SPECIAL SAFEGUARDS IN THE CONSTITUTION OF INDIA FOR THE TRIBALS OF INDIA

The citizenship rights in India were different in terms of their genesis from how they
came to be in Europe where it came as a result of a struggle for equality. Here it came
to us as part of the general process of societal development under the colonial regime.
The processes of industrialization and urbanization loosened the fetters of traditional
indian society and widened the scope for social mobility. If we look at the idea of
empowerment of any kind especially political empowerment, it is a feature of modern
society just like the idea of a democracy is.

The key dimensions of these rights that the tribal people aspired for was mainly
autonomy over their own lives, their culture and their resources. Most of the social
and economic dimensions of these rights were already enjoyed by them originally. In
independent India, under the new constitution, they could access the civil and political
rights through the safeguards and provisions provided.

Among the civil rights, that is freedom of thought, expression, faith, occupation and
right to property and justice, the most fragile has been the right to property.

Many tribal groups in India have beeen dependent mainly on agriculture for their
livelihood. They enjoyed proprietary rights either individually or communally
(meaning as member of their community), over their land. In addition, they also held
‘usufructuary rights’ over forests and other forms of common property resources. It is
in this connection, earlier it was mentioned that they enjoyed rights of social and
economic security.

In traditional social settings, the right to property was not only an element of the civil
domain but also of the social domain. However, the past 200 years or so, have been
marked by widespread land alienation. This has mostly happened in one direction i.e.
from the tribes to the non-tribes, especially in the tribal regions other than the north
eastern India. In post independence period, land alienation has been justified on the
grounds of the right to property and the right to settlement anywhere in the country
and invariably the tribals have been dispossessed of their land. Thus the enjoyment of
civil rights on the part of some sections of India (non tribal population) has been the
root cause of the loss of both civil and social rights of some other sections (tribals) in
India.

What the safeguards mean for two distinct groups, namely the ‘Scheduled
Castes’ and the ‘Scheduled Tribes?

The tribal people’s rights as provided in post independence India were not remarkable
breakthrough for them in the way that it was for the scheduled castes and other lower-
caste groups. Now these groups (scheduled castes also known as the Dalits) had
suffered discrimination in the caste society’s hierarchical structure. So for them, the
citizenship rights have stemmed from primarily the struggle for equality. These rights
as granted by Constitution were really huge for them. Not so for the tribes because
traditionally they already enjoyed these rights as their society was egalitarian in nature
and granted equal rights to all. It was not hierarchical like the caste society. These
rights of the tribals were only curtailed with the access of outsiders into their
territories and into their lives in fact. So what they aspired for is ‘space’(liberty) to
determine their own way of living or‘autonomy’ again as it used to be originally. This
meant freedom to live their lives as per their culture; ownership and control over
resources as they used to have originally.
So we can also say thus that in their traditional setting, the tribes already enjoyed the
benefits of equal citizenship including civil, political and social rights. The only
limitation on their traditional rights was in terms of reach and scope of civil and
political dimensions of rights.

The exercise of citizenship rights by tribes is the most pronounced in the domain of
politics. This is evident in respect of both the right to vote and more importantly the
right to be elected. There are some special provisions for tribes.While the provision of
poliitical participation helped expand the scope of tribal leadership, and many gained
materially and non-materially in the process, such benefits have been limited in scope
in terms of providing space for the protection and welfare of tribes through control
over land, forest and other resources.

As far as the social rights are concerned, the tribals have been the most vulnerable.
They enjoyed security and protection as a result of the control they had over land and
other resources. These traditional rights have eroded. The forces of modernity and
market introduced during the British era continues to eat further into these rights of
the tribals. The processes of these forces of modernity drastically altered the
traditional relationship of the tribes with forest, land and other resources. As the non
tribal population from the outside (this also includes the government agencies) further
started getting deep into the tribal heartlands, it left the tribes uprooted , cheated of
their resources and land alienation on a very large scale. To arrest these problems the
British enacted cetain legislations e.g. Chhotanagpur Tenancy Act, 1908 and the
Santhal Parganas Tenancy Act, 1940. In post independence India also legislations
were enacted not just for prevention of alienation of tribal lands but also its
restoration.

Power sharing or empowerment of tribals in India-

This too began in the colonial era, when the native Indians demanded for greater
participation in the government and later in the struggle for Independence of India.
Generally speaking it was monopolised by the native elites and not really the
disadvantaged groups such as the tribals, dalits and women. After independence, the
scope of power sharing for the people got broadened but actually speaking it still did
not include the disadvantaged groups.

