This article is written by Aseeniya Ayni. She is a student at Sree Narayana Law College Poothotta, Kochi. She is also working as Officer of Community Development and Human Rights at Rise-Up Forum.

Tribes are under immense stress of habitat, food, livelihood, natural rights and what not ?

INTRODUCTION

Have you ever noticed the ever-increasing rate of cases registered against backward communities in India?

As per the recent NCRB report, a total of 8,272 cases were registered for committing crime against Scheduled Tribes (STs), showing an increase of 9.3 per cent over 2019 (7,570 cases). The crime rate registered increased from 7.3 per lakh population in 2019 to 7.9 per lakh population in 2020. It showed that in 2020, simple hurt cases (2,247) formed the highest number of atrocities against STs accounting for 27.2 per cent of cases, followed by rape with 1,137 cases (13.7 per cent) and assault on women with intent to outrage her modesty with 885 cases (10.7 per cent).

As we all know, there are a lot of laws and policies put forward by our government to ensure welfare among the backward classes. But unfortunately, majority of tribes are not able to get any benefits from these and they are still exploited by others. The Scheduled Tribes are the ones who were previously known as untouchables. According to Hindu Mythology, this is the fifth category in the Varna system. The people of Scheduled Tribes category are generally called as ‘Adivasis’. This term literally means ‘original inhabitants’ – communities who lived and often continue to live in close association with forests. The Scheduled Castes and Scheduled Tribes- the officially designated groups of people are among the most disadvantaged socio-economic groups in India.

Distribution of Tribes

The Scheduled Tribes are notified in 28 States/UTs and the number of individual ethnic groups notified as Scheduled Tribes is 705. The tribal population of the country, as per the 2011 census, is 10.43 crore, constituting 8.6% of the total population. 89.97% of them live in rural areas and 10.03% in urban areas. The decadal population growth of the tribals from Census 2001 to 2011 has been 23.66% against the 17.69% of the entire population. The sex ratio for the overall population is 940 females per 1000 males and that of Scheduled Tribes 990 females per thousand males. Broadly, the STs inhabit two distinct geographical areas – Central India and the North- Eastern Area. More than half of the Scheduled Tribe population is concentrated in Central India, i.e., Madhya Pradesh (14.69%), Chhattisgarh (7.5%), Jharkhand (8.29%), Andhra Pradesh (5.7%), Maharashtra (10.08%), Orissa (9.2%), Gujarat (8.55%) and Rajasthan (8.86%). The other distinct area is the North East (Assam, Nagaland, Mizoram, Manipur, Meghalaya, Tripura, Sikkim, and Arunachal Pradesh). More than two-thirds of the ST population is concentrated only in seven states of the country, viz. Madhya Pradesh, Maharashtra, Orissa, Gujarat, Rajasthan, Jharkhand, and Chhattisgarh. There is no ST population in 3 States (Delhi NCR, Punjab, and Haryana) and 2 UTs (Puducherry and Chandigarh), as no Scheduled Tribe is notified.

Problems faced by scheduled tribes

Tribal community faces a lot of social, economic and cultural problems such that their rights get violated. Poverty, indebtedness, illiteracy, bondage, exploitation, diseases, unemployment, high incidence of illiteracy, gender issues, health and nutrition are some of the problems faced by them. The policy of liberalization and the new state perceptions of utilization of resources are diametrically opposed to the Adivasi perspective of resource usage and this divide has only widened further with the intrusion of globalization’s market-oriented philosophy of development. The recent rapid technological advancement and unrivaled economic and political strength of world capitalism have created favorable conditions for the evasion and extraction of natural resources from the ecologically fragile territories of tribal people. All available laws those relating to lands, forests, minor forest produce, water resources etc., restrain people from using forests. Primary resources such as fuel, fodder and minor forest produce which were available free to villagers are either non-existent now or have to be brought commercially. For the tribals, globalization is associated with rising prices, loss of job security and lack of health care. Since the emergence of liberalization, privatization and globalization (LPG), the tribal population have been subject to various pressures due to involuntary displacement. Thus, these forced evictions of tribals, making way for mammoth capital-intensive development projects, have become a distressing routine and ever-increasing phenomenon. There are gaps in the rehabilitation of the tribal community members displaced by development projects. Only 21 lakh tribal community members have been rehabilitated so far out of the estimated 85 lakh persons displaced due to development projects and natural calamities.

