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An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and

Tribal Peoples in India and International Laws on Indigenous Peoples

An Analysis of Various Legislations Relating to The Protection of Rights of


Indigenous and Tribal Peoples in India and International Laws on
Indigenous Peoples

Srishti Sahu
Student , B.A.LLB.(Hons.)
Email Id : srishtisahu.hnlu@gmail.com
Hidayatullah National Law University , Naya Raipur (C.G.)

Abstract

India is home to the largest population of Indigenous Peoples of any country in the world.
The Tribal people in India is present enormously constituting around 8.1% of Overall
population (Census,2011). They range from some of the last uncontacted indigenous
communities in the world, like the Sentinelese of the Andamans, to some of the largest, such
as the Gonds and Santhals of central India. The paper elucidates the struggle by the tribes
and rights of the tribes provided through various judgements of the courts and also by various
Municipal Laws and International Instruments. The focal point of this paper examines the
application of the two major Legislations enacted by the Parliament of India ,that are
Panchayat (Extension to Scheduled Areas) Act,1996 confronting different powers to Gram
Sabha and secondly the Forest Rights Act ,2005 stating provisions and giving more
transparency to it. Moreover rights provided in the Constitution of India under Article 14, 15
,19 , 21, 244 and 245 and also through the Fifth and Sixth Schedule under the Part IX and
Part IX-A of the Constitution of India is being explained. The importance of tribal rights has
been perceived on the International platform through various instruments like The United
Nations Permanent Forum on Indigenous Issues (UNPFII) and The United Nations
Declaration on the Rights of Indigenous People (UNDRIP) stating special measures for
protection of tribal rights. The final analysis of the paper talks about the lacunae in the
implementation of various instruments available for the protection of tribal rights.

Keywords :- Indigenous People , Scheduled Areas , Panchayat (Extension to Scheduled


Areas) Act, 1996, Forest Rights Act, 2006, The United Nations Declaration on the Rights of
Indigenous People, United Nations Permanent Forum on Indigenous Issues.

1 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and
Tribal Peoples in India and International Laws on Indigenous Peoples

Introduction

India is the home to large number of indigenous people, who are still untouched by the
lifestyle of the modern world. Tribe is one of the most important feature of India’s diversity.
Tribals are also known as ‘Adivasi’ majorly in South Asia. Tribals constitute 8.61% of the
total population of the country, numbering 104.28 million and cover about 15% of the
country’s area. The fact that tribal people need special attention can be observed from their
low social, economic and participatory indicators.1 The Central and Southern regions of the
country are home for about 80 % of the tribes, which differ from the North –Eastern tribes in
ethnicity and in having experienced “greater intrusion of the Indian mainstream and of the
pan – Indian model of the state , society , economy and culture”2. According to DN
Majumdar, “A tribe is a collection of families, bearing a common name, members to which
occupy the same territory, speak the same language and observe certain taboos regarding
marriage profession or occupation and have developed a well assessed system of reciprocity
and mutuality of obligation.”3Adivasi societies are particularly prominent in Andhra
Pradesh, Chhattisgarh, Gujarat, Jharkhand, MadhyaPradesh, Maharashtra, Odisha, West
Bengal and some north-eastern states, and the Andaman and Nicobar Islands.

India has struggled to maintain the balance in practice. The most common problems relate to
recognizing that the tribes have a right to autonomy and not merely decentralized
administration; that they have right to seek justice within their own traditional or customary
laws; and they have a right to own and exploit the natural resources in their habitat. The
conventional and largely accepted solution to this problem is to balance the dichotomy
between assimilation of tribal peoples and their independent identity, and delineate the
contours of a national policy that would allow them to preserve their way of life without
compromising with development4. These issues are addressed in the Constitution of India and
through the tribal people specific statutes, but there are considerable differences in the way
the North-Eastern and peninsular tribes are treated in the Indian legal system. This distinction
in the extent law is based on the two criteria that had guided the colonial British Indian