In fact it may be said that the process of disempowerment in the case of tribes began
with the incorporation of the tribes into the larger social structure, especially the state.
First the British held power over the tribals in technological, military and economic
terms which had far reaching consequences for the tribals. It is because of this that
Verrier Elwin a famous anthropologist in India, advocated a policy of complete
isolation for the tribes. This according to him was the only way to stop the process of
disempowerment that the tribes were undergoing.

Even in post independence period, the same thing continued. Mainly attention was
paid to general social backwardness and low level of development of the tribes, given
their geographical and physical isolation. The whole thrust of development policy in
the decades after independence was to integrate tribes into the larger social structure
or the so-called mainstream society in India. Indeed, the policy of national
development mostly was opposite to the policy for tribals’ unique and specific
interests and their welfare. Most obviously the tribal welfare was sacrificed in the
name of national development.
The thoughts expressed by Elwin resonate even today in India. But instead of
‘isolation’ that Elwin prescribed as the best policy to be undertaken towards the
tribals, the Indian government practises ‘empowerment of tribals in India’.

The Constitution of India for example, contains provisions for the benefit and welfare
of tribal people. These constitutional provisions include creating scheduled tribal
areas by bringing areas inhabited by tribes, under the ‘Fifth’ and the ‘Sixth’ schedules
of the Constitution that accords special treatment in the administration of tribal
people; granting statutory recognition; providing proportional representation in
Parliament and state legislatures; imposing restrictions on the right of ordinary
citizens (non tribals) to move about freely or settle in particular areas or to acquire
property in those areas; encouraging conservation of tribal languages, dialects and
culture; extending special privileges in the form of the reservation of a certain
percentage of posts in government services and seats in educational institutions. In
addition, tribal people also enjoy protection under the fundamental rights meant for all
the citizens of India.

Similarly, the Directive Principles of State Policy require that the educational and
economic interests of the weaker sections of society, including tribes, be especially
promoted. In short, the Constitution aims at safeguarding, protecting and promoting
the interests of tribal people. Though there is no official documnet of the Govt. of
India or the states thereof speaking about the policy of integration adopted towards
the tribals. Yet this is what goes in the name of tribal policy. Besides if we consider
the constitutional provisions they too very obvious manner give away this approach
adopted towards the tribals.

THE FIFTH SCHEDULE OF THE CONSTITUTION OF INDIA

The Fifth Schedule designates ‘Scheduled Areas’ in large parts of India in which the
interests of the Scheduled Tribes are to be protected. These Scheduled Areas
generally have more than 50 percent tribal population. The Fifth Schedule is a very
important Constitutional provision that deals with control and administration of
Scheduled Areas.

As per the Constitutional provision under Article 244 (1) of the Constitution of India,
the ‘Scheduled Areas’ are defined as ‘such areas as the President may by order
declare to be Scheduled Areas’ – as per paragraph 6(1) of the Fifth Schedule of the
Constitution of India.

At present, Scheduled Areas under the Fifth Schedule have been declared in the States
of Andhra Pradesh, Telangana, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand,
Madhya Pradesh, Maharashtra, Odisha and Rajasthan.

The specification of “Scheduled Areas” in relation to a State is by a notified order of

the President, after consultation with the Governor of that State. In accordance with
the provisions of paragraph 6(2) of the Fifth Schedule of the Constitution of India, the
President may increase the area of any Scheduled Area in a State after consultation
with the Governor of that State; and make fresh orders redefining the areas which are
to be Scheduled Areas in relation to any State. The same applies in the case of any
alteration, increase, decrease, incorporation of new areas, or rescinding any Orders
relating to “Scheduled Areas”. The criteria for declaring any area as a “Scheduled
Area” under the Fifth Schedule are: I)Preponderance of tribal population, k2) the
compactness and reasonable size of the area,3) a viable administrative entity such as a
district, block or taluk and also 4)the economic backwardness of the area as compared
to the neighbouring areas.

These criteria are not spelt out in the Constitution of India but have become well
established. Accordingly, since the year 1950 to 2007 Constitutional Order relating to
Scheduled Areas have been notified.

The Governor of each of the above mentioned states having these Scheduled Areas
shall annually or whenever so required by the President, make a report to the
President regarding the administration of the Scheduled Areas in that State and the
executie power of the Union shall extend to the giving of directions to the State as to
the administration of the said areas.