Tribal community also faces a lot of health issues etc. Lack of hospital facilities brings their life under more trouble. For instance, recently seven adults of the Khariasavar community died within a span of just two weeks. Their lifespan is approximately 26 years less than an average Indian’s life expectancy. Nearly 10% in West Godavari District are affected by Sickle Cell Anaemia.

The problems in Red Corridor areas (especially Jharkhand, Odisha, Madhya Pradesh) is governance deficit and pending land reforms that has deprived the well-being of tribes. Also, there is widespread infighting amongst tribes of North-East for natural resources and territorial supremacy.

As we all know India’s most important mining and industrial centers were located in Adivasi areas such as Jamshedpur, Rourkela, Bokaro & Bhilai among others. There is a heavy concentration of industrial and mining activities in the central belt. Despite intense industrial activity in the central Indian tribal belt, the tribal employment in modern enterprises is negligible. Apart from the provisions of Apprenticeship Act, there is no stipulation for private or joint sector enterprises to recruit certain percentage of dispossessed tribal workforce. They are forced onto the ever-expanding, low paid, insecure, transient and destitute labor market. About 40 per cent of the tribals of central India supplement their income by participating in this distorted and over exploitative capitalist sector. Construction sites, such as mines and quarries, and industrial complexes spelt doom for the local Adivasi communities with the influx of immigrant laborers. Many more are slowly crushed into oblivion in their homeland or in urban slums. Their economic and cultural survival is at stake. The globalization behemoth has added new dimensions to the vulnerability of India’s downtrodden by exacerbating their social exclusion, and making large segments of tribal groups also vulnerable and marginalized. Inadequate social and economic infrastructure in areas that have insufficient resources for participation in mainstream development also has been at the root of various ‘sub-national movements’ such as the Jharkhand, Uttarakhand and Bodoland.

Tribal Women

Tribal forest economy is primarily a women’s economy, and it is women who are most directly affected by the corporate exploitation of their traditional lands. In poverty affected tribal areas, large scale migration has revealed the increasing movement of young women towards urban centers in search of work. Their living conditions are unhygienic, their salary is poor and tribal women are vulnerable to exploitation by unscrupulous agents. There is a large number of anaemic women among the tribes. There is a shortfall of 6,796 sub- centers, 1,267 primary health centers (PHCs) and 309 community health centers (CHCs) in the tribal areas at an all-India level as on March 31, 2015. They have become the prime targets of sexual violation by managers, supervisors and even fellow male workers in the plantation industrial sectors.

Cultural Defacement

Tribals are being forcefully integrated in to the society leading to them losing their unique cultural features and their habitat threatened. Isolated Tribes such as Sentinelese are still hostile to outsiders. The government must enforce ‘eyes on hands off ‘ policy in these cases. The Jarawa community is facing acute population decline due to entry of outsiders into the area (The Andaman Trunk Road, among other projects, has cut into the heart of the Jarawa reserve). De-notified, semi-nomadic and nomadic tribes are yet to be included as Scheduled Tribes. Their traditional occupations (snake charming, street acrobatics with animals) are now illegal and alternative livelihood options are not provided. Certain tribes have been characterized as Particularly Vulnerable Tribal Groups (PVTGs) (earlier known as Primitive Tribal Groups) on the basis of their greater ’vulnerability’ even among the tribal groups. There are 75 such tribes in India.

Promoting social justice

As part of the effort to implement the Constitution, both state & central governments create specific schemes for implementation in tribal areas or in areas that have a high Dalit population. Lack of awareness about such schemes or laws is the main reason for the challenges that tribes face.

In a field survey, it is found that most of the tribal people are very much poor, but they could not manage BPL ration card, job cards for 100 day works etc. Most of them hardly know the meaning of BPL ration card. As a consequence, they remain deprived from such benefits. Due to illiteracy and lack of awareness, many families remain in dark about the assistance laid down for them by the Government. Government officers and supporting staff misbehave with them. More than 70% tribal households have no banking facilities, i.e., no bank account. In the Indian context, Scheduled Tribes have the special provisions, constitutional rights for their social, economic and educational promotion. Recent tribal welfare schemes are:

1. Pre-metric and post-metric scholarship for scheduled tribe students.

2. Boys’ and Girls’ hostel for the tribal students in the tribal-dominated areas.

3. Rajiv Gandhi National Fellowship Scheme for tribal students in higher studies.

4. Establishment of Ashram school in tribal sub-plan area.

5. Vocational training in tribal areas.

6. Adivasi Mahila Sashaktikaran Yojana

7. Tribal Forest Dwellers Empowerment Scheme,

8. National Scheduled Tribes Finance and Development Corporation (NSTFDC) self-employment Scheme,

9. Eklavya Model Residential School for tribal students,

10. Sikshashree for tribal day scholars,

11. Old age pension scheme for tribal people from BPL families with age of 60 years or above.

12. Development of particularly primitive vulnerable tribal groups etc.

There are other general social and economic developmental schemes.