1
Government of India , Census 2011.
2
Indian Tribes and the Mainstream ,Sukant K. Chaudhary &Soumendra Mohan Patnaik, Rawat Publications.
3
Indian Social System, Ram Ahuja, Rawat Publications.
4
Shubhankar Dam, Legal Systems As Cultural Rights: A Rights Based Approach To Traditional Legal Systems
Under The Indian Constitution (2006) 16 Ind. Int’l & Comp. L. Rev. 295

2 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and
Tribal Peoples in India and International Laws on Indigenous Peoples

government in determining the degree of self –government that the tribes would have
exercise :-

a) whether the tribe had the ability to manage its own affairs;
b) whether the tribal region in question had significant non-tribal population.5

To solve these problems and make this arrangements has been codified in the Constitution’s
Fifth Schedules for the tribes in the Peninsular region of the country and the Sixth Schedule
for the North-Eastern tribes6. Though an overwhelming majority of India’s tribal people
inhabit the Fifth Schedule Areas, they were only recently introduced to decentralization when
the Indian Parliament legislated the Panchayat (Extension to Scheduled Areas) Act, 1996
(or PESA)exclusively for these areas.

Federalism and Tribal Governance in India7

The Constitution of India establishes a federal structure in which legislative authority is


divided between the central government on one hand and the State legislatures and
governments on the other8. In 1992 the Indian Parliament decided to distribute powers and
decentralize the state executive and legislative authority by adding two entirely new parts to
the Constitution i.e. Part IX9 and Part IX –A10 . Part IX of the Constitution required the states
to establish local government bodies i.e. Panchayats in the rural areas , while Part IX-A
mandated the municipalities in urban areas. The intention of the Parliament by the
introduction of these two parts was “to enshrine in the Constitution certain basic and essential
features ” of such local bodies “to impart certainty , continuity and strength to them.”11

According to Article 342 of the Constitution of India, the President , after consulting with the
State Governments, has promulgated nine orders so far. This promulgation has clearly

5
Amit Prakash, Decolonisation and Tribal Policy in Jharkhand: Continuities with Colonial Discourse (1999) 27
Soc. Scientist 113.
6
Constitution of India,1950 , Art.15(4) and Art. 15(5). Also see R.K.Sabharwai v. State of Punjab, [1995] 2
SCC 745 and Indira Sawhney v. Union of India , AIR 1993 SC 477.
7
Swarup, Mridushi, Protection of Scheduled Tribes Under the Indian Constitution: Promise and Performance
(March20,2011).Available at
SSRN: https://ssrn.com/abstract=1790922 or http://dx.doi.org/10.2139/ssrn.1790922, 27th Sept,2017.
8
Constitution of India ,1950 , Art.245(1)
9
Constitution of India , 1950 ; amended by the Constitution (Seventy- Third Amendment) Act , 1992.
10
ibid.
11
The Constitution (Seventy – Third Amendment) Bill ,1991, Statement of objects and reasons.

3 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and
Tribal Peoples in India and International Laws on Indigenous Peoples

specified the Scheduled Tribes in the relation to the concerned State and Union Territories.
The Fifth and Sixth Schedules under Article 244 of Indian Constitution in 1950 provided for
self- governance in particular tribal majority areas. It was designed out the States of
Chhattisgarh and Jharkhand in acknowledgement of tribal sentiments.

Action Plans for the Development of Scheduled Castes and Scheduled


Tribes12

Considering the Social Plane in India we have a society which is based on graded inequality ,
which means elevation of some and degradation of others. While on the economic plane ,
there is society where in there are some who have immense wealth and some who live in
abject poverty. Some Steps and suggestions which can be helpful in protecting the indigenous
people :-

