Ethnic Pluralism

Articles 15(1), 16(2), 29(2) and 325: the prohibitions. No discrimination on race or place of birth, no denial of admission to a State-aided institution on those grounds, and one general electoral roll with no exclusion on grounds of religion, race, caste or sex.

And article 15(2), which binds private persons. No citizen shall on grounds only of religion, race, caste, sex or place of birth be subject to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

The cases

The Supreme Court has described India's ethnic composition, and it did so in a case about an eviction. In Kailas v. State of Maharashtra, (2011) 1 SCC 793; AIR 2011 SC 598. Facts. A woman of the Bhil tribe was beaten, stripped and paraded naked in a village in Maharashtra, and the accused were convicted under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and the Indian Penal Code; the High Court acquitted some of them and the State appealed. Held. The conviction was restored. The Court took the occasion to describe India as a country of immigrants, in which the tribal people, the Scheduled Tribes, are the descendants of the original inhabitants, and it recorded that they had been historically subjected to injustice and atrocities and were entitled to the protection of the Constitution and of the Act. Why it matters here is that it is the fullest judicial statement of India's ethnic composition and of the constitutional obligation that follows from it, and it is a decision a candidate can name.

And ethnic protection of land is enforced against the State itself. In Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191; AIR 1997 SC 3297. Facts. The State of Andhra Pradesh granted mining leases in Scheduled Areas to private companies, notwithstanding a regulation prohibiting the transfer of land in such areas to a non-tribal. Held. By a majority, that the word "person" in the regulation includes a juristic person, so a transfer of land in a Scheduled Area to a non-tribal company is void; that government land, forest land and tribal land in a Scheduled Area cannot be leased to non-tribals or to private companies for mining; and that such leases may be granted to a State instrumentality or to a co-operative society of tribals, subject to conditions including that at least twenty per cent of net profits be spent on local development. Why it matters here is that ethnic protection in India is at its strongest where it attaches to land, and weakest where it depends on self-identification alone.

A worked example

A community of about eight lakh people, spread across three States, speaks its own language, follows its own customary rules of marriage and inheritance, and is not notified as a Scheduled Tribe anywhere. It asks for constitutional protection of its identity. What is available?

Article 29(1) is available immediately and needs nobody's permission. They are a section of citizens having a distinct language, script and culture, and they have the right to conserve it. That protects, for example, running their own cultural institutions and teaching their language.

Article 30 is available if they are a linguistic minority in a State. On In re The Kerala Education Bill, 1957, the unit is the State, so a community that is under fifty per cent of a State's population is a minority there and may establish and administer educational institutions of its choice.

Article 350A is available for their children's primary schooling in any State where they are a linguistic minority group.

Customary marriage and inheritance are NOT available as of right. Personal law and custom are recognised in India where a law recognises them; a group cannot create its own private law by asserting an identity. Notification under article 342 would change that, and notification is an executive and parliamentary act, not a claim.

And territorial autonomy is not available at all outside the Fifth and Sixth Schedule areas and the 371 series.

The example is the honest shape of Indian ethnic pluralism. Culture and language are protected generously and almost automatically; law and territory are protected only where the Constitution has named the group or the area.

Distinctions

What it does NOT mean

It does not mean ethnicity is a ground of reservation. Reservation in India runs on the notified lists of Scheduled Castes, Scheduled Tribes and backward classes, not on ethnicity as such.

It does not mean article 29(1) is a minority right. It protects any section of citizens, and a majority community's section may invoke it.

It does not mean an ethnic group can make its own law. Recognition of custom depends on a law recognising it, and no group acquires personal law by assertion.

And it does not mean the word "race" in article 15(1) is a dead letter. It is the nearest constitutional term to ethnicity and it forbids the State to act on that ground.

Quick revision

An ethnic group is a community regarded as distinct by shared descent, history, homeland, language or culture. The Constitution never uses the word and protects the interests through four devices: articles 15(1), 15(2), 16(2), 29(2) and 325, which forbid discrimination on race and place of birth; article 29(1), which lets any section of citizens conserve its distinct language, script or culture; article 342 with the Fifth and Sixth Schedules, which protect notified tribes territorially; and articles 371A and 371G, which make an Act of Parliament on customary law and land inapplicable to Nagaland and Mizoram without an Assembly resolution. Kailas v. State of Maharashtra: the Supreme Court's description of India's ethnic composition and of the constitutional obligation to the Scheduled Tribes. Samatha: land in a Scheduled Area cannot be transferred to a non-tribal, and "person" includes a company.

Test yourself

1. Define an ethnic group and say why the Constitution avoids the term. A community regarded by itself and others as distinct by reason of shared ancestry, history, homeland, language or culture. The Constitution avoids the term because "race" was the word of the period, because ethnicity in India does not map onto one axis, and because a protection defined by self-identification with no list would have had no boundary.

2. Name the four devices by which the Constitution protects ethnicity. The prohibitions on discrimination by race and place of birth; article 29(1) on language, script and culture; article 342 with the Fifth and Sixth Schedules; and the special provisions for named States in articles 371A to 371J.

3. Who may invoke article 29(1)? Any section of citizens residing in India or any part of it having a distinct language, script or culture of its own. It is not confined to minorities.

4. What did Kailas v. State of Maharashtra add? It restored the conviction of those who had assaulted and paraded a Bhil woman, and it described India as a country of immigrants in which the Scheduled Tribes are the descendants of the original inhabitants, historically subjected to injustice and entitled to constitutional protection.

5. Why is land the strongest form of ethnic protection in India? Because it is territorial and does not depend on self-identification: the Fifth and Sixth Schedules attach to notified areas, and Samatha holds that land in a Scheduled Area cannot be transferred to a non-tribal, including a company.

6. Can a community acquire its own personal law by asserting an ethnic identity? No. Custom and personal law are recognised only where a law recognises them, and territorial autonomy exists only in the Fifth and Sixth Schedule areas and under the 371 series.