RIGHTS FOR THE TRIBAL PEOPLE – A DREAM OR A REALITY?
Author: Chetana Prakash
Co-author: Pragya Bhawesh Kumar Jha
A tribe refers to a group of people who share the same language, culture, traditions, and have the same ancestral background. Every tribe has a leader of its own. Article 366(25) of the Indian Constitution confers to the people of India the definition of ‘Scheduled Tribes’. Various tribes in India have been given the special status of being a scheduled tribe. Some of the scheduled tribes in India are as follows:-
- Garos, Dimasa, Khasis, Hajong, Chakma tribes in Assam.
- Bharia, Khond, Gonds, Kharia, Bhils tribes in Madhya Pradesh.
- Chero, Sabar, Asur, Birhor, Birjia tribes in Bihar.
- Garo, Nagas, Mikir, Sema tribes in Nagaland.
- Gadaba, Oraons, Rajuar, Matya tribes in Odisha.
According to a survey conducted by the Census of India, there are 10, 42, 81,034 tribal people in India which constitutes approximately 8.2% of the total population of the country. According to the survey, Madhya Pradesh has the highest number of tribal people followed by Bihar.
For such a remarkable number of tribal people in India, it is felt that no strong laws are existing in our country which leads to their exploitation and prevents them from being at par with the rest of the population of the country. The prevailing laws like the PESA Act and the Scheduled Tribes and other forest dwellers (Recognition of Forest Rights) Act, 2006 is not sufficient for the overall development of the tribal population and there are certain loopholes in these Acts which need to be dealt with strictly. India is one of the fastest developing economies of the world would prosper at a faster pace if the contributions of the tribal population are also included. But in the present scenario, enough steps have not been taken to reach out to the tribal population and encourage their active participation in the developmental process of the country.
The research paper aims to analyze the present situation of the tribal population concerning their prevailing rights, UNICEF’s perspective on the rights of tribal children and tribal women in India, the welfare programs undertaken by the government for the upliftment of the tribes, and the Constitutional status of the tribal people. Moreover, this research paper will try to bring to the forefront of the loopholes prevalent in the existing Acts enacted for the development of the tribal population.
The research paper will deal with a few questions of utmost importance like:-
- Despite the developmental drives carried out in tribal areas, the condition of tribal people has not improved. What are the possible reasons behind this?
- What are the welfare programs undertaken by the Government and to what extent they have proved to be effective?
- What are the problems in the prevailing Acts and how can these problems be tackled?
The research paper will conclude with some suggestions that are required for the overall development of the tribal population.
This paper is going to deal with the prevailing rights that are there for the tribal people. Being the largest democracy, people in our country talk about all the fundamental rights guaranteed to them starting from the right to equality to the right to constitutional remedies but sadly enough no one talks about the rights of tribal people. We talk about socio-economic equality but we forget that in order to bring absolute socio-economic equality in our country it is important that we take steps towards bringing the entire population of the country at par. If we look at today’s scenario, the tribal people are the most socio-economically backward and they constitute 8.6% of the total population of our country. India is home to around 645 tribes which is a huge number and needs due attention of the government. In this paper, we are going to analyze the shortcomings that are there in the prevailing rights and the welfare programs undertaken by the government for the development of these tribes with respect to health, education, sanitation, etc. Apart from analyzing the shortcomings that have been subsisting since the very inception of the laws, we are going to take into account the hindrances that are there in the implementation of any strong laws for the development of the tribal people. Last but not the least, we are going to suggest some recommendations that are necessary to be taken into consideration to evolve some strong laws and develop the tribal people socially as well as economically.
SCOPE AND OBJECTIVE OF THE STUDY
The objective of this paper is to understand the laws which are made in respect of the Tribal people and whether they are apt for the overall development of the Tribal community. Also, we aim to analyze the shortcomings of the prevailing laws, to analyze the factors which are limiting the scope for implementing the laws, to recommend changes in the prevailing laws for the betterment of the tribal community.
