Tribal customary laws
Submitted By Suyash Bhatnagar Semester 9 (5th year)
ACKNOWLEGMENT
I am also thankful to Dr. Asad Malik, for his invaluable support, encouragement, supervision and useful suggestions throughout this research work. His moral support and continuous guidance enabled me to complete my work successfully. His intellectual thrust and blessings motivated me to work rigorously on this study. In fact this study could not have seen the light of the day if his contribution had not been available. It would be no exaggeration to say that it is his unflinching faith and unquestioning support that has provided the sustenance necessary to see it through to its present shape.
I express my gratitude to my all teachers and friends who has supported and encouraged me during my study at Faculty of Law, Jamia Millia Islamia, New Delhi
LIST OF ABREVEATIONS
A.I.R
All India Reporter
S.C
Supreme Court
S.C.C
Supreme Court Cases
I express my gratitude to my all teachers and friends who has supported and encouraged me during my study at Faculty of Law, Jamia Millia Islamia, New Delhi
LIST OF ABREVEATIONS
A.I.R
All India Reporter
S.C
Supreme Court
S.C.C
Supreme Court Cases
B.A.L.C.O
Bharat Aluminum Corporation
Para
Paragraph
PESA
Panchayat (Extension to Scheduled Areas) Act, 1996
I.L.O
International Labour Organization
Table of Contents ACKNOWLEGMENT
2
LIST OF ABREVEA ABRE VEATIONS TIONS TABLE OF CASES INTRODUCTION
3
7 8
STATEMENT OF PROBLEM
10
HYPOTHESES 11 OBJECTIVES OF STUDY 11 SCOPE OF STUDY 12 RESEARCH METHODOLOGY 12 REVIEW OF LITERATURE 13 BACKGROUND: FEDERALISM AND TRIBAL GOVERNANCE IN INDIA 14 The Authority of the Centre and the States in Tribal Affairs 15 (The Fifth and Sixth Schedules of the Constitution) 15 The Panchayat (Extension to Scheduled Areas) Act 1996 17 A Review of PESA:The Impairment of Tribal Rights in a Decentralized Government 18 The Anathema of State Legislative Incompetence 19 The Tribal Struggle to Cope with Imposed Laws 20 The Fading Tribal Rights in Natural Resources 21 The Continuous Erosion of Tribal Land Rights 22 Insufficient Protection for Tribal Forest Rights 24 Tribal Rights to Water Resources Remain Ambiguous 25 The Tribal Struggle to Cope with Imposed Laws 26 India’s Forest Rights Act of 2006 27 Increase in the ceiling on land occupation 29 Criminals under the Forest Conservation Act of 1980 29 INTERNATIONAL PERPECTIVE OF TRIBAL CUTOMARY LAWS 30 The United Nations Permanent Forum on Indigenous Issues (UNPFII) 30 U.N. Draft on Declaration on the Rights of Indigenous Peoples. 31 Major Countries Opposed To Various Rights For Indigenous Peoples 31 Customary Law—Backward Or Relevant Justice Systems? 33 Indigenous Peoples’ Struggle around The World 34 The Human Rights at Issue 35 Implementation of Convention No. 169 38
CONCLUSION
38
TABLE OF CASES
•
R. K. Sabharwal v. State of Punjab, [1995] 2 S.C.C. 745 at para. 4
•
Indira Sawhney v. Union of India, A.I.R. [1993] S.C. 477.
•
Edwingson Bareh v. State of Assam, A.I.R. [1966] S.C. 1220 ¶ 47 (Justice Hidayatullah dissenting)
•
•
•
Ram Kripal Bhagat v. State of Bihar, A.I.R. [1970] S.C. 951 at 958,
•
V.S.S. Sastry v. State of Andhra Pradesh, A.I.R. [1967] S.C. 71 at 74
•
Pu Myllai Hlychho v. State of Mizoram, [2005] 2 S.C.C. 92.
Amrendra Pratap Singh v. Tej Bahadur Prajapati, [2004] 10 S.C.C. 65 at para.15 •
Laxmi Khandsari v. State of Uttar Pradesh, [1981] 2 SCC 600 at para. 12
•
Saghir Ahmad v. State of Uttar Pradesh, A.I.R[1954] SC 728 at para 27
Daulat Singh Surana v. First Land Acquisition Collector, [2006] 11 SCALE 482. •
State of Andhra Pradesh v. V. Sarma Rao, A.I.R. [2007] S.C. 137 at para. 6.
