Issues Related to Tribal and Marginalized Communities in India

Constitutional Provision, Laws and Tribes

• tribes lived in isolation from the larger Indian society, they enjoyed autonomy of governance over the territory they inhabited.
• held control over the land, forest and other resources and governed themselves in terms of their
• own laws, traditions and customs.
• advent of colonial rule that brought tribes and non-tribes into one single political and administrative structure by means of war, conquest and annexation.
• tribes are extended certain special rights as being members of a distinct community.
1. Art 342: provisions for statutory recognition
2. Art 330 & 332: proportionate representation in Parliament and state legislatures.
3. Art 19(5): restriction on the right of the ordinary citizen to move freely or settle in particular areas or acquire property in them. 
4. Art 29: conservation of one’s language,dialects and culture.
5. Art 14(4): enables the State to make provision for reservation in general (article 14(4)) and in particular, Art 16(4) in jobs and appointments in favour of tribal communities.
6. Art 46: educational and economic interest of the weaker sections of society, including tribes, is especially promoted.
7. 5th & 6th schedule of the Constitution Art 244 and 244(a) that empower the state to bring the area inhabited by the tribes under special treatment of administration.
8. 7.5 % of the jobs in government, semi-government and also educational institutions reserved for STs.
• Despite the provisions results are not satisfactory because
1. inability of the State to fill up the quota is not considered as a violation of the rights.
2. the extensions of reservation to candidates from the category are not automatic. Art 335A, for example, stipulates that the claims of the scheduled castes and scheduled tribes can be taken into consideration, consistent with maintenance of efficiency of administration in making appointments to services and posts.
3. individual is required to take some action to ensure that he gets it. 
4. inbuilt difficulty in challenging the negligence or indifference of the state in the court of law.
• To become effective, the provision must be supplemented by what may be called
• substantive equality i.e. ability,resources and actual opportunity must be created to make the formal equality or in the case of tribes
• there is a need for making provisions for economic and social rights for the tribes not only through legislation or constitutional provision but also through effective legal, administrative, infrastructure and financial support.
• Two important laws enacted in recent years for tribal welfare.

1. Panchayat (Extension to the Scheduled Areas), Act, 1996
• empowers the scheduled tribes to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and customary mode of dispute resolution through the gram sabha.
• no enactment has been made to extend part IX A (The Municipalities) to the scheduled areas. Violation of spirit of constitution.
2. The Scheduled Tribe and Other Traditional Forest Dwellers Act, 2006
• aimed at undoing the age old injustice done to tribals by restoring and recognizing their pre-existing rights.
• recognition and restoration has been, however passing through rough weather in respect of its implementation.

• Nehru's Tribal Panchsheel
1. Tribals to develop on their own lives, no outside pressure.
2. Tribals rights in land and forest to be respected, no outsider can take possession of tribal land. Incursion of market economy to be controlled and regulated.
3. Encourage tribal language.
4. Administration to be done by tribal people.
5. No over administration.

• Tribes have been unable to safeguard and promote their language, culture and religion
• State has not taken adequate steps for this provision. 
• towards  direction of assimilation into the language and culture of the major community, rather than protection and promotion of the distinct language and culture of the tribes.
• Schooling extended to tribes, for example, has invariably been made in the language of the dominant regional community of the respective States.
• tribes are increasingly losing knowledge of their own language and culture.
• promotion of language and culture has been left to tribals themselves.
• because of lack of control over human, organizational and financial resources, the tribes have not been able to take effective measures in this direction.
• Where support has been provided by state, tribals are able to conserve their culture and language. North Eastern tribes have been able to protect their identity compared to Western, Northern and Southern India.
• This was possible in NE because of institutionalised structure there. It got boost after the creation of Tribal states and autonomous districts.

• It is ironical that despite a large number of well meaning constitutional provisions and laws
• aimed at protecting and safeguarding the welfare and interest of the tribal communities, the process of marginalization of the tribals has gone on unabated.
• Tribes had no tradition of reading and writing and had, hence, no tradition of record keeping and dealing with such laws. The court language and practice had been alien to them. In the
• absence of such tradition, the nontribes have taken advantage of such laws and have been depriving tribals of their lands through variety of ways and means.
• those who are in charge of tribal rights are in general insensitive to the constitutional provision and legal entitlements of the tribal communities.

