This article has been written by Rozy Parveen pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction 

This article addresses the protection of tribal rights, highlighting that scheduled tribes and other traditional dwellers have the right to own and reside on their forest land. Either individually or collectively, for habitation. Any member of a schedule tribe or other traditional forest dwellers has the right to use the land for self cultivation to support their livelihood. Article 46 of the constitution emphasises the state’s responsibility to safeguard the educational and economic interests of the marginalised sections of society, particularly the scheduled castes and scheduled tribes, protecting them from social injustice and exploitation. Article 335 emphasises the importance of considering the claims of scheduled castes and scheduled tribes in appointments in government service and posts, ensuring efficiency in administration while uploading their rights.

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In India, the majority of tribal communities are collectively recognised as scheduled tribes under Article 342. India observed a highly diverse tribal population, with each tribe exhibiting its own unique characteristics and requirements, thus demanding different approaches. For example, the way life and conditions experienced by indigenous people in central or western India starkly differ from those of tribes in northeast India and the Andaman Islands. The scheduled tribes encompass a range of officially marginalised communities with a historical legacy of disadvantage in India. These designations are acknowledged within the Constitution of India, categorising different groups accordingly. Dr. B.R. Ambedkar, as a member of the drafting committee, played a pivotal role in formulating the Constitution of India in 1950. He was well aware of political, social, and economic disparities rooted in historical events. They recognised the severe and troubling condition faced by the scheduled tribes, who had been marginalised and kept away from mainstream national matters for a considerable period. To address the entrenched caste system in society, specific reservations were advocated for scheduled tribes, given their historical treatment as untouchables in ancient India. The constitution of India acknowledges the distinct status of tribal communities and ensures the safeguarding of their rights and interests through a variety of provisions.

Who are tribes in India

In India, some of the most recognised tribes include the glands, bhils, santhal , munda, khasi, garo, angami, bhutia, chenchu, kodaba and the great Andamanese tribes. Among these tribes bhils tribes stand out as the largest in India.

A tribe comprises individuals who have commonalities in religion, history, language, or culture. Each tribe is unique and will often have its own practices, many of which differ from those of other tribes. In India, there are 705 ethnic groups officially recognised as scheduled. In central India, the scheduled tribes are usually referred to as adivasis, which literally means indigenous people.

Constitutional safeguard for tribal rights

Educational and cultural safeguards

According to Article 15(4) of the Indian Constitution, the state retains the authority to enact special measures for the progress of socially and educationally disadvantaged groups or for a scheduled caste or scheduled tribe. This provision is a vital tool in ensuring equality for all citizens, irrespective of their social or economic background. It allows the government to take affirmative action to address historical injustices and create a more level playing field for all.

The socially and educationally disadvantaged groups referred to in Article 15(4) are those that have historically faced discrimination and marginalisation due to factors such as caste, race, gender, or disability. These groups may have limited access to education, employment, and other opportunities, making it difficult for them to improve their lives and achieve their full potential.

The scheduled castes and scheduled tribes are two specific groups that are recognised as being particularly vulnerable to discrimination and social exclusion. The scheduled castes are a group of historically oppressed people who were once considered to be “untouchable” by the caste system. The scheduled tribes are a group of indigenous people who have traditionally lived in remote and marginalised areas.

Article 15(4) empowers the state to take special measures to address the unique challenges faced by these groups. These measures may include providing reservations in education and employment, offering financial assistance, and implementing targeted development programmes. The aim of these measures is to promote the social and educational advancement of these groups and to ensure that they have equal opportunities to participate in society.

It is important to note that Article 15(4) does not allow for discrimination against other groups. The state must ensure that special measures are implemented in a fair and just manner, and that they do not result in the exclusion or marginalisation of any other group.

Article 15(4) is a key provision in the Indian Constitution that promotes equality and social justice. It allows the government to take necessary steps to address historical injustices and create a more inclusive society for all.

Article 29 deals with the protection of the interests of minorities, Any group of citizens residing within the territory of India or any of its regions possessing a unique language, script or culture, shall possess the right to preserve their distinct identity. Furthermore, no individual faces refusal of admission into any educational institution supported by the state or funded by state resources based on factors such as religion, race, caste, language, or any combination thereof. In the case of St. Stephen’s College vs. University of Delhi (1991), the Supreme Court addressed whether minority educational institutions are permitted to allocate seats for students belonging to their own community. The court determined that minority institutions possess the authority to enrol students from their own community, as long as the admission procedures maintain fairness and transparency.