•
Hukumdev Narain Yadav v. Lalit Narain Mishra, [1974] 2 S.C.C. 133 at para. 17.
•
BALCO v. Union of India, [2002] 2 S.C.C. 333
•
Samatha v. State of Andhra Pradesh, [1997] 4 SCALE 746
INTRODUCTION
India’s population includes nearly one hundred million tribal people. These numbers are matched only by the remarkable diversity of India’s tribes. The two main regions of tribal settlement are the country’s north-eastern states bordering China and Burma, and the highlands and plains of its central and southern
regions. The latter is home to more than 80 per cent of the tribes, which differ from the north-eastern tribes in ethnicity and in having experienced greater “intrusion of the Indian mainstream and of the pan- Indian model of the state, society, economy and culture.” There are also differences in the extent to which the tribes interact with non-tribal communities. While the north-eastern tribes are usually isolated communities, the tribes in peninsular India may at times coexist with non-tribal people. Despite some regional variation, the tribes share many traits, including living “in relative geographical isolation,” and being “relatively more homogeny” and “more self-contained than the non-tribal social groups.” Consequently, several tensions (both perceptible and obscure) pervade relations between tribes and non-tribes, on the one hand, and the tribes and the State, on the other. The conventional, and largely accepted, solution is to balance the dichotomy between assimilation of tribal peoples and their independent identity, and delineate the contours of a national policy that would allow them to preserve their way of life without compromising development. Although relatively simple to capture as a concept, India has struggled to maintain the balance in practice. The most common problems relate to recognizing that the tribes have a right to autonomy and not merely decentralized administration; that they have a right to seek justice within their own traditional or customary laws; and that they have a right to own and exploit the natural resources in their habitat. These issues are addressed in the Constitution of India (“Constitution”) and through tribal-people-specific statutes, but there are considerable differences in the way the northeastern and peninsular tribes are treated in the Indian legal system.
The distinction in the law is based on the two criteria that had guided the colonial British Indian government in determining the degree of selfgovernment that the tribes would exercise: (a) whether the tribe had the ability to manage its own affairs, and (b) whether the tribal region in question had a significant non-tribal population. Judged by these two criteria, the north-eastern tribes who are also isolated but seen to be more ‘socially advanced’ have been given considerable autonomy under the Constitution, while the tribes in the rest of the country have been placed under the aegis of provincial governors. This arrangement has been codified in the Constitution’s Fifth Schedule for tribes in peninsular India, and the Sixth Schedule for the northeastern tribes. The separate systems were approved by the Constituent Assembly formed at the time of independence after receiving recommendations that the distinct ‘community structures’ and ‘attitudes’ of the tribes in the two regions could not be treated in a common law. Though an overwhelming majority of India’s tribal people inhabit the fifth schedule areas, they were only recently introduced to decentralization when the Indian Parliament legislated the Panchayat (Extension to Scheduled Areas) Act, 1996 (or PESA) exclusively for these areas.
PESA mandated the states to devolve certain political, administrative and fiscal powers to local governments elected by the communities (whether tribal or nontribal). PESA did not amend the Fifth Schedule, however. Instead, it sought to secure the participation of the tribal communities through limited self government, expecting this arrangement to be better suited to their ‘level of advancement’. After a decade, it is apparent that PESA is clearly not achieving that objective. On the contrary, blatant violation of tribal interests and the reluctance (in some cases, sheer procrastination) of the state administrations to cede authority have often compelled tribes in the Fifth Schedule areas to reassert their identity and rights violently.
Yet, there has never been a serious debate about alternative schemes for governing the tribal regions in peninsular India, even though various developments in the past few years—the creation of two new states, Jharkhand and Chhattisgarh, in 2000 through tribal political movements, the soon-to-be introduced revision of the National Tribal Policy, and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act passed in December 2006, which grants tribes some measure of ownership in forest lands and produce for the first time—emphasize that tribal rights are increasingly figuring as a prominent national concern.
