Background

● The Constitution defines Scheduled Tribes under Article 366 (25) as tribes or tribal communities deemed to be Scheduled Tribes under Article 342. Article 342 empowers the President, after consultation with the Governor, to specify tribes or tribal communities as Scheduled Tribes through public notification for a particular State or Union territory. Parliament, through law, can include or exclude tribes from this list.1 The initial list of Scheduled Tribes was notified in 1950 and has been modified over time. ● The Constitution (Jammu and Kashmir) Scheduled Tribes Order (Amendment) Bill, 2023 was introduced in Lok Sabha on July 26, 2023 with an aim to amend the Constitution (Jammu and Kashmir) Scheduled Tribes Order, 1989, thereby intending to create separate lists for Scheduled Tribes for Union Territories of Jammu and Kashmir, and Ladakh.2

Overview of the Bill

● In compliance with Constitutional provisions, the initial roster of Scheduled Tribes for the former State of Jammu and Kashmir was officially designated through the Constitution (Jammu and Kashmir) Scheduled Tribes Order, 1989. This list underwent modifications via the Constitution (Scheduled Tribes) Order (Amendment) Act, 1991. Following the enactment of the Jammu and Kashmir Reorganisation Act, 2019, the said list of Scheduled Tribes now encompasses both the Union territories of Jammu and Kashmir and Ladakh. ● Responding to a request from the Administration of the Union Territory of Jammu and Kashmir, there is a proposal through this amendment to incorporate the communities of "Gadda Brahmin," "Koli," "Paddari Tribe," and "Pahari Ethnic Group" into the list of Scheduled Tribes for the Union territory of Jammu and Kashmir. This amendment is recommended by the Administration and is subject to consultation with the Registrar General of India and the National Commission for Scheduled Tribes. ● The Constitution (Jammu and Kashmir) Scheduled Tribes Order (Amendment) Bill, 2023 aims to formalize these proposed changes in the Constitution (Jammu and Kashmir) Scheduled Tribes Order, 1989, by substituting the Section 2 of the latter, thereby, designating specific communities/tribes in the Union Territory of Jammu and Kashmir as Scheduled Tribes. This designation grants them distinct constitutional rights and protections, encompassing affirmative action and reservation in government services and educational institutions. ● - Part I of the Schedule given in the Bill includes the following Tribes in the Union Territory of Jammu and Kashmir: Bakarwal, Balti, Beda, Bot, Boto, Brokpa, Drokpa, Dard, Shin, Changpa, Gadda Brahmin, Gaddi, Garra, Gujjar, Koli, Mon, Paddari Tribe, Pahari Ethnic Group, Purigpa, Sippi. - PART II of the Schedule given in the Bill includes the following Tribes in the Union Territory of Ladakh: Bakarwal, Balti, Beda, Bot, Boto, Brokpa, Drokpa, Dard, Shin, Changpa, Gaddi, Garra, Gujjar, Mon, Purigpa, Sippi.

Significance of the Bill

● The Bill includes the communities of “Gadda Brahmin”, “Koli”, “Paddari Tribe” and “Pahari Ethnic Group” in the list of Scheduled Tribes in respect of the Union Territory of Jammu and Kashmir. Following passage of Bill, the list of STs in J&K will include Bakarwal; Balti; Beda; Bot,Boto; Brokpa, Drokpa, Dard, Shin; Changpa; Gadda Brahmin; Gaddi; Garra; Gujjar; Koli; Mon; Paddari Tribe; Pahari Ethnic Group; Purigpa and Sippi.3 ● The Paharis in Jammu and Kashmir, constituting 8.16% of the population, are primarily identified as a linguistic group, with significant concentrations in Poonch and Rajouri districts in the Pir Panjal region of Jammu. According to the 'Population Survey of Pahari Speaking People' released by the J&K government on February 1, 2018, Paharis make up 56.03% of the population in Poonch district, 56.10% in Rajouri, 11.84% in Kupwara, 14% in Baramulla, 7.86% in Anantnag, 5.88% in Ganderbal, and 5.04% in Shopian district.4 The Paharis justify their tribal identity by drawing parallels with the Gujjars based on geographical, social, political, and economic factors.5 ● Despite multiple State Governments recommending ST status for Paharis since the 1980s, they were not given that status. Even the Justice G.D. Sharma Commission had recommended ST status for the ethnic Pahari community, addressing the injustice. The distinction in the Bill's terminology, referring to the "Pahari Ethnic Group" instead of "Pahari Speaking People," reflects an attempt to address these historical considerations.6 ● In November 2022, the National Commission for Scheduled Tribes (NCST) granted approval for the inclusion of Paharis in the Scheduled Tribes list of the state of Jammu and Kashmir. This decision makes the Pahari community eligible for various opportunities that were formerly reserved exclusively for the Scheduled Tribe population.7 Consequently, the Bill proposes a 4% increased reservation in employment and admissions to professional colleges specifically for the 'Pahari Ethnic Group,' distinguishing it from the broader category of 'Pahari Speaking People.'8

