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Legal Problems of Tribal Communities within India with Special Emphasis on the tribal-centric Laws



INTRODUCTION

Due to primitive agricultural traditions, a lack of resources, and geographical isolation, the framers of the Constitution realized that many communities in the nation were suffering from acute social, educational, and economic backwardness. According to Article 366 (25) of the Indian Constitution, "Scheduled Tribes" refers to tribes or tribal groups that are considered to be Scheduled Tribes under Article 342 of the Constitution. The Scheduled Tribes are a set of India's legally disadvantaged groups of traditionally marginalised people. The terms are described in the Indian Constitution, and different classes are classified into one of many categories.


Since there is no universal definition of indigenous and tribal groups, ILO Convention No. 169 establishes objective and subjective guidelines for defining the peoples in question. These parameters can be summarised as follows: Their demographic, cultural, and economic circumstances set them apart from the rest of the country. Their status is governed entirely or in part by their own customs and practises, as well as by special laws and regulations. India has the world's second-largest tribal population. Scheduled Tribes in India are mostly found in the country's forests and hilly areas. In India, tribes are defined primarily by their geographical location and distinct culture. Tribes in India are regarded as second-class citizens, execrated, and even treated as untouchables due to the existing social norms and caste system. Because of their economic backwardness and illiteracy, the tribal people were forced to perform tasks that were deemed inferior. Since these people were mistreated and did not have the same rights as other residents of India as provided by Article 14 of the Constitution.

Historical Background

Historically, the tribal people were self-governing first nations. Upper castes compelled these subjugated tribal classes to conduct menial tasks such as minor domestic chores, washing, cleaning of excreta, leather work, and the disposal of dead bodies, among others. Tribal people were considered untouchables, and they were not even permitted to sit with upper caste people. Since they were outside of the mainstream, their socio-religious and cultural traditions were preserved and they were not influenced by mainstream culture. The tribal people were seen as unclean by the majority of Indian society, and they were socially isolated and often subjected to abuse. Aside from the tribes' encounters with different cultures, there has also been the presence of western missionaries in the past and the ruling culture by fundamentalist movements in the recent past. Several human rights abuses and violence against indigenous women have occurred in the past. Tribal societies were often subjected to alienation and racial inequality by the patriarchal community, which was always oppressive.

Mahatma Gandhi was the one who began the demand for tribal rights and equal status in society in India. He regarded these individuals as Girijans, or God's Children, and viewed them fairly in society. When other people saw Gandhi interacting with these people who were treated as untouchables by the established society, it sparked a revolution, but the situation did not improve much. Following India's independence in 1947, the government of India passed various resolutions and established a ministry to protect tribal people's rights. People belonging to the Scheduled Castes and Scheduled Tribes have special privileges granted by the Constitution.


Scheduled Tribes: What Are Their Rights?

The Indian Constitution aims to ensure, among other things, social and economic justice, equality of rights and opportunities, and human freedom for all of its people. The Scheduled Tribes have the same rights as the citizens of India, which are enshrined in the Constitution, any statute of the state, or any order of the government. Since they are backward and isolated from the rest of the population, Scheduled Tribes are unable to exercise their rights. Special constitutional provisions have been enacted to empower them to exercise their citizenship.

Scheduled Tribes-Related Issues

The tribal people of peninsular India and the north-eastern tribes face the most major issues. After receiving recommendations that the distinct "community arrangements" and "attitudes" of the tribes in the two regions should be handled in a common law, the Constituent Assembly formed at the time of independence adopted the separate systems. Only 15 lakh complainants out of 39,56,262 cases filed were granted legal recognition to their property under the 2006 Forest Rights Act, which provided land rights to the country's forest-dwelling communities. Each tribe has its own set of social issues. They also perform child marriage, infanticide, homicide, animal sacrifice, wife swapping, black magic, and other harmful rituals. They believe in divine powers and are adamant about upholding these customs. They don't want to lose their distinctive tribal identity, so it's been said that "tribes are tribesmen first, tribesmen second, and tribesmen still."

Do Scheduled Tribes have any special rights or Constitutional provisions for their development?

The Constitution's framers recognised this and included empowering clauses in the form of reservations and steps to be taken to enable them to take advantage of the opportunities. Some people refer to these protections as Scheduled Tribe privileges, but they are simply facilitating provisions that enable Scheduled Tribes to take advantage of resources and exercise their rights and safeguards.

Article 15 of the Indian constitution, clause (4) it empowers the state to pass laws and provisions relating to the empowerment of economically and educationally disadvantaged groups, as well as scheduled castes and tribes. Under Article 15(4), the term "socially and educationally backward classes" applies to underprivileged groups of people who have faced inequality and discrimination from the privileged. Article 15(4) of the Constitution provides for reservation in educational institutions, while Articles 16(4), 16(4A), and 16(4B) of the Constitution provide for reservation in posts and facilities.