STATEMENT OF PROBLEM
The conventional, and largely accepted, solution is to balance the dichotomy between assimilation of tribal peoples and their independent identity, and delineate the contours of a national policy that would allow them to preserve their way of life without compromising development. Although relatively simple to capture as a concept, India has struggled to maintain the balance in practice. The most common problems relate to recognizing that the tribes have a right to autonomy and not merely decentralized administration; that they have a right to seek justice within their own traditional or customary laws; and that they have a right to own and exploit the natural resources in their habitat. These issues are addressed in the Constitution of India (“Constitution”) and through tribal-people-specific statutes, but there are considerable differences in the way the northeastern and peninsular tribes are treated in the Indian legal system.
HYPOTHESES
The Current Research Is Based On The Following Hypotheses
1. PESA Is Ill equipped To Deal With Tribal Customary Issues 2.
The States Approach To Tribal Customary Issues Issues Is Not Conducive To The Interest Of Tribal People
3.
PESAs’ Role In Degradation Of Tribal Right Over Natural Resources
4.
Half Hearted Efforts Of Nation States Regarding The Right Of Tribals In International Forums
OBJECTIVES OF STUDY
In This Research Work ,The Researcher Aims To Impart The Knowledge And Give Insight To The People At Large •
Proper Understanding Of The Subject Tribal Customary Laws And The Issues Faced By It In India and Abroad
•
To Understand The Factors That Are Causing Divide Between The
State And The Tribal Population •
To Devise A Clear Strategy To Harmonize The Differences Between State And The Tribal
SCOPE OF STUDY
Any perception of this work would perhaps seem minuscule considering the fact that this work has produced from a mere student of law, particularly in the light of the knowledge that so many legal luminaries have deliberated on the matter since time immemorial.
The study due to incorporation of a number of restrictions like time and resources, deals keeping in focus all the states and union territories in India.The study by putting forward its recommendations, most humbly, hopes to make a small contribution in the field of legal reforms in India. The study by putting forward its recommendations, most humbly, hopes to make a small contribution in the field of legal reforms in India. The study also relates and incorporates International Instruments/Conventions/foreign legislations and policies of the United Nation Organisation and different foreign National laws.
RESEARCH METHODOLOGY
The present work has been undertaken with guided intellectual inquisition based on organized and systematic investigation by employing doctrinal research methodology.
The methodology followed by the Researcher in the present work has been undertaken with guided intellectual inquisition based and organized and by systematic investigation by employing purely doctrinal/non-empirical in nature.
For the purpose of preparing this research work, the Researcher has relied on various books, statutes, articles, journals, newspaper articles and other such literature. The Researcher has also relied on various case laws to substantiate or refute his points as and when they arise.
REVIEW OF LITERATURE
Tribal Customary Laws In The Recent Years Has Gained Some Momentum Among Activist And Law Makers To Make An In Depth Study The Following Literature Has Been Reviewed Tribal Law and Justice by W.G. Archer The Author Seeks To Explain The Principles Of Tribal Law Which Santals Of The Santal ,Parganas Accept As Defining Their Civil Rights And Duties. These Principles Cover A Wide Range Of Subjects Such As The Rights Of Santal Men And Women, The Law Of Marriage And Divorce, The Claims Which Arise At The Crises Of Birth, Sickness And Death. Moreover, The Tribe As A Whole Is Also An Important Subject For Law Tribal Self Governance PESA and Its Implementation by Nupur Tiwari The Author Seeks To Explain That PESA Act gives radical governance powers to the tribal community and recognizes its traditional community rights over local natural resources. This Act has also made it mandatory for the states having Scheduled Areas to make specific provisions for giving a broad range of powers to the tribals on matters relating to decision-making and development of their community. Social Movements In Tribal India By S.N. Chaudhary The Author Seeks To Explain That The history of tribal social movements in India is very old. These social movements have impacted tribal culture and tradition in multiple ways. Initially most of these movements were local and largely reformative in character. But as interaction of tribals with outside forces, culture and tradition increased, the nature, magnitude and intensity of social movements also increased
BACKGROUND:
FEDERALISM
AND
TRIBAL
GOVERNANCE
IN
INDIA
