"PROTECTION OF THE SCHEDULED TRIBES UNDER INDIAN CONSTITUTION: PROMISE AND PERFORMANCE".

INTRODUCTION
On the social plane, we have in India, a society based on the principles of graded inequality, which means elevation of some and degradation of others. On the economic plane, we have a society in which there are some who have immense wealth who live in abject poverty. On the 26th January 1950, we are going to enter into a life of contradictions. In politics, we will have equality and in social and economic life, we will have inequality. In politics we will be recognizing the principles of one man one vote and one value. If our social and economic structure continues to deny the principle of one man one value, how long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow the structure of political democracy which this Assembly had so laboriously built up. [Dr. B.R. Ambedkar] India emerged as a modern democratic nation-state in 1947 after a struggle for independence from British rule that was characterized by the first large-scale use of non-violent resistance and civil disobedience as a means of social protest. It became a republic in 1950, with the completion of a constitution that guaranteed "liberty of thought, expression, belief, faith, and worship".

Electronic copy available at: http://ssrn.com/abstract=1790922

India's history since independence has been marked by disunity and intermittent periods of virtual chaos. India has fought a number of wars against its neighbours, most notably four wars against Pakistan, and one against China, and unrest continues to this day in the north-western region of Kashmir with regular Hindu-Muslim clashes.1 India has a composite population. The Indian society lacks homogeneity as there exists numerous religious, cultural and linguistic groups. There are Hindus, Muslims, Christians, Paris, Sikhs Buddhists, Jains and others. The pattern of culture varies from place to place. There are Anglo Indians based on racial, religious and linguistic factors. Besides them, 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 amelioration 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 communities. The scheduled tribes who predominate in certain areas of the country like the NorthEastern 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 population who still live in their tribal ways and observe their own peculiar customs and cultural norms.2 Their primitive way of living, 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
1 2

Available at http://www.iwgia.org/sw18238.asp accessed on 14/05/2010

Dr. R.P.Rai, P.G. Department l\f Law & Research Centre Govt.T.R.S. (Autonomous) College Rewa (M.P.) 220 CENTRAL INI>IA Lt\.W 2003

Electronic copy available at: http://ssrn.com/abstract=1790922

Constitution in order to improve their economic and social position.3 Hence special provisions were for the development of these tribal groups made and they were classified as scheduled. This essay evaluates the successes and failure of the Constitution in fulfilling its obligation of assuring every citizen a life with dignity. The overarching concern is whether socio-economic progress made since independence has been fair, fast and equitable in everybody's experience particularly of those belonging to the weaker sections of society.

SCHEDULED TRIBES
Tribal population is found in various States and UTs of India. In the post-Independence period, all the tribal communities were grouped together as "Scheduled Tribes", under the Constitution. The main criteria adopted for specifying communities as "Scheduled Tribes" include:

Traditional occupation of a definite geographical area. Distinctive culture that includes a whole spectrum of tribal ways of life, i.e., language, customs, traditions, religious beliefs, arts and crafts, etc.

Primitive traits depicting occupational pattern, economy, etc. Lack of educational and techno-economic development

The first specification of Scheduled Tribes in relation to a particular State/ Union Territory is by a notified order of the President, after consultation with the State Government concerned. These orders can be modified subsequently only through an Act of Parliament. As per Article 342 of the Constitution of India, the President, after consultation with the State Governments concerned, has promulgated 9 orders so far, specifying the Scheduled Tribes in relation to the concerned

Dr. R.P.Rai, P.G. Department l\f Law & Research Centre Govt.T.R.S. (Autonomous) College Rewa (M.P.) 220 CENTRAL INI>IA Lt\.W 2003

State and Union Territories.4 The 67.7 million people belonging to "Scheduled Tribes" in India are generally considered to be 'Adivasis', literally meaning 'indigenous people' or 'original inhabitants', though the term 'Scheduled Tribes' (STs) is not coterminous with the term 'Adivasis'. Scheduled Tribes is an administrative term used for purposes of 'administering' certain specific constitutional privileges, protection and benefits for specific sections of peoples considered historically disadvantaged and 'backward'. 5 Without considering their ambivalent colonial origin, arrangements made for the administration of the tribal areas during the British period were by and large continued in the post independence era. Provisions made for the administration of areas inhabited by the tribes were specified in the Indian constitution6 . As such, in addition to emphasizing the fundamental rights of tribal people, similar to those of other citizens, the constitution of India contains many special assertions for the tribes. These include among others their statutory recognition7 as the Scheduled Tribes, so that special administrative measures could be addressed to them. Among these are a proportionate share (quota) in state employment and proportionate representation (quota) in the national parliament and in the state legislative assemblies 8. The constitution also ensures protection of the tribal languages, dialects and culture so that their distinct identity and tradition can be maintained9. Furthermore, the constitution acknowledges the postcolonial

4 5

http://yamunanagar.nic.in/procedure/tribe.htm accessed on 15/05/2010

By C.R. Bijoy, Core Committee of the All India Coordinating Forum of Adivasis/Indigenous Peoples available at http://www.pucl.org/Topics/Dalit-tribal/2003/adivasi.htm accessed on 15/05/2010
6

Verma, R. C. 1990. Indian Tribes through the Ages. New Delhi: Publications Division, Government of India. 7 Article 342, Constitution of India 8 Articles 16(4), 330, 332, Constitution of India 9 Article 29, Constitution of India

continuation of a special administration of tribal areas in the form of 5th and 6th Schedule Areas. The 5th Schedule Area provides for the establishment of Tribal Advisory Councils in tribal dominated areas of mainland India and the 6th Schedule Area provides for the Autonomous District Councils which operate in the North Eastern Region of India. Tribal Advisory Councils consist of members of which three quarters are to be representatives of the Scheduled Tribes in the Legislative Assembly of the respective federal state. The function of the council is to advise the federal government on matters pertaining to welfare and interests of the tribes in the state. Autonomous District Councils on the other hand provide tribal communities space for a certain legal and administrative autonomy, a form of self-governance.10 The administration of law and justice is intimately linked with the social philosophy of the judiciary and the social philosophy cannot be entirely separated from the social origins of those who dispense justice.