The research methodology that has been adopted in this paper is largely analytical and descriptive. Importance has been placed on secondary sources like books, articles, the internet, and journals.
1. Despite the developmental drives carried out in tribal areas, the condition of tribal people has not improved. What are the possible reasons behind this?
2. What are the welfare programs undertaken by the Government and to what extent they have proved to be effective?
3. What are the problems in the prevailing Acts and how can these problems be tackled?
With the development of laws for the citizens of India, it has become very important to introspect and know about the laws that are there for the Tribal Community. To know about the problems that they face in their day to day life and how they deal with it. On close introspection, it has been found that there are many shortcomings that the Tribal community faces, and their lives get affected due to the problems faced by them. Hence it has become important to find out the solutions to their problems so that they lead a normal life like any other citizen of the country. They form a very important part of the population and in order to uplift the nation as a whole, it is important to uplift the Tribal communities living in such pitiable conditions.
RIGHTS FOR THE TRIBAL PEOPLE-A DREAM OR A REALITY?
- Despite the developmental drives carried out in the tribal areas, the condition of the tribal people has not improved. What are the possible reasons behind this?
India’s cultural diversity is undoubtedly one of the most incredible examples of a peaceful co-existence of various castes and tribes and without a second thought, we can say that from the date of independence till today’s date, India has made milestone achievements in almost every field. Various steps have been taken for the betterment of almost every community, caste, and tribe. But according to what we have analyzed until now, we feel that enough has not been done for the welfare of the tribal community. According to our belief, a good plan is the one that is implemented successfully. No doubt, developmental drives have been carried out by the government and Acts are also implemented in order to protect the tribal people from getting exploited but if we analyze the initiatives taken by the government, we will come to realize that some major shortcomings need to be addressed in order to successfully implement the developmental drives undertaken by the government. In order to know the reason behind the failure of the developmental drives taken up by the government, we need to know the prevailing Acts that exist and also the welfare programs that have been conducted so far but have failed to take a step towards the welfare of the tribal people. There are two Acts that exist for the tribal people. One is the ‘The Provisions of the Panchayats (Extension to Schedules Areas) Act, 1996’ that is the PESA Act and the other one is the ‘The Scheduled tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006’. Before the enactment of the PESA Act, the laws were made for the people living in the Scheduled Areas by the Governor of the State which was according to the Fifth Schedule of the Constitution. The Governor had the authority to make laws enumerated in the State List, Union List as well as the Concurrent List. This led to the centralization of power in the hands of the Governor of the State to make laws on the Fifth Schedule Areas. This provision in the Fifth Schedule had only two restrictions that proved to be incompetent during the later stages. The restrictions were:-
- The Governor would make laws for the Tribal people only after consultation of the Tribes Advisory Council.
- All the regulations would receive Presidential assent before implementation.
