[Updated] Tribal Rights in India (Constitutional & Legal)

As the most disadvantaged section of the society, the tribal population has certain rights that are necessary for their overall protection and development. Tribal people are the least integrated into society. India too takes the responsibility of taking affirmative actions regarding the welfare of the tribal population and protection of their basic human rights and their traditional rights of livelihood.

Who are the tribal people?

A tribe is a social group existing before the development of Nation States, or outside the conventional society. A Tribe is a group of distinct people, dependant on land for livelihood, are mostly self-sufficient, and not integrated into the National identity.

Attributes of a tribal community–

1. They live in isolation and are culturally distinct groups.
2. The oldest ethnic section of the population.
3. They follow primitive methods of occupations such as hunting, gathering of minor forest produce and therefore they are backward economically as well as educationally.
4. Members of tribal society profess a primitive religion and are not always within the religious fold in the usual sense.
5. Tribal have their own common dialect. Their dialect has no written script.

Why the tribal people need special protection and rights?

• They are left behind in the path of human progress. They still live in their old ways in connection with nature.
• They, from ancient times, have been subjected to social discrimination, violence and subjugation tendencies.
• Still, the tribals were mostly left out to themselves till the arrival of the British. The colonialists saw the forests and other natural resources as state property to be exploited.
• They placed restrictions on the tribal ways of life in a symbiotic relationship with nature.
• The tribal people lost control over natural resources. Till recently, they didn’t have assured legal rights over their traditional properties.
• The pressure of industrialisation further alienated the tribal people as their land was encroached upon for further development.
• No proper rehabilitation after their displacement for development projects made their life miserable.
• There is an erosion of the identity of the tribal people due to Sanskritization, industrialization, consumerism.

The founding fathers of modern India were aware of the condition and critical requirements of the tribal population. In fact, The first Prime Minister Jawaharlal Nehru  formulated the Tribal Panchsheel. They are as follows-

1. Freedom to develop along with their own genius and no imposition of alien values.
2. Tribal rights in forest and land must be respected.
3. Training of tribal people in administration and developmental work.
4. There should be no overwhelming of schemes and over-administration. Their pace of life should be respected.
5. The results of programmes must be judged by their human character and not by mere statistics and money spent.

These principles are reflected in various constitutional and legal provisions over the years.

What are the scheduled tribes?

The framers of the Constitution understood that certain communities in the country were suffering from extreme socio-economic backwardness because of the primitive lifestyle, lack of connection with the mainstream and exploitation by the privileged section.

They sought to protect the tribal people by extraordinary means.

Scheduled Tribes-

• According to Article 366 (25) of the Indian constitution prescribe that the Scheduled Tribes means such tribes or tribal communities as are deemed under Article 342 of the Constitution to be Scheduled Tribes.
• The President may, Under Clause (1) of Article 342, with respect to any State or Union Territory, and where it is a State, after consultation with the Governor thereof, notify tribes as Scheduled Tribes
• Clause (2) of Article 342 empowers the Parliament to include in or exclude any tribe or tribal community or parts of these from the list.
• The Backward class commission (Kaka kalelkar Commission), 1953

1. Appointed by the President under article 340.
2. Defined STs as a group leading separate exclusive existence and not fully assimilated with the main body of the people.

• The Lokur Committee (1965) recommended the criteria for defining scheduled tribes.

The criteria followed for inclusion are-

• Indications of primitive traits,
• Distinctive culture,
• Geographical isolation,
• Shyness and no contact with the community at large.

Over 700 tribes have been notified under Article 342 of the Constitution of India, spread over States and Union Territories of the country.

What are the scheduled areas?

• The Scheduled Tribes living in contiguous areas. Therefore, an area approach is followed for development activities as well as regulatory provisions to protect their interests.
• To protect the interests of STs with respect to land and other social issues, various provisions have been enshrined in the Fifth and the Sixth Schedule of the Constitution.

What are Particularly vulnerable Tribes (PVTGs)?