SAFEGUARDS PROMISED BY THE INDIAN CONSTITUTION

The provisions in the Indian Constitution regarding safeguards the interests of Scheduled Tribes in brief are: (a)Directive Principles of State Policy Article 46 is a comprehensive article comprising both the developmental and regulatory aspects. It reads as follows:

10

Singh, Kumar Suresh. 2002. Birsa Munda and His Movement 1872-1901. A Study of a Millenarian Movement in Chotanagpur. Kolkata: Seagull Books.

"The State shall promote with special care the educational and economic interests of the weaker sections, of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation".11 (b)Social Safeguards (i)Article 17. "Untouchability" is abolished and its practice in any form is forbidden.12 The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with law. To give effect to this Article, Parliament made an enactment viz., Untouchability (Offences) Act, 1955. To make the provisions of this Act more stringent, the Act was amended in 1976 and was also renamed as the Protection of Civil Rights Act, 1955. As provided under the Act, Government of India also notified the Rules, viz., the PCR Rules, 1977, to carry out the provisions of this Act. As cases of atrocities on SCs/STs were not covered under the provisions of PCR Act, 1955, Parliament passed another important Act in 1989 for taking measures to prevent the atrocities. This act known as the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, became effective from 30.1.1990. For carrying out the provisions of this Act the Govt. of India have notified the SCs and the STs (Prevention of Atrocities) Rules, 1995 on 31.3.1995. (ii)Article 23. Prohibits traffic in human beings and begar and other similar forms of forced labour and provides that any contravention of this provision shall be an offence punishable in accordance with law.13 It does not specifically mention SCs & STs but since the majority of bonded labour belong to SCs/STs this Article has a special significance for SCs and STs. In

11 12

Article 46, Constitution of India Article 17, Constitution of India 13 Article 23, Constitution of India

pursuance of this article, Parliament has enacted the Bonded Labour System (Abolition) Act, 1976. For effective implementation of this Act, the Ministry of Labour is running a Centrally Sponsored Scheme for identification, liberation and rehabilitation of bonded labour. (iii)Article 24 provides that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.14 There are Central and State laws to prevent child labour. This article too is significant for SCs and STs as a substantial portion, if not the majority, of child labour engaged in hazardous employment belong to SCs and STs. (iv)Article 25(2)(b) provides that Hindu religious institutions of a public character shall be thrown open to all classes and sections of Hindus.15 This provision is relevant as some sects of Hindus used to claim that only members of the concerned sects had a right to enter their temples. This was only a subterfuge to prevent entry of SC persons in such temples. For the purpose of this provision the term Hindu includes Sikh, Jaina and Budhist. (c)Educational and Cultural Safeguards (i)Article 15(4) empowers the State to make any special provision for the advancement of any socially and educationally backward classes of citizens or for SC and ST.16 This provision has enabled the State to reserve seats for SCs and STs in educational institutions including technical, engineering and medical colleges and in Scientific & Specialised Courses. In this as well as in (ii) In Article 16(4) the term 'backward classes' is used as a generic term and comprises various categories of backward classes, viz., Scheduled Castes, Scheduled Tribes, Other Backward

14 15

Article 24, Constitution of India Article 25, Constitution of India 16 Article 15, Constitution of India

Classes, Denotified Communities (Vimukta Jatiyan) and Nomadic/Seminomadic communities.17 (iii) Article 29 provides for protection of interests of minorities (which includes Scheduled Tribes). (iv) Article 46 (v)Article 330 provides for reservation of seats for SCs/STs in the Lok Sabha.18 (vi)Article 332 provides for reservation of seats for SCs/STs in the State Vidhan Sabhas (Legislative Assemblies).19 (vii)Article 334 originally laid down that the provision relating to the reservation of seats for SCs/STs in the Lok Sabha and the State Vidhan Sabhas (and the representation of the AngloIndian community in the Lok Sabha and the State Vidhan Sabhas by nomination) would cease to have effect on the expiration of a period of ten years from the commencement of the Constitution. This article has since been amended four times, extending the said period by ten years on each occasion. This provision was to expire in January 2000. (viii) Article 350 provides for right to conserve distinct Language, Script or Culture and also instruction in Mother Tongue. (d)Service Safeguards (i)Article 16(4) empowers the State to make "any provision for the reservation in appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State". 20 (ii) According to Article 16(4A). Nothing in this Article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services
17 18