The Constitution of India establishes a detailed federal structure in which legislative authority is divided between the Indian Parliament and the central government (“the Union”) on one hand and the state legislatures and governments on the other. “Local government, that is to say local authorities for the purpose of local self-government or village administration” is a subject of state legislation. These local governments are of two types local governments in the urban areas (termed “municipalities”) and those in the rural areas (traditionally, and now statutorily, called “ Panchayats”). Though states could invoke their jurisdiction under the Seventh Schedule of the Constitution to legislate for municipalities and Panchayat when required, 40 years of experience revealed that power remained captured within state administrations and the local governments were non-functional. Therefore, in 1992 the Indian Parliament decided to decentralize state executive and legislative authority by adding two entirely new parts to the Constitution Part IX required the states to establish local government bodies (or Panchayats) in rural areas, while Part IX-A similarly mandated municipalities in urban areas. The intention was “to enshrine in the Constitution certain basic and essential features” of such local bodies “to impart certainty, continuity and strength to them.” The state legislatures were then tasked with determining through departmental rule-making or statute the precise political, administrative and fiscal authority that such local bodies would exercise. While Part IX broadly lays down the composition and jurisdiction of the local governments, the states, as mentioned earlier, have a significant role to play in this scheme. Almost all the provisions in Part IX require implementation through state law. Initially, Part IX was intended to create local governments only in nontribal rural areas. With the introduction of PESA in 1996, however, Part IX was extended (albeit exclusively) to the Fifth Schedule tribal areas. Thereafter, states that had jurisdiction over these areas were to somehow foster tribal self-government, even though the Fifth Schedule was not amended and continued to perpetuate state government control in tribal affairs.
The resultant legal scheme in place today thus appears inherently unworkable.
In the following sections I will provide a summary of the relevant constitutional and PESA provisions, and examine their impact on tribal governance in peninsular India
The Authority of the Centre and the States in Tribal Affairs (The Fifth and Sixth Schedules of the Constitution)
The term “Scheduled Areas” denotes the tribal regions to which either the Fifth Schedule or the Sixth Schedule applies. The two Schedules have very different mechanisms for governing their jurisdictional areas. The Fifth Schedule was, until PESA was legislated, an entirely centralized system where the communities—the majority being tribal—were directed in their affairs by provincial governors. The Schedule permitted the states to extend their executive power to the Scheduled Areas, and granted the Governor of each state the authority to “make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.” The Governor was thus the “sole legislature for the Scheduled Areas and the Scheduled Tribes,” competent to make laws on all subjects enumerated in the Constitution’s Union, State, and Concurrent Lists. The Governor could also preclude the application of any federal or state law in the Fifth Schedule areas. Gubernatorial authority was “of a very wide nature” and subject to only two restrictions:
(i)
That the Governor would consult a Tribes Advisory Council “before making any regulation”; and,
(ii)
That all regulations would receive Presidential assent before taking effect.
In contrast, the Sixth Schedule has always given the tribes considerable autonomy. This Schedule divides the tribal areas in India’s north-eastern states into “autonomous” regions, each allocated to a particular tribe. The elected councils in the Sixth Schedule areas are vested with administrative authority, make laws with respect to a variety of subjects, and even exercise judicial authority through traditional legal systems embedded with certain features of federal law. The councils are also financially independent and do not labour under the executive authority of the states. Though the Sixth Schedule’s scheme renders all exercise of executive and legislative authority by the councils subject to the approval of the provincial Governor, the superior courts have interpreted the Governor’s authority to be considerably restricted.
The Indian Supreme Court’s decision in Pu Myllai Hlychho clarified that even though the Sixth Schedule is not a “ self-contained code”or a “Constitution within the Constitution,” the courts must nevertheless defer to the legislative, administrative and judicial independence that the Schedule grants District and Regional Councils.
There were two reasons for the different treatment that the tribes received.
(i)
The tribes in Fifth Schedule areas were considered incapable of self-government.
(ii)
Unlike the Sixth Schedule areas, some tribal communities in peninsular India coexisted with a minority non tribal population, and autonomy for the tribes in such a case seemed impractical.
