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The Constitution Of India 1949
Article 244 in The Constitution Of India 1949
Article 275 in The Constitution Of India 1949
Article 46 in The Constitution Of India 1949
Article 342 in The Constitution Of India 1949

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Central India Law Quarterly
Constitutional Safeguards For Tribals In India And Tribal ...
CONSTITUTIONAL SAFEGUARDS FOR TRIBALS IN INDIA AND TRIBAL ADMINISTRATION: BEHAVIOURAL ASPECTS Dr. R.P. Rai* India has a composite population. The Indian society lacks homogeneity in sop for as there exist numerous religious, cultural and linguistic groups. There are Hindus, Muslims, Christians. Paris, Sikhs Buddhists, Jains and others. The pattern of culture vary from place to place. There are Anglo Indian based on racial. religious and linguistic factors. Besides there are sections of people like the Scheduled Castes. The Scheduled Tribes and other backward classes. Who not only need protection from exploitation but even positive help from the state for amerlioation of their miserable lot. Even before India became independent there was a demand from many of the weaker sections of society for special provisions in the Constitution for the benefit of weaker sections based on the promise that these sections had been socially and economically discriminated against during the British times and therefore special steps were called for to help and improve the condition of these people vis a vis the forward cornrnunities, 2. The framers of the Constitution tried level best to safeguard the interest of the various minority groups whether based on religion or language, culture or socio-economic factors so as to give them a sense of security. The scheduled tribes who. predominate in certain areas of the country like the North-Eastern region. the large parts of Madhya Pradesh. Bihar. Orissa and certain parts of Gujrat and the hilly regions of most states are those sections of the Indian * P.G. Department l\f Law & Research Centre Govt.T.R.S. (Autonomous) College Rewa (M.P.) 220 CENTRAL INI>IA Lt\.W 2003 population who still live in their tribal ways and observe their own peculiar customs and cultural norms. Their primitive way of Hvit'lg. nomadic habits. love for drink and dance, and habitation. in remote and inaccessible areas. less affected by the forces of modernization, required special treatment from the framers of our Constitution in order to improve their economic and social position. Hence special provisions were for the development of these tribal groups made and they were classified as scheduled. Now the concern of us is how to keep a balance that on the one hand that their identity is their culture is not eroded and on the other hand bring them in to the main stream of national life. It is of interest to briefly upon these provisions as the enforcement of these require special administrative arrangements. 3. The framers of the Constitution were anxious to ensure the betterment of the Scheduled Tribes. Article 46 epitomizing the policy calls upon the state (Central & State government) to promote with special care the educational and economic interests of Scheduled castes and Scheduled tribes and protect them from social injustice and all forms of exploitation. It is comprehensive article comprising both the development & regulatory functions. Protective provisions 4. It is noteworthy that even provisions relating to fundamental rights have been qualified with 'reasonable restrictions' in favour of Scheduled tribes. Article 15 prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place of birth: but clause (4) thereof enables a State government to make special provisions for advancement ef members of Scheduled castes and Scheduled tribes. Article 16 provides for opportunities for all citizens in matters relating to employment or appointment or post in favour of Scheduled castes and Schedules tribes. Article 19 grants the rights of Vol. XVI CONSTITUTIONAL SAFEGL\ROS FOR nUBALS 221 freedom or speech. assembly. associauon, union. movement and residence throughout the country. practice of any profession. occupation. trade or business. But for protection of the interests of Schedules tribes. clause (5) permits reasonable restrictions on the exerciseof rights of free movement, residence and settlement in any part of the territory of India, Article 23 prohibits traffic-in human beings. 'Begar' and other forms of forced labour: this has special relevance for Scheduled tribes. Reservational Provisions 5. Reservation of seats for Scheduled caste and Schedules tribe communities has been provided for on the basis of population in the House of the People as per Article 330 and in the Legislative Assemblies of the states as per Article 332 for a certain length of time in the hope that in course of that time its need would disappear. In 19~0. its validity was extended by another decade. The Constitution 111 8 Amendment Act 1959 extended all such reservations for ten years. 2.V d Amendment Act further extended this period from 20 to 30 years and 45 Amendment Ac. Considering the present pace of progress. it docs not seem likely that it would be feasible to dispense with reservation in the course of near future. But for reservation in legislatures. the. voice of these two weak communities would have remained muffled.rHowsoever reservation in public services and posts as per Article 335 stands on a different footing. Such reservation in educational institutions has enabled members of these communities to register rise in the ~rcentage of posts they have nlied. 