Article 16, Constitution of India Article 330, Constitution of India 19 Article 332, Constitution of India 20 Article 16, Constitution of India

under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State".21 (iii)Article 335 provides that: "The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State".22 (iv)Article 320(4) provides that nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision under Article 16(4) & 16(4)A may be made or the manner in which effect may be given to the provisions of Article 335.23 (e)Economic Safeguards (i)Article 244:- Clause(1) Provisions of Fifth Schedule shall apply to the administration & control of the Scheduled Areas and Scheduled Tribes in any State other than the states of Assam, Meghalaya, Mizoram and Tripura which are covered under Sixth Schedule, under Clause (2) of this Article. (ii)Article 275:-Grants in-Aid to specified States (STs&SAs) covered under Fifth and Sixth Schedules of the Constitution. (f)Political Safeguards (i)Article 164(1) provides for Tribal Affairs Ministers in Bihar, MP and Orissa (ii)Article 330 provides for reservation of seats for STs in Lok Sabha (iii)Article 337 provides for reservation of seats for STs in State Legislatures (iv)Article 334 provides for 10 years period for reservation

21 22

Article 16, Constitution of India Article 335, Constitution of India 23 Article 320, Constitution of India

(v)Article 243 provides for reservation of seats in Panchayats (vi)Article 371 contains special provisions in respect of NE States and Sikkim The Sixth Schedule to the Constitution refers to the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram by designating certain tribal areas as Autonomous Districts and Autonomous Regions and also by constituting District Councils and Regional Councils (Article 244(2)). It enables Autonomous District Councils and Regional Councils to be constituted in those areas with a fair amount of legislative and executive powers.24 To ensure effective participation of the tribes in the process of planning and decision making, the 73rd Amendment of the Constitution have been extended to the Scheduled Areas through the Panchayats (Extension to the Scheduled Areas) Act, 1996.

SAFEGUARDS IN THE CONSTITUTION

The framers of the Indian Constitution took care to safeguard the interests of the minorities to give them a sense of security, to protect them against any discrimination, and to help them to get integrated in the mainstream of national life.25 The Scheduled Tribes, also known as aborginies, are those backward sections of the Indian population who still observe their tribal ways, their own peculiar customs and cultural norms.26

24 25

Schedule VI, Constitution of India MARC GALANTER, Protective Discromination for Backward Classes in India, 3 JILI, 38 (1961), and competing Equaltoes : N. RADHA KRISHNAN, Reservation To Backward Classes, 13 Indian Yearbook on Intl Affairs, 293 (1964) and Units of Social and Economic Educational Backwardness : Caste and Individual 7 JILI, 262 (1965); ILI, EDUCATIONAL PLANNING (1967); Imam, Reservation of Seats for Backward Classes in Public Services and Educational Institutions, 8 JILI 441 (1966); ILI, MINORITIES AND THE LAW (1972); REPORT OF THE COMMITTEE ON UNTOUCHABILITY.(1969) 26 Jain M.P., INDIAN CONSTITUTIONAL LAW, Wadhwa Nagpur, 5th edn., 2008, p. 1399

The tribal people have remained backward because of the fact that they live in inaccessible forests and hilly regions and have thus been cut off from the main currents of national life.27 These people are divided into three distinct zones North, Eastern, Central and Sothern. The three main characteristics of these people are their primitive way of living, nomadic habits, love for drink and dance and habitation in remote and inaccessible areas.28 The Constitution does not specify the tribes which are to be called Scheduled Tribes. It leaves the power to list these tribes to the President i.e. the Central Executive. The Supreme Court has expressed in the case of Maharashtra v. Milind29 that the words castes or tribes in the expression Scheduled Castes and Scheduled Tribes have not been used in the ordinary sense of term but are used in the sense of the definitions contained in Article 366(24) and 366(25). In this view, a caste is a Scheduled Caste or a tribe is a Scheduled Tribe only if they are included in the Presidents Orders issued under Article 341 and 342. 30 A person belonging to a Scheduled Tribe in one state cannot ipso facto claim the same status in another State unless his tribe is declared a Scheduled Tribe in that state.31 The framers of the Constitution were anxious to ensure the betterment of the Scheduled Tribes. Article 46 embodies this policy and calls upon the state (Central & State government) to promote with special care the educational and economic interests of Scheduled tribes and protect them from social discrimination and all forms of exploitation. It is worth mentioning that even

27

Jain M.P., INDIAN CONSTITUTIONAL LAW, Wadhwa Nagpur, 5th edn., 2008, p. 1399 28 FIRST REPORT OF THE COMMISSIONER FOR SCHEDULED CASTES AND SCHEDULED TRIBES, 3, 11 (1952) 29 AIR 2001 SC 393 30 Bhaiya Ram v. Anirudh, AIR 1971 SC 2533; Dadaji v. Sukdeobabu, AIR 1980 SC 150; K. Adikanda Patra v. Gandua, AIR 1983 Ori 89; Principal, Guntur Medical College v. Y. Panduranga Rao, AIR 1983 AP 339 31 Action Committee v. Union of India, (1994) 5 SCC 244

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) of the same Article makes it possible for a State government to make special provisions for advancement of members of Scheduled castes and Scheduled tribes. Under Article 16(4), the state may make reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the state, is not adequately represented in the publis services under the state.32 Article 19 grants the rights of freedom of speech, assembly, association, union, movement and residence throughout the country, practice of any profession, occupation, trade or business. But for the protection of the interests of Schedules tribes, clause (5) permits reasonable restrictions on the exercise of 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. The term begar means compulsory work without any payment. Begar is labour service in which a person is forced to give work without receiving any remuneration for it.33 This has special relevance for Scheduled tribes. 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 length of time in the hope that in course of that time its need would disappear. The Constitution 8th Amendment Act 1959 extended all such reservations for ten years. This period was further extended from 20 to 30 years. Considering the present speed of progress, it does not seem that it would be feasible to dispense

