India is a home to the second largest Indigenous population in the world and with every year of urban development these Indigenous groups are further leaves behind in the growth spectrum.
The word ‘Indigenous’ etymologically refers to the natives belonging naturally to the soil. On a broader level ‘Indigenous people’ can be described as those who have deep ancestral roots embedded with the original inhabitants of the pre-colonial lands or territories, from who they consider themselves to be distinct.
At present, they form non-dominant sectors of the society and are determined to preserve, develop and transmit to future generations their ancestral lands, and their social and ethnic identity, as the basis of their continued existence as people, in accordance with their own cultural patterns, social institutions and legal system.
History has manifested that there have been different approaches towards the Tribal communities at various times.
In ancient India, the Tribal communities enjoyed the abode of nature, living contently.In the era of the British Rule, the British Government, tried to subjugate the tribal communities, however were unsuccessful, partly because of the active retaliation of the Tribal community and partly because they found administering the Tribal community to be unrewarding and difficult.
Post independence, the policy of assimilation became popular. The Christian Missionaries and Hindu Reformers tried to assimilate these tribes into their societies. The former President of India, Prime Minister Jawaharlal Nehru approached the Tribes with fascination, respect and compassion with an envisage to enhance their life, while keeping their culture intact. He emphasized and enumerated the significance of preservation of Tribal culture and formulated the following five principles known as ‘Tribal Panchasheel’ to be pursued vis-a-vis the tribals:
“(1) People should develop along the lines of their own genius, and the imposition of alien values should be avoided.
(2) Tribal rights in land and forest should be respected
(3) Teams of tribals should be trained in the work of administration and development.
(4) Tribal areas should not be over administered or overwhelmed with a multiplicity of schemes.
(5) Results should be judged not by statistics or the amount of money spent, but by the evolvement of human character.”
Constitutional Provisions and Safeguards:
The objective of the Constitution towards the scheduled tribes is to assist the tribal communities to allow them protection and right to enjoy their existing rights unhindered or unobstructed by others, to develop the areas and promote economic, educational, and social progress among them.The ideal of the five principles formulated by Prime Minister Jawaharlal Nehru were legally enshrined in the Constitution of India.
- The Constitution of India in Article 366(25) defines scheduled tribes as “such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for the purposes of this constitution”.
- The Constitution of India in Article 342 enumerates:
a. The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union territory, as the case may be.
b. Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification PART XVII OFFICIAL LANGUAGE CHAPTER I LANGUAGE OF THE UNION.”
3. The Constitution of India in Articles 5, 16, 46, 243, 244, 275, 330, 332, 334, 335, 339 and 342 of Indian Constitution has provided specific provisions for the development and protection of Scheduled Castes and Scheduled Tribes. There are reservations in educational institutions, services, political bodies, special relaxations in age, qualifications etc. Further, the provisions are also made for the necessary allocation funds for Tribal Development Programs.
Criteria for Identification of Scheduled Tribes
Though not enumerated in the Constitution of India, the criteria presently followed for specification of a community as a Scheduled Tribes are:
- indications of primitive traits,
- distinctive culture,
- geographical isolation,
- shyness of contact with the community at large, and
The above criteria gained its basis from the Advisory Committee on Revision of SC/ ST lists (Lokur Committee) 1965.
Need for Separate Laws for Indigenous Peoples in India:
Post-independence, along with policy of assimilation, a new policy called ‘The Policy of Integration Through Development’ was introduced. The government of India came to a conclusion that the Tribal communities cannot be allowed to remain isolated and lag behind, nor can the natural resources in the tribal areas remain underutilized.
In light of the above, several provisions were made in the Indian Constitution as well as new legislations were enacted for integration of the tribal communities into the nation while aiming to protect and preserve their distinct identity.
Since indigenous people often face threats to their sovereignty, economic well-being, access to the resources on which their cultures depend, discrimination and pressure to assimilate into the society, their rights have been set forth in several regional, national and international legislations for their protection.
National Laws for Tribal Population:
Apart from the provisions enumerated in the Constitution of India for the Indigenous Communities, there are a number of legislative safeguards in the form of special laws, rules, notifications, both at the central and the state levels. Some of these are listed below:
a. The Protection of Civil Rights Act, 1955:
The above Act has been enacted in order to prescribe punishment for the preaching and practice of “Untouchability” for the enforcement of any disability arising therefrom and for matters connected therewith.
b. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989:
The above Act has been enacted in order to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.
c. The Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996:
The above Act has been enacted in order to provide for the extension of the provisions of Part IX of the Constitution relating to the Gram Panchayats to the Scheduled Areas in India (enshrined in the 5th Schedule of the Indian Constitution) that have predominant population of Tribal Communities. The Act aimed at empowering the Gram Panchayats to implement self governance system for protecting the resources available to the Tribal Communities.
d. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006:
The above Act has been enacted to recognize and vest the forest rights and occupation in forest land in forest dwelling scheduled tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded and to provide for a framework for recording the forest rights so vested.
