Introduction

  • Tribal areas were to large extent self growing prior to British colonization by virtue of fact that they lived in isolation from larger Indian society
  • It was advent of colonial rule that brought tribes & non-tribes into one single political & administrative structure by means of war, conquest & annexation. This was followed by introduction of new laws & uniform civil & criminal laws that were completely alien to tribal ethos.These developments led to large scale alienation of land from tribes to non tribes through such processes & means as fraud, deceit, mortgage etc
  • Gradually British gave official recognition to their customary traditions through special laws which acknowledge their independent existence & declared exemption of these areas from national/ state laws
  • Adivasi leaders like Khan Abdur Ghaffar khan & Jaipal Singh in debates in constituent assembly demanded existence permissions for protection & battlement of STs in independent India.

Safeguards

A) Constitutional

  • Article 342 (to identify STs)
  • Article 330 & 332 (proportionate representation in par & S.L.)
  • Article 19 (restriction on right of ordinary citizen to move freely & settle in areas of STs)
  • Article 29 (conservation of one’s language, dialect & culture)
  • Article 16(4) (reservation in jobs, educational institutes etc)
  • 5th& 6th schedule of the Constitution
  • Article 275(1) (special central assistance to states having tribal population)

B) Legal

  • PESA 1996 [Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996” (PESA) ] : The Act to provide for the extension of the provisions of Part IXof the Constitution  relating to the Panchayats to the Scheduled Areas.
  • STs & traditional forest dwellers act 2006
  • SC & ST (Prevention of Atrocities Act )

C) Bodies for protection & betterment

  • National commission for STs
  • Tribal cooperative marketing federation of India (TRIFED): Ensure remunerative prices for Minor forest produce of tribals

D) Welfare schemes & policies

  • National Tribal Policy
  • Rajiv Gandhi national fellowship scheme (fellowship provided to ST students for M.phil & PhD )
  • National Overseas Scholarship Scheme for STs
  • Adhivasi Mahila Sakashtikaran Yojana ( loans at low interest rates to tribal women )
  • Tribal sub plan (TSP) : Persistence of socio-economic backwardness of SCs & STs inspite of development efforts wanted special & focused strategy to enable them to share benefits of overall economic growth. Thus government introduced Tribal Sub-Plans
  • Plan funds for development of SCs & STs in acc with proportion in total pop i.e.