32 33

Indira Sawhney v. Union of India, AIR 1993 SC 477 Vasudevan v. Mittal, AIR 1962 Bom 53; Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1473

with reservation in near future. But for reservation in legislatures, the voice of these two exploited would have remained barely audible. Howsoever reservation in public services and posts as per Article 335 stands on a different foothold.34 Such reservation in educational institutions has enabled members of these communities to register rise in the percentage of posts. Reservations are also provided to a lower extent in the allocation of houses by public institutions in the provision of industrial loans, grants in scholarship for the students of these sections and provision of special infrastructure facilities to the area in which these communities reside.35 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 the alleviation of tribal lands to non-tribal and the exploitation of the tribals.36 The Constitution protects and guarantees cultural and educational rights of various sectors of the people vide Article 29, 30.37 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.38

34 35 36

http://www.pucl.org/Topics/Dalit-tribal/2003/adivasi.htm accessed on 15/05/2010 http://ncsc.nic.in/index4.asp?sssid=53 accessed on 3/06/2010 http://www.ambedkar.org/impdocs/safeguards.htm accessed on 16/05/2010 http://ncst.nic.in/index2.asp?slid=427&sublinkid=248&langid=1 accessed on 20/05/2010 http://www.acpp.org/uappeals/bground/Adivasis%20in%20SIndia.htm accessed on15/05/2010

37 38

Another constitutional provision is the one in relation to specification of Schedule Tribes in Article 342. This authorizes the President to specify the tribes or tribal communities to be deemed as scheduled tribes. Such notification is in respect of state. This aspect of the Presidents power is very important.39 The President shall notify the Scheduled tribes within a state after consulting the Governor of the state. This clause is important as it ensures national action to specify who the Scheduled Tribes are. The classification of these categories are state - based and a particular group may be classified as scheduled in one state and not in another depending on the social and economic condition of the group in the state.40 For the first time in the administration of the tribal people, the Constitution placed the responsibility for their welfare on popular government through the President and Governor. For planned development availability of financial resources as per Article 275 and executive machinery as per Article 244, the fifth & sixth schedule of the Constitution have relevance.41 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 be defrayed. Thus there is no stint on financial resources.42 Except as may be necessarily relative to over all availability, Article 244 with the provision in the Fifth schedule enables a frame of administration to concretize the directives contained in Article 46.43 The term scheduled areas encompassed all areas the President of India notifies under the fifth schedule. The Governor has
39 40 41 42 43

http://ncst.nic.in/index2.asp?slid=466&sublinkid=312&langid=1 accessed on 3/05/2010 Ibid. http://ncm.nic.in/constitutional_prov.html accessed on 12/05/2010 http://www.iwgia.org/sw18236.asp accessed on 14/05/2010 http://www.iwgia.org/sw18239.asp accessed on 14/05/2010

been made responsible for the peace and good government of scheduled areas. Under the fifth schedule a provision is made fur setting up a tribal advisory council which is consulted by the Governor in relation to his regulation making powers.44 Beside this, Article 339(2) gives power to the Centre to give directions to a State asking them to draw up and implement schemes for 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. The eight States having scheduled areas include Andhra Pradesh, Bihar, Gujarat, Himachal Pradesh, Madhva Pradesh, Maharashtra, Orrisa and Rajasthan.45 The Sixth Schedule [Clause (2) Article 2441 contains provisions for the administration of the tribal areas in the state of Assam (Cachar Hills District and Karbi Anglong District), Meghalaya, Mizoram and Tripura protected by the inner line Regulations framed in 1872-73. There are Autonomous regional council in these areas. They not only oversee the various department and developmental programs but also have powers to make laws on a variety of subjects.46 Under the clause (3) of the Fifth Schedule, the Governor is required to draw up annually a report on the administration the Scheduled areas and submit it to the President. These provisions are so powerful and comprehensive that the Fifth Schedule has been termed by some legal authorities as Constitution within the Constitution. Thus, it can be seen that the Governors Report on the Scheduled areas carries special importance.47

44 45 46 47

http://www.iwgia.org/sw18240.asp accessed on14/05/2010 http://www.iwgia.org/sw18242.asp accessed on 14/05/2010 http://www.iwgia.org/sw15716.asp accessed on 14/05/2010 http://www.goforthelaw.com/articles/fromlawstu/article60.htm accessed on 14/05/2010

But these provisions have remained lesser operationalized. For example no attempt has been made to elaborate as to what would constitute good government for these areas. This was a special concern of the founding fathers of the Indian Constitution. Most of the states have just made a few regulations in respect of transfer of land and money-lending. The report of Governor paradoxically throws no light on the state of administration of Scheduled Areas, thus, ignoring the direction of the Constitution.48 Also, such reports have not evinced any interest in the Union Government. No attempt has been to assist the level of administration of the Scheduled areas and identity the difficulties faced by any state. No direction has been issued by the Union Government in exercise of its executive authority notwithstanding the serious concern expressed at all levels about the state of administration in the tribal areas which continues to be far from satisfactory resulting in sporadic unrest amongst the tribal people.49 Furthermore, this provision has become so laid-back that the Governors do not even feel any necessity or urgency to submit their report to the President in time and all the Governors can, therefore, rightfully be termed as defaulters.50 Government and the Tribes Advisory Councils (The Tribes Advisory Councils are constituted in the state in accordance with clause (4) of the Fifth Schedule to the Constitution which provides that there shall be established in each state having Scheduled areas, and if the President so directs also in any State having Scheduled Tribes but no Scheduled Area therein). The Tribes AdvisoryCouncil may consist of not more than 20 members of whom as much as three-fourth shall be representatives of Scheduled tribes in the Legislative Assembly of the State.51 It is significant to note that even before the Constitution was promulgated there were advisory
48 49