6. Reservation are also provided to a lower extent in the allotment of houses by public institutions..in the provision of industrial loans. grants in scholarship for the students of these 222 CENTRA L INDIA LAW 2003 sections and provision of special infrastructure facilities to the area in which these communities reside. 7. However the tribal are not very articulate in protecting their interest and as consequence tribal interest are neglected. Much of the problems in the tribal areas are caused by thealleviation of tribal lands to non-tribal and the exploitation of the tribals, The Constitution protects and guarantees cultural and educational rights of various sectors of the people vide Article 29. 30.. The Constitution provides for special staff for the protection of the interest of scheduled tribes (Article 338) and also for a commission to look in to the social educational conditions of these groups and to report to the Parliament on measures needed to improve these conditions. The Constitution 65th Amendments Act 1999 (Article 33R) provides for the establishment of National Commission for Scheduled Caste and Scheduled Tribes in place of special provision 8. Another constitutional provision is the one in relation to specification of Schedule tribes in Article 342'. This empowers the Presidents to denote the tribes or tribal communities to be deemed as scheduled tribes. Such notification is in respect of state. the President shall notify the Scheduled tribes within a state after consultation with the Governor or the state. This clause is important as it ensures national action to specify who the Scheduled tribes arc. The classification of these categories are state and a particular group may he classified as scheduled in one state and not in another depending on the social and economic condition of the group in the state. Development Provisions and Trihal Development Strategy 9. FOl' the first time in the administration of the tribal people. th, Constitution placed the responsibility for their welfare on populo. governments through the President and (i( '\ crnors. For planned Vol. XVI CONSTIITTlO,\\L SAHel \IWS fOR TRIBALS 223 development availability of financial resources as per Article 275 and executivemachinery as per Article 244 and the fifth & sixth schedule ofthe Constitution have relevance. The first provision of clause. (I) of Article 275 makes it incumbent to set aside out of the Consolidated fund of India for having given to the states so that the cost of schemes of tribal development and raising the level of administration in scheduled areas can he defrayed. Thus. there is no stint on financial res?urces. except as may be necessarily relative to over all availability.&rticle 244. with the provision in the Iifth schedule enables a c~lete frame of administration to concretisc the directives contained'in Article 46. The term scheduled areas encompassed all areas the President of India notifes under the fifth schedule. The Governor has been made responsible for the peaceand good government of scheduled areas. Under the fifth schedule a provision is made fur setting up a trihal advisory council which is consulted by the Governor in relation to his regulation making powers, Beside this Article 339(2) empowers the Centre to give directions to a State asking them to draw up and execute schemes tor the welfare of Scheduled tribes. The fifth schedule [Clause (I) Article 244] contains .provisions regarding administration and control of the Scheduled areas and Schedules tribes. There are eight States having scheduled areas. viz. Andhra Pradesh Bihar. Gujarat, Ifil!lachal Pradesh. . Madhva Pradesh. Maharashtra. Orrisa and Rajasthan; The Sixth. " - . . . schedule [Clause (2) Article 2441 contains provisions!"('Iatin!; to the administration of the tribal areas in the stale of Assam (i\"I:11 Cachar Hills District and Karbi Anglong District), Meghalaya, Mizoram and Tripura protected by the inner line Regulations framed in 1872-73' prohibiting entry without a permit of Indian citizens from other parts of the Country as "ell as foreigners. There are Autonomous regional 224 CENTRAL INDIA LAW 2003 council in these areas. They not only administer the various department and developmental programmes but also have powers to make laws on a variety of subjects e.g, land. forest. shiftingcultivation village or town administration including village or town police and public health and sanitation inheritance of.'property.1114wi·iagc and divorce. and social customs. Under the clause (3) of the Fifth Schedule. The Governor is required to draw up annually a reporton the administration the Scheduled areas-and submit it to the President. These provisions arc so strong and comprehensive that the Filth Schedule has been termed by some legal authorities as "Constitution within the Constitution:' Thus. the Governor's Report on the Scheduled areas carries special significance. 