Apart from the Fifth Schedule, it is also important that we throw light on the Sixth Schedule of the Constitution that is in contradiction to the Fifth Schedule, hence debarring us from drawing a clear picture out of the existing laws. The Sixth Schedule gives considerable autonomy to the tribes. In the North-eastern states of India, the tribes have been allocated an autonomous region that has the administrative authority to make laws concerning a variety of subjects and it also allows them to exercise judicial authority through the age-old legal systems along with the features of the federal law. Now that we have come to know the various rights available to the tribal people, we can analyze the loopholes that are there in the rights of the tribal people. The problems that are prevalent the laws and developmental drives are as follows:-
- IGNORANCE OF THE GOVERNMENT TOWARDS THE TRIBAL RIGHTS THAT HAS LED TO THE DETORIATION IN THEIR CONDITION: Even though PESA is projected as legislation transforming tribal representation in the Fifth Schedule areas, the tribes feel as much “culturally deprived and economically robbed” as under colonial rule. Neither the PESA Act nor the Fifth Schedule has been able to confer independent status to the tribal community in India. Tribal local governments are often ignored in development plans and the benefits of any actual development “rarely percolate down to the local tribes” which are “subordinated to outsiders both economically and culturally”. PESA and the Fifth Schedule have also not prevented large corporations from gaining “control over the natural resources which constituted the life support systems of the tribal communities”. Apart from the above-stated facts, there is another fact that sums up the whole scenario that contributes to the underdevelopment of the tribal people. In a recent study, it has been found out that there is a close nexus between the no-tribal landowners and the government. Many a time, the government uses its power to transfer the lands of the tribal communities to the non-tribal landowners in order to gain some profit from the deal. Moreover, there are many corrupt government officials who usually deceit the tribal people and make deceitful gains out of the funds allocated for the development of the tribal community, which is another debilitating factor that adds to the trouble faced by the tribal community. A number of times the tribes have resisted the entry of outsiders in their land, for example, the Kamatapur Tribal Movement that complained of neglect, exploitation, and discrimination and demanded a separate state. Hence if we go deeper into this matter we will be able to realize that the base on which the rights have been formulated for the tribal people are somewhat shaken and needs to be repaired as soon as possible in order to prevent any further delay in the development of the tribal people.
- THE RIGHTS OF TRIBAL PEOPLE WITH RESPECT TO ACCESSTO WATER BODIES REMAINS A DEBATABLE ISSUE: In section 4 clause (j) the PESA Act provides that the minor water bodies will be subject to planning and management by the Panchayat. Here, it is important to bring into notice that the term “minor water bodies” is a statutorily undefined term that is usually taken into consideration on the basis of acreage rather than the territorial jurisdiction and the traditional practices of the tribes. This is in contradiction to the fact that the PESA Act was enacted to formulate laws consistent with the customs and traditions of the tribal people. There is another policy that relates to the management of water bodies in the Scheduled areas that are the National Water Policy Act of 2002 which provides for “[s]pecial efforts … to investigate and formulate projects either in or for the benefit of, areas inhabited by tribal or other specially disadvantaged groups,” but this Act has also failed to protect the rights of the tribal people in relation to the water rights. Another reason for the failure of this machinery is the lack of community participation in deciding as to how the water bodies should be managed and what are the customary laws and traditions that are to be kept in mind before formulating any strong law. There are only two states in India that have taken an initiative that is contrary to the above-stated laws and facts and those policies have successfully worked towards the benefit of the tribal people that is the State of Madhya Pradesh and Maharashtra.
2. What are the welfare programs undertaken by the government and to what extent they have proved to be effective?
- Constitutional Provisions and Safeguards: Article 342of the Constitution of India gives the definition of scheduled tribes. Through Article 164 a ministry for tribal welfare exists in the states of Bihar, Madhya Pradesh, and Orissa which have a large concentration of tribal population. The ministries are supposed to look after the welfare of scheduled tribes in their particular states. Article 244 provides for provisions for the administration of scheduled tribes and tribes of states with a large tribal population. ThroughArticle 275 the union government can grant special funds to the state governments for the welfare and effective administration of the tribal communities. However, the money meant for the welfare development programs for the Tribal Community is usually spooned off by ministers and other government officials in the middle and hardly any money reaches the tribal people which was meant for their upliftment. For instance, in the Maharashtra TRIBAL WELFARE SCAM, the then tribal development minister Vijay Kumar Gavitwas involved. He had done a multi-crore scam and took the money which was meant for the tribal welfare programs. As per data provided by the ministry of tribal affairs
Less than 50% of funds allocated for the tribal welfare programs have been spent so far by the ministries.
2) Representation in Legislatures and Panchayats and services: With the introduction of the Panchayati raj, proper representation has been given to the tribal community and under Article 330 and 332 of the Indian constitution seats are reserved for the scheduled tribes in the Lok Sabha and Vidhan Sabhas. This has been done with a view to promote and safeguard their educational and economic rights. Reservation is also provided to the tribal people in jobs and services. But here also, once tribal people come to power they forget their responsibilities and are influenced by power and money.