Constitutional safeguards to scheduled tribes.

Constitution ensures human rights and fundamental rights to every citizen but these rights of scheduled tribes were always been violated. Most of the tribals communities were facing untouchability, ill treatment, off temple entry, non-entry to common places, filing of false cases, cheating, assault, robbery, custodial death, poverty, corruption, environmental issues etc.

Several provisions have been incorporated in the Constitution for safeguarding and promoting the interests and rights of the Scheduled Tribes in various spheres so as to enable them to join the mainstream society of the nation. Article 46 of the Constitution provides that the State shall promote with special care the educational and economic interests of the weaker sections of the society and in particular, the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation. Reservation in educational institution has been provided in Article 15(4) while reservation in posts and services has been provided in Article 16(4), 16(4A) and 16(4B) of the Constitution. Article 23 which prohibits traffic in human beings and begar and other similar forms of forced labor has a special significance for Scheduled Tribes. In pursuance of this Article, Parliament has enacted the Bonded Labor System (Abolition) Act, 1976. Similarly, Article 24 which prohibits employment of children below the age of 14 years in any factory or mine or in any other hazardous activity is also significant for Scheduled Tribes as a substantial portion of child labor engaged in these jobs belong to Scheduled Tribes. Article 243D provides reservation of Seats for Scheduled Tribes in Panchayats. Article 330 provides reservation of seats for Scheduled Tribes in the House of the People. Article 332 provides reservation of seats for Scheduled Tribes in Legislative Assemblies of the States. Article 334 provides that reservation of seats for Scheduled Castes and Scheduled Tribes in the Lok Sabha and the State Vidhan Sabhas (and the representation of the Anglo-Indian Community in the Lok Sabha and the State Vidhan Sabhas by nomination) would continue up to January, 2020. Other specific safeguards have been provided in Article 244 read with the provisions contained in Fifth and Sixth Schedule to the Constitution. Other provisions applicable in specific states are: Article 164(1) provides that in the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha, there shall be a Minister in charge of tribal welfare who may, in addition, be in charge of the welfare of the Scheduled Castes and backward classes or any other work; Article 371A has special provisions with respect to the State of Nagaland; Article 371B has special provisions with respect to the State of Assam; Article 371C has special provisions with respect to the State of Manipur; Article 371F has special provisions with respect to Sikkim.

The Scheduled Castes & The Scheduled Tribes(Prevention of Atrocities) Act, 1989

The Act was framed in 1989 in response to demands made by Dalits & others that the government must take seriously, the ill treatment & humiliation, which Dalits and tribal groups face in an everyday basis. During the period of 1970s and 1980s, in parts of southern India, a number of Dalit groups came into being and asserted their rights. They refused to perform their so-called caste duties and insisted on the demand of equal treatment. They refused to follow practices located in the humiliation and exploitation of Dalits. This resulted in the most powerful castes unleashing violence against them. Through-out the 1970s and 1980s Adivasi people successfully organized themselves and demanded equal rights for their land and resources. They too had to face the resentments of powerful social groups and were subject to a great deal of violence. The Act distinguishes several levels of crimes.

The provisions of SC/ST Act and Rules can be divided into three different categories, covering a variety of issues related to atrocities against SC/ST people and their position in society. The first category contains provisions of criminal law. It establishes criminal liability for a number of specifically defined atrocities, and extends the scope of certain categories of penalizations given in the Indian Penal Code (IPC). The second category contains provisions for relief and compensation for victims of atrocities. The third category contains provisions that establish special authorities for the implementation and monitoring of the Act.

The salient features of the Act are,

1. Creation of new types of offences not in the Indian Penal Code (IPC) or in the Protection of Civil Rights Act, 1955 (PCRA).

2. Commission of offences only by specified persons (atrocities can be committed only by non- SCs and non-STs on members of the SC or ST communities; crimes among SCs and STs or between STs and SCs do not come under the purview of this Act).

