Legal Problems of Tribal Communities with Special Emphasis on Tribal Centric Legislation

Abstract

Living in a country which makes up a giant population of one hundred million tribal people,[1] gives you an assurance that such a remarkable diversity of India’s tribes,[2] will be legally respected. But all the efforts go in vain, when you get to hear that the tribal people are still in the shackles of unemployment, bondage, poverty, illiteracy, exploitation, indebtedness and poor sanitary conditions.

India has struggled to maintain a balance in operation. Tribes neither have autonomy, decentralisation nor they have the right to pursue justice under their own old or traditional law.[3] Even they are deprived of the right to be owner and use the resources of their habitat.

This paper examines the current legal issues affecting India’s tribal people, including cultural, educational & legal issues with respect with rights available to them under constitution. The emphasis is on critically analysing tribal-centric Indian legislations. In addition, an effort has been made to suggest improvements to the current situation.

Key words: Tribal people, legislation, Central government, State government, problems.

Prologue

The term “tribe” refers to a community of people who live in harsh and impoverished situations.[4] Tribes are ethnic groups who live on a fixed territory and have no functional specialties, and those who live among them are known as tribal or tribal peoples. Tribes have a range of subgroups, which are referred to collectively as the “tribal communities.” Tribes are ancient forest dwellers, and many people still observe this phenomenon in the modern world. While being the human’s founding settlers, tribes are deprived of basic necessities in their daily living.

Tribes comprise of 8.6% of the entire Indian population, of which central India accounts for about 80% of the overall tribal population.[5] Tribes are also labeled as ‘Adivasi,’ which means ‘people of the motherland.’

But, even after 76 years of independence, the situation of the tribal group has not enhanced, notwithstanding the country’s rapid development. The tribal community’s growth is moving at a brisk pace. Both the central and state governments have developed a wide range of policies and programmes over the years, but it seems that there is still a long way to go until the tribal culture is established with the rest of the world.

Problems Of India’s Tribal People

Cultural Problems

Coming from a nation that prides itself on its “Unity in Diversity,” why that “unity” isn’t practiced while accepting others’ “diversity”?

People who are well educated, known, and civilized fail to recognize that tribal people have a very unique culture, custom, and way of life. Suspicion of their faith, pressuring them to embrace some other religion, and imposing different propaganda on them is an embarrassment to those of us who claim to be learned.

Large-scale religious conversion of tribals by Christian missionaries in bordering areas of India,[6] as well as attempts to spread Hinduism’s ideology in many parts of India’s tribal regions, will not make anyone popular; rather, it will cause major confusion and even conflict amongst tribals.

The cultural problem between tribal & civilized societies is expanding, and the only way to close it is for the federal government, state governments, and rulers to work together. This chasm was felt on the road to tribal peoples’ integration into mainstream Indian society.

Educational Problems

Articles 15(4) and 46,[7] of the new constitution, enacted after independence, called for the required education. The central and state governments have adopted education policies and literacy plans, with schools being established in various tribal areas. Hostels, scholarships, and enrollment reservations are all available in various types of universities and colleges.

If all is going so well, why do the figures and statistics portray a skewed image of tribal education?

Literacy rate amongst tribals of India is 58.96%,[8] As the country’s literacy rate has increased by 28.21% over the last three decades, it has only increased by 11.7% among the STs.[9] A major development issue among tribal peoples has been described as lack of literacy.

The tribal people, who live in deplorable conditions, do not consider education to be a significant part of their lives; it is a mere privilege for them. The government must recognise the value of education in order for tribal people to live a prosperous life. Furthermore, education is the only way to make tribal people aware of their rights; otherwise, they would be useless.

Legal Problems

Where Art. 15,[10] of constitution guarantees no discrimination for all the citizens, but the adivasis have been tormented and subjected to all sorts of discrimination. Even today, many tribals are treated as untouchables and are prevented from visiting other’s homes. They are regarded as outcasts and viewed with contempt. The majority of the tribals are working as contract labourers. Nobody cares what could happen if an accident occurs, and no labour union, regardless of its affliction, is concerned.

Tribal recruiting is still frowned upon in executive and non-executive positions today. Moreover, Permanent workers are often subjected to discrimination when it comes to promotions, with some receiving preferential treatment. Discrimination is still prevalent in schools. The students have been confronted with derogatory comments such as “you quota children” or “adivasi students,” which is an obvious infringement of the SC/ST atrocity act, but apparently, the young students do not understand.

The government has taken tribal lands in order to construct and develop factories. How many tribal members have found work in the private sector? Instead, tribals who oppose pollution are heavily repressed by the police, even children are not spared. Pre-planned crackdowns, sometimes labelling them as sympathisers and incarcerating them.

Meanwhile Article 46 talks of ensuring the educational and economic interests of the weaker sections of the people and in particular, the Scheduled Castes and the Scheduled Tribes,[11] but tribal people comprise of poorest section of society. For instance, according to the Lakdawala and Tendulkar committees’ reports,[12] for the year 2005, 27.5% and 37.2% of the scheduled tribe’s population, respectively, live in poverty.

