castes in the
private sector, and 6 to 9% less in the public sector. The analysis also finds that the proportion of the wage
differential that can be explained by differences in skill was 80.6% in the public sector and 68.3% in the
private sector (Singhari & Madheswaran, 2016). Such a finding indicates that structural forms of
discrimination that operate prior to entry into the labor market prevent members of SC communities from
developing the same educational, social, and skill endowments as members of other social groups.
Additionally, occupational segregation partially accounted for employment-based discrimination, with job
discrimination outweighing wage discrimination for most occupations in the public and private sectors. In
light of such evidence, it is clear that reservation policies enacted by the Indian government have not been
entirely effective .In the political arena, recent figures indicate that the number of reserved seats that have
remained unfilled by SC individuals amounts to 25,037 over several years, while the percentages of central
government posts filled by SC community members remain well below the 15% quota (National Campaign
on Dalit Human Rights, 2017). At the local level, members of SC communities, particularly women, are
often prevented from voting or running in elections, and are compelled to step down if elected. In one study
involving women from SC communities as participants, 90% of respondents referenced the existence of
barriers that prevented them from accessing and participating in local political institutions in various
capacities. Such deterrents included, among others caste-based verbal abuse, sexual harassment, and
physical violence. (Society for Participatory Research in Asia (PRIA), 2013). In two of the villages included
in the study, no women from SC communities had been elected to the local governing body. Moreover,
leaders of the two villages refused to address the concerns of SC community members or were unable to
do so due to dominant caste pressure.
Additionally, two-thirds of study participants who were successfully elected were unable to act as
independent political representatives or were manipulated by men from dominant castes. Female political
representatives from SC communities also encountered discriminatory segregation practices, and were
prevented or halted in their efforts to actively contribute to political meetings (Society for Participatory
Research in Asia (PRIA), 2013).
C. Scheduled Tribes
Scheduled Tribe (ST) groups are both legally and substantively distinct from SC groups, though the two
are often classified and referenced together, particularly in scholarly literature. Like SC groups, ST groups
face severe and persistent discrimination and marginalization in the economic, educational, political, and
social spheres. However, ST communities are subject to different or additional barriers in these and other
realms “on the basis of geographical isolation.” In other words, their “marginalization…is not a result of
the Hindu caste system”.
In spite of such provisions, the alienation and displacement of ST groups from the land on which they reside
remain a common practice .After UN visit to India in 2015, the UN Special Rapporteur on Adequate
Housing remarked that legislation concerning land rights had not prevented development-related
displacement from occurring, and stated that “land grabbing” of areas to which members of ST groups
possessed legal rights had been taking place (United Nations Office of the High Commissioner for Human
Rights, 2016). She also noted that members of both SC and ST groups continue to be “over-represented
among the poor” (United Nations Office of the High Commissioner for Human Rights, 2016).
Additionally, documents submitted in conjunction with India’s Universal Periodic Review by the UN
directly refer to the complicity of law enforcement and governmental authorities in the displacement of ST
groups by corporations. Contributors comment upon violations of constitutional provisions and mandates
aimed at protecting the land and forest rights of ST groups, as well as evictions related to dam construction
and non-consensual land acquisition for coal mining purposes (Summary of Stakeholders’ Submissions,
2017). India’s Ministry of Tribal Affairs has also carried out a detailed assessment of the historical and
contemporary ways in which ST groups have been and continue to be alienated from traditional and
protected areas of residence (Ministry of Tribal Affairs, 2014). In the state of Andhra Pradesh, for example,
individuals from ST groups accounted for 76.1% of displaced persons in 2009 (Ministry of Tribal Affairs,
2014).
As in the case of SC groups, the literacy rate for youth from ST groups (80.46%) is significantly lower than
that of youth from the general population (96.5%) as of 2009-2010. Female youth from ST communities
achieve lower rates of literacy (72%) than male youth (89%) (Mamgain, 2013). 2011 statistics indicated
that 34.8% of ST households own a telephone, as compared with 63.2% of all households (Mamgain, 2013).
According to the 2011 census, over 33% of ST households do not have access to a safe source of drinking
water (Mamgain, 2013). A drinking water source is present on the household premises of only 19.7% of
ST households, and 6.2% of households retrieve drinking water from open sources subject to contamination.
77.4% of ST households do not have access to a latrine faculty within their premises, with 74.7% practicing
open defecation. Additionally, 37.42% of ST households do not own any amenities or assets (compared
with 18.55% of households belonging all social groups), and only 40.62% live in dwellings of good
condition (relative to 53.11% for all social groups) (Ministry of Tribal Affairs, 2014).
ST communities are also more vulnerable to economic marginalization and impoverishment than other
social groups. The average values of the total assets, as well as of land and buildings, owned by ST groups
are substantially lower than comparable figures for all social groups in both rural and urban areas. Similarly,
the share of households with an asset value less than Rs. 30,000 is higher for ST groups than for all social
groups in rural (23.5% versus 15.9%) and urban (32.5% versus 23.0%) regions. ST groups possess the
lowest annual income, and 43% of ST communities live below the poverty line as of 2011-2012. In
comparison, 22.0% of the general population lives below the poverty line (Ministry of Tribal Affairs, 2014).
Educational statistics for ST groups are unfavorable relative to those pertaining to the general population.