3. Defines various types of atrocities against SCs/STs (Section 3(1) i to xv and 3(2) i to vii).

4. Prescribes stringent punishments for such atrocities (Section 3(1) i to xv and 3(2) i to vii).

5. Enhanced punishment for some offences (Section 3(2) (i to vii) , 5)).

6. Enhanced minimum punishment for public servants (Section 3(2)vii).

7. Punishment for neglect of duties by a public servant (Section 4).

8. Attachment and forfeiture of property (Section 7).

9. Externment of potential offenders (Section 10(1), 10(3), 10(3)).

10. Creation of Special Courts (Section 14).

11. Appointment of Special Public Prosecutors (Section 15).

12. Empowers the government to impose collective fines (Section 16).

13. Cancellation of arms licenses in the areas identified where an atrocity may take place or has taken place (Rule 3iii) and seize all illegal fire arms (Rule 3iv).

14. Grant arms licenses to SCs and STs (Rule 3v).

15. Denial of anticipatory bail (Section 18).

16. Denial of probation to convict (Section 19).

17. Provides compensation, relief and rehabilitation for victims of atrocities or their legal heirs (Section 17(3), 21(2)iii, Rule 11, 12(4)).

18. Identification of atrocity prone areas (Section 17(1), 21(2)vii, Rule 3(1)).

19. Setting up deterrents to avoid committing of atrocities on the SCs amongst others (Rule 3(i to 3xi)).

20. Setting up a mandatory, periodic monitoring system at different levels (Section 21(2)v):

a) District level (Rule 3xi, 4(2), 4(4), 17).

b) State level (8xi, 14, 16, 18).

c) National level (Section 21(2), 21(3), 21(4)).

Together with the rules, it provides a framework for monitoring the state response to the atrocities against Scheduled Castes and Scheduled Tribes. According to the Act and Rules, there are to be monthly reports (from the District Magistrates), quarterly review meetings at the district level by the District Monitoring and Vigilance Committee (DVMC) and half yearly reviews by a 25- member State Monitoring and Vigilance Committee (SVMC) the chaired by the Chief Minister. The performance of every Special Public Prosecutor (SPP) will also have to be reviewed by the Director of Public Prosecutions (DPP) every quarter. Annual reports have to be sent to the central government by 31 March every year.

The Act and Rules are a potent mechanism and precision instruments that can be used in tandem with the Right to Information (RTI) Act 2005 to motivate the state to hold the mandatory meetings and enforce compliance. A Human Rights Defenders Monitoring Calendar has been developed from the Act and rules to help human rights defenders, and others to clarify the functions and duties of the monitoring authorities.

OTHER AREAS OF LAW

(1). Customary law

After independence, Hindu Code Bill was introduced. It has four enactments:

Hindu Marriage Act, 1955;
Hindu Adoptions & Maintenance Act,1956;
Hindu Minority & Guardianship Act, 1956;
Hindu Succession Act, 1956.

These enactments are all pervading. Section 2 of these statutes provides their application. Broadly, they apply to all persons, who are domiciled in the territories to which these enactments extend-except Muslims, Christians, Parsis or Jews by religion. However, sub-section (2) of section 2, excludes its application to the members of the Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government so directs. They are still governed by their customs. Nevertheless, a customary law may not encourage undesirable social practices. The legislatures have enacted laws to discourage undesirable social practices.

2). Panchayats (Extension to Scheduled Areas) Act (PESA), 1996

To promote local self-governance in rural India, the 73rd constitutional amendment was made in 1992. Through this amendment, a three-tier Panchayati Raj Institution was made into a law. However, its application to the scheduled and tribal areas under Article 243(M) was restricted. After the Bhuria Committee recommendations in 1995, PESA Act 1996 came into existence for ensuring tribal self-rule for people living in scheduled areas of India. PESA, was enacted by the Centre to ensure self-governance through Gram Sabhas (village assemblies) for people living in scheduled areas. State governments were required to amend their respective Panchayat Raj Acts without making any law that would be inconsistent with the mandate of PESA. Its objective is to legally recognize the right of tribal communities, residents of the scheduled areas, to govern themselves through their own systems of self-government. It acknowledges their traditional rights over natural resources.

Importance of Gram Sabha in PESA Act:

1. Democratic decentralisation: PESA empowers Gram Sabhas to play a key role in approving development plans and controlling all social sectors. This includes management of resources over jal, jangal, zameen (water, forest and land) and minor forest produce.

2. It processes and personnel who implement policies,

3. Managing local markets

4. Preventing land alienation

5. Regulating intoxicants among other things

6. The powers of Gram Sabhas include maintenance of cultural identity and tradition, control over schemes affecting the tribals, and control over natural resources within the area of a village.

