Background Paper on the Rights of Tribals
By
Ticy Thomas
Research Scholar
Centre for International Legal Studies
School of International Legal Studies
JNU
Introduction
The Constitution of India does not define Scheduled Tribes as such. However, Article 366 (25) refers to Scheduled Tribes as, such tribes or tribal communities or groups as are deemed under Article 342 of the Constitution. According to Article 342 of the Constitution, the Scheduled Tribes are the tribes or tribal communities that have been declared as such by the President through a public notification. This leaves open the scope for widening of the lists of Scheduled Castes and the Scheduled Tribes (SCs and STs) under this Article, as evidenced by many Scheduled Caste and Scheduled Tribe Constitutional Orders via 2002, 2003 etc. In Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and Another v. Union of India and Another (1994 Indlaw SC 871), the Supreme Court held that a person belonging to a caste or tribe specified under Article 341/342 to be a Scheduled Caste or a Scheduled Tribe in relation to State A, cannot claim the privileges and benefits afforded to that caste in State B even if that caste or tribe is specified for the purposes of the constitution to be a Scheduled Caste or a Scheduled Tribe in relation to State B. The reason given by the Court is that, a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe, only in relation to the State or Union Territory for which it is specified.
India has the second largest tribal concentration in the world. In India, Scheduled Tribes are spread across the country mainly in forest and hilly regions. The essential characteristics of these communities are their particular geographical location, distinct culture, economic backwardness and aloofness from the society at large. These people, in our country, are treated as low, despised and untouchable by the prevailing adherence to man made social norms and caste system. They are compelled to perform duties which are considered inferior and degrading like flaying the dead animals, cleaning the latrines and removing the garbage, guarding the cremation grounds and grave yards, weaving, drum-beating, entertainment of upper caste people etc. It was Mahatma Gandhi who fought hard to recognize them as free citizens of India and called them the Girijans or the Children of the Forest God. Upon independence in 1947, the Government of India spent lot of resources to improve the life of the Scheduled Tribes through legislations, developmental programmes and various progressive welfare schemes.
Existing Safeguarding Provisions
The Constitution, for example, provides for social, cultural, educational and service safeguards for the Scheduled Castes and the Scheduled Tribes (SC/STs), apart from specific and general legislations enacted to safeguard and protect the interest of SC/STs.
a) To begin with, Article 15(4) and 16 (4), (4A) provides special provision for the advancement of any socially and educationally backward classes of citizens or SC/STs and protective discrimination respectively. This is reaffirmed by Article 46, which directs the State to promote with special care the educational and economic interests of the weaker sections and in particular of the SC/STs. By Article 335, it is provided that the claim of the members of the SC/STs shall be taken into consideration consistently with the maintenance of efficiency in the administration, in the making of appointments to services and posts in the Centre and State level. In reality, however, the number of SC/ST members in higher echelons of administration, still remains low in proportion to the reservation offered.
b) Article 17 abolishes untouchability. To give effect to this Article, Parliament enacted Untouchability (Offences) Act, 1955. To make the provisions of this Act more stringent, the Act was amended in 1976 and was renamed as the Protection of Civil Rights Act, 1955. As provided under the Act, Government of India also notified the Rules, viz., the PCR Rules, 1977, to carry out the provisions of this Act. As cases of atrocities on SC/STs were not covered under the provisions of PCR Act, 1955, Parliament passed another important Act in 1989 for taking measures to prevent the atrocities. This act is known as the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 followed by Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995. Despite the State taking these legal measures to protect the SC and STs, it could be found that the condition of these section of people have not improved as much as it should have. There are many reasons that contribute to this abysmal situation. The lack of political will to enforce the Act rightfully, insensitiveness of the society towards SC and STs, continuing adherence to the caste system, lack of human rights awareness etc are few to mention.
c) Article 23 prohibits traffic in human beings and begar and other similar forms of forced labour and provides that any contravention of this provision shall be an offence punishable in accordance with law. It does not specifically mention SC/STs but since the majority of bonded labours belong to SC/STs; this Article has a special significance. In pursuance of this article, Parliament has enacted the Bonded Labour System (Abolition) Act, 1976. For effective implementation of this Act, the Ministry of Labour is running a Centrally Sponsored Scheme for identification, liberation and rehabilitation of bonded labour, the efficacy of which is debatable to some extend.
d) Article 24 provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. The Child Labour (Prohibition and Regulation) Act 1986 prohibits employment of children in certain hazardous occupation and processes, the violation of which is made punishable under the Act.
e) Article 330 and 332 provides for reservation of seats for SCs/STs in the Lok Sabha and State Legislative Assemblies respectively.
f) Article 338 provides for National Commission for the Scheduled Castes and Scheduled Tribes entrusted with the power to investigate all matters relating to the safeguards provided to SC/STs and to report to the President on the working of these safeguards.