supra note 43 supra note 44 50 supra note 45 51 supra note 47

Committees attached to some of their Provincial Government to assist them in the administration of the Tribal areas, but they played a very trivial role.52 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 peoplecentered approach to development. In people centered approach to development the needs of the people take precedence over the needs of the production system.53 But when its real working is examined, it is found that the various State Governments are not serious about its utility. According to the guidelines issued by the Ministry of Welfare for the Tribes, the Advisory Council should meet at least twice a year. But the State Governments are not sincere and hence do not convene its meetings regularly. Hence, the verv purpose of its formation stands defeated. In Bihar, Himachal Pradesh, 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, fairly needed that a uniform practice should be followed in this regard.54

AFFIRMATIVE ACTION
The Constitution of India provides an array of affirmative action programmes for the Scheduled Tribes (tribals) and the Scheduled Castes (dalits), including reservation in the Parliament, education, employment etc. These affirmative action programmes have been instrumental in bridging the social, political and economic disparities between the tribals and the general

52 53 54

Ibid. http://ncm.nic.in/suggestion_status_ncm.html accessed on 14/05/2010 Ibid.

population. The affirmative action programmes have, however, failed to achieve their desired results in India through lack of proper implementation. Non-implementation of reservation in employment On 23 December 2008, the central government tabled the Scheduled Castes and Scheduled Tribes (Reservation in Posts and Services) Bill 2008 in the Rajya Sabha (Upper House of Parliament).55The Bill seeks to end de-reservation of posts meant for Scheduled Castes (SCs) and Scheduled Tribes (STs) in central government jobs and stipulates penal action against offices which did not implement the reservation policy.56 The government failed to ensure 7.5% and 15% reservations of government jobs for the Scheduled Tribes and the Scheduled Castes spectively. This is evident from the findings of the Parliamentary Committee on Welfare of Scheduled Castes and Scheduled Tribes.57 In Assam alone, there was around a 29,000 backlog of vacancies for Scheduled Castes and Scheduled Tribes in various government departments as of 23 September 2008, according to the All Assam Tribal Unemployed Association.58 Non-utilization and misuse of tribal funds In a report tabled in the Lok Sabha on 21 April 2008, the Standing Committee on Social Justice and Empowerment recommended that, The funds should be allocated in proportion to the

55

Bill to give Statutory backing to SC/ST Reservation in Posts introduced in parliament. Press Release by Ministry of Personnel, Public Grievances & Pensions dated 23 December 2008 available at http://pib.nic.in/release/release. asp?relid=46097 56 No de-reservation of Centre SC/ST posts, The Times of India, 8 October 2008 57 Committee on the Welfare of Scheduled Castes and Scheduled Tribes, Situation arising out of employment secured on the basis of false caste certificates, report presented to Lok Sabha on 19.3.2008 58 Tribal body demands filling of vacant posts, The Sentinel, 24 September 2008

population of the Scheduled Tribes to the total population in the country. As such, at least 8.5 per cent of the Budget of the entire country should be provided for the development of tribals.59 Various state governments do not fully utilize, and some even misuse, the funds allocated to them for tribal development. A report by the Comptroller and Auditor General of India, tabled in the Jharkhand State Assembly in March 2008, found that the Jharkhand government used only 855.5 million out of 1.83 billion Rupees it had received from central government during 20032007 under the Integrated Tribal Development Project. The unused funds were kept in banks and the interest earned was used to repair official buildings.60 The Standing Committee on Social Justice and Empowerment found that funds could not be released for the development of tribals due to inaction on the part of state governments. During 2007-08, the Ministry of Tribal Affairs had to withhold grants under Special Central Assistance to the Tribal Sub Plan to the states of Assam, Bihar, Chhattisgarh, Jharkhand, Jammu & Kashmir, Madhya Pradesh, Tamil Nadu, Tripura, Uttar Pradesh and Uttarakhand due to their inability to furnish Utilization Certificates and unspent balances. There is also little awareness of the various affirmative action programmes benefiting tribals. The Standing Committee on Social Justice and Empowerment noted that sufficient steps have not been taken by the Ministry (of Tribal Affairs) to generate awareness among tribal people about the various schemes being implemented for their upliftment.61

59

Thirty-Fourth Report of Standing Committee on Social Justice and Empowerment (2007-2008) Demands for Grants (2008-2009) of the Ministry Of Tribal Affairs submitted to the Fourteenth Lok Sabha on 21.04.2008 60 Tribal welfare exposed - CAG targets fraud NGOs, detects funds misuse, The Telegraph, 29 March 2008 61 Thirty-Fourth Report of Standing Committee on Social Justice and Empowerment (2007-2008)

Denial of voting rights to Chakmas and Hajongs In February 2008, the High Power Committee on Chakmas and Hajongs headed by the Speaker of the Arunachal Pradesh Legislative Assembly, Setong Sena, submitted its report to the government of Arunachal Pradesh. The report has, however not been made public so far. In the absence of a permanent political settlement of the Chakma and Hajong imbroglio, the members of the Chakma and Hajong community continue to be deprived of their rights, including the right to vote (see The Indigenous World 2008). There are around 15,000 eligible Chakma and Hajong voters who continue to be denied registration on the electoral rolls. During 2005-2008, the Election Commission of India held four summary revisions and one Intensive Revision of electoral rolls in Arunachal Pradesh but, for the Chakmas and Hajongs, there has been practically no revision of electoral rolls over these past four years. There is no change in the situation because the state government continues to violate the guidelines/directions of the Election Commission. Rather than increasing, the number of Chakma and Hajong voters has consistently decreased over the last 5 years.

