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ARTICLE ON Tribal rights in India.


INTRODUCTION

India’s population includes nearly one hundred million tribal people. These numbers are matched only by the remarkable diversity of India’s tribes. The two main regions of a tribal settlement are the country’s northeastern states bordering China and Burma, and the highlands and plains of its central and southern regions. The latter is home to more than 80 percent of the tribes, which differ from the northeastern tribes in ethnicity and in having experienced greater “intrusion of the Indian mainstream and of the pan- Indian model of the state, society, economy, and culture. There are also differences in the extent to which the tribes interact with non-tribal communities. While the northeastern tribes are usually isolated communities, the tribes in peninsular India may at times coexist with non-tribal people. Despite some regional variation, the tribes share many traits, including living in relative geographical isolation and being relatively more homogeneous and more self-contained than the non-tribal social groups. Consequently, several tensions (both perceptible and obscure) pervade relations between tribals and non-tribals, on the one hand, and the tribes and the State, on the other. The conventional, and largely accepted, the solution is to balance the dichotomy between assimilation of tribal peoples and their independent identity and delineate the contours of a national policy that would allow them to preserve their way of life without compromising development. Although relatively simple to capture as a concept, India has struggled to maintain the balance in practice. The most common problems relate to recognizing that the tribes have a right to autonomy and not merely decentralized administration; that they have a right to seek justice within their own traditional or customary laws; and that they have a right to own and exploit the natural resources in their habitat. These issues are addressed in the Constitution of India and through tribal-people-specific statutes, but there are considerable differences in the way the northeastern and peninsular tribes are treated in the Indian legal system. The distinction in the extant law is based on the two criteria that had guided the colonial British Indian government in determining the degree of self-government that the tribes would exercise: (a) whether the tribe had the ability to manage its own affairs, and (b) whether the tribal region in question had a significant non-tribal population. Judged by these two criteria, the northeastern tribes who are also isolated but seen to be more ‘socially advanced have been given considerable

autonomy under the Constitution, while the tribes in the rest of the country have been placed under the aegis of provincial governors. This arrangement has been codified in the Constitution’s Fifth Schedule for tribes in peninsular India, and the Sixth Schedule for the northeastern tribes. The separate systems were approved by the Constituent Assembly formed at the time of independence after receiving recommendations that the distinct ‘community structures’ and ‘attitudes’ of the tribes in the two regions could not be treated in a common law.

LEGISLATURE

The tribal people who are isolated from the rest of the society and making their livelihood in the forests were really in backward condition and so the Indian government has laid down various legal provisions and enacted several laws for the upliftment of tribal people.

CONSTITUTION OF INDIA

Indian Constitution has accepted the ideas of equality and justice both in the Social and Political fields. Accordingly, it abolishes any discrimination to any class of persons on the ground of religion, race or place of birth.

“It would have been a blunder on the part of the makers of the constitution if, on a logical application of the above principle they have omitted to make any special provisions for the advancement of those who are socially and economically backward, for the democratic march of nation would be impossible if those who are handicapped are not aided at the start. The principle of democratic equality indeed can work only if the nation as a whole is brought on the same level as far as that is practicable. Our Constitution, therefore, provides certain temporary measures to help the backward sections to come up to the same level with the rest of the nation, as well as certain permanent safeguards for the protection of the cultural, linguistic and similar rights of any section of the community who might be said to constitute “minority” from the numerical, not communal point of view in order to prevent the democratic machine from being used as an engine of oppression by the numerical majority.

The Indian Constitution specifically provided certain Articles in the Constitution for the upliftment of tribals and also to protect them from the oppressions caused by the other people in the society. The protective rights granted by the Indian Constitution, 1950 to the tribal people can be classified under the following heads.