The Limits to Law, Democracy and Governance

• Tribal development policy from its inception has always been beset by a contradiction, namely to recognize the uniqueness of tribal communities (including their governance systems) but yet deliver the benefits of mainstream development.
• former has, for the most part been undermined, seemingly to attain the latter.
• The accelerated attempt to exploit natural resources has led to maladministration and misgovernance ("governance deficit") and neglect in terms of infrastructure, development and welfare ("development deficit'') in tribal areas.
• failures of state policy have led to the spread of Left Wing Extremism (LWE). Now in 83 districts. 
• Constitutional and legal measures have to a large extent remained on paper because of a lack of political will to implement them, given the economic priorities of growth.
• Tribal areas were to a large extent ‘self-governing’ prior to British colonization.
• British tried to colonize tribal areas, they were often unsuccessful because of tribal resistance and revolts.
• acknowledged and permitted the relative independent existence of tribal regions.
1. Regulation XIII of 1833 declared the central Indian region of Chotanagpur, a non-regulated area.
2. Scheduled Districts Act of  1874 declared certain backward districts as scheduled so as to make existing laws not applicable in these tracts.
3. Government of India Acts of 1919 and 1935 further allowed for the declaration of backward districts and the exemption of excluded or partially excluded areas from the provisions of national and state laws.
4. allowed for tribal self-governance in such areas.
• Partially excluded and excluded areas were translated into Art 244.
• Art 244(1) provides that the provisions of the Fifth Schedule shall apply to the administration and control of Scheduled Areas and Scheduled Tribes (STs) in any state other than the states of Assam, Meghalaya, Tripura and Mizoram.
• provides that the Governor may make regulations for the peace and good government of Scheduled Areas.To prohibit or restrict the transfer of land by or among members of the STs,  to regulate the allotment of land to members of the STs in such areas and to regulate the business of money lending to STs.
• Art 244(2) provides for the Sixth Schedule to the Constitution and applies to the administration of certain tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram.
• areas are governed by District Councils, Autonomous Councils and Regional Councils constituted for Autonomous Districts and Autonomous Regions.
• councils have wide ranging legislative,judicial and executive powers with power to make rules with the approval of the Governor.
• cover matters such as primary schools, markets, dispensaries, ferries, cattle ponds, roads, fisheries, road transport and water-ways.
• these councils do not have the power to manage reserved forests or acquire land
• over fifty per cent of STs live outside the Scheduled Areas and hence are denied rights provided in Art 244.
• Tribal habitations in the states of Kerala, Tamil Nadu, Karnataka, West Bengal, Uttar Pradesh and Jammu and Kashmir have not been brought under the Fifth or Sixth Schedule.
• Dilip Singh Bhuria Committee recommended inclusion of left out areas under the 5th Schedule. 
• Governors have not taken pro active steps for protection of Tribal issues. Seemed to be bound by aid and advice of Council of Ministers (Art 163). There has been a debate whether this should have been the case. 
• An official committee found that mandatory annual reports by Governors to the President regarding the administration of Scheduled Areas under Para 3 of the Fifth Schedule were irregular. 
• reports contain largely stale narrative of departmental programmes without reference to crucial issues of administration, the main intended thrust of the Fifth Schedule.
• Planning Commission Working Group 2006 found that most states have old laws (money lending, forest use and ownership, mining and excise) in contradiction to PESA, which effectively defeats the purpose of PESA. 
• PESA and FRA offer an open system of decision-making, transparency and accountability as no other known system with space
• to raise and address all concerns. There is requirement of effective implementation of these acts. 