Article 16(4),[13] provides for reservation of tribals in employment, but owing to a shortage of job opportunities, the poor tribes out of despondence agree to work as labourers in the agriculture field, brick kilns, stone quarries, power looms, and hand looms. They are paid irregularly and bonded without any kind of workplace security.

Are these statistics not available with government? Why isn’t the government paying attention to these issues if it is aware of them? Are the new laws and statutes assisting in any way?

In quest for answers under PESA (Panchayats Extension to Scheduled Areas) Act, 1996

I personally acknowledge the formation and implementation of this Act as it was created to give autonomy to local governments to protect their resources, but initially it was implemented in only 9 states of India, excluding other scheduled Areas. Why?

In a decentralised government, tribal rights are affected.

Even though PESA is enacted and implemented, it seems that the tribals are “culturally deprived and economically robbed” as under British rule.[14] PESA has failed to “acquire the status and dignity of viable and responsive people’s bodies.”[15]

Tribal local governments are often overlooked in formation of plans for development, and the benefits any development seldom trickle down to the tribals, who are both economically and culturally subordinated to outsiders.[16] Another crippling factor reversing the gains of land reform legislation is deception and active connivance of state workers with non-tribal groups.

Critics of Indian tribal governance sees the dangers through a very narrow lens, dismissing provisions of PESA as “impracticable” and accusing state governments of being “legislatively ignorant.”[17] In summary, they conclude that effective civil administration can solve tribal problems on its own.[18]

I therefore believe that there are structural flaws and biases while framing this statute which have an effect on not only state involvement in tribal governance, but also tribal natural resource rights and adoption of local government forms.

A way too long?

PESA has aided the steady excoriation of tribal rights in the natural resources of the Scheduled Areas. The complication occurs because PESA delegated natural resource management to tribal groups without the State relinquishing control or ownership.[19] Tribes in India are routinely stripped of their property rights based on the low (and ambiguous) consultation and recommendation thresholds.

PESA drafters made the mistake of believing that a vague guideline to states to enact their own laws in accordance with customary law, social and religious traditions, and mainstream community resource management practises would overcome the dichotomy.[20] What they failed to consider was the displacement of indigenous laws and institutions that comes with the imposition of a non-native governance structure.[21]

The challenges to implementation of its provisions have largely gone unaddressed. Its stated goal of giving people power has yet to materialise. States are attempting to develop definitive procedures for defining forest and minor forest produce rights. Meanwhile, “some states like Maharashtra, Gujarat, and Orissa, in an effort to perpetuate State control over forest resources, tried to dilute the provisions of PESA although they had no legal jurisdiction to do so.”[22]

Has Enactment of The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 done enough?

This Act gives communities the authority to use, maintain, and control forests for their own benefit as well as for forest conservation and protection. The Act acknowledges rights to “community forest resource,” which it describes as “customary common forest land within the village’s traditional or customary borders, including protected areas.”

The Act recognizes “the ownership rights of tribes and other forest dwellers who have lived or farmed on a certain piece of land for a long time”.[23] In 2011, Naran Majhi, a 40-year-old man, applied for regularization of his land under this Act in order to be recognized legally as the owner of the land that his family had farmed for over 200 years.

But another picture is that, just 15 lakh complainants were granted legal recognition for their property out of the 39,56,262 cases filed in providing land rights to the country’s forest-dwelling communities under this Act. Tribes have their own set of social issues. They are custom-bound and traditional. They are superstitious & stereotypical who believe in outmoded and futile activities that can be detrimental due to a lack of education and advancement.

20 Point Programme

The aim of point 11 (b) of the 20-point programme,[24] is to provide economic assistance to scheduled tribe families in order to help them get out of poverty. “Departments of agriculture, rural development, horticulture, animal husbandry, sericulture, forestry, small cottage industries, and others support ST families through various schemes.”

The ministry sets goals for 22 states and union territories, as well as tracking progress on a monthly basis. “In the states of Andhra Pradesh, Assam, Manipur, Meghalaya, Orissa, West Bengal, Jharkhand, Maharashtra, and Madhya Pradesh, ministry officers inspected more than 75 projects.”[25]

Conclusion

Dr. B.R. Ambedkar, who was one of the first to see the future of tribal and oppressed communities in India. The Constitution reflects his broad vision for their betterment. Sadly, even after so many decades, we were unable to live up to his expectations. Though the Central and state governments are interested in tribal growth and have managed to work hard to make progress, but the returns have been disappointing. Many tribal welfare laws and initiatives have been developed and enforced by the Indian government, but none of them have proven to be successful.

Owing to a lack of political support, inadequacy of administrative operations, bureaucratic delays, and a lack of adequate oversight, the Centre has failed to enforce these policies. Due to the authorities’ weak response, tribal people are no longer able to claim their rights. Furthermore, they are forced to produce unwanted documents when they contact the authorities to assert their rights and then they fall prey to “corruption”. Despite the government’s best efforts, tribal people continue to be denied a life to which they are entitled.