g) Schedule V of the Constitution deals with the administration and control of scheduled areas and scheduled tribes. It restricts the entry and ownership of land and immovable resources in adivasi areas by non-adivasis and outsiders. The Supreme Court in Raoji and Others v. State of Maharashtra (AIR 1986 Bom 262) upheld the Maharashtra Land Revenue Restriction Code (S.36A) that restricted the transfer of land by tribal in favour of non-tribal. The Panchayats Extension to the Scheduled Areas Act (PESA) of 1996 gives additional powers to Gram Sabha’s in the scheduled areas. Gram Sabha’s of Panchayats in tribal areas listed in Schedule V of the Constitution enjoy additional functions and powers to help local communities preserve their socio-cultural norms and retain control over their natural resources. In the historic “Samata” Judgment (AIR 1997, SC 3297), the SC held that the government lands, forestlands and adivasi lands in Scheduled Areas cannot be leased out to non-adivasis or private industries. The court also recognised the Gram Sabhas as competent to safeguard and preserve community resources. This decision rightly gives due importance to the involvement of interested stakeholders and reiterates the need to give right of self-governance to adivasis through Gram Sabha’s. But the powers entrusted to the Gram Sabha’s are limited legally in many ways:
1. State governments continue to wield enormous power over Panchayats thus holding the final say,
2. absence of clear delineation of power between Gram Panchayat and Gram Sabha’s,
3. the ensuing problem of over lapping jurisdiction and finally,
4. the precedence of Special Laws like Forest Act over Gram Sabha decisions.
Scheduled Tribes (Recognition of Forest Rights) Bill, 2005
It is in this background that the proposed Scheduled Tribes (Recognition of Forest Rights) Bill 2005 or the Tribal Bill is scheduled to be introduced in the Parliament shortly. The Bill seeks to provide rights to the forest dwelling tribal people whose rights have been extinguished after the Supreme Court stayed the regularisation of tribal villages in forest areas on 23 November 2001 in the case ofGodavarman Thirumalpad v. Union of India (Interlocutory Application No.703 in Writ Petition No. 202/95). The draft Bill spells out 12 rights to tribals ranging from inheritable rights to forestland, rights of ownership to minor forest produce, and rights to traditional knowledge. Major highlights of the Bill are as follows:
1) The Bill proposes giving 2.5 hectares of land to each tribal family occupying forestland since or before October 25, 1980.
2) The Gram Sabha fully empowered to determine the extent of forest rights to the inhabitants.
3) Convert forest villages into revenue villages to bring modern development.
4) Access to traditional seasonal resources.
However, the Bill in its present form is dogged by controversy, with many social and conservation groups, as also the Ministry of Environment and Forests (MoEF) opposing it. The major criticisms against the present draft are the following:
a. Firstly, that the Bill leaves out many forest dwellers, such as tribes not scheduled in the Constitution like dalits and backward communities, creating circumstances for their eviction from notified areas. For example, Chhattisgarh, one of the States to be most affected if the Bill gets through, has about 30,000 Scheduled Tribes who will benefit from the law. But, at the same time it has over 21,500 non-tribals living in forests who will not be given any land or rights
b. Secondly, The Ministry of Environment and Forests (MoEF) objects to the Bill, saying it will hinder efforts to conserve India’s dwindling forest cover and subsequently its biodiversity. Quoting a clause from the draft bill, the MoEF says that if 2.5 ha of land is given to each tribal family then going by this calculation 20 per cent of India’s land (68 million hectares) is forested; 8 per cent of India’s population is tribal, which adds up to more than 50 million hectares!.
c. Thirdly, the vesting of right to allot this land with the Gram Sabha of the village concerned, which is also empowered to punish wildlife crimes and any action that leads to the destruction of the forest is another subject of criticism.
d. Fourthly, that the forest, wildlife and protected areas in particular, will be jeopardized as a result of this Bill. This is the main criticism of the conservationist lobby.
e. Fifthly, it is widely criticized as not taken a holistic policy approach for addressing tribal issues, but one rather made in haste without consideration to the other relevant issues that affect tribals.
f. Sixthly, that the draft does not categorically provide for the rights of the tribals to other resources such as water, technology, credit etc. (Communist Party)
g. Finally that, the draft if implemented will do gross injustice not only to tribal groups but also to people who are dependent on the forests for their livelihood.
On the other hand, proponents of the Bill feel that it is a remedy to the grave historical injustice that has been inflicted on tribals from time immemorial. They feel that tribals need land to sustain their culture, and by giving them their rights, this is an attempt to undo the injustice done to them. Moreover, it is felt that as tribals know their surroundings well, they are better equipped to safeguard and protect their flora and fauna. They also argue that the legislation only seeks to recognize and regularize ground reality by granting legal entitlement to those millions of families who are today seen as encroachers and thus empower and improve livelihood chances of a historically marginalized people.
Relevance of the Seminar on “Rights of Tribals”
The proposed Seminar, organised by the HURITER and Centre for International Legal Studies as part of the Human Rights Day celebrations, would be an ideal forum to reflect upon this much “talked about” but “less done” segment of the society. It provides an opportunity to ask wider questions like what is been the extent of development to the Tribals since 60 years of independence? Whether the Bill would rectify the present plight of the SC and STs? What are the reasons that have caused lope-sided enforcement of Act like 1989 Prevention of Atrocities Act? Where have we gone wrong? And how can the environmental concerns be combined with developmental needs? In the light of the recent Right to Information Act 2005, it is the obligation of the government as well as the civil society to invite the participation of the interested stakeholders to share their informed views and be part of the decision making which could be made possible through an exercise like this seminar.
Quick References:
http://www.achrweb.org/Review/2005/71-05.htmhttp://www.indianjungles.com/171005c.htm
Soure : http://www.jnu.ac.in/sis/huriter/righttribals.htm , Withthanks
Soure : http://www.jnu.ac.in/sis/huriter/righttribals.htm , Withthanks
