Abstract
This analysis is concerned with the issue of tribal self-governance in India, with a focus on the nation’s legal framework. It reveals the difficulties of India’s tribal people with social, economic, and political marginalisation by examining the historical background of such communities.
The study dives into the Indian Constitution, looking at pertinent sections and changes that deal with indigenous populations’ rights and autonomy. The goals of these constitutional provisions are to give tribes the authority they need to protect their distinctive cultural identities, run their own local institutions, and actively participate in decision-making. This analysis gives useful insights into the accomplishments, flaws, and possible areas for development within the current legal and institutional framework by giving a thorough grasp of tribal self-governance in India.
Keywords: tribal self-governance, India, Constitution of India, tribal communities, autonomy, rights
INTRODUCTION
Decentralized governance is an important aspect of inclusive governance, which allows for people at the “grassroots level to participate in decision-making processes. Empowering individuals who were previously excluded from these processes is crucial to ensuring equitable opportunities for all citizens. When “three tier-governance models” were established to fulfill the goal and purpose of decentralization of power. Two major changes which the government of India brought to do decentralization of governance were 73rd Constitutional Amendment Act and Panchayats (Extension to the Scheduled Areas) Act, 1996(PESA) were also enacted to support the implementation of this system. These Acts extend the Panchayat Raj system to tribal areas in eight states, with the intention of allowing tribal societies to take control of their own destiny by preserving and conserving their traditional rights over natural resources. However, the socioeconomic and cultural lives of tribal groups in India vary significantly from tribe-to-tribe and region-to-region.
Despite this diversity, there are commonalities in their socio-cultural and psychological levels. This dissertation will examine the core rights of self-governance for tribal people in India, the challenges faced by governments in governing tribal communities and land, and the steps taken by state and union governments to protect traditional self-governing systems. It will also evaluate which self-governing system, whether provided under PESA or Customary Panchayat, would be more advantageous to tribal people, and analyze the extent to which PESA has been enforced in scheduled areas to provide opportunities for tribal people to participate in the decision-making process of local governance.
The various tribal groups in India have tried to maintain their distinct social identity, customs, and regulations, and are generally considered isolated and backward. Anthropologists have attempted to classify these tribes into different cultural types based on factors such as their economy, ecology, socio-cultural adaptation, religious beliefs, and influx of other groups of people. There are different criteria by which a tribe can be recognized, such as functional interdependence within the community, economic backwardness, geographical isolation, and common dialect, political unity under a common tribal authority, traditional laws, and aversion to change. The term “tribe” is used to distinguish a specific type of society from others and marks a stage of evolution in human society. However, there is no universally accepted definition of a tribe, and the Indian Constitution only specifies Scheduled Tribes as those that the President of the country may specify by public notification. The most acceptable definition in the Indian context considers a tribe as a collection of families or groups of families with a common name, occupying the same territory, speaking” the same language, observing certain taboos regarding marriage, profession or occupation, and having a well-developed system of reciprocity and mutual obligations.
SIGNIFICANCE OF STUDY
Even after so many laws have been passed for the up-liftment of the people living in the Scheduled Areas, there has been inefficient functioning of those laws. The most important feature of the 1996 Panchayat Act is to make the people in Scheduled Areas govern themselves. It is quite impossible for this law to be successfully implemented without participation of the people. Hence, “people’s participation” gains much importance in the above mentioned context. The nature of people’s participation is mainly confined to the sphere of basic amenities. The political consciousness generated by the local Government in Scheduled Areas has not been properly channelised towards democratic secular direction. The involvement of independent voluntary organizations, cooperatives and Farmers’ Associations for generating people’s participation supplement the work of Panchayat Raj but they have failed to act as checks and balances to the Panchayat Raj Institutions.