LEGAL RIGHTS AND POLICY DEVELOPMENTS

The Constitutional commitments, referred to above, prompted the policy-makers and the planners to accord high priority to the welfare and development of STs right from the beginning of countrys developmental planning, launched in 1951. On 1 January 2008, the government of India notified the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007.62 Hence, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006, notified on 31 December 2007, came into force giving tribals and other traditional forest dwellers rights over land and forest produce. The

62

Forest Act comes into force, green activists cry foul, The Hindustan Times, 2 January 2008

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) (Amendment) Bill, 2008 was listed for introduction during the monsoon session of Parliament (17 July 23 December 2008) but was finally withdrawn.63 The Ministry of Social Justice and Empowerment has reportedly proposed amendments to Section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 to give absolute jurisdiction to Special Courts constituted to try the cases under this Act.64 By the end of 2008, the government of India had failed to release the final National Tribal Policy, drafted by the Ministry of Tribal Affairs in June 2006 to address various issues concerning the tribals and the indigenous peoples. The draft National Tribal Policy has been under consideration by a Group of Ministers.65

UPLIFTMENT OF TRIBALS
For the social and economic upliftment of the tribals, the state has, especially in central India, from time to time come up with new legislation and institutional arrangements.66 Such arrangements, though aimed at protecting and safeguarding tribal interests, did not initially include references to their traditions. Rather, national development initiatives were responsible for the erosion of traditions.67 For example, in the 1960s, nation wide, the Indian state initiated the Panchayati Raj, (an institution for local self-government). Within the tribal areas, the introduction of the Panchayati Raj contributed significantly to the decline of traditional systems of governance. Similarly, tribal languages and local religious ideas and practices, which the
63

PRS Legislative Research, December 23, 2008 available at http://www.prsindia.org/docs/latest/1230042471_Plan_vs_Performance__Monsoon_2008.pdf 64 Centre considering changes in SC/ST Act, The Shillong Times, 1 September 2008 65 Govt refers draft national tribal policy to GoM, Times of India, 17 March 2008 (online) available at http://timesofindia.indiatimes.com/articleshow/2875144.cms 66 Singh, Kumar Suresh. 2002. Birsa Munda and His Movement 1872-1901. A Study of a Millenarian Movement in Chotanagpur. Kolkata: Seagull Books. 67 Verma, R. C. 1990. Indian Tribes through the Ages. New Delhi: Publications Division, Government of India.

state aims to protect, have been eroded under influence of state practices (education of tribals through state languages and non-enumeration of their distinct religions in the decennial census enumeration) ushered by post-independence India.68 Paradoxically enough, however, in more recent times there have been attempts to restore tribal traditions. Nowhere is this more evident than in the Panchayats (Extension to Scheduled Areas) Act, 1996 (popularly known as PESA) and The Scheduled Tribe and Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 (known as RFR).69 Both acts aim to provide renewed space for tribal traditions. The RFR Act aims to restore the traditional rights tribes earlier used to enjoy over forest, which the colonial and postcolonial state have taken away from them. PESA, much more controversially, claims to restore a traditional system of governance in tribal areas that has either ceased to exist, or has never existed at all.70 Important landmarks in tribal development Recognising the special needs and problems of tribals, a special niche was accorded to tribal development in the countrys Development Agenda from the very beginning of the Plan Era. Some important landmark achievements in Tribal development are as below : Programmes were designed with a special focus on STs (1951) Adoption of Panchsheel the five Guiding Principles of the process of Tribal development (1956)

68

Bosu Mullick, S. 1993. Jharkhand Movement: A Historical Analysis. In Mrinal Miri, (ed.) Continuity and Change in Tribal Society. Shimla: Indian Institute of Advanced Study. 69 Bteille, Andre. 1986. The Concept of Tribe with Special Reference to India. European Journal of Sociology 27(2): 297-318. 70 Sinha, Surajit. 1958. Tribal Culture of Peninsular India as a Dimension of Little Tradition in the Study of Indian Civilization: A preliminary Statement. Journal of American Folklore 71:504-18.

