THE CONTEXT: Tribal population constitutes around 8.6% of the total Indian population, and today a tribal lady holds the most important position of our country i.e. President of India but despite all the laws being enacted with her assent, the legal system continues to treat the tribal person as belonging to an “uncivilized race”. In this context, there is a need to analyze various legal and constitutional measures and issues associated and steps that need to be taken to address the issue.
PROTECTION MEASURES FOR TRIBALS IN INDIA
The government has enacted various constitutional and legal measures for the protection and development of the tribal population. However, this has not resulted in the intended benefits.
The Constitution of India has provided special provisions to the tribal people to safeguard their interests which are mentioned below:
- Article 15: It provides that the state shall not discriminate against any citizen on the grounds of religion, race, caste, sex, place of birth or any of them. This explains that every citizen of India is provided with equal rights and opportunities without any discrimination which also includes tribals.
- Article 16(4): The government of India has made the reservation for the tribes in employment under Article 16(4) of the Constitution of India.
- Article 19(5)[13]: It guarantees the tribal people the right to own property and enjoy it in any part of the country.
- Fifth Schedule: Fifth Schedule deals with the administration of scheduled areas where tribal communities are in the majority. Tribal advisory councils (TACs) are constitutional bodies formed under the Fifth Schedule to deal with the welfare and advancement of scheduled tribes in states.
- Sixth Schedule: It contains provisions related to the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram. Sixth Schedule provides for the administration of certain tribal areas as autonomous entities. The provisions of the sixth Schedule are provided under Articles 244(2) and 275(1) of the Indian Constitution. It seeks to safeguard the rights of the tribal population through the formation of Autonomous District Councils (ADC). ADCs are bodies representing a district to which the constitution has given varying degrees of autonomy within the state legislature.
Apart from constitutional measures, there are various acts formulated by the Centre government which are mentioned below:
- Forest Rights Act-2006 or The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006: Forest Rights Act (FRA), 2006 recognizes the rights of the forest dwelling tribal communities and other traditional forest dwellers to forest resources, on which these communities were dependent for a variety of needs, including livelihood, habitation and other socio-cultural needs.
- Scheduled Tribes(Prevention of Atrocities)Act, 1989: ThisAct is enacted to prevent the commission of offenses of atrocities against the members of the Scheduled Tribes. It provides for Special Courts for the trial of such offenses and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.
- Panchayats (Extension to Scheduled Areas) Act, 1996 or PESA: PESA Act was enacted to ensure self-governance through Gram Sabhas (village assemblies) for people living in the Scheduled Areas. It recognizes the right of tribal communities, who are residents of the Scheduled Areas, to govern themselves through their own systems of self-government, and also acknowledges their traditional rights over natural resources. It is an Act to provide for the extension of the provisions of Part IX of the Constitution relating to the Panchayats to the Scheduled Areas.
ANALYSIS OF PROTECTION MEASURES
The government has failed to implement these policies due to lack of political will and inadequacy of administrative machinery, procedural delays and lack of proper monitoring. Today, tribal people are not even able to demand their rights due to the poor response of the authorities. There is a need to analyze issues related to these protection measures:
5TH AND 6TH SCHEDULE PROVISIONS
There are special provisions of the 5th and 6th Schedule in the Indian constitution for tribal communities.
These provisions had led to:
● Representation of tribal rights: Tribal advisory council and Autonomous District Councils provide for proper representation of scheduled tribes as in TAC, there are three fourth be representatives of STs in the legislative assembly.
●Governor duties and powers: Governor is required to submit a report to the president regarding administration, governor makes regulations for the peace and good government and such regulations prohibit or restrict the transfer of land by or among members of scheduled tribes in such areas.
However, tribal communities are facing several issues with regard to the implementation of the 5th and 6th Schedule.
● Issue of colonial legacy: These areas were previously considered as ‘typically and really backward tracts’ under the Government of India Act, 1919 and ‘partially and wholly excluded areas’ under the Government of India Act, 1935. The Fifth and the Sixth Schedules of the Constitution similarly is using the same paternalistic language of the colonial era that there is need to protect the tribal population.
