Saturday, November 22, 2008

CONSTITUTIONAL SAFEGUARDS FOR TRIBALS



CONSTITUTIONAL SAFEGUARDS FOR TRIBALS


IN INDIA AND TRIBAL ADMINISTRATION:


BEHAVIOURAL ASPECTS


Dr. R.P. Rai*


India has a composite population. The Indian society lacks


homogeneity in sop for as there exist numerous religious, cultural and


linguistic groups. There are Hindus, Muslims, Christians. Paris, Sikhs


Buddhists, Jains and others. The pattern of culture vary from place to


place. There are Anglo Indian based on racial. religious and linguistic


factors. Besides there are sections of people like the Scheduled


Castes. The Scheduled Tribes and other backward classes. Who not


only need protection from exploitation but even positive help from


the state for amerlioation of their miserable lot. Even before India


became independent there was a demand from many of the weaker


sections of society for special provisions in the Constitution for the


benefit of weaker sections based on the promise that these sections


had been socially and economically discriminated against during the


British times and therefore special steps were called for to help and


improve the condition of these people vis a vis the forward


cornrnunities,


2. The framers of the Constitution tried level best to safeguard


the interest of the various minority groups whether based on religion


or language, culture or socio-economic factors so as to give them a


sense of security. The scheduled tribes who. predominate in certain


areas of the country like the North-Eastern region. the large parts of


Madhya Pradesh. Bihar. Orissa and certain parts of Gujrat and the


hilly regions of most states are those sections of the Indian


* P.G. Department l\f Law & Research Centre Govt.T.R.S.


(Autonomous) College Rewa (M.P.)


220 CENTRAL INI>IA Lt\.W 2003


population who still live in their tribal ways and observe their own


peculiar customs and cultural norms. Their primitive way of Hvit'lg.


nomadic habits. love for drink and dance, and habitation. in remote and


inaccessible areas. less affected by the forces of modernization,


required special treatment from the framers of our Constitution in


order to improve their economic and social position. Hence special


provisions were for the development of these tribal groups made and


they were classified as scheduled. Now the concern of us is how to


keep a balance that on the one hand that their identity is their culture is


not eroded and on the other hand bring them in to the main stream of


national life. It is of interest to briefly upon these provisions as the


enforcement of these require special administrative arrangements.


3. The framers of the Constitution were anxious to ensure the


betterment of the Scheduled Tribes. Article 46 epitomizing the policy


calls upon the state (Central & State government) to promote with


special care the educational and economic interests of Scheduled


castes and Scheduled tribes and protect them from social injustice and


all forms of exploitation. It is comprehensive article comprising both


the development & regulatory functions.


Protective provisions


4. It is noteworthy that even provisions relating to fundamental


rights have been qualified with 'reasonable restrictions' in favour of


Scheduled tribes. Article 15 prohibits discrimination against any


citizen on grounds of religion, race, caste, sex or place of birth: but


clause (4) thereof enables a State government to make special


provisions for advancement ef members of Scheduled castes and


Scheduled tribes. Article 16 provides for opportunities for all citizens


in matters relating to employment or appointment or post in favour of


Scheduled castes and Schedules tribes. Article 19 grants the rights of


Vol. XVI CONSTITUTIONAL SAFEGL\ROS FOR nUBALS 221


freedom or speech. assembly. associauon, union. movement and


residence throughout the country. practice of any profession.


occupation. trade or business. But for protection of the interests of


Schedules tribes. clause (5) permits reasonable restrictions on the


exerciseof rights of free movement, residence and settlement in any


part of the territory of India, Article 23 prohibits traffic-in human


beings. 'Begar' and other forms of forced labour: this has special


relevance for Scheduled tribes.


Reservational Provisions


5. Reservation of seats for Scheduled caste and Schedules tribe


communities has been provided for on the basis of population in the


House of the People as per Article 330 and in the Legislative


Assemblies of the states as per Article 332 for a certain lengthof time


in the hope that in course of that time its need would disappear. In


19~0. its validity was extended by another decade. The Constitution


8111 Amendment Act 1959 extended all such reservations for ten years.


2.Vd Amendment Act further extended this period from 20 to 30 years


and 45 Amendment Ac. Considering the present pace of progress. it


docs not seem likely that it would be feasible to dispense with


reservation in the course of near future. But for reservation in


legislatures. the. voice of these two weak communities would have


remained muffled.rHowsoever reservation in public services and


posts as per Article 335 stands on a different footing. Such


reservation in educational institutions has enabled members of these


communities to register rise in the ~rcentage of posts they have


nlied.


