Tribal's Trivia

The history of the marginalization of the tribal people goes long back. In the colonial period a number of constitutional provisions were enacted which effectively deprived the tribals of their traditional rights over land, forest and other natural resources. 

The Indian Forest Act of 1927 introduced the principle of ‘res nullius’ which implied that any property which does not have a documented legal owner can be appropriated by the government. 

• Using this principle large tracts of land were handed over by the British to the Forest Department which was created to implement this rule. 

Similarly, the concept of ‘Eminent Domain’ that owes its origin to the Land Acquisition Act of 1894 gives the government the first right to acquire any land for public purpose. This has also been criticized for taking away the traditional rights of the tribal people over land and natural resources.

India’s population consists of 100 million tribal people who have constitutionally been addressed via two distinct avenues. 

1. The Fifth Schedule applies to an overwhelming majority of India’s tribes in nine States.

2.The Sixth Schedule covers areas that are settled in the northeastern States bordering China and Myanmar. [the States of Assam, Meghalaya, Tripura and Mizoram] 

Sixth Schedule:-

The States of Assam, Tripura, Meghalaya, and Mizoram are autonomous regions under the Sixth Schedule. The Sixth Schedule gives tribal communities considerable autonomy. The role of the Governor and the State are subject to significant limitations, with greater powers devolved locally. 

The District Council and the Regional Council under the Sixth Schedule have real power to make laws, possibility on the various legislative subjects, receiving grants-in-aids from the Consolidated Fund of India to meet the costs of schemes for development, health care, education, roads and regulatory powers to state control. The mandate towards Devolution, de-concentration and divestment determines the protection of their customs, better economic development and most importantly ethnic security.

Fifth Schedule:- 

The Fifth Schedule on the other hand fails because it has never been applied. Fifth Schedule provides for the establishment of Tribal Advisory Council in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State.

It also provides for restrictions on the applicability of any particular Act of Parliament or of the Legislature of the State or provides the application of the same.

The PESA or Panchayats(Extension to the Scheduled Areas) Act 1996 should have been a landmark for the tribal communities. It mandates the state to devolve certain political, administrative and fiscal powers to local governments elected by the communities. This became exclusive to the Fifth Schedule areas, to promote tribal self-government. 

PESA was meant to benefit not only the majority of tribals but also extended to cover minority non-tribal communities. 

It guarantees tribes half of the seats in the elected local governments and the seat of the chairperson at all hierarchical levels of the Panchayat system.

Demand of Bastar Area:- 

Bastar district in Chhattisgarh is governed by the Fifth Schedule, but it wants to move into the Sixth Schedule.

Scheduled Tribes and Other Traditional Forest Rights Act 2006, recognizes the right of communities to protect and manage their forests, but only if the state decides whether a certain region is denoted as Village Forest or Reserved Forest. In this process, many communities are evicted without a proper channel of rehabilitation.

Note:-

In order to deal with the problem of land alienation to non-tribals, laws have been enacted in almost all states where there are tribal populations. 

In some parts, such acts have been in existence since the British period like, Chotanagpur Tenancy Act 1908 and The Santhal Pargana Tenancy Act 1940. 

The British initiated such measures not so much out of concern for the tribes but for reasons of administrative and political expediency. These were more in the direction of protection

from land alienation of the tribes and restriction of the movement of the non-tribal population into tribal areas.

To reinforce the constitutional provisions for protection of the tribals, two important laws have been enacted in more recent years. 

One was the Provisions of the Panchayat (Extension to theScheduled Areas), Act, 1996. The act empowers the scheduled tribes to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and customary mode of dispute resolution through the gram sabha. 
Interestingly, the provisions of the Panchayat Act hardly find its due place in letter and spirit, for example, in provisions on the pattern of the sixth schedule, in the acts enacted by the different states. 
Further, though no enactment has been made to extend part IX A (The Municipalities) to the scheduled areas, the same is steadily being pushed in all states having scheduled areas. 

The other act in the direction has been the ‘The Scheduled Tribe and Other Traditional Forest Dwellers Act, 2006.  The act is aimed at undoing the age old injustice done to tribals by restoring and recognizing their pre-existing rights.