● Ambiguity in role of governor: There is ambiguity in the discretionary role of governor and reduction of the office of governor to a mere annual report-writing institution to the President on the affairs of scheduled areas, rather than utilizing it as the guardian of constitutional governance. It states that the Fifth Schedule is meaningless until and unless governors of states get discretionary powers for the administration of the scheduled areas and have the power to revise or supersede government decisions in the interest of tribal communities.
SCHEDULED TRIBES(PREVENTION OF ATROCITIES)ACT, 1989
This act has been intended to protect the tribal communities against atrocities. However, it has not resulted into the intended benefits, there is a need to analyze the act:
● Special courts: Special courts are created to prevent crime against tribes.
● To protect the rights of tribals: The act sets out to make the tribals an integral part of society and to protect their rights when crimes threaten to violate their social, economic, democratic, and political rights.
● Prevent deprivation: The act works to prevent deprivation and assists marginalized communities in avoiding it.
● Least registration and conviction rate: There is least registration of cases according to National Crime Records Bureau (NCRB) under the ST (Prevention of Atrocities) Act and other sections of law over alleged crimes against SCs and STs and of these in which chargesheets were filed in 81.3% cases where the conviction rate was 20.8%.
PANCHAYATS (EXTENSION TO SCHEDULED AREAS) ACT, 1996 OR PESA
The PESA act has been intended to provide for self-government for tribal communities. In this regard, there is a need to analyze the act that whether it has been successful:
● Self-government: PESA Act bestows absolute power and authority on gram sabhas to enable them to function as institutions of self-government.
● Other powers relating to livelihoods: They are also given the power to deal with those matters that have been affecting the lives and livelihoods of tribals, such as prevention of land alienation, management of village markets, imposition of ban on the consumption of intoxicants, ownership of minor forest produce, exercising control over money lending, control over institutions and functionaries in all social sectors and control over local plans and resources.
● Power of Gram Sabha or Panchayat: PESA imposed restrictions on the State Legislature and decentralized more power in the hands of the Gram Sabha or Panchayat. It may be observed that the powers that can be exercised by the Gram Sabha under this act relate to the tribes’ customs, traditions, religion, land and mineral resources. Various government departments work independently of the panchayats rather than working with them led to the ineffectiveness of the gram sabha and panchayat functionaries.
● Issue of land acquisition: With respect to land acquisition in Scheduled Area PESA Act states that the gram sabhas be consulted before the acquisition is made. Only consulting Gram Sabha is mandatory, not their approval undermines the power of gram sabha.
FOREST RIGHTS ACT-2006 OR THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006
Forest Rights Act has been implemented with the objective of providing forest rights to tribes. Though it has been successful in some respect, there are few issues involved as well which needs to be taken into consideration:
● Recognize historical injustice and aims for tribal rights: FRA recognizes the historical injustice done to Adivasis and forest dwelling communities who had been residing in such forests for generations and aims at correcting the injustice by granting them individual/ community-based tenurial rights over forest land.
● Challenge to balance environment and tribal rights: The challenge before the act was to balance the needs of Adivasis and forest dwellers with those of forests and wildlife. It believes implementation of the act will lead to the destruction of forests and wildlife.
● Structural barrier in implementation: Main barriers with regard to implementation relate to the structural conditions, which define the power of the state vs the powerlessness of the scheduled tribes and other forest dependent communities.
● Lack of coordination: There is a lack of coordination between the tribal, revenue and forest departments on the implementation of the act. There are multiple laws that are in conflict with FRA and to operationalize FRA on the ground.
WHY THERE IS VIOLATION OF TRIBAL RIGHTS
LEGACY OF COLONIAL RULE
There are many pre-Independence laws that exhibit a deep-seated prejudice towards tribals and continue to remain in force. There are two examples in this regard:
● Santhal Parganas Act, 1855: It has been enacted as a response to the Santhal uprising against the East India Company, the act excludes certain districts in the erstwhile Bengal Presidency from the application of the ‘general Regulations and Acts of Government’. The act is based on a simple premise – Santhals are too ‘uncivilized’ a people to be governed by the legal system.