 Reservation in Service
The reservation policy in services for the Scheduled Tribes and Scheduled Castes has
been a key instrument in enhancing the social and economic justice as enshrined in
the Preamble of the Constitution, The policy of reservation for Scheduled Tribes in
services was made in pursuance of Constitutional provisions has been challenged in
various courts at several occasions on the grounds of ‘equality’ and ‘efficiency’ but its
validity has been maintained by the judicial instruments.Article 16 of the Constitution
provides reservations in all matters of appointments and posts.
 Social Security13
The mechanism to effectively enforce the provisions of the Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Act , 1989 needs to make amendments at
the root levels . Public Interest Litigation (PIL) conceived byP.N.Bhagwati J. by
treating an open letter as a writ petition has been ineffective in its implementation as
the PILs are manipulated by vested interests in their favours. Therefore, it is
suggested that either the PILs should be banned or its scope should be limited to
provide justice only to poor people.
 Economic Development

12
http://lex-warrier.in/2010/11/protection-of-scheduled-tribes-under-indian-constitution/, 27th Sept 2017.
13
Protection of Scheduled Tribes Under Indian Constitution,http://lex-warrier.in/2010/11/protection-of-
scheduled-tribes-under-indian-constitution/, 27th Sept, 2017.

4 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and
Tribal Peoples in India and International Laws on Indigenous Peoples

Funds at least in proportions of SC/STs population should be allocated at national,


state, district , block and village should be earmarked out of the various plans at all
the levels and these funds should be placed under the disposal of one nodal
department or the planning department. The State Government should create
‘Common Land Pool’ acquired under ceiling and should be distributed to the landless
SC/ST without bringing any other party in the picture.
To give legal status the occupants/possessors of the forest villages and the land
cultivated by them , they should be converted into revenue villages in all seriousness
of the timeframe. As because of the absence of proof of legal ownership they are
unable the avail the benefits of the various governmental schemes such as
IndraAwasYojana , Irrigation schemes and financial benefits under various schemes.
Another major problem which is faced is ‘Unemployment’. To solve this problem is
to provide quality self- employment to educated trained youth, a group of 2-3 such
educated unemployed youth should be provided interest free loans of Rupees 5-15
Lakh. The interest subsidy should be borne by the State. Also there should be trading
centres and Pre- Recruitment Training Centres for recruiting SC/ST candidates.

The Authority of the Centre and the States in Tribal Affairs

Fifth and Sixth Schedule of the Constitution

The basic thrust of the Fifth and Sixth Schedule of the constitution is the protection of
cultural distinctiveness of Tribal. It also provides protection to the tribals on account of their
economic disadvantages so that they could maintain their tribal identity without any coercion
or exploitation. The interests of Schedule Tribes outside the North east is protected by Fifth
Schedule The fifth schedule designates “Schedule areas” in large parts of India in which the
interests of the “Scheduled Tribes” are to be protected. The Sixth Schedule is related to the
administration of the states of Assam, Meghalaya, Tripura and Mizoram in the North-east. It
has provisions for the formation of autonomous districts and autonomous regions within the
districts as there are different schedule tribes within the district.

The Fifth Schedule being a very important provision of the constitution deals with the control
and administration of the Schedule Areas. Some of the important features of the Schedule
are:

5 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and
Tribal Peoples in India and International Laws on Indigenous Peoples

 It deals with provision for the constitution of a Tribes Advisory Council


 The Governor has the power to adapt laws passed by Parliament and State legislature
in such a way that it suits these areas.
 It provides Governor with the power to make regulation for good governance and
peace for the area.
 The Fifth Schedule also deals with the extension of direction by the Union to a State
for the administration of the Schedule Areas.

The main feature of the administration provided in this Schedule is establishment and
constitution of the Tribes Advisory Councils. These bodies are essentially advisory in nature,
and provide recommendations and advice on the matters pertaining to the welfare and
betterment of the Scheduled Tribes in the states. The scope of Gubernatorial authority was of
very wide nature14 and was subject to only two restrictions :

(i) that the Governor would consult a Tribe Advisory Council before making any
regulation;15 and
(ii) that all regulations would receive the Presidential assent before taking effect.