  1. Educational and Cultural Rights (Articles 15(4), 29, 46 and 350.)

  2. Social Rights (Articles 23 and 24)

  3. Economic Rights (Articles 244 and 275)

  4. Political Rights (Articles 164(1), 243, 330, 334 and 371.)

  5. Employment Rights (Articles 15(4), 16(4) and 16(4A).)

In addition to these rights Fifth and Sixth Schedule of the Indian Constitution completely deals with the welfare of the tribal people.

  1. To Protect Educational and Cultural Rights of Tribals:

Article 15(4): It states that reservations should be provided to the socially and educationally backward classes (including Scheduled Tribes). It also empowers the state to make special laws for relaxation of minimum qualifying marks for admission for scheduled castes and scheduled tribes.

In State of Madhya Pradesh Vs. Nivedita Jain , the Supreme Court upheld the validity of an executive order of the State Government which had completely relaxed minimum qualifying marks in the pre-medical examination for selection of students to medical colleges of the state in respect of scheduled castes and scheduled tribe’s candidates.

Article 29: It guarantees to any section of the citizens residing in any part of India having a distinct language, script or culture of its own, the right to conserve the same i.e. language, script or culture. A minority community can preserve its language, script or culture by and through educational institutions.(including Scheduled Tribes).

Article 46: It enjoins the State to promote with special care education and economic interest of the weaker sections of the people, and in particular of the scheduled castes and scheduled tribes, and to protect them from social injustice and of all forms of exploitation.

Article 350: The Constitution also gives the right to every person to submit a representation for the redress of grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the States as the case may be.

2.To Protect Social Rights of Tribals:-

Article 23: It prohibits the system of bonded labour because it is a form of forced labour within the meaning of this article.

Article 24: It prohibits employment of children below the age of 14 years in factories and hazardous employment.

3.To Protect Economic Rights of Tribals:

Article 244: It deals with the administration of Scheduled Areas and Tribal Areas.

Article 275: It empowers parliament to make special grants given to the States which undertakes schemes of development for the purpose of promoting the welfare of the scheduled tribes or raising the level of administration of the scheduled areas.

4.To Protect Political Rights of Tribals:

Article 164(1): It empowers the State to establish special Ministry for Scheduled Tribes in the States like Chattisgarh, Madhya Pradesh, Orissa, etc.

Article 243, 330 and 334: It deals with the reservation of seats for scheduled caste’s and Scheduled Tribe’s in the House of the people and the panchayats.

Article 371: It deals with the special provisions with respect to the states of Sikkim, North-eastern states.

In a significant Judgment, a five-judge bench of the Supreme Court has held that a person belonging to scheduled Caste or Scheduled Tribe, bearing the same nomenclature (name) in two states is entitled to the rights, privileges and benefits only in the state of his origin but not entitled to those rights and benefits in other states where he migrates subsequently to other states though they are specified in the scheduled caste or Scheduled Tribe list of the State (Articles. 341 and 342).

5.To Protect the Employment Rights of Tribals:-

Article 15(4): It provides reservations to scheduled tribes in the educational institutions.

Article 16(4) and 16(4A): It provides reservations to scheduled tribes in the employment and promotions.

Fifth and Sixth Schedules of the Constitution:

The provisions relating to the administration and Control of the Scheduled Areas and scheduled Tribes in any state, other than Assam, Meghalaya, Tripura, and Mizoram are contained in the Fifth Schedule to the Constitution

Article 244-A empowers parliament to form an autonomous State comprising certain Tribal areas in Assam and create local legislature or Council of Ministers for such States.

The Administration of the Tribal Areas in the State of Assam is carrying on according to the provisions of the sixth Schedule. It provides for autonomous districts and autonomous regions.

Constitution of Commissions:

The Constitution of India does not define as to who are the persons who belong to Scheduled caste’s and scheduled Tribes. However, Article 341 and 342 empowers the President to draw up a list of these castes and tribes. Under Article 341 the President after consultation with the Governor with respect to the State, specify the Castes, races or tribes or of groups within castes, races or tribes for the purpose of their constitution.