Regional Laws for Indigenous People in India:
- Odisha Scheduled Areas Transfer of Immovable Property (by STs) Regulation,1956:
Enacted by the Odisha State legislature, this Regulation prohibits the transfer of immovable property from tribals to non-tribals in the State of Odisha, and provides mechanisms for restoration of land so alienated. Similar legislations are in place in other states as well.
- Odisha (Scheduled Areas) Debt Relief Regulation, 1967 and Odisha Scheduled Areas Money lenders Regulation, 1967:
Enacted by the Odisha State legislature, these regulations provide relief to Schedule Tribes from indebtedness, control of money lending, and for the setting up of Debt Relief Courts.
- Odisha Government Land Settlement Act, 1962:
Although this state level statute contains a specific provision which overrides ‘custom, practice or usage having the force of law’, it has been an important tool for regularisation and settlement of lands among tribals in Odisha.
- Odisha Gram Panchayats (Minor Forest Produce Administration) Rules, 2002:
These Rules give primacy to the Gram Panchayat in the procurement and trading of 67 items of minor forest produce, whether produced in government lands and forest areas within the limits of the village or collected from the reserved forests and brought into the village.
- Odisha Protection of Scheduled Castes and Scheduled Tribes (Interest in Trees) Act, 1981:
This State level legislation forbids any person from entering into contracts with persons who are SC/STs for the sale of timber of specified trees unless previous written permission of the Range Officer has been obtained.
- Odisha Communal Forest and Private Lands (Prohibition of Alienation) Act, 1948:
This rather outdated and little used state legislation claims to prevent the alienation of communal lands and private lands over which village communities have usufructuary rights. Its significance lies in the fact that it covers not only land which is actually owned by communities, but also land which may be privately owned but over which communities have rights of user. Government forest land, however, is not covered.
- Nagaland Village and Area Council Act, 1978:
This is a state level legislation which gives statutory recognition to traditional Village Councils in the governance system.
- Nagaland Communitisation of Public Institutions and Services Act, 2002:
It is a State level legislation which enables the community to participate in the management and development of public institutions as their own. Rules have been framed under this law for bringing under its purview elementary education, grass root health services and electricity management.
- Nagaland Jhumland Act, 1970:
A state level legislation enacted to safeguard and regulate the rights to jhum land, or lands on which shifting cultivation is traditionally practiced.
- Chota Nagpur Tenancy Act, 1908:
This legislation was enacted subsequent to the tribal rebellion led by Birsa Munda in the Chotta Nagpur area, in order to prevent transfer of Adivasi land to the non-Adivasis. It is currently applicable in the state of Jharkhand.
- Santhal Parganas Tenancy Act, 1949:
A powerful legislation giving legal recognition and supremacy to the customary laws of the Adivasis in the Santhal Parganas region of Jharkhand, the applicability of this law has been considerably weakened by recent adverse judgments of the Jharkhand High Court.
Bodies and Government Initiatives to alleviate the problems of Indigenous People in India:
To recognize the rights and ascertain protection to these communities, the Government is credited to form the following separate bodies to specifically work in the direction of strengthening the indigenous community of the country:
- Ministry of Tribal Affairs:
The Ministry of Tribal Affairs was constituted with the objective of providing more focused attention on the integrated socio-economic development of the most under-privileged sections of the Indian society namely the scheduled tribes in a coordinated and planned manner.
It acts in supporting and supplementing the integrated development of the Tribal population and their territories with financial assistance and implementing schemes for education, health, sanitation, water supply, skill development, livelihood, infrastructure etc.
2. The National Commission for Scheduled Tribes (NCST):
The National Commission for Scheduled Tribes (NCST) was established by amending Article 338 and inserting a new Article 338A in the Constitution through the Constitution (89th Amendment) Act, 2003. By this amendment, the erstwhile National Commission for Scheduled Castes and Scheduled Tribes was replaced by two separate Commissions namely-
- the National Commission for Scheduled Castes (NCSC), and
- the National Commission for Scheduled Tribes (NCST) w.e.f. 19 February 20043. The Tribal Sub Plan (TSP) Strategy:
Tribal Sub Plan (TSP) strategy is a Government of India initiative aimed for the rapid socio-economic development of tribal people. The TSP stipulates that the funds provided under the Tribal Sub Plan of the State have to be at least equal in proportion to the ST population of each State or UTs.