Panchayats (Extension to Scheduled Areas) Act , 1996 or PESA ,199616

Panchayats (Extension to Scheduled Areas) Act , 1996 or PESA is an Act to provide for the
extension of the provisions of Part IX of the Constitution relating to the Panchayats to the
Scheduled Areas in the 9 states of India. The Act extends the provisions to the 9 states
namely Andhra Pradesh , Chhattisgarh , Madhya Pradesh , Gujarat , Himachal Pradesh ,
Maharashtra , Jharkhand , Orissa and Rajasthan ; these states are listed under the Fifth
Schedule of the Constitution. The Act had certain important features out of which it endowed
specifically various powers to the Gram Sabha under the Act . These Powers are :-

 The power to enforce or to regulate or restrict the sale and consumption of any
intoxicant;
 The ownership of minor forest produce;

14
Ram KripalBhagat v. State of Bihar , AIR 1970 SC 951, and V.S.S. Sastry v. State of Andhra Pradesh , AIR
1967 SC 71.
15
Constitution of India , 1950 , Schedule V para 4
1616
Implementation of PESA: Issues, Challenges and way Forwards, Biswas Sudipta, International Research
Journal of Social Sciences_ Vol. 4(12), 49-54, December (2015),
http://www.isca.in/IJSS/Archive/v4/i12/9.ISCA-IRJSS-2015-238.pdf, 27th Sept, 2017.

6 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and
Tribal Peoples in India and International Laws on Indigenous Peoples

 The power to alienation of land of the Scheduled Areas and to take appropriate action
to restore any unlawfully alienated land of a Scheduled Tribes;
 The power to manage village markets by whatever name they are called;
 The power to exercise control over institutions and functionaries in social sectors;
 The power to control over local plans and resources for such plans including tribals
sub- plans .17

The Act was provided various powers to the various authorities but still suffered certain
shortcomings in its implementation. The various shortcoming can be summarised as :-

 PESA diluted at State Level : A comparative analysis of PESA and the legislations
enacted by the states on this subject matter shows that the provisions of the PESA
have been highly diluted in the process of ratification by the States and most of the
powers of the Gram Sabha have been given to the district administration or the
ZilaParishad.
 Gram Sabhas continued at Revenue Village level instead of Hamlet Level: One
major impediment in implementation of PESA is the absence of a proper
administrative definition of village that is in consonance with the Act.
 Ineffective Functioning of Gram Sabhas: The success of PESA hinges crucially on
the effective functioning of the gram sabha. Today, there is a large measure of
exclusion of women and children from the gram sabha.
 Land Alienation and Land Acquisition: A clear and categorical provision should be
made in the Panchayati Raj Act or the revenue laws to empower the gram sabha to
restore the unlawfully alienated land to its lawful owner .

International Instruments
The United Nations Permanent Forum on Indigenous Issues (UNPFII)18
Indigenous peoples around the world have sought recognition of their identities, their ways of
life and their right to traditional lands, territories and natural resources; yet throughout history,
their rights have been violated. Indigenous peoples are arguably among the most disadvantaged

17
Section 4(m) of the Panchayat (Extention to the Scheduled Areas) Act , 1996.
18
Tribal Laws in India and Tribal Conventions on Rights of Indigenous People Worldwide ,Akanksha Mishra ,
February 28 , 2012 , http://www.legalindia.com/tribal-laws-in-india-and-tribal-conventions-on-rights-of-
indigenous-people-worldwide/ , 28 Sept, 2017.

7 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and
Tribal Peoples in India and International Laws on Indigenous Peoples

