Central India Law Quarterly
Constitutional Safeguards For Tribals In India And Tribal ... CONSTITUTIONAL SAFEGUARDS FOR TRIBALS
IN INDIA AND TRIBAL ADMINISTRATION:
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
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.
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.
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
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
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
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
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-
(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
\,()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
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
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
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.