TRIBAL RIGHTS IN INDIA AND JUSTICE

By: M.Mohanapriya : TRIBAL RIGHTS IN INDIA

Introduction

A group of people of the same race, and with the same customs, language, religion, etc. living in a particular area and often led by a chief.  They are known by various names such as primitive tribes, aborigines, natives, animists, jungle people, adivasis, indigenous people, original inhabitants of India[1].

Tribal Societies are particularly present in the Indian states of Orissa, Madhya Pradesh, Chhattisgarh, Rajasthan, Gujarat, Maharastra, Andhra Pradesh, Kerala, Karnataka, Tamilnadu, Bihar, Jharkhand, West Bengal, Northern States and the Andaman and Nicobar Islands.

According to the 2011 Population census, Adivasis constitutes a total population size of 104 million, constituting 8.6 percent of the India population, making them the world’s largest population of Indigenous People.

Tribal Rights at International Level:-

• International Labour Organization convention on Indigenous and Tribal Peoples, 1989:

Article 3 of the convention provides “Indigenous and tribal peoples shall enjoy the full measure of the human rights and fundamental freedoms without hindrance or discrimination.”

Article 5 of the Convention protects the social, cultural, religious and spiritual values and practices of Tribal peoples.

Article 14 recognizes right to ownership and possession of the peoples concerned over the lands which they traditionally occupy and to define their own priorities for development.

Article 26 to 31 of the Convention concerned with the “Education and means of communication.” Measure shall be taken to ensure that members of the peoples concerned have the opportunity at least an equal footing with the rest of the national community.

• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP):

It was adopted by the United Nations on September 13, 2007.  It prohibits discrimination against ‘Indigenous People.’

Article 46 of the UNDRIP states that “Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nation, the Universal Declaration of Human Rights(4) and international Law.”  It includes the rights to enjoy and practice their cultures and customs, their religion, and their languages, and to develop and strengthen their economies and their social and political institutions[2].

The International Day of the World’s Indigenous is observed on 9 August every year to strengthen international cooperation for solving problems faced by indigenous people in areas such as human rights, environment, education, health and social development.

Constitutional Provisions related to Tribal Communities In India[3]:-

A Constitution which guarantees, “The state shall not discriminate against any citizen. 

Educational and Cultural Rights:-

• Article 15(4) – special provision are made for educational advancement of the Scheduled Tribes.
• Article 46 states that, ‘The state shall promote with special care the educational and economic interests of weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation’.
• Article 350 – Right to conserve distinct Language, script or Culture
• Article 350 – Instruction in Mother Tongue.

Social Rights:-

• Article 23 states that ‘Abolition of bonded labour’.  Traffic in human beings and beggar and other similar forms of forced labour are prohibited.  If anyone violates the provision shall be a punishable offense.
• Article 24 – Forbidding Child Labour.  It prohibits employment of Children below the age of 14 years in any factory or mine or in any other hazards activity is also significant for Scheduled Tribes as a substantial portion of child labour engaged in these

Economic Rights:-

• Article 244:- Clause(1) Provisions of Fifth Schedule shall apply to the administration and control  of the Scheduled Areas and Scheduled Tribes in any state other than the states of Assam, Meghalaya, Mizoram and Tripura which are covered under Sixth Schedule, under Clause(2) of this Article.
• Article 275 – Grants in-Aid to specified states (STs& SCs) covered under Fifth and Sixth Schedules of the Constitution.

Service Safeguards:-

• Article 16(4) of the Indian Constitution empowers the States to make provision for reservation in appointment or posts for any backward class for ensuring adequate representation.
• Article 16(4A) of the Indian Constitution that was added by the 77^th Amendment Act, 1955 empower the State for making provisions for reservation in matters of promotion to any class or classes of posts in services under the State in favour of SC/STs which, in the opinion of the State, are not adequately represented in services under the State.
• Article 16(4B) of the Constitution that was added by the 82^nd Amendment Act, 2000 provides that backing vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent reservation on total number of vacancies of that year.
• Article 335 of the Indian Constitution empowers the, ‘Union or State for making any provision for SCs and STs for relaxation in qualifying marks in any examination or lowering the standards of evaluation for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State’.
• Article 320(4) of the Constitution provides that nothing shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of Article 16 may be made or as respects the manner in which effect may be given to the provisions of the Article 335.  