These were considerations that had been settled well before independence, so that by voting on the inclusion of the Fifth Schedule in the Constitution the founding fathers were, in a sense, continuing the colonial typecast that the tribes’ contentment depended not so much on “rapid political advance as on experienced and sympathetic handling, and on protection from economic subjugation by the non-tribal neighbours.” Even the Supreme Court of India later endorsed this paternalist justification when it said that “The tribes need to be taken care of by the protective arm of the law, so that they may prosper and by an evolutionary process join the mainstream of the society.”
The Panchayat (Extension to Scheduled Areas) Act 1996
In 1996, however, Parliament exercised its reserved legislative authority to extend the provisions of the Constitution’s Part IX exclusively to the Fifth Schedule areas. As a result, any habitation or hamlet “comprising a community and managing its affairs in accordance with traditions and customs” could now exercise limited self-government. After PESA was enacted, communities in the Fifth Schedule areas (the majority of whom were tribal) were directed to follow democratic elections, conform to the hierarchical Panchayat system stipulated in Part IX, and exercise the powers thought “necessary to enable them to function as institutions of selfgovernment.” On the other hand, while devolving power to the local communities the states were to ensure that
(i)
Their laws comported “with the customary law, social and religious practices and traditional management practices of community resources,”
(ii)
The Gram Sabhas (bodies “consisting of persons whose names are included in the electoral rolls for the Panchayat at the
village level ”) were “competent to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the customary mode of dispute resolution.”
PESA is therefore considered by many as a “logical extension of both the Fifth Schedule” and Part IX of the Constitution. But, as innocuous as it may seem, this top down model has in the last 10 years progressively denied tribal communities self-government and rights to their community’s natural resources.
A Review of PESA:The Impairment of Tribal Rights in a Decentralized Government
Even though PESA is projected as legislation transforming tribal representation in Fifth Schedule areas, the tribes feel as much “culturally deprived and economically robbed” as under colonial rule. Neither PESA in the last decade, nor the Fifth Schedule before it, has helped the tribal communities “acquire the status and dignity of viable and responsive people’s bodies,” as Parliament had intended. Tribal local governments are often ignored in development plans and the benefits of any actual development “rarely percolate down to the local tribes,” which are “ subordinated to outsiders, both economically and culturally.” PESA and the Fifth Schedule have also not prevented large corporations from gaining “control over the natural resources which constituted the life-support systems of the tribal communities;” neither have they made the tribes prosperous from the mineral-rich land on which they live. In fact, the tribes have “ gradually lost control over community resources such as forests” to both settlers and the State and one author would go so far as to equate non-tribal acquisitions with tribal displacement.
Deceit and the active connivance of state employees with non-tribal communities is another debilitating factor reversing, in this case, the benefits of land reform legislation. Shankar’s study of tribal lands in the northern state of Uttar Pradesh revealed a nexus between traditionally influential nontribal landowners and corrupt government officials. The latter exercised their discretionary powers to favour non-tribes by transferring lands over which tribal communities may have had a valid claim.
Even in a tribal majority state like Jharkhand in the north, the tribes are the worst affected in the population since the state government’s mining operations and hydroelectric power projects exploit natural resources in the resource-rich tribal areas, thus making the tribes “outsiders in their own land.” Faced with this onslaught, many tribes have resisted settlers, the government and private enterprises, and sought to reassert their identity. For instance, in the Bengal region the Kamatapur tribal movement has cited neglect, exploitation, and discrimination, and demanded a separate state. Tribes in the neighboring state of Orissa have demanded a prohibition on private consortiums that intend to mine bauxite from one of the most richly endowed regions in India. Similarly, in the south, Kerala’s tribal population has recently begun to defend its rights by banding together in various political groups at the state and local community levels in order to compel the administration to review land alienation, poverty, and exploitation by private enterprises. It is far too easy to dismiss these incidents as mere consequences of “misplaced development strategies” and lack of interest among state administrations. The critics of tribal governance in India see the dangers in an extremely narrow compass, criticizing provisions in PESA as “impracticable” or the states as legislatively ignorant. In sum, they believe that good civil administration alone will assuage tribal woes.