Actualising Adivasi Self Rule

• The presence of articulate Adivasi leaders like Khan Abdul Ghaffar Khan and Jaipal Singh resulted in the debates in the Constituent Assembly reverberating with eulogies for the inherently democratic and non-exploitative nature of Adivasi communities and the expression of concern about enabling them to negotiate the process of integration into the modern economy to their advantage.
• centralised planning process initiated from the early 1950s and the powerlessness of the Adivasis in the face of the State authorities, resulted in a policy of even greater intrusion into Adivasi areas than in colonial times
• The history of the past 60 years after independence is replete with innumerable struggles of the central Indian Adivasis against the injustice meted out to them by the Indian state through the ruthless implementation of the Indian Forest Act and the Land Acquisition Act and the cynical nonimplementation of the Fifth Schedule.
• There have been widespread protests by Adivasi mass organizations.
• In recent times this pattern has changed. Eg. SC judgement in Niyamgiri case in Odisha. 
• This has now provided power to the movement for Adivasi self rule.
• lack of grassroots governance institutions was becoming more and more of a problem as the level of political awareness and literacy was increasing and the centralised trickle down type of development was coming apart at the seams.
• the pressure building up within the mainstream parties and from various mass organisations and NGOs finally led to the passing of the 73rd Constitutional Amendment in 1992 making Panchayati Raj mandatory.
• Provision for this special law was made keeping in mind the failure of the Governors to
• implement the enabling provisions of the Fifth Schedule.
• Bhuria Committee in its report basically upheld the paramountcy of the Adivasi Gram Sabha in all matters related to their governance and development and defined the Gram Sabha as the small Adivasi hamlet and not the administrative panchayat which may contain one or more villages and is too large a unit for the Gram Sabha to function through direct democracy.
• PESA has established the paramountacy of gram sabha in tribal areas. 
• The PESA is a first step in the direction of preserving and promoting Adivasi culture.
• Chiapas indigenous people's movement in Mexico have used PESA as one of the reference points for the formulation of their own draft constitution.
• MGNREGA has greatly enhanced the provisions of PESA.
• Adivasi self rule will be possible only if there is conscious community mobilisation at the grassroots level in support of this.

The Food Bill, Wild Foods and the Adivasi People

• New generation of Adivasi's are losing the knowledge of collecting food from forests. Unable to identify edible foods. Prefer to buy foods from their wage labour. This has negatively affected there nutritional status. 
• Food security focuses on wheat, rice and coarse grains. Makes absolutely no mention about the various kinds of wild and uncultivated foods consumed by the tribal and rural populations of the country.
• these foods comprise – in a region such as central India –
• It is unfortunate  that over the last 2-3 decades, the food security that a large section of our population enjoyed as a matter of course, has been undermined by government policies and government apathy.
• Mining, the pollution of rivers and water bodies, the diversion of large amounts of water and areas of land - are some of the reasons that has made necessary and has pushed people into accepting, the NFS Bill 2013.
• Rural communities have traditionally harvested and consumed more than 400 species of wild foods that include yams, mushrooms, amaranths, tubers, insects, fish, crab and small game. 
• Food gathering in terms of health and economics, has not been officially recognized.
• wild foods, such as fish, crab, small game and seasonal greens that keeps nutritional deficiencies at bay; many of these foods have important medicinal values; and all of them are available if the requisite skill and knowledge for gathering them are extant in the culture.
• important role of wild foods in tribal and rural life has been neglected by the government.  
• The staples that have become ingredients in the promised Food Bill have displacedtraditional crops such as millets and pulses – emphasizing hybrid strains of rice and maize instead – and have been indirectly responsible for the diminishing contribution of foods gathered to supplement cultivated staples.
• Many wild food species require specific skills and material before they can be collected or consumed. Eg. Fish require traps that demand bamboo, the skill to fashion traps and the knowledge about fish movement in order to place them in the appropriate spots. Yams need processing before they can be consumed to avoid itchy throats.
• This demographic shift has broken the natural and easy transmission of knowledge and
• skills necessary between generations within a community.
• New generation is entirely depended on subsidies and shop. 
• This change in the manner of procuring food has also led to an attitudinal change with regard
• to their perception of the forest.
• Youth is more distanced from forests and ambivalent to destruction of forests. 
• Proper assessment needs to be done by State government regarding the food consumed by the locals. Work for its conservation and availability.
• Food bill should not work as charity rather as supplementary to people's efforts in securing nutritional security.   
• Free availability of food has promoted decline in livestock rearing and less investment in agriculture which has been aggravated by high cost of agriculture and technology adoption.
• procurement of foods, at least among some communities, keeps alive many aspects of traditional skills, ecology and culture and that such communities perform an important service in monitoring their local environment.
• good forest management of the forest comes only from regularly using it, as with food  gathering, and not by distancing oneself from it.