10. But its is unethical that these comprehensive provisions have. however remained lesser operationalised. No attempt has been made cven to elaborate as to what would constitute 'good government" for these areas. which was a special concern of the Founding Fathers. Most of the states have just made a lew regulations in respect of transfer of land and money-lending. The report of Governor ironically throws no light whatsoever on the State of administration of Scheduled areas. ignoring the direction of the Constitution. Such reports have not evinced an interest in the Union Government. No attempt has been to assist the level of administration of the Scheduled areas and identity ih, deficiencies therein by any state. No direction has been issued by the Union Government in exercise of its executive authority not with standing the grave concern expressed at all levels about the state of administration in the tribal areas which continues to be far from satisfactory resulting in intermittent unrest amongst the tribal people', 1.Vcnkat Subhaiah.. A note on Administration of Scheduled Areas' in S. Narayan (cd) Jharkhand Movement, Origin & Evolution. New Delhi lntcr India Publicatiplls.1994. Vol. XVI CONSTIT'l'TI()l\AL SAFEGUARDS fOR TRIBALS 225 This provision has become so rouiinised that even the Governors do not fcc/any necessity to submit theirreport to the President in time and all the Governors. unethically are defaulters herein", Governmentand the Tribes Advisory Councils II. (The Tribes Advisory Councils are constituted in the state in accordance w ith clause (4) of the Fifth Schedule to theConstitution which provides that there shall be established in each slate. having Scheduled areas, and if the President so directs. also in- any State huvillg Scheduled Tribes but no Scheduled Area therein). The Tribes AdvisoryCouncil may consist of not more than 20members of whom as much as three-fourth shall be representatives of Scheduled tribes in the Legislative Assembly of the State. It is significant to note' that even before theConstitution was promulgated there were advisory Committees attached to some of their Provincial Government to assist them in the administration of the Tribal areas, but they played a very minor role and indeed were hardly noticed. But the situation has changed. now and in important mechanism. The Constitution has given only tribal people this privilege according to which the beneficiaries are constitutionally desired to participate in their policy making enterprise. Though this idea was inserted 55 years ago in the Constitution it is the most modern theory of development which 'is now known as the "people-centered approach to development". In people centered approach to development the needs of the people take precedence over the needs of the production system. 12. The Central themes of people-centered development are : (I) empowerment of people. and (2) development of administrative process which responds 10 the needsof thepeople. Key elements In people-centered development are: ( I) human growth and well-being, (2) equality.G) Self-reliance (4) participation and sustainability, '"'\ 26th & ~7th report of the commissioner for ... 226 CENTRAL INOlA LAW ·2003 J 3. Sustainability is regarded as lasting quulir, in a development I programme. A development programme can be sustained by : (I) creating a felt need among beneficiaries about the efficacy of the programme. (.2) developing institutions. which continually adapt. 0) Providing of resources, and (4) building support among political elites and community groups. If Tribes Advisory Councils tllJ1ctionas desired by the Constitution. development \\ ill be in accordance with the aspirations of the tribal people which IS propagated in the People Centered approach to development. But. when we examine its real working, we find that the various State Government are not serious about its utility. As per the guidelines issued by the Ministry of Welfare. the I ribcs Advisory r Council should meet at least twice a year -part vof the State governments not to convene its meeting regularly. As such the verv purpose of its formation is defeated. In Bihar. Himachal Pradsh. Maharashtra. Orissa and Tripura the Council is headed by the Chief Minister while in other States. it is handled by the Minister-in charge of Tribal development. It is. therefore. ethically desirable that a uniform practice should be followed in this regard, Legislative Functions Between Centre and States 14. The federal Indian constitutional edifice envisages division of legislative powers between the Union and the State governments. None of the three lists of the Seventh Schedule contains specific provision for legislation in respect of Scheduled areas or Scheduled Tribes. It has been held bv the Kerala Hiuh Court in Eacharan Ittiathi . ~ and one other versus the State of Kerala (OJ>. No, 3373 or 19(6) that if any law is to be made in respect of these two subjects alone. it can be Vol. XVI CO:"STITlTIO,\.