All these institutions and local bodies are facing shortage of resources. The significance of this study lies in its focus on the participation of tribal communities in local self-governance through “Panchayati Raj Institutions (PRIs) and the role of civil society in facilitating this process. It sheds light on the challenges faced by PRIs and local bodies in implementing decentralization and promoting democratic values in Scheduled Areas. The study highlights the shortcomings of existing institutional mechanisms in generating people’s participation and acting as checks and balances to ensure the equitable distribution of resources and benefits. The study also emphasizes the need for a change in the attitude, behavior, and cultural conditions that are conducive to the growth of decentralization. Therefore, the findings of this study can help policymakers and practitioners to identify the gaps in the implementation of decentralization programs and develop strategies to enhance the participation of tribal communities in local self-governance
RESEARCH METHODOLOGY
The research methodology of this paper mainly is doctrinal one and the data has been taken from primary and secondary sources which includes article, blogs, research paper, thesis and website of tribal ministry. Apart from this various judgments related to tribal governance delivered by the Indian judiciary have also been analyzed to explain the viewpoints of the author. The research design which has been used in this desertion is more exploratory and descriptive in nature as the study targets to explore and describe the provisions and case laws related to tribal self governance. The data used by the author is purely secondary and the author has taken data used in the desertion from government websites. Further more data used in this paper is sourced from books, articles, internet, journals, magazines, documentary movies, records, reports, and bulletins issued by government and private institutions. The research mythology of this dissertation can be concluded that a doctrinal, who relies on secondary data, would involve using a mixed research method, analyzing the collected data through content analysis, considering ethical considerations, discussing limitations, and drawing conclusions and recommendations based on the analysis
REVIEW OF LITERATURE
- The history of tribal administration by Dr. D.V. Prasad[1]
The author in this article provides a historical overview of the evolution of tribal autonomy in India, starting with the colonial period and tracing the development of constitutional provisions, legislative measures, and judicial decisions that define the legal and political framework for tribal self-governance. This article moreover tries to understand various policies initiatives and programs that have been implemented by the central and state governments of India to promote tribal autonomy and development, including the Tribal Sub-Plan (TSP), the Integrated Tribal Development Project (ITDP), and the Tribal Cooperative Marketing Development Federation of India (TRIFED)
- Issues of tribal integration and autonomy in Indian Society by Dr. Ruchika Sharma[2]
The author in this article discusses the historical and cultural significance of Indian tribal communities, highlighting their deep connection to nature, traditional livelihood, folk culture, and oral traditions. Author emphasizes the underdevelopment of the tribal in India and need for integration of them to that of the mainstream.” The author emphasizes that issues of tribal development, integration, and autonomy are complex and multifaceted. The Indian government has had to deliberate extensively on these issues, and policy formulation is still evolving to best suit the needs of these communities. The author notes that striking a balance between autonomy and integration is a critical issue for the development of Indian tribal communities. Overall, this literature review provides a comprehensive overview of the challenges faced by Indian tribal communities and the importance of acknowledging their unique cultural heritage and traditional way of life while integrating them into the national mainstream.
- The Genesis of Conflict and peace: Understanding North India, View and Review by Dutta and R. Bhuyan[3]
The authors examine issues such as ethnicity, identity, political marginalization, economic development, and regionalism to explain the complex nature of conflicts in the region. The chapters also highlight the diversity of the region and how this has contributed to conflicts between different ethnic groups. The authors discuss issues such as insurgency, human rights violations, and the role of civil society in promoting peace and development. The author also examines the role of the state and the international community in promoting peace and development in the region. The editors and authors offer a nuanced understanding of the historical and contemporary factors that have contributed to conflicts in the region, as well as the challenges facing efforts to promote peace and development. The volume of this book will be of interest to scholars, policymakers, and anyone interested in understanding the issues facing North East India.