Article 46 promotes the educational and economic interests of scheduled castes, scheduled tribes and other weaker sections, It mandates that the state must diligently utilise its authority to advance the educational and economic welfare of marginalised segments of society, encompassing both scheduled tribes and scheduled castes. The Supreme Court’s decision in the landmark case of Indira Sawhney vs. Union of India, also known as the Mandal case, had a profound impact on the reservation system in India. In this case, the Supreme Court set a crucial limit on reservations for backward classes, establishing that they should not exceed 50% of total seats in educational institutions and government jobs. This limit was intended to strike a balance between the need for affirmative action for historically disadvantaged groups and the principle of meritocracy.

However, subsequent developments led to a significant revision of this 50% limit. In 2019, the 103rd Amendment to the Constitution of India was passed, which broadened the scope of reservations to include economically weaker sections (EWS) of society. This amendment effectively increased the overall reservation limit to 60%, including 10% for EWS and 50% for backward classes.

The 103rd Amendment aimed to address concerns that the existing reservation system was not adequately benefiting certain marginalised sections of society. By including EWS in the reservation ambit, the amendment sought to provide opportunities for individuals from economically disadvantaged backgrounds, irrespective of their caste or community.

The implications of this expanded reservation limit have been widely debated. Supporters argue that it promotes social justice and inclusivity by ensuring that historically marginalised groups have access to educational and employment opportunities. They contend that the EWS quota is a necessary step towards addressing economic disparities and creating a level playing field.

Opponents, on the other hand, raise concerns about the potential dilution of merit and the impact on the efficiency of institutions. They argue that reservations should be based solely on social and educational backwardness and that economic criteria alone should not be a determining factor.

The Supreme Court is currently examining the validity of the 103rd Amendment in a series of petitions. The Court’s decision in these cases will have far-reaching consequences for the reservation system in India and will determine the future contours of affirmative action policies in the country.

Article 350(A) facilitates instruction in the mother tongue at the primary stage, and every state and local authority within it should strive to offer sufficient educational resources in the mother tongue to children from linguistic minority communities at the primary education level.

Economic safeguard

Article 244 of the Indian Constitution deals with the administration of scheduled areas and tribal areas in India. The Fifth Schedule to the Constitution governs the administration and oversight of scheduled areas and scheduled tribes in all states except Assam, Meghalaya, Tripura, and Mizoram. The Sixth Schedule, on the other hand, specifically pertains to the administration of tribal areas within the states of Assam, Meghalaya, Tripura, and Mizoram.

Fifth Schedule:

  • The Fifth Schedule provides for the creation of Tribal Advisory Councils (TACs) in states with scheduled areas.
  • These councils are intended to advise the state governors on matters pertaining to the welfare and development of scheduled tribes.
  • The TACs consist of representatives of scheduled tribes, members of the state legislature, and other experts.
  • The Fifth Schedule also empowers the state governors to make regulations for the administration of scheduled areas.
  • These regulations can cover a wide range of topics, such as land use, forest management, and education.

Sixth Schedule:

  • The Sixth Schedule provides for the creation of Autonomous District Councils (ADCs) in tribal areas within the states of Assam, Meghalaya, Tripura, and Mizoram.
  • These councils are responsible for the administration of their respective areas.
  • The ADCs have legislative, executive, and judicial powers.
  • They can make laws on a variety of subjects, such as land use, forest management, and education.
  • The ADCs are also responsible for the implementation of welfare and development programs for scheduled tribes in their areas.

The Fifth and Sixth Schedules to the Indian Constitution play an important role in protecting the rights and interests of scheduled tribes in India. They provide a framework for the administration of scheduled areas and tribal areas, and they ensure that scheduled tribes have a voice in the decision-making process.

Article 275 grants from the union to certain states, empowers the parliament  to enact legislation to allocate specific amounts from the consolidated fund of India annually as grants-in-aid to states deemed in need of assistance, with varying amounts potentially designated for different states. It mandates the disbursement of such sums as determined by parliament to states requiring aid, in the form of funds and periodic allocations as deemed necessary. The primary objective of this article is to enhance the welfare of scheduled tribes within the concerned states or to elevate the administration standards of scheduled areas.

Political safeguard

Article 330– Reservation of seats for scheduled caste and scheduled tribes in the house of the people, seats in the house of people must be allocated for scheduled caste and scheduled tribes, a step aimed at fostering the broader integration of these communities into the nation’s progress and development.

