Protection of Tribal Rights: An Effort Through Environmental Legislation
Tribal rights with regards to lands and forests should be respected, The development of tribes along the line of their own genesis without imposing anything on them, attempts should be made to train and build up a team of tribal themselves to do the work of administration and development.
– Jawaharlal Nehru
Tribe is a term used to identify other groups of people within society. Some academics hate the term because it lacks a clear definition and has been applied to multiple classes that are distinctly different. However, many of the groups identified as tribes find the word insulting or misleading. The first use in English of the word ‘tribe’ made reference to the Hebrews. Before 1000 B.C. the Hebrew were loosely organized into 12 groups. These groups were called the 12 tribes of Israel. The term ‘tribe’ was soon extended to mean any group of families who traced themselves to a common ancestor. Many Europeans viewed as primitive 4 the colonized peoples whose technology was less advanced than theirs. In time the term ‘tribe’ took on the broad meaning of ‘primitive groups.’ A community, traditionally or developmentally defined, consists of a social group that occurs before or beyond the development of states.
Most anthropologists use the term to refer to communities primarily organized on the basis of kinship; in particular to groups of corporate descent.
Status of Tribals in India
India, the country with the world’s largest concentration of ‘indigenous peoples!’ We are known as ‘Adivasis,’ with the population of 8.43 crores (8.2 per cent) of the country’s total population as of 2001. They live in around 15 per cent of the areas of the world. Such Adivasis are usually called ‘Indigenous People’ or ‘Original Inhabitants’ or ‘Scheduled Tribes.’ While the word ‘Scheduled Tribes’ (STs) does not include the phrase ‘Adivasis.’ Scheduled Tribes is an administrative concept used to “administer” certain constitutional rights, security and benefits to specific sections of peoples deemed traditionally poor and “backward.”
India’s Constitution seeks to ensure social and economic justice, equality of rights and opportunity for all its people, among other things, and guarantees the dignity of the individual. The Constitution further provides the deprived parts of citizens with social, cultural, and political guarantees. Some provisions are specific to both Scheduled Castes and Scheduled Tribes. Certain laws are unique to Scheduled Castes as well as Scheduled Tribes and others areas.
Constitutional Guarantee with respect to Tribals Rights
The Constitution of India provides social, economic and political guarantees to disadvantaged sections of the people. Some provisions specific for the Scheduled Tribes are:
- Equality before Law (Article 14);
- The State to make special provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes [Article 15 (4)];
- Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State(Article 16);
- The State to make provisions for reservation in appointment, posts in favor of any backward class citizens, which in the opinion of the State is not adequately represented in the services under the State [Article 16 (4)];
- The State to make provisions in matters of promotion to any class or classes of posts in the services in favor of the Scheduled Castes and the Scheduled Tribes [Article 16 (4A)];
- A National Commission for Scheduled Tribes to investigate, monitor and evaluate all matters relating to the Constitutional safeguards provided for the Scheduled Tribes (Article 338 A);
- Appointment of a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the States [Article 339 (1)];
- Appointment of a Commission to investigate the conditions of socially and educationally backward classes and the difficulties under which they labour and to make recommendations to remove such difficulties and to improve their conditions (Article 340);
- To specify the tribes or tribal communities to be Scheduled Tribes (Article 342).
Tribal Laws and Customs for Protection of Tribal Rights in India
The population of India includes nearly one hundred million tribes. Only the incredible diversity of Indian tribes fits those figures. The two main tribal settlement areas are the northeast states of the country bordering China and Burma and the highlands and plains of its central and southern areas. The latter is home to more than 80% of the tribes that vary in ethnicity from the north eastern tribes and have undergone greater “intrusion of the Indian mainstream and the pan-Indian paradigm of power, community, economy and culture.”
Though fairly easy to capture as a term, in practice India has struggled to maintain the balance. The most common issues are the understanding that the tribal people have a right to sovereignty and not just decentralized administration. That they have the right to pursue redress within their own customary or conventional laws; and that they have the right to possess and use the natural resources in their environment. Such issues are dealt with in the Indian Constitution (“Constitution”) and by tribal-people-specific laws, but there are significant variations in how the Indian system treat the north eastern and peninsular tribes.
The distinction in the law is based on the two principles that had directed the British Indian colonial government in deciding the degree of self-government that the tribes would exercise: (a) whether the tribe was capable of handling its own affairs, and (b) whether the tribal area in question had a large non-tribal population. This system was codified for the tribes in peninsular India in the Fifth Schedule of the Constitution, and for the north eastern tribes in the Sixth Schedule. The Constituent Assembly, established at the time of independence, accepted the separate systems after receiving suggestions that the distinct ‘cultural structures’ and ‘attitudes’ of the tribes in the two regions could not be addressed in.
As per the 2001 census, the country’s tribal population is 8.43 million, accounting for 8.2 per cent of the total population. During the period 1991-2001, the population of tribes had increased to a growth rate of 24.45 percent.
The tribal people usual opt in for a peaceful life. They possess a very well attachment towards their traditional land which they occupy since ages be it either for habitation or cultivation. They generally resisted invasion on their Territories but during certain extreme cases they act violently against the exploiters such as money lenders, middle man, contractors, zamindar, government, forest authority, police, revenue officials etc. The major struggle was the one against the British. They managed to follow their own traditional laws, customs and legal system.The various issues can be in some manner be classified relating to the development of tribal culture, planning and the self-government of tribal areas. The problem with development plans is that they rarely take into account the existing culture and economy of the tribals.
After the Indian Independence and declaration of it being a ‘welfare state’, it became the bound duty of our planners to ensure the development of the poor masses suffering from hunger, poverty, disease and illiteracy. There were special provisions included in the Constitution to safeguard the social, economic, educational and political interests of weaker sections of the community including tribals. The tribals were been only treated as those living far away from civilisation in the forests and hills but post independence, the policy of laissez-faire followed by the British could no more be continued. The tribals also had the right to come in line with society and for that the gap between them and rest of the people had to be bridged. Post-Independence, the forest department took over the monopoly of developing forests and tribals became foreigners in their own forests and hills especially after the promulgation of Forest Conservation Act, 1980.
The Forest Act, being the product of the British colonial days, reflects the exploitive intensions of colonial and feudal society of the time, rather than the environmental and ecological interests. Based on a revenue-oriented policy, its main object was to regulate dealings in forest produce and augment the public exchequer by levy of duties on timber.
The Act also provides for procedures for reservation and incidence of reservation. No right could be acquired in or over reserved forest except by (a) succession; or (b) under a grant or contract entered into with government; or (c) by any other persons having pre-existing rights.
The rights were though lost as soon as the draft notification was issued. Any person indulging in prohibited acts such as setting fire to the forests, hunting, trespassing, quarrying, fishing and setting traps was liable to be prosecuted. The State Government on the other hand can assign any of its rights in a reserved forest to a village community and make rules in furtherance.
Tribes are in a situation where tribal welfare programs by the government do not have any remarkable effect on tribal growth with protective and developmental initiatives. Until now, tribal development has been a problem for government. Researcher therefore thought it necessary to examine the effect of welfare policies on social-labour tribes.
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Author Details: Reeha Sultana
The views of the author are personal only. (if any)
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