Issues/problems with performance of the schemes/mechanism etc

  • Despite protective discrimination, results are far from satisfactory (7.5% seats reserved in jobs, educational institutions etc for STs )
    • Problems:
      • Inability of state to fill up quota given to STs : But it cannot be considered as violation of Fundamental Rights as right is also individual in the sense that it requires individual to take action to ensure that he gets seat
      • Extension of reservation is not automatic and it has some strings attached. For Eg Article 335 of the constitution stipulates that reservation must take into account the efficiency of administration. Thus a kind of constraint on reservation.
  • Contraidiction in protecting tribal uniqueness & yet national development
    • Conflict between laws aimed at protecting tribes & those aimed at public interest. For eg. Land acquisition act, Conservation act, Wildlife Sanctuary Act. Under these acts it becomes sometimes difficult to balance both protecting tribal rights as well as taking development agenda forward.
    • Tribal rights have came to be scarified in cause of nation (10 million displaced in 1947 in name of ‘ development ‘ and ‘ larger public interest’ )
  • Process of land alienation has gone unabated in post independence period
    • In some states acts for restoring lost land of STs have been amended in view to protect interests of non-tribals and development. For eg Andhra Pradesh Land Transfer Regulation Act 1959 amended in 1970 to accommodate interests of non-tribals
    • Non-implementation of PESA is a huge issue of concern (see ahead)
    • Tribes had no tradition of reading, writing & keeping records in English/Legal language & such practices had been completely alien to them .The Non-tribal people have taken advantage of laws deprining tribals of their land by various such means
    • Local administration works hand in glove with non tribals to ensure smooth transfer of land from tribals to non-tribals .
    • Weak implementation of Forest Right Act further erodes even the freedom and rights the tribes have got through law of the land . For instance you would be surprised to know that the Rejection rate of claims on land by tribes is 50%
  • Erosion of tribal language & culture especially in central India
    • While state may not have imposed any language or culture on STs, but it has not taken any positive step to protect it either
    • Posture had been of assimilating them into mainstream culture . For eg schooling extended to tribes has been made in language of dominant regional community of respective state , therefore tribes loosing their own culture & language
    • In North East , scenario is somewhat different as they have received major boost with creation of tribal states & autonomous districts under 6th Schedule of the Constitution of India .
  • Some tribal habitations not brought under 5th-6th schedule of the Constitution
    • Nearly 50% of STs live outside scheduled areas, hence they are denied rights provided in Art 244 of the Indian Constitution
    • There are tribal habitations in states that are left out of 5th schedule of the constitution . For example in states of Kerala, Tamil Nadu, Karnataka, Andhra etc there is sizeable tribal population but it is not covered under Schedule 5 of the constitution
    • Modified Area Development Approach & Tribal sub plans are coterminous with scheduled areas in central India. Such plans do not touch tribals living outside the scheduled areas.
    • Many tribals of same community are founded across different states. As discussed above all states do not give protection to tribals under 5th Schedule as they are not covered under them
  • State governors have not carried out their duties diligently
    • Theoretically it is possible for Governor on advice of Tribal Advisory Council consisting of Adivasi MLAs to prevent application of any central law including Forest Right Act , Land Acquisition Act etc to tribal areas. However it has never happened as it is not binding provision on goverment & only a mere suggestion
    • Mandatory annual reports by Governors to the President were irregular
    • Given threat of mining to the conservation of tribal lands and forests , the Governors should have invoked their powers in pro active ways to secure rights of STs. Sadly it has not happened .
  • Poor implementation of PESA, Forest Rights Act & Tribal Sub Plan
    • Loopholes in implementation of PESA
      • Old rules regarding money lending, forest use & ownership, mining etc remain in place
      • Powers of Gram Sabhas & Transfer of funds under the act remains merely on paper
      • Many states have not formed rules for implementation of PESA yet
    • Loopholes in implementation of Tribal Sub Plan
      • Allocation of funds not meeting stipulated earmarking of 8% the budget of concerned ministries
      • Several ministries & departments are still out of ambit of TSPs
      • Not all ministries/Departments allocating funds for this purpose. Foreg Ministry of Agriculture , Ministry of civil aviation etc
      • TSP funds are being used for general purposes that cannot be perceived to benefit STs ( For example funds are being used to purchase furniture etc ) These actions do not promote empowerment of STs
      • No state has proper monitoring mechanism to verify how well funds spent
  • Absence of tribal politics
    • Especially in South India tribal politics and tribal political parties are virtually non existent
    • Many of tribes are found across more than one state therefore have been reduced to minority in their respective states who otherwise are large groups. Further the reorganization of states inhibited consolidation of tribal polities & identity
  • Biodiversity & tribal question
    • State has discouraged shifting cultivation which tribes practice
    • Forests have been declared hot spots, ecological & sensitive zones & world heritage sites which has compounded problem for tribes. Various interest groups like environment lobby, forest department , land mafia – labels them as encroachers

Recommendations

  • Proper implementation of PESA & FRA
    • Both PESA & FRA gives power to communities and allows to determine their future destiny.While tribes are aware of FRA & PESA, they need to be informed of their rights
    • PESA provides great space for legal & mass action to press for increased adivasi autonomy especially after Niyamgiri judgement of Supreme Court
  • There is need to reconcile tribal interests & biodiversity conservation
  • Promote Adivasi self rule as envisaged in 5th schedule of the constitution
  • Changing objectives of TSP
    • Main objective should not be to just report that 8 % of total plan budget of all ministries are for benefitting STs
    • It should be
      • Identifying additional challenges confronting STs in ministry’s sector of concern
      • What kind of measures to be taken to overcome it etc
    • Field monitoring should be there
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