Suggestions

Firstly, it is firmly believed that the government at Centre and State along with all political parties should work together to ensure the protection of the Tribes and should not be diplomatic in their approach to this sensitive issue.

Secondly, National Commission for SCs and STs should be given more autonomy to resolve the tribal centric disputes in faster way, keeping in mind all rights of tribals.

Finally, a full-fledged campaign must be started by the government for make all the tribal people aware of their rights and remind them that they are also citizens of a democratic country. Spreading the Innovations to lead conversations about legal rights, better targeting, enhanced budgeting, improving their alignment with the real world, and increasing allocations costs for jobs and ensuring health and infrastructure facilities. There is a lot of room to extend these programmes to areas that are still underserved.

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References

[1] The 2001 Government of India Census recorded 8.2 per cent of India’s population as tribal, (last visited May 3, 2021) https://censusindia.gov.in/2011-Common/CensusData2011.Html.

[2] There are 622 recognized tribes in India, see Ministry of Tribal Affairs, Government of India.

[3] This is significant because, before English common law became the sole legal means of enforcing rights, customary law was the primary means of resolving tribal disputes. Even in the easiest of cases, the normal problems with any imposed law—prolonged processes, impractical rules of proof, and delays in case disposition—hinder a judgement. As a result, indigenous communities prefer the quick justice provided by extremists flourishing in the hinterlands to the procrastinated traditional judicial system to which they are not accustomed. As a result, they become easy targets for militant groups such as the Maoists in central and southern India, who pledge to defend the tribes’ natural rights in exchange for material and political help.

See “A Spectre Haunting India” THE ECONOMIST (17 August 2006), https://www.economist.com/asia/2006/08/17/a-spectre-haunting-india.

[4] Indigenous peoples and ethnic minorities: marginalization is the norm, UNITED NATIONS, https://www.un.org/development/desa/dspd/wp-content/uploads/sites/22/2018/07/Chapter-VIIIndigenous-peoples-and-ethnic-minorities.pdf.

[5] Supra Note 1.

[6] Mohd Faisal Fareed, To stop ‘tribal conversion’, THE INDIAN EXPRESS (April 23, 2015, 12.04 AM), https://indianexpress.com/article/cities/lucknow/to-stop-tribal-conversion-adityanath-outfit-to-take-on-christian-missionaries/.

[7] INDIA CONST. art. 15(4) & art. 46.

[8] Supra Note 1.

[9] Literacy Rate Census, 2011 (last visited May 4, 2021), https://www.mapsofindia.com/census2011/literacy-rate.html.

[10] INDIA CONST. Art.15.

[11] INDIA CONST. Art. 46.

[12] Lakdawala and Tendulkar committees’ reports, 2005 (last visited May 4, 2021), https://niti.gov.in/writereaddata/files/presentation%20for%20regional%20meetings-%20NITI%20AAYOG.pdf.

[13] INDIA CONST. Art.16 cl. 4.

[14] H.L. Harit, Tribal Areas and Administration, in Rann Singh Mann, ed., Tribes of India: Ongoing Challenges, NEW DELHI: M.D. PUBLICATIONS 53 (1996). https://www.scribd.com/document/209751759/ILJ-7-1-Kurup.

[15] The Constitution (Seventy-third Amendment) Bill, 1991.

[16] Govinda Chandra Rath, Introduction” in Govinda Chandra Rath, ed., Tribal Development in India—The Contemporary Debate, SAGE PUBLICATIONS 28. https://www.jstor.org/stable/23620715.

[17] Impracticality of provisions is asserted even by the Draft National Tribal Policy. See India, Ministry of Tribal Affairs, Draft National Tribal Policy (New Delhi: Government of India, 2006) at 21. http://tribal.nic.in/.

[18] Yoko Kijima, Caste and Tribe Inequality: Evidence from India, 1983-1999, 54 ECON. DEV. & CULTURAL CHANGE 369, 390-391 (2006). https://mpra.ub.uni-muenchen.de/33239/.

[19] Avinash Samal, Institutional Reforms for Decentralized Governance and the Politics of Control and Management of Local Natural Resources: A Study in the Scheduled Areas of India, RCSD CONFERENCE, CHIANG MAI, THAILAND, (2003) [unpublished], https://www.scribd.com/document/209751759/ILJ-7-1-Kurup.

[20] PESA (Panchayats Extension to Scheduled Areas) Act, 1996, § 4 cl. a, No. 40, Acts of Parliament, 1996 (India).

[21] Cf. Marc Galanter, The Aborted Restoration of ‘Indigenous’ Law in India (1972) https://www.jstor.org/stable/178060

[22] Saxena, N.C. Policies for Tribal Development: Analysis and Suggestions (Unpublished paper) (2004). https://assets.publishing.service.gov.uk/media/57a08ac540f0b652dd0008cc/CPRC-IIPA44.pdf.

[23] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, No. 2, Acts of Parliament, 2006 (India).

[24] Point 11(b), Twenty-point Programme, MINISTRY OF STATISTICS, http://mospi.nic.in/twenty-point-programme

[25] Supra Note 24.

Author: Anchal Kanthed (Institute of Law Nirma University)