Article 334– Reservation of seats and special representation to cease after a certain period, the Indian Constitution was introduced to confront the historical social and economic hardships experienced by a particular community by mandating the reservation of seats and nomination of members from these groups in the Lok Sabha and state legislative assemblies. Originally intended as a temporary measure, the reservation provision was scheduled to lapse after ten years from the constitution’s commencement.

Legal framework for tribal welfare

Scheduled Tribes and Other Traditional Forest Dwellers Act of 2006

The Scheduled Tribes and Other Traditional Forest Dwellers Act of 2006 (also known as the Forest Rights Act) is a landmark piece of legislation in India that recognises the rights of forest-dwelling communities to their traditional lands and resources. The Act acknowledges that forest-dwelling communities have a long history of sustainably managing and conserving forest resources, and that their rights should be respected and protected.

The Act grants several important rights to forest-dwelling communities, including the right to occupy and reside in forest land, the right to access and collect forest produce, the right to protect and regenerate community forest resources, and the right to participate in the management of forest resources. The Act also establishes a process for recognising and settling the rights of forest-dwelling communities and for resolving disputes over forest land and resources.

The Forest Rights Act is a significant step towards addressing the historical injustice faced by forest-dwelling communities in India. The Act recognises the rights of these communities to their traditional lands and resources, and it provides a framework for ensuring that their rights are respected and protected. The Act is also a recognition of the important role that forest-dwelling communities play in conserving and managing forest resources.

The implementation of the Forest Rights Act has been challenging, but it has also led to significant progress in securing the rights of forest-dwelling communities. As of 2021, over 4 million hectares of forest land have been recognised as community forest resources under the Act, and over 2 million individual and community titles have been issued. The Act has also helped to strengthen the capacity of forest-dwelling communities to manage their own resources and to participate in decision-making processes that affect their lives and livelihoods.

The Forest Rights Act is a landmark piece of legislation that has the potential to transform the lives of forest-dwelling communities in India. The Act recognises the rights of these communities to their traditional lands and resources, and it provides a framework for ensuring that their rights are respected and protected. The Act is also a recognition of the important role that forest-dwelling communities play in conserving and managing forest resources.

Section 3(1)(h) of the Scheduled Tribes and Other Traditional Forest Dwelling (Recognition of Forest Rights) Act of 2006, specifically recognises the rights of forest dwelling scheduled tribes and other traditional forest dwellers to settle and convert forest villages, old habitations, unsurveyed villages, and other forested areas, regardless of their official recording or notification status, into revenue villages across all forest lands.

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act of 1989

Article 342(1) and Article 266 (25) of the Indian Constitution define scheduled castes and scheduled tribes in the state and union territories as a distinct category, subject to declaration by the president. This designation acknowledges the historical marginalization and discrimination faced by these communities and aims to provide them with special protection and safeguards.

The primary aim of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is to curb crimes against scheduled castes and scheduled tribes. The act recognises that these communities continue to face unique challenges and vulnerabilities due to their social and economic circumstances. It aims to address these issues by providing a comprehensive legal framework for the prevention, investigation, and punishment of crimes against scheduled castes and scheduled tribes.

One of the key provisions of the act is the establishment of special courts and exclusive special courts for the trial of individuals accused of such offences. These courts are designed to ensure the speedy and effective disposal of cases related to crimes against scheduled castes and scheduled tribes. The act also mandates the appointment of special public prosecutors to represent the victims in these cases.

In addition to the establishment of special courts, the act also contains several other provisions aimed at preventing and addressing crimes against scheduled castes and scheduled tribes. These include measures such as sensitization and training of public officials, mandatory reporting of such crimes, and the establishment of vigilance and monitoring committees at various levels.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, is a significant piece of legislation that seeks to protect the rights and dignity of scheduled castes and scheduled tribes and combat the scourge of caste-based discrimination and atrocities. The act also allocates funds for their rehabilitation, covering travel and maintenance expenses, with designated officers tasked with ensuring its effective implementation. Moreover, it endeavours to prevent dalits from entering society and safeguard their rights, especially in instances where crimes threaten their social, economic, democratic, and political freedoms. Furthermore, the act endeavours to prevent deprivation and provide support to marginalised communities to mitigate such circumstances.

Problems of tribal in India

India’s indigenous tribes rank among the most marginalised segments of society, grappling with a myriad of challenges stemming from centuries of exploitation and discrimination. The government has made efforts to improve their condition but there is still a long way to go. This article will examine some of the greatest challenges the tribes face.