Several other clauses in the Constitution have been included to protect and promote the interests and rights of the Scheduled Tribes in different realms, allowing them to integrate into the national mainstream. Article 338A empowers the NCST to oversee the enforcement of various protections given to STs under the Constitution, any other legislation in force at the time, or any other order issued by the government, as well as to assess the effectiveness of such safeguards. Article 342(1) states that the President, after consulting with the Governor, may designate tribes or tribal communities, or parts of or groups within tribes or tribal communities, as Scheduled Tribes in relation to any State or Union Territory, and where it is a State, by public notice.According to Article 275(1) of the Indian Constitution, "such sums as Parliament can by statute provide shall be paid on the consolidated Fund of India in each year as grants-in-aid of the revenues of such States as Parliament may deem to be in need of assistance," and "different sums may be set for different States."

The constitution's fifth schedule protects indigenous people from being displaced due to land purchases and other factors. In such situations, the Governor of the State with Scheduled Areas has the authority to ban or forbid the transfer of land from tribal citizens and to oversee the allotment of land to Scheduled Tribes members.

Article 23, which forbids human trafficking, begging, and other forms of forced labour, is particularly important for Scheduled Tribes. The Bonded Labour System (Abolition) Act, 1976 was passed in response to this Article. Similarly, Article 24, which forbids the employment of children under the age of 14 in any plant, mine, or other hazardous operation, is important for Scheduled Tribes because Scheduled Tribes account for a large portion of child labour employed in these jobs.


The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) of 1989 was enacted to protect scheduled castes and scheduled tribes from atrocities. The act was enacted to deter atrocities against members of the scheduled tribes. It establishes procedures for the prosecution of such offences as well as the recovery of victims of such offences. The act was recently amended in response to a court decision that required advance consent before a convicted person could be arrested. Previous provisions were reinstated as a result of the act's reform.


Institutional Safeguards for Scheduled Tribes

Scheduled Castes and Scheduled Tribes Special Officer (Commissioner)

Article 338 of the Constitution provided for the selection of a Special Officer to ensure the effective execution of the Constitution's various protections for SCs and STs, as well as various other security legislations. The Special Officer assigned as Commissioner for SCs and STs was tasked with looking at all issues relating to the rights for SCs and STs outlined in various laws and briefing to the President on their effectiveness. The first Commissioner for SCs and STs was named on November 18, 1950.

Commission for Scheduled Castes and Scheduled Tribes

The Constitution (89th Amendment) Act of 2003 established the National Commission for Scheduled Tribes (NCST) by amending Article 338 of the Constitution and adding a new Article 338A. In reaction to persistent requests from Members of Parliament and others that the Office of the Commissioner for SCs and STs alone was insufficient to regulate the implementation of constitutional guarantees, an effort was moved to amend Article 338 of the Constitution, replacing the one-member system with a multi-member system. When the amendment to Article 338 was being discussed, the government decided to create a multi-member Commission by an administrative order, Ministry of Home Affairs Resolution No.13013/9/77-SCT(1) dated 21.7.1978.


Functions of the commission are mentioned under Clause (5) of Art. 338A

  1. To investigate and monitor matters pertaining to safeguards offered for STs under the Constitution, other legislation, or government orders, and to assess how well they are performing.

  2. To look at concrete concerns about STs' rights and protections;

  3. To take part in and advise on the planning process for STs' socioeconomic growth, as well as to assess their success under the Union and every State;To submit report to the President annually and at such other times as the Commission may deem fit, upon/ working of Safeguards, Measures required for effective implementation of Programmers/ Schemes relating to Welfare and Socio-economic development of STs;

  4. To discharge such other functions in relation to STs as the President may, subject to the provisions of any law made by Parliament, by rule specify;

  5. The Commission would also discharge the following other functions in relation to the protection, welfare and development & advancement of the Scheduled Tribes, namely:

  • Measures that must be implemented to give Scheduled Tribes living in forest areas possession rights over small forest produce.

  • Measures to be taken to ensure that Tribal Communities' access to natural resources, water resources, and other services are protected under the statute.

  • Measures to be taken in order to help tribals evolve and move forward with sustainable survival strategies.

  • Efficacy of relief and recovery measures for tribal populations displaced by construction projects to be improved.

  • Measures must be taken to discourage tribal members from being expelled from their territory and to properly rehabilitate those who have already been expelled.

  • Measures to be taken to evoke as much support and participation from tribal communities as possible in the protection of forests and the implementation of social afforestation.