Article 330 deals with the reservation of seats to scheduled tribes in the autonomous districts of Assam. Art.332 provides for the reservation of seats of scheduled Castes and Scheduled Tribes in the legislative Assembly of every State (Except Assam).

The Constitution (89th Amendment), 2003 has amended Article 338 and added a new Article 338-A which provides for the establishment of National Commission for the Scheduled Tribes.

National Commission for Scheduled Tribes:

The Commission consists of a Chairman, Vice-Chairman and three other members. They shall be appointed by the president of India

Duties of Commission: It shall be the duty of the Commission

  1. to investigate and monitor all matters relating to the safeguards of Scheduled Tribe’s under the Constitution and any other law or any order of the Government and to evaluate the working of such safeguards.

  2. to inquire into specific complaints with respect to the deprivation of rights and safeguards of Scheduled Tribes.

  3. to participate and advise on the planning process of socio-economic developments of scheduled tribe’s and to evaluate the progress of their development under the Union and any State.

  4. to present to the President reports upon the working of all those safeguards annually and at such other times as the commission deems fit.

E .to make recommendations as to measures that should be taken by the center and states for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of Scheduled Tribes.

  1. to discharge such other functions as protection, welfare, development and advancement of Scheduled Tribe’s as the president may, subject to the provisions of any law made by parliament, by rule specify.

Article 339(1) states that the President may at any time and shall at the expiration of ten years from the commencement of the Constitution appoint a commission to report on the administration of Scheduled areas and the Scheduled Tribes in the State.

Relevant Laws Enacted by Various States for the Protection of Tribals:

Depending on the changing circumstances and human tendencies the various State Governments and the Union Government enacted several laws for the protection of the Scheduled Tribes. Those laws are as follows:

Acts Made by the Union Government:

(i)The Scheduled Caste’s and Scheduled Tribe’s (Prevention of Atrocities) Act, 1985 and 1995:

The purpose of the Act is to protect the tribal people from discrimination in their social Status and also to vanish inhuman tortures against them.

(ii)The Scheduled Tribe’s Bonded Labour Abolition Act, 1976:

The main objective of the Act is to protect tribals from the bonded labour in the hands of the landlords who provide the little wage for huge work.

(iii)The Child Labour Abolition Act, 1986:

This Act prohibits the employment of the children of tribals below the age of 14 years in Industries and hazardous workshops.

(iv)The Forest Conservation Act, 1980:

This Act provides that the use of forest land for the non-forest purpose is prohibitory. As most of the tribal people live in forests. The protection of forests is an important aspect of their lives.

(v)The Panchayat Raj Act, 1996:

This is an amendment to Panchayat Raj Act for the implementation of the Act in Scheduled Areas to protect the tribals by aiding them grants from the government by constituting it as small bodies.

(vi) The Minimum Wages Act, 1948:

It provides that minimum wage must be paid to the workers in the organized sector but most of the tribals work in unorganized sector.

(vii) Forest right act,2006:

It is also known as Tribal rights act, Tribal bill and Tribal land act. India’s forest are governed by 2 major laws i.e The Indian forest act,1927 and The wildlife(protection)act,1972. The former act can declare any area to be a reserved ,protected forest or village forest and the later one can declare any area as protected area, national park, wildlife sanctuary etc.

As per this act, the people living in the forest are ‘settled’ by a ‘forest settlement officer’. The statement of objects and reasons of the FRA describes it as a law intended to correct the ‘historical injustice’ done to forest dwellers by the failure to recognize heir right. Section 3(1) of FRA gives the following rights to tribals:

  • Title rights – i.e. ownership – to land that is being farmed by tribals or forest dwellers as on 13 December 2005, subject to a maximum of 4 hectares; ownership is only for land that is actually being cultivated by the concerned family as on that date, meaning that no new lands are granted

  • Use rights – to minor forest produce (also including ownership), to grazing areas, to pastoralist routes, etc.

  • Relief and development rights – to rehabilitation in case of illegal eviction or forced displacement and to basic amenities, subject to restrictions for forest protection

  • Forest management rights – to protect forests and wildlife.