3) Administration of Scheduled and Tribal Areas and Advisory council for the Tribal Community: The fifth schedule of the constitution of India divides the responsibilities of administration of tribal areas between the center and the states. The states of Andhra Pradesh, Bihar, Gujarat, Madhya Pradesh, Maharashtra, Orissa, Himachal Pradesh, and Rajasthan have been considered as scheduled areas where the maximum population of the tribal community resides. The fifth schedule also provides for an advisory council in the states which have scheduled areas. It helps in the effective administration of the Tribal Communities and helps in sorting out their grievances and problems.
4) Commissioner for the Scheduled Castes and Tribes and Welfare departments in the States: Article 338 of the Indian constitution gives the power to the president of India to appoint a commissioner who would look after all the matters related to the Tribal community and report it to the President. Also, under Article 164(i) of the constitution welfare departments have been set up in many states, mainly Bihar, Madhya Pradesh, and Orissa, for the Tribal People.
5) Educational Facilities: The central government provides scholarships and has also set up many residential schools to provide vocational and technical education to tribal children for their all-round development. But sadly, the percentage of educated tribal people is still very low. Despite government efforts to promote education among the Scheduled Tribes (STs), their literacy rates as compared to the national average have remained low, a Parliamentary Committee has said this week. The literacy rate as per Census 2011 is 73 percent but for STs is 59 percent only.In most of the Tribal communities, women are still not allowed to go to schools and get an education. Scheduled Tribe women have the lowest literacy rates in India. In spite of the government putting enormous efforts to build equality among both the genders, there is still a visible breach in the literacy rate between the male and female population of the Scheduled Tribe.
6) Economic Opportunities: A large percentage of Tribal people practice agriculture and shifting cultivation. It has become a serious problem in many states and a method to control shifting cultivation has been started by the state governments. They are trying to improve irrigation facilities and make the wastelands re-usable so that it can be distributed amongst the tribal community. The government is trying to improve their agricultural practices by providing tribal people with better quality seeds, fertilizers, and agricultural equipment. The government is also trying to shift their focus to other professions such as animal rearing, cottage industries, poultry farming and is also providing them a loan for the same.
7) Tribal Research Institute: They are doing regressive studies and research on the culture, customs, art forms, crafts, traditions of the Tribal Community, and find out ways to preserve them. Also, they are finding a solution for the declining population of the Tribal People.
Despite all the efforts made by the government, it is noticed that the condition of the Tribal Community has not much improved and is still deplorable. Though the government has come out with very helpful and supportive schemes and welfare programs for the Tribal community their execution has not been carried out properly which has resulted in them not having any effect on the Tribal people. Also, the tribal people are not well aware of these schemes and hence cannot enjoy its benefits. Therefore, the government must spread awareness about these schemes and welfare programs so that the maximum no. of tribal people can enjoy its benefits.
3. What are the problems in the prevailing acts and how can these problems be tackled?
In this issue, we will be dealing with the problems that subsist in the PESA Act and Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Problems in the PESA Act:-
I. It has been noticed that there exists a battle of power between the community of the Scheduled Areas and the Bureaucrats.
II. The laws that have been formulated do not throw light on the rights available to the tribal people to manage the minor forest produce hence making it difficult to implement PESA.
III. PESA was enacted to make the tribal people financially independent but this provision has limited itself to official papers and has not been proved to be effective. Moreover, there is no record as to how the funds allocated for the development of the tribal people are put into use which makes the Act even more ambiguous to implement.
Problems in the Scheduled Tribes and Other Forest Dwellers (Recognition of Forest Rights) Act:-
I. In the implementation of this Act, it has been noticed that land records are not maintained, presence of corrupt Government officials, lack of proper knowledge about the rights available to the people has led to the deterioration in the condition of the tribal people
II. Although the Act has been formulated the implementation process is so slow that we doubt whether the benefits are going to reach the last person of the community or not.