and vulnerable groups of people in the world today. The International Community now
recognizes that special measures are required to protect the rights of the world’s indigenous
peoples.Many governments routinely violate the rights of Indigenous people. This instrument
laid down the foundation stone of UNDRIP.
The United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP)
India has not only made Municipal Laws and provisions for the protection of Indigenous people
but the need for the protection of Indigenous people has raised on the global platform as well.
Thus, to meet these needs and solve the problems faced by the tribes and the Indigenous people
one of the major International Instrument is The United Nations Declaration on the Rights of
Indigenous People (UNDRIP).
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted
by the General Assembly on Thursday, 13 September 2007, by a majority of 144 states in
favour, 4 votes and 11 abstentions.19
The main purpose of the Declaration is it sets out the individual and collective rights of
Indigenous peoples, as well as their rights to culture, identity, language, employment, health,
education and other issues.According to Article 31, there is a major emphasis that the
indigenous peoples will be able to protect their cultural heritage and other aspects of their
culture and tradition, which is extremely important in preserving their heritage.
In Furtherance to the UNDRIP, there is The International Labour Organisation(ILO),
Convention concerning to the Indigenous and Tribal Peoples , 1989 and is based on the
principle of “respect for the culture and ways of life of indigenous peoples”. India is not a party
to this , but it is party to the ILO Convention which is concerned with the Protection and
Integration of the Indigenous and other Tribal and Semi- Tribal Population of the Country
which is now outdated and is closed for ratification.20

19
"Declaration on the Rights of Indigenous Peoples". United Nations Permanent Forum on Indigenous Issues.
Retrieved 11 December 2015.
20
Protecting the Rights of Tribals, PushkarAnand& Amit Kumar Sinha , February27,2017,
http://www.thehindu.com/opinion/op-ed/protecting-the-rights-of-tribals/article17372134.ece, June 05, 2017.

8 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and
Tribal Peoples in India and International Laws on Indigenous Peoples

Conclusion

In the era of numerous social order and vast diversity of society the indigenous people are still
under suffrage of social inequality and underdeveloped society. Justice to such people is the
major essence which is to be carried by the government and the other non-indigenous people.
To come up with solution the Constitution has Fifth schedule for the tribes of peninsular region
with legislation of Panchayat (Extension to scheduled Areas) Act, 1995 (or PESA) and Sixth
Schedule for North-Eastern tribes.Part IX and IX-A of the constitution has contribution of
providing the proper government body to such areas. Article 342 of the Constitution of India
has the promulgation for Schedule tribe in relation with concerned states and union territories.
Different steps have been taken like providing Reservation in Services as mentioned in Article
16 of The Constitution, ensuring social security by enactment of Scheduled Caste &
Scheduled Tribes (Prevention of Atrocities) Act, 1989, posing development by giving
possession of the cultivated forest land to the schedule tribe and also giving loans to self-
employment tribal.
The Fifth & Sixth Schedule of the constitution deals with the administration for protection in the
areas majorly of Schedule Tribes and north-east region. It has certain provision dealing with
control and administration. Its main feature is establishment and constitution of the Tribal
Advisory Council. PESA, 1996 or Panchayat (Extension to Scheduled Areas) Act, 1996 has
provisions for 9 states listed in fifth Scheduleof the Constitution enriching certain powers to the
Gram Sabha. It has coverage of PESA in State Level, Revenue Village Level, Ineffective
Functioning of Gram Sabhas and Land Alienation & Land Acquisition.

Some International Instrument like The United Nations Permanent Forum on Indigenous
Issues(UNPFII) &The United Nations Declaration on the Rights of Indigenous People
(UNDRIP). The International Convention UNDRIP has codified Indigenous historical
grievances, contemporary challenges and socio-economic, political and cultural aspirations" and
is the culmination of generations-long efforts by Indigenous organizations to get international
attention, to secure recognition for their aspirations, and to generate support for their political
agendas. The international community now recognizes that special measures are required to
protect the rights of the world’s indigenous peoples. Keeping in view the socio economic
9 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
An Analysis of Various Legislations Relating to The Protection of Rights of Indigenous and
Tribal Peoples in India and International Laws on Indigenous Peoples

backwardness of tribes the framers of the Indian Constitution provided special privileges for
their development in independent India. Thus, in last it can be concluded by saying that the
laws which exists in the present scenario is not accurate but need certain modifications to meet
the challenges faced by the tribes in this contemporary society.

1 Srishti Sahu & Aditya Prakash Tirkey , Student , Hidayatullah National Law University , Naya Raipur
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