The Anathema of State Legislative Incompetence
To begin with, PESA only marginally altered the power balance between state governments and the tribes because of ineffectual participation by the former, and the “general tendency at the state level to monopolize power rather than share power with people at large.” This apathetic attitude has manifested itself in two forms. First, the majority of the states with tribal populations procrastinated in their decentralization programs. Although all states with Scheduled Areas have now enforced PESA, their past dilatory performance has led to the risk of delays in future amendments necessary to reflect changed circumstances. Second, when they did legislate, the states either ignored tribal “customary law, social and religious practices and traditional management practices of community resources” or enacted incomplete laws. Though PESA stipulates a community as the basic unit of governance, the Orissa Gram Panchayat (Amendment) Act of 1997 conferred authority on the larger Gram Sabha comprising all communities in a demarcated territory. As a result, the Orissa legislation disregarded the “distinct socio-cultural practices and different interests” of the individual communities within that territory.
The unenthusiastic response of the states appears to be a product of policies advocated by the first national commission on Scheduled Areas and Scheduled Tribes established in 1960. The Dhebar Commission, as it was known, allegedly did not favour the creation of more Scheduled Areas in the country, and is said to have considered the Fifth Schedule “as a temporary expedient” until the tribes were brought on par with the rest of society. The Commission’s 1961 report thus gave “State Governments, which had ‘openly’ or ‘subtly’ practiced the art of rebalancing demographic equations in tribal areas an alibi to stall demands for ‘tribal republics” The later realization that assimilation alone could not be the solution to tribal underdevelopment caused Parliament and the federal executive to change tack, but the damage had already been done. The states which exercised actual authority in the Scheduled Areas had settled into a mode of governance predicated on the belief that programmatic state-supervised development was the only solution to primitive tribal societies. Attempts to devolve decision-making powers upon tribal communities have since been largely unsuccessful because the primary responsibility for implementing PESA remains the prerogative of those very states. This reinforces the view that self-government is, in many ways, a privilege granted to the tribal communities rather than an inherent right.
The Tribal Struggle to Cope with Imposed Laws
Contrary to PESA’s guarantees that state laws would respect tribal customs and traditions, the Act has debased the tribal traditions of self-governance. The propensity to violate tribal norms is not only a product of sub national apathy, but also the outcome of a statutory scheme that compels the tribes to adopt nontribal concepts. By promoting the system of local government prescribed for non-tribal communities in Part IX of the Constitution, the Indian Parliament has instantly abolished centuries-old systems of Indigenous governance. The abrupt shift from traditional institutions to alien concepts of elected representatives and Panchayats has resulted in “very low” tribal participation and an underutilization of the institutions. Thus, for example, the Lanjia Saoras, a tribe in the state of Orissa, have been unable to adopt the electoral system of government mandated by Part IX of the Constitution, as have the Santals. Similarly, the tribes in Madhya Pradesh that were asked to adopt the Panchayat form of government have not seen “the importance of Panchayat for their own welfare or societal development ,” While in Gond and Bhil societies the Panchayat system eroded the significance
of traditional councils and strained ties within the community. A more subtle reason for the tension between the customary and the received is the entrenched perception in India that the tribes are primitive communities with little or no order in society. Of course, such a view can only be seen as a product of the dominant culture’s prejudice against, and ignorance of, the culture of both settled and nomadic tribal peoples, particularly those deemed ‘primitive’, since each of these groups, of course, has its own customs, traditions and laws. The Manki-Munda system in the state of Jharkhand, for instance, competes with state laws enacted to enforce PESA because the tribes prefer their traditional law’s emphasis on collective and consensual decision-making. PESA’s drafters mistakenly believed that an ambiguous directive to the states to design their laws in consonance with such “customary law, social and religious practices and traditional management practices of community resources” would resolve the dichotomy. What they overlooked was the inevitable displacement of indigenous laws and institutions that accompanies the imposition of a nonnative system of governance.
The Fading Tribal Rights in Natural Resources
In 10 years PESA has facilitated the gradual evisceration of tribal rights in the natural resources of the Scheduled Areas. The complication arises because PESA delegates the management of natural resources to tribal communities, without divesting control or ownership by the State. My objective here is to provide support for this claim in the context of tribal rights in land, forest and water resources.