The Administration of Fifth Schedule Areas:

Tribes Advisory Council (TAC)- This is the most important administrative body for
such areas. As per the provisions this shall be established in each State having
Scheduled Area and even in other State which has Scheduled Tribes but not
Scheduled Areas. It was also supposed that the TAC shall have a strong representation
of tribes in it.
It is categorically mentioned that the TAC will maximum have 20 members of whom
nearly 3/4th i.e. around 15 members shall be representatives of the Scheduled Tribe in
the Legislative Assembly of the State provided that the number of these is less than
the number of seats in the TAC to be filled by tribal representatives. The remaining
seats shall be filled by other members of those tribes.

It shall be the duty of the Tribes Advisory Council to advise on such matters
pertaining to the welfare and advancement of the Scheduled Tribes in the State as may
be referred to them by the Governor.

The Governor of these states may make rules prescribing or regulating as the case
may be, -
a) the number of members of the Council, their mode of appointment as well as
appointment of the Chairman of the Council and of the officers and servants thereof.
b) The conduct of its meetings and its procedure in general,
c) All other incidental matters.

Law applicable to the Scheduled Areas:

I. The Governor may by public notification direct that any particular Act of
Parliament or the Legislature of the State shall not apply to a Scheduled Area or any
part therof in the State or shall apply to a Scheduled Area or any part thereof subject
to such exceptions and modifications as he may specify in the notification.
II. The Governor may make regulations for the peace and good government of any
area in a State which is for the time being a Scheduled Area. In particular and without
prejudice to the generality of the foregoing power, such regulations may:
a) Prohibit or restrict the transfer of land by or among members of the Scheduled
Tribes in such area
b) Regulate the allotment of land to members of the Scheduled Tribes in such area
c) Regulate the carrying on of business as money lender by persons who lend money
to members of the Scheduled Tribes in such area.

The Fifth Schedule is aimed towards making the State responsible towards the
promotion of educational and economic interests of Tribal’s. It also aims to provide
social justice to the tribal’s and prevent them from exploitation of any kind.

The Central Government also provides special financial assistance to the states under
Article 275 for the implementation of schemes that would lead to the development of
Schedule Tribes.

THE SIXTH SCHEDULE OF THE CONSTITUTION OF INDIA

After independence, the Constitution introduced a democratic system based on adult

franchise in India. However, there were certain regions, which for centuries had been
livng under their own unique social organizations with few outside contacts. In such
areas, it was not feasible to apply the same type of administration as the rest of the
country. Moreover, complete democratic freedoms immediately in such areas would
have( it was thought), opened a way for persons from outside to exploit the local
people. Thus, pending the creation of proper conditions for their eventual social and
political assimilation, certain special provisions were made in the Sixth Schedule of
the Constitution for the administration of the ‘hill areas’ in Assam.

The basic reason for enacting special provisions in the sixth schedule was to promote
the distinct traditions, customs and civilization of the Assamese tribes. Except for
sending their ‘representatives’ to the Legislative Assembly of the State of Assam,
these autonomous areas are free to develop their own cultures and economic systems,
subject only to certain powers of the Governor.

Prior to 1950, the areas described in part A of the table appended to paragraph 20 of
the sixth schedule were termed “excluded” or “partially excluded” under section 91 of
the Government of India Act, 1935. After independence, the Constituent Assembly of
India appointed a Sub-Committee on the North East Frontier (Assam) Tribal and
Excluded Areas, popularly known as “Bardoloi Committee” to recommend a pattern
of future administration for these areas. This Committee recommended the creation of
six autonomous each of which was to have a ‘district council’.

The district councils were intended to make laws for the areas within their respective
jurisdictions regarding certain matters, including in particular judicial administration
and the power of taxation. On the basis of these recommendations of the Bardoloi
Committee, the Drafting Committee of the Constituent Assembly prepared the sixth
schedule to the Constitution, which formulates rules applicable to the tribal areas in
the State of Assam.
 Passed by the Constituent Assembly in 1949, it seeks to safeguard the rights of tribal
population through the formation of Autonomous District Councils (ADC). ADCs are
bodies representing a district to which the Constitution has given varying degrees of
autonomy within the state legislature in the ‘tribal areas’. Tribal areas in the
Constiution meant regions inhabited by tribes in the state of Assam. Today, most of
this region has been carved into separate states, indicating thereby the further process
of empowerment of the tribes.

The Sixth Schedule consists of provisions for the administration of tribal areas in four
states (as is the previous undivided state of Assam) today namely in Assam,
Meghalaya, Tripura and Mizoram according to Article 244 of the Constitutions.

The governors of these states are empowered to reorganise boundaries of the tribal
areas. In simpler terms, she or he can choose to include or exclude any area, increase
or decrease the boundaries and unite two or more autonomous districts into one. They
can also alter or change the names of autonomous regions without a separate
legislation.