Areas for Further Deliberation

● There are certain concerns regarding the Bill, especially when considering the regional distribution of the population in Jammu and Kashmir. According to the latest census, out of the 12,75,106 Scheduled Tribes residing in J&K, 8,10,800 are in the Jammu region, with only 4,64,306 in the Kashmir region.9 This suggests a historical trend of prioritizing benefits for the tribes in the Jammu region over those in Kashmir. The current Bill continues this pattern, as the majority of the Pahari-speaking population resides in Jammu. Although the Pahari-speaking population was not included in the 2011 census, a 2018 community survey by the State Advisory Board reveals that 63% of Paharis live in Jammu, while 37% reside in Kashmir.10 Experts have cautioned that the 4% reservation for the Pahari-speaking population from 2020 onwards caters more to the Jammu region.11 ● There is strong criticism from existing Scheduled Tribes who fear that their traditional identities might be compromised. The Paharis are a linguistic group that include both Hindus and Muslims. However, the issue of reservation for the Pahari community has caused unrest among the Gujjar-Bakarwals, a mostly Muslim community that has enjoyed reservation since 1991.12 This economically weaker nomadic tribe is afraid that their own status will be diluted if the Paharis also become eligible for reservations.13 Additionally, they are concerned about potential amalgamation and express apprehension about competing with the broader Paharispeaking population.14 They have vehemently opposed the proposed Bill seeking "ST" status for the "Pahari Ethnic Group.".15 ● Within the Pahari-speaking community, a faction argues for favoring certain segments, contending that their living conditions match those of privileged tribes regarding education, healthcare, and financial opportunities. This includes Pahari-speaking Hindus and Sikhs who fled Pakistan-occupied Jammu and Kashmir in 1947, along with permanent residents. They assert that historical challenges kept them from mainstream leadership and genuine participation in tribal reservations.16 ● To incorporate new classes and communities into the ST/SC/OBC category, the customary procedure involves conducting a comprehensive socio economic and caste census survey. 17 However, in the context of this Bill, the Government, lacking any initiative from the relevant competent body, has solely depended on a report submitted by the National Commission from deputy commissioners which include castes/classes predominantly from the Jammu division as identified by deputy commissioners. ● Many individuals in Kashmir are opposing the Bill, citing concerns related to the Jammu & Kashmir Reorganisation Act 2019. This Act, which divided Jammu and Kashmir into two Union territories, is currently under challenge in the Supreme Court and is sub-judice. 18 Therefore,the introduction of a Bill amending an Act that is currently subject to judicial scrutiny in the Supreme Court poses another issue.
DISCLAIMER: The opinions expressed herein are entirely those of the author(s). Swaniti makes every effort to use reliable and comprehensive information, but Swaniti does not represent that the contents of the report are accurate or complete. Swaniti is a non-profit, non-partisan group. This document has been prepared without regard to the objectives or opinions of those who may receive it.

1 Article 342 of the Indian Constitution.

2 “Pahari Reservation: The Third View”, Greater Kashmir. Available at: https://www.greaterkashmir.com/todays-paper/editorial-page/paharireservation-the-third-view/.

3 “Parliament’s winter session begins tomorrow | J&K ST, SC amendment bills among 19 bills likely to be taken up”, Greater Kashmir, 2023. Available at: https://www.greaterkashmir.com/front-page-2/parliaments-winter-session-begins-tomorrow-jk-st-sc-amendment-bills-among-19- bills-likely-to-be-taken-up/.

4 “Proposed ST and OBC reservations for new groups in J&K: How the BJP could benefit electorally”, The Indian Express, august 2023. Available at: https://indianexpress.com/article/explained/explained-climate/cop28-climate-meeting-the-fossil-fuel-question-9054651/.

5 Ibid.

6 Ibid.

7 “Pahari Reservation: The Third View”, Greater Kashmir. Available at: https://www.greaterkashmir.com/todays-paper/editorial-page/paharireservation-the-third-view/.

8 “3 J&K reservation bills among 32 listed in Monsoon session”, Daily Excelsior. Available at: https://www.dailyexcelsior.com/3-jk-reservationbills-among-32-listed-in-monsoon-session/#google_vignette.

9 “Are J&K's Reservation Laws Being Changed to Further Marginalise Kashmir”, The Wire. Available at: https://thewire.in/government/are-jksreservation-laws-being-changed-to-further-politically-marginalise-kashmir.

10 Ibid.

11 Ibid.

12 “How 3 reservation bills introduced in Lok Sabha are likely to impact BJP’s vote share in Jammu & Kashmir”, The Print. Available at: https://theprint.in/india/how-3-reservation-bills-introduced-in-lok-sabha-are-likely-to-impact-bjps-vote-share-in-jammu-kashmir/1687906/.

13 Ibid.

14 “Pahari Reservation: The Third View”, Greater Kashmir. Available at: https://www.greaterkashmir.com/todays-paper/editorial-page/paharireservation-the-third-view/.

15 “Parliament’s winter session begins tomorrow | J&K ST, SC amendment bills among 19 bills likely to be taken up”, Greater Kashmir, 2023. Available at: https://www.greaterkashmir.com/front-page-2/parliaments-winter-session-begins-tomorrow-jk-st-sc-amendment-bills-among-19- bills-likely-to-be-taken-up/.

16 “Pahari Reservation: The Third View”, Greater Kashmir. Available at: https://www.greaterkashmir.com/todays-paper/editorial-page/paharireservation-the-third-view/.

17 Supra 7

18 Padmakshi Sharma, “Jammu & Kashmir Special Status: Supreme Court's Judgment In Article 370 Case To Be Pronounced This Month”, LiveLaw, December 2023. Available at: https://www.livelaw.in/top-stories/jammu-kashmir-special-status-supreme-courts-judgment-in-article370-case-to-be-pronounced-this-month-243578.