  • Measures to be taken to ensure that the Panchayats (Extension to Scheduled Areas) Act, 1996 is fully implemented (40 of 1996).

  • Measures to be taken to limit, and eventually abolish, tribals' pattern of shifting agriculture, which results in their continued disempowerment and environmental degradation.

National Commission for Scheduled Castes and Scheduled Tribes (Advisory)

According to Ministry of Welfare Resolution No. BC-13015/12/86-SCD VI dated 1.9.87, the Commission for Scheduled Castes and Scheduled Tribes was called the National Commission for Scheduled Castes and Scheduled Tribes. The roles of the Commissioner for SCs and STs and the National Commission for SCs and STs were also specified in this Resolution. It was decided that only the Commissioner for Scheduled Castes and Scheduled Tribes would submit the Report to the President, and that the National Commission for Scheduled Castes and Scheduled Tribes would conduct studies and serve as a National Level Advisory Body to advise the Government on broad policy issues and levels of development of Scheduled Castes and Scheduled Tribes, and that the National Commission would submit its Report to the President.



National Commission for Scheduled Castes and Scheduled Tribes (Constitutional)

Following the passage of the Constitution (Sixty-fifth Amendment) Act, 1990, the National Commission for Scheduled Castes and Scheduled Tribes was given constitutional status. The Rules relating to the appointment of the Chairman, Vice-Chairman, and Members of the NCSCST, as well as the conditions of their service, were notified on 3-11-1990, and the first Constitutional National Commission for Scheduled Castes and Scheduled Tribes was established on 12-3-1992 under the Constitution (Sixty-fifth Amendment) Act, and the Office of Commissioner for Scheduled Castes and Scheduled Tribes was established on the same date.

The Panchayat (Extension to Scheduled Areas) Act 1996

The PESA Act was enacted by the Indian government to allow tribal Gram Sabhas to self-govern and protect their natural resources. PESA was extended to nine states: Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, and Rajasthan, but not to other Scheduled Areas such as Manipur. The Gram Sabha or Panchayat gained more influence as a result of PESA's restrictions on the State Legislature. It should be noted that the Gram Sabha's powers under this Act are limited to the tribes' customs, rituals, faith, soil, and mineral resources. However, in 1996, Parliament used its reserved constitutional power to expand the terms of Part IX of the Constitution to the Fifth Schedule areas exclusively. As a result, any hamlet or habitation “comprising a society and conducting its affairs in compliance with traditions and customs” will now practise minimal self-government. Following the passage of PESA, communities in the Fifth Schedule (the majority of whom were tribal) were told they had to hold democratic elections, follow the hierarchical Panchayat structure outlined in Part IX, and exercise the powers deemed "required to allow them to work as institutions of self-government. When devolving power to local communities, states were required to ensure that I their laws complied with "customary law, social and religious practises, and traditional management practises of community resources," and (ii) Gram Sabhas (bodies "consisting of persons whose names are included in the electoral rolls for the Panchayat at the village level") were "competent." As a result, many people see PESA as a "logical continuation of both the Fifth Schedule" and Part IX of the Constitution. As a result, many people see PESA as a "logical continuation of both the Fifth Schedule" and Part IX of the Constitution. But, as innocuous as it can be, this—top-down—model has gradually deprived tribal people’s self-government and access to their community's natural resources over the last ten years.



Conclusion

In modern Indian civilization, a tribe refers to a group of indigenous people who live in the hills and forests and have their own language and culture. Obviously, the social organisation, rituals, and intuition of the tribes differ significantly from those of the general Indian population. Tribal communities in India, in fact, remained largely disconnected from the centre of national culture until the country's independence. Since they are backward and isolated from the rest of the population, Scheduled Tribes are unable to exercise their rights. To authorise them to exercise their citizenship, special provisions in the Constitution have been enacted. The framers of the Constitution recognised this and incorporated enabling provisions in the form of reservations and measures to be taken to allow them to seize the opportunities. These safeguards are often referred to as Scheduled Tribe privileges, but they are merely enabling laws that enable Scheduled Tribes to access services and exercise their rights and safeguards.


The challenges and concerns of the Tribes cannot be ignored or separated from the Government's key development agenda. “Three decades of progress have not had the desired effect on the socially, culturally, and educationally handicapped section,” according to the Sixth Five-Year Plan paper. Despite the government's best intentions, tribal people continue to be denied a life to which they are entitled. We agree that the government and all political parties should work together to ensure the Tribes' well-being, rather than being diplomatic in this delicate matter.


Author-Rajat Tanwar

National University of Study and

Research in Law, Ranchi (NUSRL)


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