• The particularly vulnerable tribes are more vulnerable sections among the tribals.
• Among the tribals, more assertive and relatively developed tribal groups take the major chunk of development assistance and the PVTGs are left behind.
• This was recognised by the Dhebar commission which created a separate category named primitive tribal groups in 1973 which was renamed as PVTGs in 2006.
• Today there are 75 tribes are identified as PVTGs. Most of these are found in Odisha.

How are they Identified?

The state governments or UTs submit proposals to the Union Tribal welfare Ministry for the identification of PVTGs. The Union Ministry after scrutiny of criteria fulfillment selects the tribes as PVTGs

Characteristics of PVTGs-

• Pre agricultural level technology
• Stagnant or declining population
• Extremely low literacy
• The economy of mere subsistence level

What are the Rights of Tribal people?

Constitutional rights

• Equality before Law (Article 14)
• Special provisions for the advancement under Article 15 (4).
• provisions for reservation in the appointment, posts under the State by Article 16 (4).
• National Commission for Scheduled Tribes (Article 338A).
• To specify the tribes or tribal communities to be included as STs (Article 342)
• The directive principle under article 46 directs the State, to promote with special care the educational and economic interests and protect them from social injustice and all forms of exploitation
• Grants-in-Aid from the Consolidated Fund of India for the welfare of the Scheduled Tribes and administration of Scheduled Areas under Article 275(1)
• The fifth schedule of the constitution provides for safeguards against displacement of tribal population because of land acquisitions etc. The Governor of the State, having scheduled Areas, is empowered to prohibit or restrict the transfer of land from tribal people and regulate the allotment of land to members of the Scheduled Tribes in such cases
• The sixth schedule contains similar protection for the tribal population of the states of Assam, Tripura, Mizoram & Meghalaya (ATMM).

Legal rights

• The scheduled castes and Scheduled Tribes (Prevention of Atrocities Act), 1989

1. The act was introduced to prevent the offences of atrocities committed against the members of the scheduled tribes.
2. It provides for the trial of such offences and rehabilitation of victims of such offences.
3. Recently the act was strengthened against a court ruling that provided for prior approval before the arrest of the accused. By the amendment of the act, previous protections were restored.

• The Panchayats (Extension to Scheduled Areas) Act, 1996

The Bhuria Committee’s (1991) recommendation brought this act. It safeguards the traditions and customs of the people, and their culture, identity, traditional resources.

Under the act, the Gram Sabha or Panchayats at the appropriate level shall be consulted before making

1. the acquisition of the land in scheduled areas
2. rehabilitation of the project affected people in the scheduled areas.

But the most important step to protect tribal rights was the passage of The Scheduled tribes and other traditional forest dwellers (recognition of forest rights) act, 2006.

The rationale behind the act–

• The forest-dwelling tribal people and the forests live in a symbiotic relationship, a factor that promotes conservation of ecological resources stemming from the very ethos of tribal life.
• The simplicity of tribes and their general ignorance of modern regulatory frameworks precluded them from asserting their genuine claims to resources in areas where they belonged and depended upon
• Insecurity and fear of eviction from the lands where they had lived for generations were perhaps the biggest reasons why tribal communities felt emotionally alienated apart from physically alienated from forests and forest lands.

Features of the act

• The act vests the forest rights and occupation in forest land in Forest Dwelling Scheduled Tribes (FDST) and Other Traditional Forest Dwellers (OTFD).
• Establishes the requisite responsibilities and authority for sustainable use, conservation of biodiversity and maintaining ecological balance.
• It seeks to rectify the injustice done by colonial laws to the forest-dwelling people who are integral to the very survival and sustainability of the forest ecosystem.
• There are four distinct rights recognised in the act-

1. Title rights

Right to ownership of land farmed by tribals or forest dwellers but subject to a maximum of 4 hectares.

2. Use rights

Extraction of Minor Forest Produce, grazing areas, pasture lands, etc.

3. Relief and development rights

Right to rehabilitation if they are subjected to illegal eviction or forced displacement.

4. Forest management rights

The right to protect, conserve, manage any community forest resource.