III. In the name of development, the Government often buys the forest properties belonging to the tribal people and does not even compensate them enough for this which leads to their exploitation.
Keeping the above-stated problems in mind, we would like to present some remedies to tackle these problems. First of all, the implementation process of the laws should be fastened, measures should be taken to maintain financial records of the funds allocated to the tribal community, there should be a balance of power between the community and the bureaucrats, the functioning of the middlemen is a hindrance in the developmental process of the tribal people hence there should be less involvement of the middlemen, the Government should also take measures in order to provide rehabilitation to the tribal people when they are deprived of their property in the forest areas.
RECOMMENDATIONS AND SUGGESTIONS
We had conducted a survey in which 411 people have given their responses and from that, we have come to a conclusion that there are 84.4% people who know about the tribes that exist in India, 57.2% responders have interacted with a tribal community, 70.8% people know about the adversities that the tribal people face in their daily lives, 56% responders know about the rights of the tribal community while 76.4% of the responders feel that for the overall development of India, the tribal community need to be at par with the remaining population of India.
There are a few suggestions that we would like to recommend:-
- Maintainability of financial records in a proper manner.
- Defining the term ‘minor water bodies and forest produce’ in the PESA act because most of the times it is interpreted based on acreage rather than the territorial jurisdiction
- Minimizing the no. of middle-men in executing the Acts of the government.
Last but not least we would like to conclude this research paper by stating that there needs to be some stringent execution of the laws on the rights of tribal people as it is the need of the hour for the socio-economic development of this country. From the above-stated facts, it is quite clear that although the Government has taken steps for the welfare of the tribal people, the initiatives have not proved to be effective so far. In a developing country like India, where the people are developing at such a fast pace, it becomes more important that we pay attention to the welfare of the unprivileged group of the population. If the tribal people become educated and employed, they can add to the GDP of this country and set an example for the world to follow and enhance its reputation at an international level as well. After all, we should never forget the fact that our country’s diversity lies in its unity and united we stand and divided we fall. So let’s work towards a united yet diversified tomorrow.
- H.L. HARIT, “Tribal Areas and Administration” in Rann Singh Mann, ed, Tribes of India: Ongoing Challenges (New Delhi: M.D. Publications, 1996) 49 at 53
- Govinda Chandra Rath, “Introduction” in Govinda Chandra Rath, ed, Tribal Development in India-TheContemporary Debate (New Delhi: Sage Publications, 2006) 15 at 28
- I. Sarkar, “The Kamatapur Movement: Towards a Separate State in North Bengal” in Govinda Chandra Rath, ed., Tribal Development in India-The Contemporary Debate (New Delhi: Sage Publications, 2006) 112.
- CONSTITUTION OF INDIA
 -equality based on social and economic terms
 indicate PESA and Scheduled tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
H.L. Harit, “Tribal Areas and Administration” in Rann Singh Mann, ed, Tribes of India: Ongoing Challenges (New Delhi: M.D. Publications, 1996) 49 at 53
Govinda Chandra Rath, “Introduction” in Govinda Chandra Rath, ed, Tribal Development in India-TheContemporary Debate (New Delhi: Sage Publications, 2006) 15 at 28
 Here the term outsiders refer to the Government and Private enterprises that encroach on the tribal property in order to build their factories and set up industries. Moreover, the corrupt government officials act as a medium of manipulation between the non-tribal population and the tribal population.
 See I. Sarkar, “The Kamatapur Movement: Towards a Separate State in North Bengal” in Govinda Chandra Rath, ed., Tribal Development in India-The Contemporary Debate (New Delhi: Sage Publications, 2006) 112.
 India, National Water Policy (New Delhi: Ministry of Water Resources, 2002) at 4
 Census 2011