- Fiftieth Report of the Standing Committee on Urban and Rural Development [4]
The report suggests that effective governance and decentralization of power are crucial for promoting sustainable development. The authors emphasize the importance of empowering local governments and communities to make decisions that are tailored to their unique needs and priorities. In addition, the report highlights the need for land-use planning and sustainable urbanization, with a focus on improving the quality of life for all citizens. The authors recommend the development of affordable housing and the provision of basic services in rural areas to address the rural-urban divide. Overall, the Fiftieth Report of the Standing Committee on Urban and Rural Development provides a comprehensive analysis of the challenges facing urban and rural development in India and offers practical recommendations for addressing these challenges. The report highlights the need for effective governance, decentralization, and community participation in the development process, with a focus on sustainable and equitable development.
HISTORY OF TRIBAL SELF GOVERNANCE IN INDIA
In India, tribal self-governance has a long history that is firmly established in the native political structures that different tribal people use throughout the nation. The foundations of tribal self-governance include autonomy, group decision-making, and the preservation of cultural identity.
Tribal tribes in India had well-established systems of self-governance before the entrance of colonial powers. Each tribe had a unique political and social system that was frequently based on familial relationships and hierarchical structures. Decisions were made mostly by tribal councils or assemblies, and leaders were chosen for their knowledge, experience, and propensity to speak for the group.
However, the dynamics of tribal self-governance suffered substantial alterations with the introduction of British colonial power in India. The British imposed their own governmental and legal frameworks, which frequently marginalised indigenous communities and threatened their established political institutions. The autonomy and rights of native communities were further undermined by forest policies, land alienation, and discriminatory laws.
Attempts were undertaken to rectify the past injustices experienced by tribal tribes and restore their self-governance after India attained independence in 1947. The separate identity and rights of tribal communities were acknowledged in the 1950-adopted Indian Constitution. It includes clauses pertaining to tribal lands and resources protection, Scheduled Tribes (ST) designation, and reserved seats in legislatures.
There have been persistent conflicts throughout the years regarding the proper realisation of tribal self-governance and the application of these constitutional provisions. The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA), was one of many government initiatives that intended to improve local self-governance in tribal areas and encourage tribal populations to participate in decision-making.[5]
Problems with land rights, eviction brought on by construction projects, inadequate representation, and socioeconomic inequality are still persistent, nevertheless. These issues are being addressed by programmes, policy changes, and legal reforms that strengthen tribal communities, uphold their rights, and encourage inclusive and participatory self-governance.
A complex and dynamic narrative, influenced by historical, sociopolitical, and legal variables, describes the history of tribal self-government in India. Fostering inclusive development and strengthening tribal people in India requires an understanding of the value of tribal autonomy and the preservation of their distinctive cultural identities.
ANALYZING THE EXISTING LEGAL FRAMEWORK OF THE TRIBAL SELF-GOVERNANCE
As per the article 244 of Constitution of India special reference has been made to schedule tribes which is in addition with 5th and 6th schedule of Indian constitution of India. Initially in the colonial era the area which has been grossly populated with “adivasis” has been designated as “Excluded or partially excluded area”. Both the statute namely Government of India (excluded and partially excluded area) Order, 1936 and the schedule District Act of 1874 is applicable to these types of area. When India became independent these territories were called as schedule areas and were placed under 5th and 6th schedule areas. Later on the president added certain more areas which are highly tribal in population into the list. Thereafter, the President declared other areas with a significant Adivasi population to be Scheduled Areas.
According to Article 244 of Part X of the Constitution, which is titled “The Scheduled and Tribal Areas,” the provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Area and “Scheduled Tribes in any State other than the States of Assam, Meghalaya, Tripura, and Mizoram. The mean objective or what can be said as a goal of creating a scheduled area is that by these provisions of tribal sovereignty, good governance of tribal areas can be ensured. Moreover, Indian judiciary by way of various judgments has held that the schedule area has an important purpose to serve for which it has been created.[6] Dr. B.D. Sharma (Former commissioner of Scheduled Castes and Schedule Tribes) once said that the 5th Schedule (fifth schedule) is a constitution within the constitution.[7] For this reason, the late Jawaharlal Nehru established the following five guiding principles for the tribal policy to be pursued:
1. Individuals should grow in accordance with their own brilliance, and outside values shouldn’t be imposed.
2. It is important to respect tribal rights to lands and forests.
3. Tribal groups should get training in the tasks of development and administration.
4. Tribal lands shouldn’t be handled excessively or overburdened with several initiatives.
Panchayats are not new in India and they have existed since ancient times and they can be said as the backbone of local self government in India. However, only after 1993 panchayats were recognised as constitutional bodies.[8] It established clear regulations for the establishment of Panchayats throughout the nation in rural areas as the fourth rung of representative democracy. In Part III, we briefly look at how these constitutional and legislative safeguards are really put into practice by looking at some of the biggest challenges to tribe people’ rights to their homes, resources, and means of subsistence. We also evaluate whether the predicted safeguards have really been offered by the legal system.
The fifth schedule and its provision:
The Fifth Schedule of the Indian Constitution has special rules for the management and governance of scheduled territories, the majority of which are inhabited by tribal tribes. Although the Fifth Schedule seeks to safeguard these populations’ rights and interests, a close examination reveals both its implementation’s advantages and disadvantages.
The fact that the legal framework acknowledges the special status of scheduled regions and aims to protect indigenous populations’ cultural, social, and economic rights is one of its strong points. It allows for the formation of tribal advisory councils and gives them the authority to take part in decision-making processes related to the growth and management of these territories. Furthermore, it requires the creation and execution of development programmes with a focus on the welfare, health, and education of the indigenous community.
However, the Fifth Schedule’s usefulness has been constrained by a number of flaws. First, the interpretation and application of its provisions lack precision and uniformity. There are inconsistencies and inadequacies in the protection of tribal rights as a result of different states and administrations taking different approaches to its implementation. The underrepresentation and absence of native communities from decision-making structures is another problem. The tribal advisory councils, which are supposed to be democratic entities that reflect tribal interests, sometimes lack actual power and find it difficult to have an impact on policy. The Fifth Schedule’s self-governance and autonomy principles are compromised by this.
In some cases, the acquisition of tribal lands for development projects has led to indigenous groups being uprooted and losing their means of subsistence. Despite the Fifth Schedule’s provisions to safeguard tribal land rights, disputes still occur as a result of legal ambiguities, poor execution, and laws that clash with one another, including the Land Acquisition Act.
Conclusion: Although the Fifth Schedule’s legal structure recognises the rights of tribal communities and gives them a foundation for self-government, it has been difficult to put into practise due to ambiguous interpretation, a lack of representation, and difficulties enforcing tribal land rights. To safeguard the principles of self-governance, autonomy, and the general wellbeing of tribal groups in scheduled regions, it is necessary to develop institutional processes, ensure meaningful tribal involvement, and harmonise contradictory laws.
RIGHTS OF TRIBAL IN CURRENT SELF-GOVERNANCE STRUCTURE
This chapter “will examine the reality of the rights available to tribal communities in India, despite the extensive package of rights outlined in the country’s official documents. The author will address each issue in turn and provide examples of the real-life situation using relevant case law. India has one of the most extensive legal frameworks for protecting the rights of tribal communities, with various constitutional provisions, laws, and policies in place to safeguard their interests. However, the actual implementation of these laws and policies is often deficient, leading to the violation of tribal people’s rights.