Along with ADCs, the Sixth Schedule also provides for separate Regional Councils
for each area constituted as an autonomous region. In all, there are 10 areas in the
NorthEast that are registered as ‘autonomous districts- three in Assam, Meghalaya
and Mizoram and one in Tripura. These regions are named as district council of
(name of district) and regional council of (name of region).

Each autonomous district and regional council consists of not more than 30 members,
of which four are nominated by the governor and the rest via elections. All of them
remain in power for a term of five years.

The Bodoland Territorial Council is an exception as it can constitute upto 46 members

out of which 40 are elected. Of these 40 seats, 35 are reserved for the Scheduled
Tribes and non-tribal communities, five are unreserved and the rest six are nominated
by the governmor from unrepresented communities of the Bodoland Territorial Areas
District (BTAD).

The Autonomous District Councils (ADCs) are empowered with civil and judicial
powers and can constitute village courts within their jurisdiction to hear trial of cases
involving the tribes. Governors of states that fall under the Sixth Schedule specifies the
jurisdiction of high courts for each of such cases.

Apart from ADC, there shall be an Autonomous Regional Council (ARC). If there
are different tribes in an autonomous district, the governor can divide the district into
several autonomous regions.

Each autonomous district has a district council consisting of 30 members, of whom

four are nominated by the Governor and the remaining 26 are elected on the basis of
adult franchise. Each District Council and each Regional Council shall be a body
corporate by the name respectively of the District Council of (name of district) and
the Regional Council of (name of region).
 The elected members hold office for a term of five years (unless the council is
dissolved earlier) and nominated members hold office during the pleasure of the
governor. Each autonomous region also has a separate regional council.

The district and regional councils administer the areas under their jurisdiction. They can
make laws on certain specified matters like land, forests, canal water, shifting cultivation,
fisheries, entertainment, village administration, inheritance of property, marriage and
divorce, social customs, public health and so on. But all such laws require the assent of
the Governor.

The district and regional councils within their territorial jurisdictions can constitute
village councils or courts for trial of suits and cases between the tribes. They hear
appeals from them. The jurisdiction of High Court over these suits and cases is
specified by the Governor.The roles of the central and state governments are restricted
from the territorial jurisdiction of these autonomous regions. The acts of Parliament
or the state legislature do not apply to autonomous districts and autonomous regions
or apply with specified modifications and exceptions.

The tribal areas in each item of Parts I, II, IIA and in Part III of the table appended to
paragraph 20 of this schedule is given below:

TABLE

PART I

1. The North Cachar Hills District.

2. The Karbi Anglong District.

PART II

1. Khasi Hills District.

2. Jaintia Hills District.

3. The Garo Hills District.

PART IIA

Tripura Tribal Areas District.

PART III

1. The Chakma District.

2. The Mara District.
3. 3. The Lai District.

The Governor may by public notification, a) include any area in any of the Parts of
the above said table, b)exclude any area from any of the Parts of the said
table,c)create a new autonomous district, d)increase the area of any autonomous
district, e)diminish the area of any autonomous district, f)alter the name of any
autonomous district, g)define the boundaries of any autonomous district.

Subject to the provisions of this Schedule, the administration of an autonomous

district shall, in so far as it is not vested under this Schedule in any Regional Council
within such district, be vested in the District Council for such district and the
administration of an autonomous region shall be vested in the Regional Council for
such region.

The Governor shall make rules for the first constitution of District Councils and
Regional Councils in consultation with the existing tribal Councils or other
representative tribal organisations within the autonomous districts or regions
concerned, and such rules shall provide for(a) the composition of the District
Councils and Regional Councils and the allocation of seats therein;(b) the
delimitation of territorial constituencies for the purpose of elections to those Councils;
(c) the qualifications for voting at such elections and the preparation of electoral rolls
therefor;(d) the qualifications for being elected at such elections as members of such
Councils;(e) the term of office of members of Regional Councils;(f) any other matter
relating to or connected with elections or nominations to such Councils;(g) the
procedure and the conduct of business (including the power to act notwithstanding
any vacancy) in the District and Regional Councils;(h) the appointment of officers
and staff of the District and Regional Councils.

The Governor can appoint a commission to examine and report on any

matter relating to the administration of the autonomous districts or regions. He may
dissolve a district or regional council on the recommendation of the commission.

THE PANCHAYAT EXTENSION TO SCHEDULED AREAS (PESA) ACT,

1996

In view of the powers vested in the councils, tribes in the north-east have been able to
protect themselves from the exploitation of non-tribas to a far greater extent than the
tribes in other regions of India.