6. Reservation are also provided to a lower extent in the


allotment of houses by public institutions..in the provision of


industrial loans. grants in scholarship for the students of these


222 CENTRAL INDIA LAW 2003


sections and provision of special infrastructure facilities to the area in


which these communities reside.


7. However the tribal are not very articulate in protecting their


interest and as consequence tribal interest are neglected. Much of the


problems in the tribal areas are caused by thealleviation of tribal lands


to non-tribal and the exploitation of the tribals,


The Constitution protects and guarantees cultural and


educational rights of various sectors of the people vide Article 29. 30..


The Constitution provides for special staff for the protection of the


interest of scheduled tribes (Article 338) and also for a commission to


look in to the social educational conditions of these groups and to


report to the Parliament on measures needed to improve these


conditions. The Constitution 65th Amendments Act 1999 (Article 33R)


provides for the establishment of National Commission for Scheduled


Caste and Scheduled Tribes in place of special provision


8. Another constitutional provision is the one in relation to


specification of Schedule tribes in Article 342'. This empowers the


Presidents to denote the tribes or tribal communities to be deemed as


scheduled tribes. Such notification is in respect of state. the President


shall notify the Scheduled tribes within a state after consultation with


the Governor or the state. This clause is important as it ensures


national action to specify who the Scheduled tribes arc. The


classification of these categories are state and a particular group may


he classified as scheduled in one state and not in another depending on


the social and economic condition of the group in the state.


Development Provisions and Trihal Development Strategy


9. FOl' the first time in the administration of the tribal people. th,


Constitution placed the responsibility for their welfare on populo.


governments through the President and (i( '\ crnors. For planned


Vol. XVI CONSTIITTlO,\\L SAHel \IWS fOR TRIBALS 223


development availability of financial resources as per Article 275 and


executivemachinery as per Article 244 and the fifth & sixth schedule


ofthe Constitution have relevance. The first provision of clause.


(I) of Article 275 makes it incumbent to set aside out of the


Consolidated fund of India for having given to the states so that the


cost of schemes of tribal development and raising the level of


administration in scheduled areas can he defrayed. Thus. there is no


stint on financial res?urces. except as may be necessarily relative to


over all availability.&rticle 244. with the provision in the Iifth


schedule enables a c~lete frame of administration to concretisc the


directives contained'in Article 46. The term scheduled areas


encompassed all areas the President of India notifes under the fifth


schedule. The Governor has been made responsible for the peaceand


good government of scheduled areas. Under the fifth schedule a


provision is made fur setting up a trihal advisory council which is


consulted by the Governor in relation to his regulation making


powers, Beside this Article 339(2) empowers the Centre to give


directions to a State asking them to draw up and execute schemes tor


the welfare of Scheduled tribes.


The fifth schedule [Clause (I) Article 244] contains


.provisions regarding administration and control of the Scheduled


areas and Schedules tribes. There are eight States having scheduled


areas. viz. Andhra Pradesh Bihar. Gujarat, Ifil!lachal Pradesh.


Madhva Pradesh. Maharashtra. Orrisa and Rajasthan; The Sixth . " - . . .


. schedule [Clause (2) Article 2441 contains provisions!"('Iatin!; to the


administration of the tribal areas in the stale of Assam (i\"I:11 Cachar


Hills District and Karbi Anglong District), Meghalaya, Mizoram and


Tripura protected by the inner line Regulations framed in 1872-73'


prohibiting entry without a permit of Indian citizens from other parts


of the Country as "ell as foreigners. There are Autonomous regional


224 CENTRAL INDIA LAW 2003


council in these areas. They not only administer the various


department and developmental programmes but also have powers to


make laws on a variety of subjects e.g, land. forest. shiftingcultivation


village or town administration including village or town police and


public health and sanitation inheritance of.'property.1114wi·iagc and


divorce. and social customs. Under the clause (3) of the Fifth


Schedule. The Governor is required to draw up annually a reporton


the administration the Scheduled areas-and submit it to the President.


These provisions arc so strong and comprehensive that the Filth


Schedule has been termed by some legal authorities as "Constitution


within the Constitution:' Thus. the Governor's Report on the


Scheduled areas carries special significance.