Opening of MultiPurpose Tribal Development Blocks for intensified development of STs (1961)

Introduction of Special Strategies of TSP and SCA to TSP to ensure flow of population proportionate funds from other developmental sectors for tribals (1974)

Poverty alleviation programmes for at least 50 per cent of tribal families to cross poverty line and expansion of infrastructural facilities in tribal areas (1985)

Setting up of special financial institutions viz. Tribal Co-operative Marketing Development Federation (1987) and National Scheduled Castes and Scheduled Tribes Finance and Development Corporation (1989)

Ensure participatory development of STs at the grass root levels involving PRIs and Gram Sabhas as per the 73rd and 74th Amendment of the Constitution (1993) and the Panchayats (Extension to the Scheduled Areas) PESA Act, (1996)

A major shift in the approach from Welfare to Development and to Empowerment of Tribals (1997); setting up of an exclusive Ministry of Tribal Affairs (1999) and instituting a separate National Scheduled Tribes Finance and Development Corporation (2001)71

SCHEDULED CASTES AND TRIBES (PREVENTION OF ATROCITIES) ACT

The cure is part of the cause in this case; as members of the Scheduled Castes and Scheduled Tribes (SC/STs), also known as Dalits, avail themselves of the advantages of reservation, and awareness of rights increases, the status quo of inter-caste relations in villages faces severe
71

Tenth Five Year Plan, 2002-2007

challenges. Increased violence, and increased reporting of incidents of violence, is a natural product.72

However, this increase in violence seems improbable in the light of the astonishing amount of international political and civil society attention that the Dalit cause has been receiving. Dalit NGOs and political groups led a high-profile campaign at the World Conference against Racism in 2001. Although the campaigns strategy may have been an example of misguided politicking, both the UN Committee on the Elimination of Racial Discrimination (CERD) and the Special Reporter on Race have since made caste one of their central concerns.

So why has the impact of these dramatic developments not been felt within the country? 73 Although Dalit groups have had great success in gaining publicity for their cause, they have consistently failed to hold the Indian governments to the standards of existing national and international legislation. The Prevention of Atrocities Act is a case-in-point.74

Purpose of the Act

In 1989, the Government of India enacted the Scheduled Castes and Tribes (Prevention of Atrocities) Act in order to prevent atrocities against SC/STs. The purpose of the Act was to prevent attrocities and help in social inclusion of Dalits into the society, but the Act has failed to live up to its expectations.

72

http://www.legalserviceindia.com/article/l440-Scheduled-Castes-and-Tribes-Act-.html accessed on 15/05/2010

73 74

Ibid. Ibid.

The Act came into force with effect from 30.1.1990. This legislation aims at preventing commission of offences by persons other than Scheduled Castes and Scheduled Tribes against Scheduled Castes and Scheduled Tribes. The Act provides for punishment for offences of atrocities committed against Scheduled Castes and Scheduled Tribes. Comprehensive Rules under the Act were notified in the year 1995, which inter-alia provides norms for relief and rehabilitation. The Act extends to whole of India except Jammu & Kashmir. The Act is implemented by the respective State Governments and Union Territory Administrations, which are provided due central assistance under the Centrally Sponsored Scheme for effective implementation of the provisions of the Act.

Twenty years have passed since the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 was brought by the government of India.Although the Act vies to provide protection and eliminate atrocities against members of the SCs and STs, there has been no mitigation with annual average of crimes registered against SCs/STs standing at 33,956 and daily average being 93. Despite the PoA Act being a premier legislation to protect security of life for SCs and STs, from 1995 to 2007 less than one-third (30.7%) of crimes against SCs/STs across India were registered under the PoA Act provisions.75

75

Source: http://in.christiantoday.com/articles/prevention-of-atrocities-act-brings-no-reprieve-toscsts/5295.htm accessed on 15/05/2010

Why the Act does not work?

The Ministry of Social Justice recently proposed important amendments in the SC & ST ( Prevention of Atrocities) Act 1989 to simplify the process of hearings and strengthen investigation mechanisms

..In discussing the demands of social justice today, the priority of critical reasoning cannot but be central. But how do we analyse these demands? In probing the idea of social justice, it is important, I would argue, to distinguish between an arrangement-focused view of justice, and a realisation-focused understanding of justice. Sometimes justice is conceptualised in terms of certain organisational arrangements ? some institutions, some regulations, some behavioural rules ? the active presence of which indicates that justice is being done. The question to ask here is whether the demands of justice must be only about getting the institutions and rules right?76 The recent move by the Ministry of Social Justice to go for important amendments in the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (POA) 1989 supposedly to simplify the process of hearings and strengthen investigation mechanisms has largely gone unnoticed. According to reports appearing in a section of the media the ministry is contemplating amendments in Section 14 of the Act which would facilitate establishment of special courts for speedy trials in case of atrocities against scheduled castes and scheduled tribes. It is also being proposed that, in case of serious offences like murder and rapes against these marginalised

76

Excerpted from Amartya Sen?s Hiren Mukherjee lecture in the Lok Sabha, organised by the Speaker, August 12, 2008

sections, a detailed report should be sent to the Centre and the National Commission on SCs and STs within four days of filing of First Information Reports. Although the contours of the proposed amendments are not available it is expected that the special courts would be authorised to admit cases under these Acts directly. As of now the special courts cannot directly entertain cases under these Acts without following committal proceedings which could cause further delays in trials. Close observers of the dalit/tribal human rights situation in the country would comment that the proposed amendments on behalf of the government were long overdue. In an inter-state council meet called to deliberate on the specific issue of dalit rage in the aftermath of the Khairlanji killings the prime minister himself had admitted that the continuing atrocities against weaker sections is a national disgrace in a civilized society.77 He also lamented that implementation of SC and ST (Prevention of Atrocities) Act has not been effective and cases continue to be registered under weaker sections of IPC. In a Convention organised under the aegis of ministry, the Social Justice Minister Meira Kumar had herself pointed out that "the conviction rate in cases registered under the Protection of Civil Rights Act is a mere 3.75%. Besides, 75 to 77% of cases of crimes against dalits are pending despite the already-in-place special and designated courts".78 While the proposals being contemplated are welcome, the point worth deliberating is whether the main problem in curbing atrocities against dalits and tribals is the lacunae in laws or something else. The necessity for enactment of this Act had arisen because, under prevailing conditions, the Protection of Civil Rights Act (1955) and normal provisions of the Indian Penal Code were found to be inadequate to provide safeguards. This is important because when the SC and ST
77 78