Political Rights:-

• Article 164(1) – Provides for a Minister-in-charge of tribal welfare in the states of MP, Chattisgarh, Jharkhand and Orissa.
• Article 243D – Reservation of seats for Scheduled Tribes in every Panchyat.
• Article 330 –   Reserves representation for SC and ST in House of the people.
• Article 337  –  Reservation of seats for STs in State Legislatures
• Article 334 – The Ninety-fifth Amendment, 2009 extended the period of reservation of seats for the Scheduled Castes and Scheduled Tribes. 
• 10 years period for reservation (Amended several times to extend the period).  It relates to reservation of seats and Special representation to cease after fifty years.
• Article 371 – Special provision in respect of NE States and Sikkim.

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Rights Of Tribal Communities In India under various other Laws:

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989[4]:-    

It protects atrocities against Scheduled Tribes and Scheduled Castes.  Chapter II of this Act deals with Punishment for atrocities. 

If a person not being a member of Scheduled Caste or a Scheduled Tribes – puts obnoxious substance into the mouth, or dump into sewage, or insult or intent to cause injury (includes hurt, grievous hurt and assault), or commits crime, or garlands with footwear, or parades naked, or wrongfully occupies any land, or wrongfully dispossesses from his land or interferes with enjoyment of his rights, or compels to dispose to carry human or animal carcasses, corrupts or fouls the water of any spring or reservoir used by SC and ST people, or prevent entering into a common property like burial, river, steam, spring, well, tank, road, temple, educational institutions, hospitals, dispensary, primary health care, shop  and entertainment places to Scheduled Tribes or Scheduled Castes[5].

If anyone did above mentioned act that person shall be punished with imprisonment for a term which shall not less than six months but which may extends to five years and fine. It provide to organize seminar on prevention of untouchability with expenditure of Rs.30,000 at district level & Rs.3000 at taluka level. 

Panchayatraj (Extension to Scheduled Areas) Act, 1996[6]:-

Panchayatraj (Extension to Scheduled Areas) Act, commonly known as PESA Act.  IT is base for future law making.  States were expected to make/change their laws as per PESA.

It was enacted to enable the Gram Sabhas of the tribal regions to self govern and protect their natural resources. PESA imposed restriction on the State Legislature and decentralized more power in the hands of Gram Sabha or Panchayat[7]. 

Section 4(d) of the Act states ‘Every Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution[8].’

Protection of civil rights Act, 1955:-

 An Act prescribes punishment for the preaching and practice of untouchability.  Section 2 of the Act defines civil rights means any right accruing to a person by reason of the abolition of ‘untouchability’ by Article 17 of the Constitution.  If a person prevents any person from entering into any hotel, entertainment places like exhibition, performance, sport, game and place of worship that person shall be punishable with imprisonment and fine[9].

Forest Rights Act, 2006[10]:

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was enacted to protect the marginalized socio-economic class of citizens and balance the right to environment with their right to life.  It protects customary rights of the forest communities and Provide basic developmental facilities for the forest villages.

Other Statutes & Rules: Tribal Rights In India

1. Bonded Labour System (Abolition) Act 1976 (in respect of Scheduled Tribes)
2. The Child Labour (Prohibition and Regulation) Act 1986
3. States Act and Regulations concerning alienation and restoration of land belonging to STs.
4. SC/ST (Prevention of Atrocities) Rules, 1995.
5. Minimum Wages Act of 1948.
6. Forest Conservation Act of 1980.

Conclusion: Tribal Rights In India

Indigenous people speak an overwhelming majority of the world’s 7,000 Languages. They help to protect our environment, fight climate change and build resilience to natural disasters.  However, they are the most disadvantaged and vulnerable groups of people in the world and they had been oppressed and exploited and misused by the outsiders.  We need to safeguard them and also our government must continue its commitment for uplifting the present standard of the tribal people. 

[1] www.slideshare.net

[2] www.wsanec.com

[3] The Indian Constitution, 1950.

[4] The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

[5] www.nic.in

[6] Panchayatraj (Extension to Scheduled Areas) Act, 1996.

[7] www.legaldisre.com

[8] www.panchayat.gov.in

[9] Protection of Civil Rights Act, 1955.

[10] Forest Right Act, 2006.

Tribal Rights In India