The Orissa govt. is displacing the tribals without any survey if this will continue to happen then this act will lead to massive forest destruction.

State Laws for the Protection of Lands of Tribals:

In general, most of the States do not permit to transfer land of Scheduled Areas to non-tribals. Also, alienation of land of Scheduled Area by the tribal to a non-tribal is void. If a tribal needs to alienate a land then the alienation must be made to a tribal or government.

Some examples of the State laws for the protection of tribal lands are:-

  1. The Andhra Pradesh Scheduled Areas Land Transfer Regulation Act, 1959.

  2. The Scheduled Tribes in Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. (Union Government Act.)

  3. The Andhra Pradesh Scheduled Commodities Order, 1973.

  4. The Karnataka Scheduled Castes and Scheduled Tribes Act, 1978.

  5. The Tamilnadu Acquisition of Land for Harizan Welfare Schemes Act, 1978 and etc.

Even though so many laws were enacted by the central and State governments for the welfare of the tribals those laws were not implementing properly and the tribal people were still being oppressed by the society. To uplift the tribals and also to protect their ethnic purity the laws must be properly implemented. Also, some more laws are to be enacted which were necessary for the upliftment of tribals.

CURRENT SCENARIO

8.10 percent of the nation’s total population (about 835.80 lakh), according to the 2001 census, is what constitutes the tribal population of India. This population lives in concentrations in various parts of the country, some of them being Uttar Pradesh, Assam, Rajasthan and Maharashtra and it is this very population that has been facing discrimination since long.

Tribal people have always been there in our country yet most of the people here are unaware of their existence or are simply ignorant towards their existence and their customs. The surprising thing is that Indian tribals are not backward — as many of us might assume; instead, their beliefs and thinking resembles the city people. There is no system of dowry, no caste division, even divorce and widow remarriage are socially accepted among them. They are an exemplary society when it comes to social practices yet they live a life of poverty and discrimination.

Even before the British took over our country, the tribal population were looked upon as wild, barbaric and unruly. Then they were treated as untouchables and this practice still exists in many parts of our country. Independence in 1947 did not bring about any difference in their lives. Instead, because of the absence of any monetary funds, these people had to leave their native places in search for work which led to the loss of their rich heritage. Many of these places today are converted into holiday destinations and resorts by contractors who are driving out the tribals and taking away their resources. Those people that have escaped such fates and still continue to make artifacts, like masks, paintings, wood cutting, get meager prices for their products even though the artifacts are generally sold for large sums of money as most of it is pocketed by the middlemen. The state of the tribal people in the city is even worse; they live as daily-wage earners and endure hardships all their lives. This neglect on the part of the nation for a fraction of its population is the reason of uprisings such as Naxalism.

A recent incident in this light took place in Maharashtra when nearly 1,960 tribals were imprisoned for demanding ration cards. They had been asking for a ration card and the implementation of the Forest Rights Act to help them claim the land they had been tilling. People from 28 villages from the Nandurbar district had gone to the collector’s office on December 13 and submitted a charter of demands. But they failed to get an assurance from the authorities; hence they staged a demonstration outside the collector’s office for two days. The tribals were protesting peacefully till the collector called up the police and got the whole group arrested. They were then produced before the court where all of them were sent to judicial custody for 7 days despite the fact that many of them were women.

Many such incidents exist where the tribal people are mistreated by the government and the corporate sector (for example, the whole Vedanta issue). It can easily be seen that in our country the tribal are discriminated against but we forget that by doing this we not only lose rich heritage and skills that have no parallel in the world but also the knowledge of how to live peacefully with nature, the way these people have been living for many centuries.