(The Hindu, December 10, 2006). (January 12, 2005, The Telegraph)

(POA) Act was enacted in 1989, it had proved to be a pioneer in many ways. It provided for not only appointment of special courts, punishment for neglect of duties of officials, forfeiture of property of the perpetrators, confiscation of arms from the dominant castes in the area, but even asked for distribution of arms to the downtrodden. But it is disturbing to note that all the radical provisions supposedly formulated to ensure justice to the SCs and STs (to quote Justice V K Krishna Iyer) 'proved to be impotent and ineffectual in practice'. And Justice Krishna Iyer is not the only person who thought along these lines. There have been innumerable reports detailing how the local police in connivance with the perpetrators themselves, sabotages implementation of laws basically meant to protect the dalits and tribals. It is noticed that instead of filing cases under the POA act, it prefers filing cases under the normal provisions of the Indian Penal Code, which facilitates release of the accused on bail easily. It also facilitates filing of counter cases against the victims, so that a compromise could be reached. The Third Report of the NPC79 had rightly underlined how false criminal cases are sometimes engineered merely for the sake of making arrests to humiliate and embarrass enemies of the complainant, in league with the police for corrupt reasons. A related phenomenon is the way in which the powers-that-be take steps to deter enlightened people from fighting for the constitutionally granted rights of dalits and tribals. Human Rights Watch Report80 shares details of how the criminalisation of social activism takes place in India. In its much acclaimed report Broken People - Caste Violence Against Indias Untouchables81 Human Rights Watch repeats how State agents have acted directly and forcefully against those attempting to claim their rights.

79 80

(New Delhi :GOI, 1980 ) (Vol 4, no. 15, June 1992) 81 Broken People - Caste Violence Against India?s ?Untouchables? (1999)

Dalit activists throughout the country are charged with being terrorists threats to national security and habitual offenders. The Report on Prevention of Atrocities against Scheduled Castes 82 similarly underlined the way the State has failed in this respect on several fronts while ensuring justice to these sections. These include failure to effectively implement the laws relating to atrocities against SCs and STs which is reflected both in respect of preventing violence from taking place as well as in the inability to punish perpetrators of violence after the crime is committed; failure to act against its own agencies involved in the commission of violence and failure to strengthen the watchdog institutions. The Sixth Report of the National Commission for SCs and STs83 had expressed its deep sense of dissatisfaction over the way all these measures are implemented. While commenting that the number of cases registered under Prevention of Civil Rights Act and SC and ST (Prevention of Atrocities) Act has been showing a downward trend indicating a healthy development, it exposes the way this reduction in the number of cases has been arrived at. But from its reviews with various state governments the Commission is of the view that a large number of cases go unregistered, mainly because of lack of awareness among the members of these communities about the provisions of these acts, reads the preface of the report. A detailed and systematic study of 400 judgments under the POA Act, done by Vajibhai Patel, Secretary of Council for Social Justice (CSJ), is an eye-opener.84 It tells us that the utterly negligent police investigation at both the higher and lower levels coupled with a distinctly hostile

82

NHRC, 2004, Delhi 83 (1999-2000 and 20002001) 84 Communalism Combat, March 2005

role played by the public prosecutors is the main reason for the cases being deemed unsuitable under the POA. It says it is the complicit State that has rendered the Act toothless. The CSJ study rightly notes that ?an utter lack of commitment to this legislation and lack of political will by state governments to prosecute the atrocities committed under this Act have rendered this legislation meaningless. The Report on Prevention of Atrocities against SCs85 prepared by NHRC presents details of the way in which civil society presents itself. Through the customary arrangements, the dominant classes are assured of social control over people, who will continue to abide by their commands, without any protest.

85

2004

CONCLUSION
Tribal communities continue to be vulnerable even today, not because they are poor, asset-less and illiterate compared to the general population; but often their distinct vulnerability arises from their inability to negotiate and cope with the consequences of their integration with the mainstream society. Tribal institutions and practices were forced into uneasy co-existence, which paved the way to market or formal State institutions. Also, the tribals found themselves at a great disadvantage in the face of an influx of better equipped outsiders into tribal areas. The repercussions for the already fragile socio-economic sustenance base of the tribals were devastating ranging from the loss of livelihoods and land alienation on a vast scale to hereditary bondage. As the tribals grapple with these tragic consequences, a small clutch of bureaucratic programmes could do little to resist the precipitous pauperisation, exploitation and disintegration of tribal communities. As a result of this, the tribals continue to suffer and bear with a number of Unresolved Issues and Persisting Problems, which require immediate attention of the Government. Indigenous peoples continue to face civil and political rights violations, land alienation, displacement and false prosecution for accessing minor forest produce. As Indias booming economy requires more resources, indigenous peoples land and resources have been grabbed, resulting in a strong sense of alienation among the indigenous peoples and further exacerbating conflicts. The laws aimed at protecting indigenous peoples have numerous shortcomings and their implementation is far from satisfactory. India has a long history of indigenous peoples movements aimed at asserting their rights.