There were some problems such as fund crunch. Though specifically funds were
allocated from the Planning Commission in those days, it had to routed through the
governor and in many cases it was not released on time for these areas.

In fact in the Sixth Schedule areas even the revenue raising powers of the ADC was
even less than the Gram Panchayats in the non-tribal areas of some states. This gave
rise to demand for separate state. One can say that the creation of new states for the
tribes was the culmination of the demand for greater empowerment of tribal people.

This demand for greater empowerment has spread to other parts of tribal India and has
led to the creation of new institutions, such as an autonomous regional council for the
Bodos as well as the tribes of Jharkhand.
It has also taken the form of the revival of old institutions such as the gram sabha.
Indeed, the power, control and jurisdiction exercised by the gram sabha earlier have
now been given legal recognition by an act of Parliament. The 73 rd and 74th
Amendments to the Constitutions stipulated that the provisions contained therin will
not apply automatically to the scheduled areas covered by the Fifth and Sixth
Schedules. There were to apply only with such modifications and amendments as
Parliament may decide. As a follow up to this provision, the Ministry of Rural
Development, Government of India set up a high-level committee to recomment the
contents of a parliamentary act for the Fifth Schedule areas. Based on the report of the
high-level committee famously known as the Bhuria Committtee, the Panchayat
Extension to the Scheduled Areas Act (PESA), 1996 was passed by Parliament in
December, 1996.

PESA is by far the Government of India’s one of the most ambitious ‘devolution’
policies.i Although it is a central act, its implementation is effectively a state
responsibility, as along with Panchayati Raj, the other key subjects includes land
revenue, excise, welfare, irrigation, rural market, money lending etc are in the State
List.

Through this Act, the Scheduled Areas have become ‘special legal zones’. The Act
gives power to the Governor of a 5th Schedule area to determine which law should
apply.

The Bhuria committee recommendations had two aspects; one, to build upon
customary law and indigenous administrative-political structures which were seen as
being more democratic than state law, and second, to enable adivasis to hold their
own in the face of displacement and exploitation by giving gram sabhas various
powers. (Bhuria Committee, para 4).

The most important provision made in this act is that state legislation on the
panchayat would be in consonance with customary law, social and religious practices
and the traditional management of community resources. This means that the village
would ordinarily correspond with the community, managing its affairs in accordance
with traditions and customs.

Every village would have a gram sabha, consisting of persons whose names are
included in the electoral rolls for the panchayat at the village level. The gram sabha is
vested with power to safeguard and preserve the traditions and customs of the people,
their cultural identities and community resources, and to uphold the customary mode
of dispute resolution. It is also vested with the power to approve plans, programmes
and projects for social and economic development before these are taken up for
implementation by the panchayat at the village level. The gram sabha in such areas is
vested with the same powers and has similar roles too like anywhere else such as
identifying beneficiaries under poverty-alleviation and other programmes, ,
certification of fund utilization and would be consulted before acquiring land in the
scheduled areas for development projects before settling or rehabilitating persons
affected by such projects. Further, the recommendations of the gram sabha would be
mandatory prior to the grant of prospecting licenses or mining lease for minerals.
Further, the state government is expected to endow the gram sabha with the power to
take up various activities. These include enforcement of prohibition, regulation or
restrictions on the sale and consumption of intoxicants, regulation of ownership of
minor forest produce, prevention of land alienation and restoration of any unlawfully
alienated land, management of village markets, control of money lending and
supervision of plans and resources as well as insitutions and functionareis. In short for
the gram sabha to function as an institution of self -government, the state government
is required to ensure that the panchayat at the higher level does not assume the power
and authority of any panchayat at the lower level, namely the gram sabha.

In conclusion, we can say that the creation of these institutional structures referred to
above represented an incremental advance over other forms of tribal empowerment as
it enlarged the scope of tribal power in two ways. First, the tribes were given some
legislative, executive and judicial powers that they did not have in other forms of the
empowerment process, even though it was over limited issues as seen in case of
institution of the ‘district council’. Second, the tribes were given more powers over a
wider range of issues than earlier. The creation of state structures for the tribes is
illustrative of this.
i
Devolution is different from de-concentration (administrative decentalisation). De-concentration means extending the reach of central
government and stregthens its authority by moving executive agencies controlled by it down to the lower levels of the political system. Meanwhile
‘devolution of power’ means that it is the ‘democratic decentralisation’. So a devolved authority is granted legal authorityand it is a type of power
sharing between the national and sub-national authorities.