ROLE OF NGO

NGO initiatives aimed at development have a long history in India. The individual efforts of social workers are expressed in micro-terms but it deals with conditions that are caused by large macrostructures. There are a number of NGOs working for the tribal development in India. NGOs tackle development related issues and their ideological orientation differs widely. NGOs take up issues that the political parties are unwilling to take up, coping with a large diversity of situation that governments and parties are unable to cope, encompassing issues that arise from not merely local and national but also international forces at work. The individual efforts are expressed in micro terms but it deals with conditions that are caused by large macrostructures. The NGOs are thus a part of a large movement for global transformations . Most important role Indian NGOs play is a watchdog.

ACTIVITIES OF NGOs- All activities of NGOs are aimed at social, economic, political & educational Development of oppressed people in the area. The activities stated by the respondent NGOs are listed below:

  1. Comprehensive village development.

  2. Activities related to education.

  3. Activities related to Women’s development.

  4. Youth development activities

  5. Health activities.

  6. Activities for the benefit of children.

  7. Dealing with displacement issue.

  8. Employment problem.

  9. Support of old aged people.

  10. The NGOs supporting the tribals are:

  • Samata- This NGO supports the tribals of Andra Pradesh. This NGO was formed in 1990 and doing a great work for the benefit and development of tribals.

  • SITARA-Society for integrated tribal and rural action (SITARA). This NGO supports the people living in rural area. It provides them various help through its fund and also raises voice on behalf of tribals.

  • Native planet-It is an NGO dedicated to the self-empowerment of indigenous people and the preservation of world ethnic cultures.

  • Survival international organization-This organization works at international level. it has also launched various campaigns for supporting tribals like There you go! , Progress can kill etc.

  • IAITPTF-International alliance of indigenous and tribal peoples of the tropical forests (IAITPTF). This organization was formed in 1992 and work in Africa, the Asia-pacific and the America.

It is found that though NGOs are doing good work with tribal communities, there is a lack of coordination among them. Their role as ‘watchdog’ is not being played effectively. Many NGOs are now interested in implementing the projects by the government in order to earn money for their survival. Their focus is getting shifted as per the priorities of the funding organization.

CONCLUSION

This paper deals with the grievances of the tribals and steps taken by the government which is not able to cope up with these problems. The basic problem is the lack of harmony in the implementation of laws and policies.The basic system of laws governing Tribal Rights is still extremely unclear. It is, therefore, imperative to create a task force that should undertake a “Harmonisation of Laws” –

(a) Between Central Acts and Local Land Laws,

(b) Between Forest and Revenue Records and

(c) Between Court judgments and other laws.

The Committee that looked at planning at the grassroots levels had made a specific mention of the need for harmonious operation of such laws and policies to promote the interest of the tribals. The another problem, while dealing with conflicts concerning the tribal population

is that the existing constitutional provisions and laws designed to protect them are not

optimally used. In certain areas, the State has been perceived to be tardy and insensitive in

protecting the interests of the tribals and the situation is further aggravated by the absence

of government functionaries at their place of posting. A significant section of the tribal

population has gradually been weaned away from the mainstream by the extremists. Tribal

populations have been antagonised by the manner in which they have been alienated from

their land and forests by the enforcement agencies. Along with these problems another major problem is that there is no clear national tribal policy laying down the direction and imperatives for

tribal development. The last one was the Panchsheel Programme for tribal development

enunciated by the late Prime Minister Pt. Jawaharlal Nehru.

SUGGESTIONS

  • There should be a complete overhaul and systematic re-organisation

of existing land records with free access to information about land

holdings.

  • Government should select such police, revenue and forest officials who

have the training and zeal to work in tribal areas and understand as well

as empathise with the population they serve.

  • A national plan of action for comprehensive development which would

serve as a road map for the welfare of the tribals should be prepared and

implemented.

  • There should be convergence of regulatory and development programmes

in the tribal areas. For the purpose, a decadal development plan should be

prepared and implemented in a mission mode with an appropriate mechanism

for resolution of conflicts and adjustments.

  • Awareness campaigns should be organised in order to make the tribal

population aware of the provisions

  • There is need to harmonise the various legislations and government policies

being implemented in tribal areas.

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