The Scheduled Tribes (ST) of India is an umbrella term officially designated in the Constitution to refer to the variety of tribal communities inhabiting India. The Scheduled Tribes are one of the most economically and socially marginalised communities in the country. Common characteristics of Scheduled tribe populations include “indications of primitive traits, distinctive culture, geographical isolation, shyness of contact with the community at large, and backwardness.” Adivasi is the colloquial term used for the Scheduled Tribes, which means ‘original inhabitants’, however, this term is controversial. The Scheduled Tribes lay outside the Indian social hierarchy, and hence, were denied equality. The British even labelled some tribes as ‘Criminal Tribes’. It was only after independence, that the Scheduled Tribes have been accorded equal rights.
Article 342 of the Indian Constitution enjoins upon the President to notify a class of citizens as Scheduled Tribes in consultation with the Governor of the state or union territory. The United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) (to which India is a signatory to) specifically addresses the rights of indigenous peoples worldwide. The rights enshrined in the said declaration may be used as a yardstick for the rights of scheduled tribes.
In the context of political rights, Article 4, 5 and Article 8 (2) of the Declaration are most relevant. Article 4 of the declaration enshrines the right to autonomy matters relating to their internal and local affairs. Article 5 of the declaration enshrines the right to political participation. Article 8 (2) directs the state to provide for redressal mechanisms for violation of rights.
The following provisions of the Indian Constitution provide for various tribal political rights as discussed above:
1. Article 330 : Article 330 of the Indian Constitution provides for reservation of seats in the Lok Sabha for Scheduled Tribes. In addition, the reservation for Scheduled Tribes shall be the nearly the same as the proportion of the community’s population to the total population of the state or union territory.
2. Article 243D: The article provides for reservation for Scheduled Tribes in Panchayat elections. In the seats reserved for Scheduled Tribes, one-third of the reserved seats are allocated to women within the Scheduled Tribes communities. The number of reserved seats for Scheduled Tribes are also to be filled by direct election in the Panchayat bears to the total population of that area.
3. Article 244 (2): The article provides for tribal autonomy to certain tribal majority regions in India, known as ‘Sixth Scheduled Areas’ in Northeast India. These are governed by elected bodies known as Autonomous District/ Regional Councils.
4. Article 338A: The article provides for the constitution of the National Commission of Scheduled Tribes (NCST). The article was inserted by the 89th Constitutional Amendment Act, 2003. Its most important function is to investigate & monitor matters relating to safeguards provided to ST’s. Therefore, NCST serves as the primary provider of redressal mechanism in cases of violations of tribal rights.
Article 10, 26, 23 and 17 of UNDRIP encompass the scheme of tribal economic rights. Article 10 specifically prohibits forceful eviction of indigenous peoples from their ancestral land. Article 26 recognises the right to ownership of tribal lands and its resources. Article 23 requires the state to undertake special initiatives to uplift indigenous peoples in the field of employment. Article 17 enshrines the economic independence of indigenous labourers by prohibiting forced labour.
The following provisions discussed herein provide the economic rights as discussed above:
1. Scheduled Tribes And Other Traditional Forest Dwellers (Recognition Of Forest Rights) Act, 2006: The primary objective of the enactment of Forest Rights Act, 2006 (FRA) is to recognise, vest and record the traditional rights of Scheduled Tribes over forest land which were neither recognised nor recorded under colonial rule. For example, it allows forest-dwelling Scheduled Tribes to inhabit legally with land title and use forest resources and land for sustenance and livelihood, recognises and records pre-colonial community forest rights etc.
2. Provisions ensuring land rights of scheduled tribes: Many states in India have enacted legislations to prevent the transfer of land from tribal to non-tribal ownership in the Scheduled Areas constituted under the Fifth Schedule(mainly in tribal minority states). The Panchayats (Extension to Scheduled Areas) Act 1996 is an important legislation which empowers Gram Sabhas to restore alienated land in Scheduled Areas.
3. Article 16 of the Indian Constitution: Article 16 (4) of the Constitution of India permits the state to reserve certain posts or appointments for backward classes. Furthermore, Article 16 (4A) allows the state to bring in reservation in promotion to higher posts.
4. Bonded Labour System (Abolition) Act, 1976: Many members of the scheduled tribes are forcibly engaged in bonded labour even today. The act grants freedom from bonded labour and hence, the tribal people are free from the cycle of debt and unpaid work.