● Criminal Tribes Act, 1871 or Habitual Offenders Acts: Criminal Tribes Act 1871 has been replaced by Habitual Offenders act. The 1871 Act described certain tribes as ‘addicted to the systematic commission of offences’ and enabled the government to notify them as ‘criminal tribes’. With the repeal of this act, the ‘criminal tribes’ came to be ‘de-notified’. Though, the Habitual Offenders’ Acts, unlike their colonial counterpart, do not explicitly single out these tribes. However, in practice, not much has changed. In almost every state where Habitual Offenders’ Acts are in force, individuals belonging to the de-notified tribes have been disproportionately targeted.
These provisions focus on the old colonial idea of primitivism which still continues under the guise of protecting cultural autonomy.
ISSUE OF RELIGION
● There is a belief among proponents of conversion that tribes do not have the religion of their own. Occasionally, the term “animism” is used to refer to “tribal beliefs and rituals” and this carries the suggestion that there is no conversion (from one religion to another) involved in the tribesman’s acceptance of a “genuine” faith, such as Christianity, Islam or Hinduism.
● Another, in a way, even more demeaning view of the religions of the tribes is that although tribes do have something resembling religion, it is no more than a prehistoric, fossilized version of the great religions of the world.
● Apart from being ethnically insensitive, such a view is demonstrably untrue. Tribal religions may not always have systematized theology, but they have unique frameworks of meaning that deserve respect.
● Religions of the tribes, when they are left to their own devices by their powerful and power-seeking brethren, have a unique vitality and contemporaneity rather than being fossilized.
GEOGRAPHICAL SEPARATION/ISSUE OF ASSIMILATION
● Historical problem: The problem of alienation of land from the tribal to non-tribal is there from the time of British colonialism in India when the Britishers started interfering in the tribal region to exploit the rich tribal resources which led to displacement of tribal people from forests.
● Low technological development: The tribes are of special concern in Indian society in view of their general economic backwardness, low technological development, and complex problems of socio-cultural adjustment to distinctive cultural identity.
● Spread in different areas: As the tribal communities are spread in different areas.
● Negligence of government: Instead of ensuring that tribals are not ousted from the land to which they are historically and culturally connected, the state is more concerned about fulfilling contractual obligations towards the private investor.
This kind of social as well as physical separation or seclusion has declined tribal development. The welfare schemes, programmes and projects undertaken by the government sometimes do not even reach these people because of this isolation.
ISSUE OF DENOTIFIED TRIBES
- Denotified tribes are communities that were most vulnerable and deprived that were ‘notified’ as being ‘born criminal’ during the British regime under a series of laws starting with the Criminal Tribes Act of 1871.
- A National Commission for De-notified, Nomadic and Semi-Nomadic Tribes (NCDNT) was constituted in 2006 by the then government. It was headed by Balkrishna Sidram Renke and submitted its report in June 2008, in which it said, “It is an irony that these tribes somehow escaped the attention of our Constitution makers and thus got deprived of the Constitutional support unlike Scheduled Castes and Scheduled Tribes.”
- National Commission to Review the Working of the Constitution under the chairmanship of Justice M N Venkatachaliah, said in its 2002 report that: “The denotified tribes/communities have been wrongly stigmatized as crime prone and subjected to high handed treatment as well as exploitation by the representatives of law and order as well as by the general society.”
- These communities are frequently left out because they are less visible and difficult to reach. There is a need for a mechanism to reach out to these tribals by government welfare measures and provide them equal opportunities.
ISSUE OF PARTICULARLY VULNERABLE TRIBAL GROUPS(PVT)
- PVTGs are more vulnerable among the tribal groups. In 1975, the Government of India initiated to identify the most vulnerable tribal groups as a separate category called PVTGs and declared 52 such groups, while in 1993 an additional 23 groups were added to the category, making it a total of 75 PVTGs out of 705 Scheduled Tribes, spread over 17 states and one Union Territory (UT), in the country (2011 census).