\L SAFE(jl:ARI)~ FOR TRIBALS 227 done only by Parliament in exercise of its residuary powers as per Article 24R ( I) read with lntry 97 in List I-Iinion list of the Seventh Schedule. This judgment related to a State \\ hich has no Scheduled area but is also relevant for states having Scheduled areas. Mention has been made earlier of the far-rcachlnu character . ~ of the provisions of the Fifth Schedule. It bears repletion that in accordance with subparagraph. ( I ) of para 5 of the Schedule. the Governor (~f a state has been vested vast discretion for issue of public notification making it applicable subject to such exceptions and modifications that he may specify: the power conferred can have retrospective effect. It is noteworthy that this regulation making power contained in sub-paragraph. (2) and the power to repeal or amend an act of Parliament or of a State Legislature contained in sub-paragraph. (3) Require compliance with the procedure prescribed in sub- paragraph. (4) and (5). making consultation with the Tr'ibd Advisory Council of the state and the assent of the President ohligatory. But there does not appear to be any such constraint of procedure in~ptar as sub- paragraph (1 ) is concerned. The regulation-making powers have been excrcisedby the Governors in many states for the business of money-lending in scheduled areas. combating alienation of tribal land. Liquidation of debt bondage, etc. In practice. it is the state administration which take action for introducing regulations in the name of the Governor, in accordance with the spirit of the Constitution. 128 CENTRAL INOlA LA W 2003 The overall position may be summed up by saying that laws on tribal. affairs can be in the form of; (a) Central legislation or (b) regulations by .the Governor, or (c) State legislation. In \~her words, legislation 011 tribal affairs is a joint responsibility of the centre and the Stales with a special role having been assigned to the Governor of a state. Now the question is, what approach should we follow with regards to tribal development? Commenting upon the programme of development of the tribals. Nehru advised that we should approach the tribal people with affection and friendliness and go to them as liberating forces. They 'should be sure that we want to give them something and not to take away something from them. This is the best way' to create psychological integration between tribals and others who may be traders, businessmen or administrators. There must not be drastic uprooting of tribals from their habitat. We have to understand tribals psyche andhave to give them due respect and honour their culture. l. People should develop along the lines of their own genius and we should avoid imposing any thing on them. but rather try to encourage in every waytheir own traditional ails and culture. 2. Tribals rights in lands and forests should be respected. 3. We should try to train and build up a team of their own people to do administration and development. 4. We should no: .... cr-administer these areas or overwhelm these with rnultiplicuy ur schemes. We should rather work through. and not in rivalry-to, their own social and cultural institutions. 5. We should judge results 110t by statistics or the amount of money spent but by the quality of human character that IS evolved. \,()1. XVI CONSTlTl'TlON,,\L SAI-'ECtARUS FOR TRIBALS 229 "Culture obviously must he a living. moving thing always subject to change. and Mr. Nehru's formula of developing the tribal people along the line of their own tradition and genius seem to put what was needed in a nutshell". 15. The Scheduled Tribes arc distinct racial and cultural entities. As such. any new-comer percentage to tribal areas is apt to be bewildered by the difference in the nature or people there. The efficiency of a Public Official largely depends on the manner in which he behaves with the population. Insofar as these areas are concerned. however brilliant an officer may be. he will be a failure unless he hchaves in.a sober and tactful manner with the population. There is one golden rule in dealing with tribals, namely. "behave like a gentleman and treat the tribals as one gentleman would behave with another". 16. Social divisions among the tribals are partly indigenous and partly have grown out of contact with administration, both·beft)re and after independence. The main social divisions are: the tribal officials and other educated tribals and tribal merchants of substance: village headmen or gaonburas.-and small landholders and cultivators. With the first two or three classes. The official must be prepared to mix socially and should expect calls of ceremony, etc., from them. With all classes of tribals, however it is essential that he should be freely accessible in his house. oftice or at his camp. 17. Loss of temper means loss of respect in a tribal area. as in other parts of the country. It is therefore, absolutely necessary never to fly into a rage. In these areas. an officer who. when the occasion demands. isquietly and determinedly severe is not only respected but un'versa1ly admired while an officer who cannot control himself is 230 CENTIUL I:'\I>IA LAW 2003 not only held in the deepest contempt but very quickly losc-, the confidence of the people and brings the whole govcnuncnt into disrepute. The village administration in a tribal area is based mainly on respect for age. It is the oldest men in a village who will have the last say in any matter. \\hil.'h is discussed. Age and experience are considered to be the most desirable qualities in those who administer them. Tribals are usually desirous of being courteous. therefore. they do not normally indulge in deliberate discourtesy. But a tribal. when he is hurt about something and his feelings are ruffled. can be extremely insulting. The officer should not mistake bluntness. which a tribal possess in a large quantity fix discourtesy. Tribals are "easy to win but arc still easter to lose". In democratic State Iike ours. it is essential that the common people and the administration should go hand in hand lor this is the very essence l true democ racy. \ I ****** (