As of 2011, the literacy gap between ST groups and the overall population stands at 14.6%. According to
2009 statistics, 9.5% of ST community members between the ages of 6 and 14 remain out of school,
compared with 6.9% of the overall population. Similarly, the dropout rate for students in Classes One
through Ten stands at 71% for both boys and girls from ST communities as of 2010-2011, relative to 50%
for boys and 48% for girls within all social groups (Ministry of Tribal Affairs, 2014). Dropout hinders ST
students’ ability to acquire fundamental language and arithmetic skills, which further perpetuates dropout
rates. Teacher absenteeism, as well as discrepancies between languages used in schools and those spoken
by students from ST communities, also inhibits the provision of high-quality education in areas occupied
by ST groups.
India’s Ministry of Tribal Affairs notes that prejudice and discrimination, including segregation of ST
community members from other students, continues to occur within schools. Additionally, students from
ST communities are often prevented from entering or treated unfairly within institutions of higher
education, with professors intentionally assigning them low scores (Ministry of Tribal Affairs, 2014).
Political discrimination is more pronounced for ST than for SC groups, as the percentages of ST individuals
who occupy central government posts fall short of the specified quota of 7.5% to an even greater degree
than in the case of members of SC communities (National Campaign on Dalit Human Rights, 2017).
III. Overview of Legal works in Marginalized Communities
India has passed several laws that aim to prevent and prosecute violence against individuals belonging to
vulnerable populations, including women, children, and members of marginalized social groups. The Indian
Penal Code (IPC) of 1860 lists assault, voyeurism, human trafficking, rape, acid attacks, disrobement of a
woman, sexual harassment, and stalking as punishable crimes . The latter four crimes were added to the
IPC under the Criminal Law (Amendment)
Act of 2013, which bolsters the 1973 Code of Criminal Procedure. The Act deems government approval
prior to the prosecution of sexual offences against public servants unnecessary, makes more severe the
penalty for gang rape, increases the minimum penalty for rape, and expands the definition of rape.
Prohibitions against the violation of women’s rights to privacy, particularly for purposes of sexual or other
exploitation or intimidation, have been enacted under the Indecent Representation of Women Act of 1986
and the Information Technology Act of 2000. Women working in both the informal and formal sectors are
also entitled to seek protection and redress against perpetrators of sexual harassment under the Sexual
Harassment of Women at Workplace Act of 2013. The rights and safety of children of all genders are
ostensibly guarded by the Protection of Children from Sexual Offences Act (POCSO) of 2012, which
criminalizes sexual harassment, sexual assault, and pornography involving children. Additionally, the 1956
Immoral Traffic in Women and Girls Act bans human trafficking and commercial sexual exploitation
involving women and girls.
Moreover, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 (henceforth
known as the SC/ST Act) specifically seeks to prohibit violence as a form of extreme social discrimination
against individuals from SC and ST communities, including women. The Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Amendment Act of 2015, enacted in 2016, substantially broadened the
types of atrocities included within the scope of the SC/ST Act. It placed a particular emphasis on “acts
which are derogatory to the dignity of members of Scheduled Castes and Scheduled Tribes” (Ministry of
Law and Justice, 2015; Ministry of Social Justice and Empowerment, 2016). Sexual harassment and abuse,
whether verbal or physical, against women are expressly forbidden under the Act (Ministry of Law and
Justice, 2015). Significantly, DNT, NT, and SNT groups are not included within the scope of the SC/ST
Act ("Idate Commission," 2018; Nair, 2018a; Nair, 2018b). In its 2018 report, the abovementioned National
Commission for Denotified, Nomadic, and Semi-Nomadic Tribes recommended that the law be extended
to apply to DNT, NT and SNT communities ("Idate Commission," 2018; Nair, 2018a; Nair, 2018b). Shortly
afterward, India’s Minister of State for Social Justice and Empowerment, Ramdas Athawale, indicated that
the implementation of the recommendation remained a possibility
In March 2018, the Supreme Court of India ruled to reduce the stringency of the SC/ST Act by stipulating
that individuals accused under the legislation could not be arrested by an investigating officer without the
approval of the Senior Superintendent of Police Further, the filing of an FIR would not be permitted until
a preliminary police inquiry had been conducted in order to assess whether the accusation held merit (Anuja
& Varma, 2018; Ministry of Social Justice and Empowerment, 2018). The alteration, which sought to curb
misuse of the SC/ST Act, was criticized as a dilution of the rights of marginalized groups by both political
parties (including members of the ruling National Democratic Alliance) and members of ST and SC
communities. Thus, in August of this year, both the lower and upper houses of the Indian Parliament passed
a bill to restore the strength of the SC/ST Act (Ministry of Social Justice and Empowerment, 2018;
Parliament of India, 2018). The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Amendment Bill, 2018, which has not yet come into force, nullifies both of the above-mentioned
requirements detailed by the Supreme Court (Parliament of India, 2018)
IV. Representation In Legal Field:
Even after all the studies, reports by commission and the legal frame work we can see drastic
changes in any of the field when it comes about minorities. It has to be noticed also there is no
special legislation for the minority group with regard to their representation in judiciary and
legal field. The representation of the minorities including women is not appreciable. There are
not any systematic efforts from the authorities to regularly compile and publish even basic data
on the proportion of women judges in different levels of Indian courts. Especially when it
comes to lower judiciary the representation of women is very poor. Even in past religion was
a consideration to be in judiciary as judge, this is not so different even in recent times. Even
the legal frame work including the constitution bans the discrimination on any basis, still we
are unable to see major participation of these minority communities in judiciary as there still
exists the unrevealed parameters within the higher authorities while choosing a judge.
The disparity is all the way clearer and very evident in the legal profession. There exist an in
group biase on the basis of gender and community on the judicial and other legal field. The
court yet have to practice to include minority communities in benches. It is very disappointing
still India possess these types of unacceptable way of treating communities especially in
judiciary where people look forward to seek justice and treat them equally.