Resources exploitation

The forests in central India, particularly in Madhya Pradesh and Chhattisgarh, have historically provided traditional livelihoods for indigenous Adivasi communities residing there. In recent years, these forests have witnessed escalating conflict and the exploitation of resources. For instance, in a tounge forest region of central India, a private company awarded 500 concessions in the 1980s has significantly expanded its operation to encompass over 14000 acres today. This expansion has entailed clear-cutting forests.

Unemployment

In the heart of India’s belt, industry and mining thrive, yet a substantial segment of the indigenous populace still finds themselves on the fringes of contemporary job opportunities. Despite the ongoing industrial surge, many native residents struggle to secure stable, fairly remunerated positions. According to the development report for 2023, a significant portion of the population remains entrenched in poverty. 

Religious problem

Tribals believe in natural things like trees, fire, rivers, and the sky. They worship with these, but if we talk about normal people who are not tribes, they believe in statues, Allah and all. Tribal communities adopt western cultural practices in numerous aspects of their social interactions.

Social problem

In tribal communities, child marriage is very common in every tribe. Child marriage prevalence remains among tribes in states like Bihar and Andhra Pradesh, despite being constitutionally prohibited and leading to numerous negative outcomes. Tribes still partake in activities such as infanticide, homicide, animal sacrifices, black magic, and wife swapping, all of which are problematic in Indian tribal communities.

Health problem

In Indian tribes, lots of health issues exist. Due to a lack of expertise, doctors, hospitals, and nurses, these people die before their time or women engage in so many diseases. The estimated infant mortality rate (IMR) among tribal populations ranges from 44 to 47 per 1000 live births. Medical insurance coverage, such as the Swasthya Bima Yojna (SBY), is limited to scheduled tribes, leaving scheduled tribes without sufficient protection against catastrophic and acute illness.

Suggestions

The Indian Constitution, as previously stated, has granted numerous rights to tribes through various articles, empowering both the state and central governments to work for their welfare. Additionally, there are two acts specifically related to tribes, as mentioned earlier. However, despite these legal provisions, the implementation of these laws in tribal villages remains inadequate.

Crucial facilities such as accessible healthcare, infrastructure development, educational opportunities, employment avenues, cultural preservation initiatives, land rights recognition, social welfare programmes, empowerment initiatives, legal aid, advocacy, and genuine partnerships and collaboration are often lacking in tribal communities.

Unfortunately, many tribes continue to live in impoverished conditions. The failure to effectively implement these laws and provide essential services has resulted in significant challenges for tribal communities. Without proper healthcare facilities, the health and well-being of tribal members are compromised, leading to higher rates of preventable illnesses and lower life expectancies.

Inadequate infrastructure development, including roads, bridges, and other essential transportation networks, hampers connectivity and access to markets, education, and healthcare centres. Educational opportunities are often limited, hindering the personal and professional growth of tribal youth. Employment opportunities are scarce, leaving many tribal members struggling to find sustainable livelihoods.

Cultural preservation initiatives are crucial for maintaining the unique traditions, languages, and customs of tribes. However, the lack of support for these initiatives threatens the survival of tribal cultural heritage. Land rights recognition is another critical issue, as many tribes face disputes and encroachment on their traditional lands, affecting their livelihoods and cultural practices.

Social welfare programmes, such as food assistance, housing aid, and skill development programmes, are essential for improving the living conditions of tribal communities. Empowerment initiatives, including training programmes and leadership development opportunities, are vital for building the capacity of tribal members to participate actively in decision-making processes that impact their lives.

Legal aid and advocacy services are necessary to protect the rights of tribal communities and ensure they have access to justice. Genuine partnerships and collaboration between governments, tribal communities, and other stakeholders are essential for developing sustainable solutions that address the specific needs and aspirations of tribes.

Addressing these issues and implementing the laws effectively requires a concerted effort from governments, civil society organisations, and tribal communities themselves. By working together, we can create a more just and equitable society that upholds the rights and well-being of all, including the tribal populations of India. The government should introduce effective schemes specially designed for them, which can prove to be beneficial, and the government should pay special attention to the lives of tribes so that they can progress in life and live a life like common people.

Conclusion

Hence, the recognition of scheduled tribes in India under Article 342 of the Constitution of India signifies a crucial acknowledgement of the diverse tribal populations with unique cultural, historical and socio, economic backgrounds. Through constitutional provisions like Article 15(4), Article 29, and Article 46, the Indian Government has committed to safeguarding the educational, cultural, and economic interests of these marginalised communities. The constitutional framework aims to address the historical disadvantages faced by scheduled tribes. Ensuring their inclusion in the advancement of the nation’s social fabric.

References

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