Similarly, Central Ministries/Departments are also required to earmark funds out of their budget for the Tribal Sub-Plan. As per guidelines issued by the Planning Commission, the Tribal Sub Plan funds are to be non-divertible and non-lapsable.
The National Commission for Scheduled Tribes is vested with the duty to participate and advise in the planning process of socio-economic development of the STs, and to evaluate the progress of their development under the Union and any State.
4. Committee on Welfare of Scheduled Castes and Scheduled Tribes:
One of the three elected Committees in Parliament, the Committee on Welfare of Scheduled Castes and Scheduled Tribes is a joint committee consisting of twenty members from the Lok Sabha (the directly elected lower house of Parliament) and ten from the Rajya Sabha (the council of States, elected by State Assemblies – the upper house of Parliament). The Committee has the power to summon government officials and require reports on any matter relating to the welfare and rights of Dalits and Adivasis, either on its own motion or after the matter is referred to it by the Speaker of the Lok Sabha. Reports of the Committee, like those of other elected parliamentary committees, are generally treated as binding.
5. National Scheduled Tribes Finance and Development Corporation (NSTFDC):
The NSTFDC is a Central financial body with the mandate of channelling Central funds, towards schemes for income generation, training, skill up-gradation and procurement of minor forest produce. It operates through State Tribal Finance and Development Corporations. In practice, Central government assistance has yet to be properly channelled through the NSTFDC (and through TRIFED), with many loan schemes and other welfare operations running separately through their concerned Ministries.
6. Tribal Cooperative Marketing Development Federation (TRIFED):
Various State Governments have created Co-operatives of Adivasis for marketing of products made by them, particularly those based on non-timber forest produce. The Tribal Cooperative Marketing Development Federation of India Limited (TRIFED) is a national federation of these cooperative bodies, engaged in ‘marketing development activities’ for tribal products.
7. Departments of Tribal Welfare:
Most states with significant ST populations have separate departments and/or Ministries for tribal welfare. The states with low ST populations, such as Tamil Nadu, Kerala or West Bengal, are under the control of departments for the ‘backward classes’ (i.e. Dalits, Adivasis and ‘other backward castes’). In practice these departments tend to have few autonomous powers or functions, being mostly charged with looking after the administration of development schemes and channelling of funds. As with the Central Ministry of Tribal Affairs, the mandate of these departments has recently been expanded by the passage of the STs and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act.
8. Tribes Advisory Councils:
According to the paragraph 4 of the Schedule V of the Constitution, each state having scheduled areas has to establish a tribes advisory council to advise on welfare and advancement of the scheduled tribes. However, in practice, these councils are rarely functional, since they are to advise the Governors, who themselves rarely exercise their powers.
9. Cooperatives, Marketing Federations and Finance and Development Corporations:
Depending on the livelihood activities followed by the tribal communities, many states have set up government-organised cooperatives and marketing federations.
In Madhya Pradesh, Chhattisgarh, Odisha and other States, purchase of certain kinds of non-timber forest produce – such as tendu leaves, used in beedi making – has been nationalised and brought under a single government agency which acts as a monopoly purchaser. Purchases are in turn made from state-created cooperatives composed of collectors of minor forest produce. Following the recommendations of a Central government committee in 1971, many states also created what are known as Large Area Multipurpose Societies (LAMPS), which function as credit and procurement cooperatives. Funds to these various societies and cooperatives are in turn channelled through the ST Finance and Development Corporations. Many of these institutions and organisations, however, have failed due to issues like corruption, diversion of funds and bureaucratic interference.
Despite, numerous constitutional and legislative measures, introduction of various bodies, the tribal communities still faces discrimination, exploitation, land alienation, economic oppression, lack of education and nutrition and erosion of their distinct identity.
Indigenous people have remained a historically backward and socially and economically an underdeveloped section of the society. A balance must be established in protection of their distinct ethnic identity, their basic human rights and their socio-economic development.
Their heterogeneity, a significant striking feature, that makes India a diverse nation and hence it should be the responsibility of every individual to preserve, protect and defend rights and identities of the Tribal Communities.
Ministry of Tribal Affairs, Change in Criteria for inclusion in ST List available at https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1514486last seen on last seen on 06/08/20.
Lokur Committee Report, 1965 available at https://tribal.nic.in/writereaddata/AnnualReport/Lokur CommitteeReport.pdf last seen on last seen on 06/08/20.