CULTURAL AND EDUCATIONAL RIGHTS
Under UNDRIP, the right to preserve, promote and develop languages is enshrined in Article 16 (1). The right to practice cultural traditions, which includes respect for sacred sites and ceremonial objects, is enshrined in Article 12. The right to attain education in their language and cultural knowledge is enshrined in Article 14 (1) & Article 15 (1). The right to be availed special provisions in education is enshrined in Article 23.
The above-mentioned cultural and educational rights are provided by the provisions of law discussed herein:
1. Provisions regarding linguistic rights: Major tribal languages such as Santhali and Bodo have been included in the Eighth Schedule as scheduled languages.
2. Provisions regarding reservation of seats in educational institutions: The Central Educational Institutions (Reservation in Admission) Act reserves 7.5.% of the seats for Scheduled Tribes in central government-funded institutions. The right to reservation in educational institutions is for the purpose of educational uplift of scheduled tribes.
3. Article 371A and Article 371G of the Indian Constitution: These provide special cultural rights to the scheduled tribes of Nagaland and Mizoram. The said articles prevent the Parliament of India to enact any laws pertaining to the religious, cultural and customary laws of the Naga and Mizo peoples.
RIGHT TO LIFE AND LIBERTY
Article 7 of the UNDRIP provides the right to life and liberty for indigenous people and protection from offences against it. Scheduled Tribes are often the victims of social stigma and exclusion. To this effect, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 was promulgated. Some of the notable offences under this Act are as follows:
1. It forbids anyone who forces a member of the scheduled tribe to consume obnoxious substances.
2. It forbids anyone who derogates human dignity of a member of the scheduled tribe.
3. It forbids anyone to lodge false complaints against members of scheduled tribes, and / or deny them access to public utilities like wells.
CHALLENGES FACED IN SECURING RIGHTS
1. Challenges in securing forest rights: The major challenge in securing forest rights is lack of protection against deforestation. Since the Central Government has the authority to divert forest lands towards developmental projects, the area of land vested with community rights decreases. This makes sustenance based on forest resources even more difficult.
2. Challenges in securing land rights: While many states have enacted legislations to protect tribal land by making the Gram Sabha of the tribal village as the nodal agency states like Maharashtra for example have until recently allowedthe transfer of tribal to non-tribal land with the permission of District Collector. This undermines the land rights of tribals since Gram Sabhas of tribal villages are representative bodies of tribals acting as custodians of tribal land.
3. Challenges in securing linguistic and educational rights: Only a few tribal languages are recognised at the federal and the state level. Hence, many tribal children are not able to receive instruction in their respective mother tongue. Therefore, this is a negation of linguistic rights.
Despite a robust scheme of rights available to the Scheduled Tribes, its implementation has faltered and has failed to uplift them. The per capita income of the Scheduled Tribes is 34% of the national average. They constitute 45% of the poorest people in India as per NFHS survey. With respect to conviction of crimes against scheduled tribes under the 1989 Act, the national-level charge-sheeting rate is 29.6%, which is much lower than the all-India rate of 87.5%. They constitute about 55% of the displaced persons due to development projects despite protections enshrined in FRA. They, along with the Scheduled Castes, are under-represented in government and education.
In certain cases, though, their rights have been successfully protected. The Supreme Court of India has from time-to-time protected tribal lands from predatory mining companies, as exemplified in Samatha v. Andhra Pradesh and the ‘Niyamgiri’ case. It has also protected forest lands of primitive and vulnerable tribal groups from predatory tourism in the Andaman Islands. Linguistic and cultural rights have also been catered to.For instance, the Odisha government has undertaken research to introduce tribal languages in mainstream education.
The New Zealand model, in this regard, has come up with a successful model of tribal rights implementation – aspects of which can be incorporated in India. For example, it has set up the Waitangi Tribunal which provides monetary compensation to historical losses suffered by Maori tribes due to the violations of traditional land rights as guaranteed under the Treaty of Waitangi. This has, in turn, created a powerful Maori economy. Another novel feature is the Race Relations Act, 1971 which provides for a Race Relations Conciliator. Its function is to promote “positive race relations”. Therefore, the New Zealand model could be implemented in India to provide economic empowerment to tribals and facilitate dialogue between tribals and non-tribals on tribal issues.
India’s Scheduled Tribes have been vested with a robust scheme of rights which provides safeguards to almost all aspects of tribal society. Its strength lies in the fact that it is rooted in substantive equality rather than formal equality. However, unless the implementation is further strengthened, the fruits of these rights will continue to elude its intended beneficiaries.