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Tribal Rights & Constitution


Introduction

Approximately 250 million people live in the close proximities of forests pan India, out of which nearly 104 million of them comprise of native Adivasis or the tribal inhabitants. Looking at the broader picture, if all these inhabitants are collectively put in one separate landmass, it will become the 13th largest country in the world representing diverse cultures.

There exist 67.8 million individuals from Scheduled Tribes, constituting 8.08 per cent of the total population of India. There are 698 Scheduled Tribes spread all across the country barring a few States and Union Territories like Chandigarh, Delhi, Haryana, Puducherry, and Punjab. Orissa has the largest number of Scheduled Tribes (68).


Since ages, the tribal population of India had an essential and inseparable relationship with the forests for livelihood and survival. The relationship unlike other civilized communities, is symbiotic and not one-sided. Rights are however, rarely recognized by authorities and since they do not legally own the land they reside upon, it is up for grabs by authorities which leads to these already marginalized communities getting affected further.

Article 366 (25) defined scheduled tribes as "such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution".

Indian forests fall under the purview of the Indian Forest Act 1927 and Wildlife Protection Act 1972. These laws empower forest settlement officers to declare any forestland to be ‘settled’ thereby deriding tribal population of their place of residence. More often than not, the procedure is either not carried out or done erroneously leading to faulty evictions. Diversion of forest land for large industrial and mining projects has led to large-scale displacement of the tribal population. Therefore, to correct such historical wrongdoings, The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (also known as the Tribal Rights Act) was enacted.


What the Constitution has to offer

Tribes in India are known as Scheduled Tribes as they have been included in the schedules of the Constitution of India. Primarily, the 5th Schedule deals with Scheduled Tribes in India. Also, the 6th schedule deals with administration of tribal areas in the north-eastern states of Assam, Meghalaya, Mizoram and Tripura.

The 5th Schedule {Article 244(1)} provides for constitutional safeguards against eviction of tribal population owing to and encroachment or acquisition. In the Schedules Areas, the Governor of the State is empowered to prohibit or restrict land transfer from tribals and subsequently reallocate the land to the tribal community. Land is classified as a state subject and therefore rehabilitation and resettlement issues are implemented by the respective State Governments.


The 6th Schedule {Article 244(2)} governs the 4 North-Eastern States and has provisions for formation of autonomous districts and autonomous regions within districts to cater to the different scheduled tribes present in there. This schedule has laid down a decentralized governance structure with executive and legislative powers over subjects like water, land or customs. These bodies have also been extended judicial powers that allow settling certain civil or criminal cases.

Article 342 empowers the president to provide for specification of tribes or tribal communities or parts of or groups within tribes or tribal communities which are deemed to be for the purposes of the Constitution the Scheduled Tribes in relation to that State or Union Territory.

The following rights are available to the Scheduled Tribes –


Educational, cultural and public-employment related safeguards

  • Article 15(4) – Special provisions for advancement of other backward classes, which includes Scheduled Tribes.

  • Article 16(4), 16(4A) – Equality of opportunity in matters of public employment

  • Article 19(5) – Special restrictions can be imposed by the State on Right to Free movement if it is concerned with the protection of the interests of Scheduled Tribes.

  • Article 29 – The state cannot impose any culture upon the community’s existing culture.

  • Article 46 – Promotion of Educational and Economic interests of Scheduled Tribes

  • Article 335 – Claims for Scheduled Tribes to serviced and posts.

  • Article 341 and 342 - Scheduled Castes and Scheduled Tribes concerning the states and union territories as a special category of a tribe or a community as declared by the President.

Social safeguards

  • Article 23 – Prohibition of traffic in human beings and similar forms of forced labor

  • Article 24 – Prohibits employment of children below the age of 14 to be employed in any factory, considering many child laborers belong to the Scheduled Tribes.

Economic safeguards

  • Article 275 – Grant in-Aid to specified states consisting of Scheduled tribes covered under the 5th and 6th schedules of the Constitution.

Political safeguards

  • Article 164(1) – Provides for Tribal Affairs Ministers in Bihar, MP and Odisha

  • Article 243(D) - Reservation of seats for Scheduled Tribes in Panchayat

  • Article 330 – Reservation of seats for Scheduled Tribes in Lok Sabha

  • Article 332 – Reservation of seats for Scheduled Tribes in State Legislature

  • Article 334 – Reservation of seats and special representation (renewed every 10 years)

Central Agency

  • Article 338(A) – National Commission for Scheduled Tribe

Enshrined in Article 14 is the fundamental principle of equality, that requires all citizens residing in this nation to be treated equally, without any discrimination. One must encompass the generations of humiliations and indignities faced by them and the State must ensure that firstly the tribals should be uplifted and position them at par with other members of the society, such that they are able to enjoy the benefits under Article 14. Similarly, Article 21(A) too is fundamental in uplifting this marginalized community by allowing them the access to free education, which when viewed holistically, is one of the many purposes that our nation intends to achieve through its Directive Principles of State Policy (Article 45)


Other legislations & Statutes

5 principles were laid down in 1952, referred to as the “Nehruvian Panchasheel”. These principles have been instrumental in regulating the administration of tribal affairs. These principles are:

  • Tribals should be allowed to develop according to their own genius.

  • Tribals’ rights in land and forest should be respected.

  • Tribal teams should be trained to undertake administration and development without too many outsiders being inducted.

  • Tribal development should be undertaken without disturbing tribal social and cultural institutions.

