Analysis of Down to Earth Magazine: Tribal Rights in India
”GS 2: Issues Related to SCs & STs”
- The Scheduled Tribes (“STs”) or Adivasis consist of a number of heterogeneous tribal groups that have historically self-identified and been identified by the British colonial and independent Indian state, as lying outside the mainstream.
- Article 366(25) of the Constitution defines Scheduled Tribes to mean “tribes or tribal communities or parts of or groups within such tribes or tribal communities” as are deemed to be Scheduled Tribes (“STs”) under Article 342 of the Constitution.
- Article 342 vests the President with the power to declare by public notification “the tribes or tribal communities or parts of or groups within tribes or tribal communities” as STs for a state or union territory.
What does the Constitution say?
- The Indian Constitution pioneered the protection of tribal communities, especially their rights to land, as the land was considered central not only for their livelihood and development but also for their identity.
- In India, most of the tribes are collectively identified under Article 342 (1&2) as “Scheduled Tribes” and their right to self-determination is guaranteed by Part X: The Scheduled and Tribal Areas – Article 244: Administration of Scheduled Areas and Tribal Areas.
How Constitution provides unique protection to STs?
- The Constitution delineates special protective provisions for the Scheduled Tribes which differentiates them from the rest of the Indian population along with three parameters.
- First, the STs have both individual and group representation within the Indian federal constitutional framework, as opposed to individual representation for the vast majority of the Indian population.
- Article 330 of the Constitution read with the Representation of People’s Act, 1950 provides for reservation of electoral constituencies in tribal majority districts for STs in both Parliament and state legislative assemblies.
- The only other group that enjoys the privilege of separately reserved electoral constituencies in Parliament and state legislatures are the Scheduled Castes, who are historically disadvantaged communities within the mainstream of dominant Hindu society.
- Second, the Constitution stipulates affirmative action provisions that reserve 7% seats in government-funded educational institutions and government jobs for the STs.
- Third, Articles 244(1) and 244(2) of the Constitution carve out tribal majority areas from the geographical landmass of India, that are designated as Scheduled areas in the Fifth and Sixth Schedules of the Constitution, respectively. Here the Scheduled Tribes are unique because unlike the rest of the population and unlike even the Scheduled Castes who have group-based representation and affirmative action provisions, the Scheduled Tribes are the only minority group that have especially recognised rights to land in particular geographic areas.
- The Fifth Schedule provides for the administration of tribal majority areas in ten states within peninsular India that have tribal minority populations. That is, the population of STs in these states is in a minority.
- Fifth Scheduled areas are in the states of Andhra Pradesh, Telangana, Gujarat, Jharkhand, Chhattisgarh, Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, and Rajasthan.
- The Sixth Schedule provides the broad framework for the administration of tribal areas in the northeastern states of Assam, Meghalaya, Tripura and Mizoram.
- Meghalaya and Mizoram are tribal majority states, whereas Assam and Tripura are tribal minority states. The Schedule envisages the creation of Autonomous Districts and Autonomous Regions (within the districts) to be administered democratically by the indigenous tribal population of such scheduled areas as opposed to the state legislatures. Meghalaya is the only state in the country where the President has declared the area of the entire state as Sixth Scheduled Area.
What is ‘PESA’ and ‘MESA’?
- Tribals in India are also protected under the PESA Act that was acted on December 24, 1996, to enable tribal self-rule in these areas.
- The Bhuria Committee recommended the enactment of the Panchayat Extension to Scheduled Areas Act (“PESA”), and the Municipalities Extension to Scheduled Areas Act (“MESA”). In 1996, Parliament accepted the Bhuria Committee’s recommendation to enact the PESA, but MESA has still not been enacted.
The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
- In 2006, Parliament enacted the Forest Rights Act to reverse more than a century of injustice against forest-dwelling communities, particularly the STs since the enactment of the draconian forest laws of the nineteenth century.
- This Act granted statutory recognition to individual and community rights of Scheduled Tribes, and other traditional forest-dwelling communities, and gave them a participatory voice in forest management and conservation.
- The Act recognized the rights of tribal communities to cultivate land in the forests, and also rights to use grazing lands, collect minor forest produce, and protect and conserve forests.