The Continuous Erosion of Tribal Land Rights
One of the most basic rights that inures to the benefit of a community is a right in the commons. Therefore, property rights have become a natural rallying point for modern Indigenous peoples movements around the world and nations have been seen to have a duty to recognize people’s proprietorship of the land they occupy and to which they have long had a sense of belonging as a principle of human justice. Yet, the tribes in India are regularly deprived of their property rights predicated on the low (and ambiguous) thresholds of consultation and recommendation
While some states have individually sought to protect tribal rights through laws prohibiting private non-tribal purchases of land, there is no legislation restricting acquisitions by the State in the public interest. Instead, appropriations are legislatively backed by the Land Acquisition Act of 1894 in order to justify the government taking personal property for numerous purposes. The root of the problem is that the tribes cannot exercise a fundamental right to property under Indian law. Fundamental rights are given much greater deference and have a special status in the Constitution. In contrast, the tribes can only invoke a legal right to property under Article 300A of the Constitution (no person shall be deprived of his property save by authority of law)
Since the tribes right to property is merely a legal right, and not a fun- damental right, the State can acquire their property with just compensation if it can establish that such appropriations are by authority of law .That authority of law is found in section 4(i) of PESA which explicitly authorizes the acquisition of land in Scheduled Areas What is also evident is that the categorization of tribal property rights as legal rights reinforces PESA’s low and ambiguous thresholds mentioned earlier. Because the burden of establishing a violation of the legal right to property lies with the tribes, they face a formidable task disproving that the State did not properly consult or seek recommendations.
Moreover, the Indian Supreme Court has ruled that the government is the best judge to determine if a public purpose is served by an acquisition. This substantially eases the burden on central and state governments to defend a particular acquisition, and, with later Supreme Court decisions opining that the Land Acquisition Act is a complete Code by itself The central and state governments powers of appropriation have been strengthened because government agencies are no longer obligated to refer to any other legislation for determining the propriety of their actions. It also means that the Land Acquisition Act, which does not provide special protective rights in tribal land, can be incidentally applied to prevail over any proprietary rights otherwise guaranteed to the tribal communities in either PESA or the Fifth Schedule. Against this background, it appears illogical that the maximum protection provided in PESA against usurpation of tribal land is the obligation that state agencies should consult the local governments before making the acquisition of land in the Scheduled Areas. PESA does not stipulate the precise manner in which those consultations should take place, and the ambiguity lowers the standard for ensuring procedural safeguards since the courts are unlikely to assail an acquisition for a public
purpose unless that action was shown to be egregious or patently illegal. Consequently, administrations conveniently refrain from investing any more time and effort than that required to satisfy the requirement for a consultation as mandated by PESA. The inconsistency regarding the true nature of the rights in land that Parliament afforded tribal communities when it enacted PESA has become a source of discord between the judicial and executive branches of the State. The controversy can be traced back to the Supreme Court’s Samatha decision in 1997, where the court had ruled that the Fifth Schedule enjoined gov- ernors to make regulations preventing the purchase and exploitation of tribal land for mining activities by any entity that was not state-owned or a tribal enterprise. The judgment had prompted an opposite reaction from the federal Ministry of Mines, which proposed a constitutional amendment that granted governors unfettered authority in the transfer of land by members of the scheduled tribes to the Government or allotment by Government of its land to a non-tribal for undertaking any non-agricultural operations.
The Ministry also believed that Samatha had altered the balance of power stipulated in the Fifth Schedule by taking away the sovereign right of the government to transfer its land in any manner. Although the Constitution was ultimately not amended, the controversy has since encouraged various states to express similar views on their competence to permit exploitation of natural resources in the Scheduled Areas by private, non-tribal enterprises. Insufficient Protection for Tribal Forest Rights
Forest laws in India classify forests into three categories
1. reserve forests (which should be left untouched) 2.
protected forests (where exploitation is allowed unless specifically prohibited)
3.
village forests (that are assigned to local communities for management and use).
The ability of a tribal community to exploit a forested region for consumption would thus depend on its classification. So, for instance, even though PESA grants tribal communities the ownership of minor forest produce, the right is almost sterile unless state governments ensure that forested areas near tribal com- munities are denoted village forests and not reserve forests. Despite such clear federal restrictions on forest use, PESA does not provide any guidance on the manner in which the states should protect tribal rights to forestlands. Interestingly, even a program that encourages cooperation between the state forest departments and village communities for conservation has proved
counterproductive. The Joint Forest Management (JFM) program is the preferred national policy for forest conservation under which a state can constitute separate village committees supervised by that state’s forest department, alongside local governments and empowered under PESA Although such committees would ideally be staffed entirely by members of the tribal community in Fifth Schedule areas, they are for all intents and purposes separate institutions controlled by the state administration. The lack of interoperability between village committees constituted under PESA and those formed under the JFM program is evident from the fact that the JFM guidelines released in 2000 (and revised in 2002) by the federal Ministry of Environment and Forests does not so much as mention PESA.