The author will explore different issues, such as the right to land and forest, the right to education and healthcare, and the right to cultural preservation. The chapter will highlight the challenges faced by tribal communities in accessing these rights and the discrimination they face from non-tribal communities. The author will also provide examples of relevant case law to explain the real-life position of tribal communities in India. These case laws will illustrate the challenges and complexities of protecting the rights of tribal communities in India and the legal recourse available to them. Overall, this chapter aims to provide a comprehensive understanding of the reality of the rights available to tribal” communities in India and the challenges they face in accessing and enjoying these rights
Rights against land Alienation of tribals
In India, the loss of land continues to be the principal factor preventing tribal people from having access to their homes, lives, and means of subsistence. Large portions of land have historically been under the traditional and customary control of Scheduled Tribes. The process of recognizing Scheduled Tribes’ customary land rights, however, is notably unequal and unfinished. As previously mentioned, most States have passed laws banning or outlawing the transfer of land from tribal to non-tribal ownership in Scheduled Areas in accordance with Paragraph 5(2) (a) of the Fifth Schedule. However, these laws have failed to achieve the constitutional goal of guaranteeing tribal sovereignty over their territory.[9] According to a report from the Department of Land Resources, Ministry of Rural Development, Government of India, in July 2013 states that “cases which registers in court relating to land alienation of tribal’s covers 8.55 lakh acres of land”[10]
The resources, mainly land, has been taken over by the government in the name of “larger common good”. When the Indian Constitution was enacted it contained “rights to property” as fundamental rights. However this protection was taken in 1979, in the name of “land reforms”. Now indigenous peoples are more vulnerable than before and right to property are constitutional rights under article 300-A. In the Narmada Bachao Andolan case, the Supreme Court heard objections about the environmental and socio-economic impact of a dam project which is going to be built in a river called Narmada. The main argument put forward by the petitioner was that the dam project is going the violate “rights of life” and “article 12 of International Labour Convention No. 107”. While the Court acknowledged that international treaties can be considered in domestic laws, it ultimately rejected the petitioner’s claim of specific Article 12 violations.
Rights of tribal over Forest
The exploitation of forest resources belonging to tribal people called “forest lands” only happened in the British era but even continued after independence of India. Two acts named Forest Conservation Act, 1980 and Wildlife Protection Act, 1972 made with the objective of conservation goal but they sideline the rights of tribals over the forest. With the enactment of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 the landscape of the law relating to forests and their governance has been radically transformed. This is new legislation, and it remains to be seen how” far it will be able to achieve its full potential.
Mining by ‘tribal land’
Mining has various threats associated with it which includes threat to life, health, land, agriculture, and livelihood. “These threats have been most aggressively and regressively to check and test a present constitutional framework relating to the tribal peoples which mainly include schedule area. There is no single reliable source which quantifies the amount of rain that takes place in tribal areas and how many tribes have been affected by this mining process. One of reports “estimate that out of 4,175 mines in the country in 1991, 3,500 were in Adivasi areas, while minerals found in Adivasi areas reportedly contributed more than half of national mining production. Another estimate states that, between 1950 and 1991, at least 2,600,000 people were displaced by mining projects, of which only 25% received any resettlement whatsoever. Of those displaced, an estimated 52% were STs.” The data and method used to derive to arrive on this estimate is arguable therefore this report cannot be considered wholly true and arguable in nature. The report continues by noting that many mining projects by government organisations blatantly disregard the legislative framework in place for the protection of Adivasi rights.
CONCLUSION AND SUGGESTIONS:
Humans are a society of hunter-gatherers, which means that self-governance or simply ruling a group of people is an innate characteristic of human culture. The ideals of Democracy are based on the grassroots level, which means a firm grass root can help build a strong nation. The tribal communities have their own unique ethnic identity, and giving them recognition in the Indian Constitution means giving validity to those identities. However, the coming of Corporatization has been perceived as a more significant threat to the existence of these communities because the tribal community believes in the ideas of socialism, where sharing with each member of the society is the priority.
Recognizing and giving due importance to the tribal self-governance is crucial because it will also help maintain the federal structure of our nation since they are independent political communities. Even though the legal framework states about the self -governance but in actuality, the implementation of it varies differently. Since a bureaucracy is involved, government schemes’ benefits often need to reach grass root levels. The primary issue the government still lacks is improving the literacy rate of the tribal population in the country. Because reforms are required in this structure, promoting the post of the village headman on the base of blood ties should be an archaic norm, and merit should be encouraged in elections. Also, its high time women are involved in decision-making. Empowerment to the tribal’s should be given in holistic sense as it had to be economic, social and cultural s o that the future generations can enjoy it sustainably.