- These tribal groups are widely different culturally. Cultural practices, systems, self-governance, and livelihood practices of PVTGs have a lot of variations, depending on the group and locality. The level of inequalities in social and economic conditions is very high amongst PVTGs.
- PVTGs are becoming increasingly vulnerable due to loss of their customary habitats and the livelihood resources which sustained them due to non-recognition of their rights.
- Some tribes as Shompens, Jarawas, Sentinelese of the Andaman and Nicobar Islands are even on the verge of extinction.
- Therefore, as a priority, the rights of the PVTGs to their land and habitats must be recognized and respected and need to be addressed through a community-specific approach instead of standard government schemes.
THE WAY FORWARD
- Collaborative approach: Despite so many efforts made by the government, tribal people are still deprived of a life to which they are entitled to. There is a need that government and tribal communities should work together towards the welfare of the tribes.
- Legal accessibility: There is a need to make judicial proceedings faster and easily accessible for the tribes so that they can get justice for the injustice.
- Strengthen domestic legislation: There is a need to strengthen domestic legislation which protects the individual and community rights of tribal people in forest areas.
- Awareness and training: For the proper implementation of the welfare schemes and policies for the tribal benefit, the tribes should be made aware of them through awareness and training programmes and at the same time, authorities should be well trained in this regard.
- Autonomy: There is a need to give autonomy to tribals in their respective areas, and gram Sabhas should act as a connecting link between tribes and the authorities.
- Economic empowerment: There is a need for economic empowerment of the tribal population by promoting sustainable livelihood and self-reliance among tribal people by promoting cooperatives and culturally appropriate employment opportunities.
CASE STUDIES: PRACTICES OF TRIBAL COMMUNITIES
There are few practices of tribal communities that needs to be taken into account to further their rights to ensure their equal status in society:
Practice related to Nature:
● In Ziro valley, the Apatani tribes are known for their sustainable agriculture practices of wet rice cultivation, where nutrient washouts from hilltops flow in to enable crop growth. Land irrigation is facilitated by canals dug and linked to streams from hills. Soil fertility is maintained by organic wastes and the recycling of crop residues. Similarly, native animal populations like the Himalayan squirrel are protected through a mechanism called ‘Dapo’, where the community head lays down rules on hunting and extraction, nonadherence to which can lead to penalties. Ethnic people of India have played a vital role in preserving biodiversity of several virgin forests and have conserved several flora and fauna in sacred groves of tribals, otherwise these flora and fauna might have disappeared from natural eco -system.
Practice related to governance:
● Lakhmara, a tall young tribal from the Garasia tribe in Rajasthan: “Ten years from now, we want our tribe to be free of the Panchayati Raj system and return to our traditional way of governance. The Panchayats only create divisions and enmities in the community.” Tribes included the Garasiyas of Rajasthan, Bhils of Rajasthan and Gujarat, and Korkus from Maharashtra. The four ‘primitive tribes’ included the Koragas and Jenu Khurba tribe of Karnataka,Kathodis of Gujarat and the Sahariyas of Madhya Pradesh made unanimous consensus among the tribals that the Panchayati Raj System was inferior to their traditional tribal law. Besides,it involved the intrusion of outsiders like the police and the political parties. Under the traditional way of governance, conclusion is reached through consensus.
THE CONCLUSION: At the macro level, the state has to play an important role in terms of policies relating to the conservation, development and management of natural resources as well as for the overall development of tribals and tribal areas. However, the issues and problems of the tribes cannot be neglected and isolated from the main development agenda of the government. There is a need to amend the provision of the various acts not with the aim to protect tribes, but there is a need for respect by treating them equals.
MAINS QUESTIONS
- To bring tribes into the mainstream of development, we need to give them not only protection but respect also. Comment.
- Challenges in the welfare of tribal people in India are not legal but social and cultural. Examine.