7. The PESA Act thus enables Gram Sabhas to maintain a safety net over their rights and surroundings against external or internal conflicts.

8. Public Watchdog: The Gram Sabha would have the powers to monitor and prohibit the manufacturing, transport, sale and consumption of intoxicants within their village limits.

Among others, section 4 envisages the following features:

1. The customary law, social and religious practices and traditional management practices of community resources;

2. Gram Sabha shall be competent to safeguard and preserve the traditions and customs of the people, community resources and the customary mode of dispute resolution;

3. Before any plan, programme and project for social and economic development is taken up for implementation by the panchayat at the village level it will require Gram Sabha approval;

4. Gram Sabha will also identify or select the persons as beneficiaries under the poverty alleviation and other programmes;

5. Gram Sabhas or the Panchayats shall be consulted before making acquisition of land in the schedule areas for development projects and before resettling or rehabilitating persons affected by such project in the schedule areas;

6. Panchayats will be responsible for planning and management of minor water bodies in the scheduled areas;

7. The recommendations of the Gram Sabha or the panchayat will be mandatory before grant of prospecting license or mining lease for minor minerals in the scheduled areas;

8. The Panchayats or the Gram Sabhas are specifically endowed with the ownership of minor forest produce and among others with the power to:

a) Enforce prohibition or to regulate or restrict sale and consumption of any intoxicant;

b) Prevent alienation of land and to take appropriate action to restore land unlawfully alienated;

c) Manage village markets;

d) Control over money lending to the scheduled tribes; and

e) Control over institutions and functionaries in all social sectors, local plans and resources including tribal sub-plans.

It is important that Section 4 of PESA as well as the laws consistent with it, are properly implemented.

(3) Biological Diversity Act, 2002

The basic source of livelihood of ST is forest produce and it is equally important that not only biological diversity be conserved but the benefits arising from the same are equitably shared. We were signatory to the Convention held by the United Nations Convention on Biological Diversity at Rio de Janeiro in 1992. In order to give effect to the said Convention the Biological Diversity Act, 2002 was enacted. It provides for conservation of Biological Diversity; sustainable use of its components; and equitable sharing of the benefits arising out of the use of biological resources and knowledge. Its impact is yet to be felt in our country. Its enforcement in full extent will help the Adivasis.

(4) Forest Rights Act, 2007

The forest dwelling Scheduled Tribes and other traditional forest dwellers are integral to the very survival and sustainability of the forest ecosystem. A great injustice has been done by not recognizing their rights over their ancestral forest lands and their habitats either during the colonial period or in independent India. It was in order to undo the injustice that the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (No.2 of 2007) or simply Forest Right Acts was enacted.

The Forest Rights Act envisages,

1) Recognizing, recording, and vesting the forest rights and occupation in forest land with the forest dwelling Scheduled Tribes and other traditional forest dwellers;

2) Providing a framework for recording the forest rights so vested and the nature of evidence required for such recognition and vesting in respect of forest land; and

3) Strengthening the conservation regime of the forests while ensuring livelihood and food security of the forest dwelling Scheduled Tribes and other traditional forest dwellers.

However, even after six years of its enforcement, nothing has changed. A report in the 15th November, 2013 issue of ‘Down to Earth’ magazine states that ‘lives of the forest dwellers have not changed much. Not one state has initiated concrete steps to officially register the title holders in the state land records. Without this, they remain what they used to be―officially non-existent.’ Legal aid programmes should be undertaken to help them to claim their rights.

(5) Conflict with Environmentalists and Foresters

The forest dwellers are opposed by environmentalists and forest department officials. They think that forest dwellers need to be evicted as they are not only destroying the natural habitat of the animals and environment but a threat to wild life as well.

CONCLUSION

As we see above, there are a lot of policies and laws for the protection of Scheduled Tribes. Even then the tribes are facing a lot of issues. Their rights are frequently violated. From this, we can understand that the existence of a right or a law or even a policy is just on a piece of paper. People have to constantly work on or make efforts to translate these into principles that guide the actions of their fellow citizens or even their leaders. A democratic society can only exists encouraging similar process of struggle for inclusion and accommodation. Reminding ourselves the lines from ‘The speech of Red Indian’ by Mahound Darwish, “O white master, where are you taking my people and yours?”; now this question is all against us. There is no life when our own fellow ones are in havoc. We can’t neglect the tears of the forests, can we?