  • The index of tribal development should be the quality of their life and not the money spent

Since these principles were more general than specific, it did not serve the purpose and to address these legislative lacunae, A National Tribal Policy is in the making by the Ministry of Tribal Affairs which aims to cater to all-round development of individuals from these communities via a multi-pronged approach and all this is to be achieved, without causing any disruption to their unique and sustainable culture.

The Protection of Civil Rights Act of 1955 had aimed to prevent discrimination and uphold their Right to Life. The National Forest Policy of 1988 aims to protect the lands owned Tribal communities and declares them as sacred groves, since this community cohabits and worship these forest lands. The PESA or Provisions of the Panchayats (Extension to Scheduled Areas) Act of 1996 aims to empower the community by allowing governance through traditional Gram Sabhas and Panchayats, granting them fiscal, administrative and judicial powers. The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 aims to protect the vulnerable communities from being compelled to undertake jobs as menial as manual scavenging and provide for alternative employment opportunities if any person of the community is found being compelled to undertake such tasks. Such jobs are against basic human rights and is violative of Article 21.

The Forest Rights Act, 2006 recognises the rights of local forest dwellers. It provides for activities such as grazing, fishing, pastoring etc., and the community rights for its development by conservation of these resources and boosting their infrastructure. It protects the traditional methods of farming (which is also sustainable in nature), by intending to undo the historical injustice done to these tribes.


International Laws

The United Nations Declaration on the Rights of Indigenous People (UNDRIP), 2007, concedes the Rights of native and aboriginal groups against forcible removal and relocation from their land. It also promotes self-governance and individual autonomy through individual rights. India had voted for this declaration and therefore when native and marginalized communities of India face discrimination or unfair treatment, it violates the international declaration. Even though the government has voted in favour of the Declaration, it continues to deny the term and concept of ‘indigenous people’ and claims that all Indians are indigenous to the land. Even the International Labour Organisation’s (ILO) Indigenous and Tribal Rights Forum aims to protect and preserve semi-tribal and tribal cultures.


Case laws

Devadasan Vs. Union of India, 1964

This case held the ‘carry forward’ rule which enabled the SC and ST community to get more than 50% reservation in a particular year to be unconstitutional.


Indra Sawhney v. Union of India & Ors, 1992

The 9-judge bench of the Apex Court held that backwardness of a citizen in Article 16(4) can be identified on the basis of caste system. The Court held that Government of India should reserve 27% of the jobs for the socially and economically backward classes and it is constitutionally valid. The overall reservation was however capped to 50%.


M. Nagaraj Vs. Union of India, 2006

The Supreme Court held the validity of Article 16(4) making it imperative that there should be no adequate representation for SC and ST in public employment.


Registrar (Judicial) v. Secretary to Government, 2020

SCSTs had to pass through an agricultural field of standing crops, often with dead body to their graveyard due to the lack of a proper road infrastructure. The Madras High Court held that the State Government is duty-bound to pave a roadway and allow the community to be treated in a dignified manner. The Court pointed out the historical continuity of offenses against members of the communities and it is high time that State Government ensure steps to prevent them from unnecessary troubles and untold hardships.


Patan Jamal Vali v. State of Andhra Pradesh, 2021

The Apex Court held that in order to book under Section 3(2)(v) of the ST/SC Act, the ingredients of section must be made out, and not by default wherein the victim belongs to the SC ST category. The prosecution must prove beyond reasonable doubt that the offense was committed because the victim belonged to that category, and not since the victim was of that category, therefore the perpetrator must be booked under the SCST Act.


Conclusion & Suggestions

The imbalance between the tribal groups and the mainstream society needs to be acknowledged and needs to be bridged through preventive and protective laws. Awareness and sensitization of the upper-caste individuals of the community is the need of the hour and must be promoted to instill feeling of love and equity for the marginalized communities in their hearts and help to eradicate the generational prejudice, biases and pre-conceived notions existing in their mindset. Seamless access to public resources in terms of education or health should be available to the marginalized community such that they are able to develop and compete at par with the privileged sections of the society. Independent committees with no governmental involvement must be established to review the implementation of laws and take action or suggest remedies in case of failure in implementation. Their efficient involvement will be essential in gradually eradicating tribal issues within India. Registration of cases in case of offenses committed by upper-caste members must be ensured and speedy delivery of justice via tribunals or Special Courts should be mandatorily practiced. The tribals of this nation need a well-oiled machinery that not only prevents violence against them and delivery justice expeditiously, but is able to uphold, uplift and allow them a life of dignity, thereby fulfilling the objective enshrined under Article 21 of the Constitution.


It is to be noted that despite Government initiatives and efforts, not much progress has been visible in the upliftment and development of tribals, not only from the perspective of States, but also from the perspective of the nation as a whole.


References

  1. https://www.thehindu.com/opinion/op-ed/lets-not-miss-the-wood/article7358626.ece

  2. http://envfor.nic.in/en/legis/legis.html

  3. https://pib.gov.in/Pressreleaseshare.aspx?PRID=1563818

  4. https://smarteklavya.com/contemporary-issues-for-upsc-prelims-mains-indian-polity-and-governance-difference-between-fifth-and-sixth-schedule/

  5. https://www.scconline.com/blog/post/tag/scheduled-tribe/

  6. https://www.livelaw.in/top-stories/supreme-court-scheduled-castes-and-scheduled-tribes-prevention-of-atrocities-act-172159?infinitescroll=1

  7. https://indiankanoon.org/doc/1363234/

  8. https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html

  9. https://www.prsindia.org/uploads/media/1167469383/bill53_2007010353_Draft_National_Policy_on_Tribals.pdf


-Rishabh Guha

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