Suggestions:
Tribal self-governance in India can be improved through a combination of legal, institutional, and policy measures. “Here are a few suggestions:
1. Strengthening local institutions: Local tribal institutions such as Gram Sabhas, Panchayats, and Village Councils should be strengthened and empowered to make decisions related to natural resources, development projects, and social issues affecting their communities.
2. Participation in decision-making processes: The tribal communities should be given a greater say in decision-making processes, especially those related to their lands, resources, and livelihoods. This can be done by involving them in the planning and implementation of development projects.
3. Recognition of customary laws: The customary laws of the tribal communities should be recognized and incorporated into the legal system, while ensuring that they do not violate the fundamental rights of individuals.
4. Land rights: Land rights are crucial for the economic and social well-being of tribal communities. The government should ensure that tribal communities have secure and legal rights over their lands, and take steps to protect them from illegal encroachment.
5. Education and awareness: Education and awareness programs should be undertaken to empower tribal communities with knowledge about their rights and entitlements. This can help them in making informed decisions and participating in the governance process.
6. Adequate funding: Adequate funding should be provided to tribal self-governance institutions to enable them to carry out their functions effectively. This can help in the implementation of development projects and social programs aimed at improving the lives of tribal communities.
Overall, tribal self-governance in India can be improved through a combination of legal, institutional, and policy measures that empower tribal communities and enable them to participate in the decision-making process.
BIBLIOGRAPHY:
- STATUTES AND STATUTORY INSTRUMENTS:
- Constitution of India 1947.
- Mineral Concession Rules, 1960.
- Ministry of Mines, Government of India, National Mineral Policy, 2008 (for non-fuel and non-coal minerals).
- Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
- The Mines and Minerals (Development & Regulation) Act, 1957.
2. BOOKS
1. Verrier Elwin, ‘A Philosophy of NEFA’ (5th Edition, Shillong Publication, 1959)
2. Verrier Elwin, ‘Jawaharlal Nehru’s “Five Principles” for the policy to be pursued visvis-the tribals’ (1st Edition, Digital Library Federation, 2002)
3. CASES
1. Samatha vs. State of Andhra Pradesh (1997) 8 SCC 191
RAJMOHAN MEENA
(DR. B. R. AMBEDKAR NATIONAL LAW UNIVERSITY, SONEPAT)
9373870349, rajasthanirajmohan@gmail.com
[1] Dr. D.V. Prasad, The history of tribal administration, https://www.law.ox.ac.uk/sites/default/files/migrated/oscola_4th_edn_hart_2012quickreferenceguide.pdf
[2] Dr. Ruchika Sharma, “Issues of Tribal Integration and autonomy in Indian society” (2022) 167 JMME 81, 86.
[3] Dutta and R. Bhuyan (eds), Genesis of Conflict and Peace: Understanding North East India, Views and Reviews (Vol 2, Akansha Publishing House 2007)
[4] Fiftieth Report of the Standing Committee on Urban and Rural Development (2003) (Thirteenth Lok Sabha)
[5] Dr.D.V. Prasad, ‘The History of Tribal Administration’ (2017) IGNOU https://egyankosh.ac.in/bitstream/123456789/71393/1/Unit-4.pdf>
[6] Samatha v. State of Andhra Pradesh (1997) 8 SCC 191(India)
[7] Id
[8] Slivashu, ‘Panchayati Raj System: Prior and After The 73rd Amendment’ (Legal Services India, 5th May, 2019) https://www.legalserviceindia.com/legal/article-8234-panchayati-raj-system-prior-and-after-the-73rd amendment.html> last visited 11 April, 2023.
[9] Constitution of India 1949, 5th Schedule, Paragraph (5) (a).
[10] Department of Land Resources, Ministry of Rural Development, Government of India, Draft National Land Reforms Policy (24 July 2013).