The rights under FRA, 2006 can be claimed by

1. Members of the Scheduled Tribes who primarily reside in and depend on the forests or forest lands for livelihood needs.
2. Any member or community who has for at least three generations i.e. 75 years, primarily resided in forests land for bona fide livelihood needs.

The role of Judiciary in protecting Tribal rights

• Judiciary has been an important bulwark of tribal rights in India.
• The PILs have worked as an important tool to move courts for the protection of tribal rights. Article 32 and 226 have been used effectively by the courts to give the tribals their dues.
• D. Dayal vs Union of India case

the Supreme court declared that rehabilitation od displaced tribals is their right within article 21 i.e. right to life.

• The Samatha judgement

1. Established that government lands, tribal lands, and forest lands in the scheduled areas (Schedule V) cannot be leased out to nontribal or private corporations.
2. Mining activities should only be taken up by the state Mineral Development Corporation or tribal cooperatives.
3. At least 20% of the net profits must be set aside as a permanent fund for the provision of basic facilities of health, education, roads.

Recent deliberations

Prof. Xaxa committee

• The PMO in 2013 appointed Prof. Xaxa committee in 2013 to look into the socio-economic, educational and health status of tribals in India.
• It was also expected to suggest policy initiatives for better developmental service delivery to the STs.
• The recommendations are

1. Laws and policies enacted by the legislatures not to be automatically applied in Fifth schedule areas.
2. Actions taken by the governors for safeguarding tribal rights must be clearly mentioned in the annual reports to the President.
3. A radical restructuring of the Tribal advisory committee.
4. There should be agro-based training institutes and eco forestry must be encouraged.
5. Special attention to the PVTGs.
6. Education

• Pedagogy must be to improve awareness and knowledge about the surrounding environment.
• Inclusion of local culture, folklore and history in the curriculum
• There must be a greater gender focus.
• Teachers for tribal schools must be recruited locally.

7. Their traditional knowledge must be documented, researched and promoted.
8. The participatory approach should be followed in tribal policymaking.

What are the Issues around tribal rights?

Issues with FRA, 2006

• The distribution of land titles amounts to 1.5 million (3 million hectare land) is way below the potential of title distribution.
• Boundaries of the land are not demarcated properly.
• Meetings of the Gram Panchayat are held at the panchayat level and not at the hamlet/revenue village level.
• Environmental protection laws and the FRA are not complementary making the distribution of titles hard.
• Environmental groups complain that the FRA gives more importance to individual rights than community rights.
• Forest bureaucracy is not aware of the details of the act and most of the time misinterprets the act leading to confusion among various departments.
• The FRA implementation poses a conflict of interest for forest officials who had till now vast powers regarding forest administration.

Issues regarding the various tribal rights

• The National Commission for scheduled tribes (NCST) has only recommendatory powers making it somewhat ineffective in protecting the rights of the tribal areas.
• The Atrocities Act lacks effective implementation due to procedural delays in investigation, judicial delays and the inability of tribal people to understand legal issues.
• The implementation of social empowerment schemes is lacklustre. There were cases of deaths of tribal people due to malnutrition in various states.
• The implementation of Prof Xaxa committee recommendations remains tardy.

Way forward

• Prof Xaxa committee recommendations can be a guiding light for the tribal policymaking. They must be implemented in letter and spirit.
• The NCST must be given more powers along with staff, finances etc.
• The implementation of the Atrocities Act must be done vigorously. Fast track courts must be put up. The legal Services Authorities Act must be utilised to provide the tribal people the necessary legal services.
• The Forest Rights Act must be implemented in letter and spirit. The implementation lacunae must be done away with.
• The forest officials should undergo training programmes in the implementation of the act.
• Social empowerment schemes are an effective way to lift the lives of the tribal people. But they must take into consideration of lifestyle of the tribal people.
• Taking tribal populations into confidence is essential in any kind of planning of their development.
• Massive awareness creation is necessary to bring tribal people in the main fold.

Practice Question for Mains

Tribal life is hardly affected by the Forest Rights Act, 2006. Critically analyse. (200 words)