10. But its is unethical that these comprehensive provisions have.


however remained lesser operationalised. No attempt has been made


cven to elaborate as to what would constitute 'good government" for


these areas. which was a special concern of the Founding Fathers. Most


of the states have just made a lew regulations in respect of transfer of


land and money-lending. The report of Governor ironically throws no


light whatsoever on the State of administration of Scheduled areas.


ignoring the direction of the Constitution. Such reports have not evinced


an interest in the Union Government. No attempt has been to assist the


level of administration of the Scheduled areas and identity ih,


deficiencies therein by any state. No direction has been issued by the


Union Government in exercise of its executive authority not with


standing the grave concern expressed at all levels about the state of


administration in the tribal areas which continues to be far from


satisfactory resulting in intermittent unrest amongst the tribal people',


1.Vcnkat Subhaiah..A note on Administration of Scheduled Areas'


in S. Narayan (cd) Jharkhand Movement, Origin & Evolution. New


Delhi lntcr India Publicatiplls.1994.


Vol. XVI CONSTIT'l'TI()l\AL SAFEGUARDS fOR TRIBALS 225


This provision has become so rouiinised that even the Governors do


not fcc/any necessity to submit theirreport to the President in time


and all the Governors. unethically are defaulters herein",


Governmentand the Tribes Advisory Councils


II. (The Tribes Advisory Councils are constituted in the state in


accordance w ith clause (4) of the Fifth Schedule to theConstitution


which provides that there shall be established in each slate. having


Scheduled areas, and if the President so directs. also in-any State


huvillg Scheduled Tribes but no Scheduled Area therein). The Tribes


AdvisoryCouncil may consist of not more than 20members of whom


as much as three-fourth shall be representatives of Scheduled tribes in


the Legislative Assembly of the State. It is significant to note' that


even before theConstitution was promulgated there were advisory


Committees attached to some of their Provincial Government to assist


them in the administration of the Tribal areas, but they played a very


minor role and indeed were hardly noticed. But the situation has


changed. now and in important mechanism. The Constitution has


given only tribal people this privilege according to which the


beneficiaries are constitutionally desired to participate in their policy


making enterprise. Though this idea was inserted 55 years ago in the


Constitution it is the most modern theory of development which 'is


now known as the "people-centered approach to development". In


people centered approach to development the needs of the people


take precedence over the needs of the production system.


12. The Central themes of people-centered development are : (I)


empowerment of people. and (2) development of administrative


process which responds 10 the needsof thepeople. Key elements In


people-centered development are: ( I) human growth and well-being,


(2) equality.G) Self-reliance (4) participation and sustainability,


'"'\ 26th & ~7th report of the commissioner for ...


226 CENTRAL INOlA LAW ·2003


J 3. Sustainability is regarded as lasting quulir, in a development


I


programme. A development programme can be sustained by : (I)


creating a felt need among beneficiaries about the efficacy of the


programme. (.2) developing institutions. which continually adapt. 0)


Providing of resources, and (4) building support among political elites


and community groups.


If Tribes Advisory Councils tllJ1ctionas desired by the


Constitution. development \\ ill be in accordance with the aspirations


of the tribal people which IS propagated in the People Centered


approach to development.


But. when we examine its real working, we find that the various


State Government are not serious about its utility. As per the


guidelines issued by the Ministry of Welfare. the I ribcs Advisory


Council should meet at least twice a year -part vof the State


governments not to convene its meeting regularly. As such the verv


purpose of its formation is defeated. In Bihar. Himachal Pradsh.


Maharashtra. Orissa and Tripura the Council is headed by the Chief


Minister while in other States. it is handled by the Minister-in charge


of Tribal development. It is. therefore. ethically desirable that a


uniform practice should be followed in this regard,


Legislative Functions Between Centre and States


14. The federal Indian constitutional edifice envisages division of


legislative powers between the Union and the State governments.


None of the three lists of the Seventh Schedule contains specific


provision for legislation in respect of Scheduled areas or Scheduled


Tribes. It has been held bv the Kerala Hiuh Court in Eacharan Ittiathi . ~


and one other versus the State of Kerala (OJ>. No, 3373 or 19(6) that if


any law is to be made in respect of these two subjects alone. it can be


r


Vol. XVI CO:"STITlTIO,\.\L SAFE(jl:ARI)~FOR TRIBALS 227


done only by Parliament in exercise of its residuary powers as per


Article 24R( I) read with lntry 97 in List I-Iinion list of the Seventh


Schedule. This judgment related to a State \\ hich has no Scheduled


area but is also relevant for states having Scheduled areas.


Mention has been made earlier of the far-rcachlnu character . ~


of the provisions of the Fifth Schedule. It bears repletion that in


accordance with subparagraph.


( I ) of para 5 of the Schedule. the Governor (~f a state has been vested


vast discretion for issue of public notification making it applicable


subject to such exceptions and modifications that he may specify: the


power conferred can have retrospective effect. It is noteworthy that


this regulation making power contained in sub-paragraph.


(2) and the power to repeal or amend an act of Parliament or of a


State Legislature contained in sub-paragraph.


(3) Require compliance with the procedure prescribed in subparagraph.


(4) and (5). making consultation with the Tr'ibd Advisory Council of


the state and the assent of the President ohligatory. But there does not


appear to be any such constraint of procedure in~ptar as subparagraph


(1 ) is concerned.


The regulation-making powers have been excrcisedby the


Governors in many states for the business of money-lending in


scheduled areas. combating alienation of tribal land. Liquidation of


debt bondage, etc. In practice. it is the state administration which take


action for introducing regulations in the name of the Governor, in


accordance with the spirit of the Constitution.


128 CENTRAL INOlA LAW 2003


The overall position may be summed up by saying that laws


on tribal. affairs can be in the form of; (a) Central legislation or (b)


regulations by.the Governor, or (c) State legislation. In \~her words,


legislation 011 tribal affairs is a joint responsibility of the centre and the


Stales with a special role having been assigned to the Governor of a


state. Now the question is, what approach should we follow with


regards to tribal development?


Commenting upon the programme of development of the


tribals. Nehru advised that we should approach the tribal people with


affection and friendliness and go to them as liberating forces. They


'should be sure that we want to give them something and not to take


away something from them. This is the best way' to create


psychological integration between tribals and others who may be


traders, businessmen or administrators. There must not be drastic


uprooting of tribals from their habitat. We have to understand tribals


psyche andhave to give them due respect and honour their culture.


l. People should develop along the lines of their own genius and


we should avoid imposing any thing on them. but rather try to


encourage in every waytheir own traditional ails and culture.


2. Tribals rights in lands and forests should be respected.


3. We should try to train and build up a team of their own people


to do administration and development.


4. We should no: .... cr-administer these areas or overwhelm these


with rnultiplicuy ur schemes. We should rather work through.


and not in rivalry-to, their own social and cultural institutions.


5. We should judge results 110t by statistics or the amount of


money spent but by the quality of human character that IS


evolved.


\,()1. XVI CONSTlTl'TlON,,\L SAI-'ECtARUS FOR TRIBALS 229


"Culture obviously must he a living. moving thing always


subject to change. and Mr. Nehru's formula of developing the tribal


people along the line of their own tradition and genius seem to put


what was needed in a nutshell".


15. The Scheduled Tribes arc distinct racial and cultural entities.


As such. any new-comer percentage to tribal areas is apt to be


bewildered by the difference in the nature or people there. The


efficiency of a Public Official largely depends on the manner in


which he behaves with the population. Insofar as these areas are


concerned. however brilliant an officer may be. he will be a failure


unless he hchaves in.a sober and tactful manner with the population.


There is one golden rule in dealing with tribals, namely. "behave like


a gentleman and treat the tribals as one gentleman would behave with


another".


16. Social divisions among the tribals are partly indigenous and


partly have grown out of contact with administration, both·beft)re and


after independence. The main social divisions are: the tribal officials


and other educated tribals and tribal merchants of substance: village


headmen or gaonburas.-and small landholders and cultivators.


With the first two or three classes. The official must be


prepared to mix socially and should expect calls of ceremony, etc.,


from them. With all classes of tribals, however it is essential that he


should be freely accessible in his house. oftice or at his camp.


17. Loss of temper means loss of respect in a tribal area. as in


other parts of the country. It is therefore, absolutely necessary never


to fly into a rage. In these areas. an officer who. when the occasion


demands. isquietly and determinedly severe is not only respected but


un'versa1ly admired while an officer who cannot control himself is


230 CENTIUL I:'\I>IA LAW 2003


not only held in the deepest contempt but very quickly losc-, the


confidence of the people and brings the whole govcnuncnt into


disrepute.


The village administration in a tribal area is based mainly on


respect for age. It is the oldest men in a village who will have the last


say in any matter. \\hil.'h is discussed. Age and experience are


considered to be the most desirable qualities in those who administer


them.


Tribals are usually desirous of being courteous. therefore. they


do not normally indulge in deliberate discourtesy. But a tribal. when


he is hurt about something and his feelings are ruffled. can be


extremely insulting. The officer should not mistake bluntness. which a


tribal possess in a large quantity fix discourtesy.


Tribals are "easy to win but arc still easter to lose". In


democratic State Iike ours. it is essential that the common people and


the administration should go hand in hand lor this is the very essence


\ I l true democracy.


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