State conservation agencies have also frequently asserted that PESA should not be interpreted as securing tribal rights over protected forestlands, irrespective of whether the communities have traditionally exploited those resources. Sarin et al. therefore conclude that devolution policies [such as JFM] have largely reinforced state control over forest users, giving the relationship new form rather than changing its balance of power or reducing the conflict between state and local interests
Tribal Rights to Water Resources Remain Ambiguous
PESA provides that local communities in Scheduled Areas should be entitled to manage minor water bodies a statutorily undefined term. While states would typically follow administrative guidelines setting out the rules for managing such water bodies, the difficulty is that the directives identify a minor water body based on acreage rather than territorial juris- diction and traditional use patterns of the tribal communities. The problems are compounded when some states either devolve management responsibilities without ascertaining community needs or neglect to pass new laws. The contrasting actions taken by the states of Madhya Pradesh and Maharashtra are noteworthy: while the state of Madhya Pradesh in central India swiftly and properly delineated rules for the use of minor water bodies in Scheduled Areas, the Maharashtra legislature entrusted management of minor water bodies to local governments, but left the actual determination of authority amongst the tiers of local government to the absolute discretion of the state executive. The lack of community participation in policies to manage water resources in Scheduled Areas is also an issue that the federal government has been unable to resolve. Though the National Water Policy released in 2002 recommends special efforts to investigate and formulate projects either in, or for the benefit
of, areas inhabited by tribal or other specially disadvantaged groups, the policy fails to identify the rights and responsibilities of tribal local governments. The Tribal Struggle to Cope with Imposed Laws
Contrary to PESA’s guarantees that state laws would respect tribal customs and traditions, the Act has debased the tribal traditions of self-governance. The propensity to violate tribal norms is not only a product of subnational apathy, but also the outcome of a statutory scheme that compels the tribes to adopt nontribal concepts. By promoting the system of local government prescribed for non-tribal communities in Part IX of the Constitution, the Indian Parliament has instantly abolished centuries-old systems of Indigenous governance. The abrupt shift from traditional institutions to alien concepts of elected representatives and Panchayats has resulted in very low tribal participation and an underutilization of the institutions. Thus, for example, the Lanjia ,Saoras, a tribe in the state of Orissa, have been unable to adopt the electoral system of government mandated by Part IX of the Constitution, as have the Santals. Similarly, the tribes in Madhya Pradesh that were asked to adopt the Panchayat form of government have not seen the importance of panchayat for their own welfare or societal development while in Gond and Bhil societies the Panchayat system eroded the significance of traditional councils and strained ties within the community. A subtler reason for the tension between the customary and the received is the entrenched perception in India that the tribes are primitive communities with little or no order in society. Of course, such a view can only be seen as a product of the dominant culture’s prejudice against, and ignorance of, the culture of both settled and nomadic tribal peoples, particularly those deemed primitive, since each of these groups, of course, has its own customs, traditions and laws. The Manki Munda system in the state of Jharkhand, for instance, competes with state laws enacted to enforce PESA because the tribes prefer their traditional law’s emphasis on collective and consensual decision-making. PESA’s drafters mistakenly believed that an ambiguous directive to the states to design their laws in consonance with such customary law, social and religious practices and traditional management practices of community resources would resolve the dichotomy. What they overlooked was the inevitable displacement of indigenous laws and institutions that accompanies the imposition of a nonnative system of governance.
India’s Forest Rights Act of 2006
After acrimonious public debate for more than a year since tabling in the
parliament on 13 December 2005, the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 which was re-christened as “The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” was passed in the parliament, lower house of Indian parliament, on 13 December 2006. President of India assented to the Bill on 29 December 2006 and the Act came into force. However, the debate since the tabling of the initial bill in December 2005 to the passage of the Act in the Lok Sabha have brought the age-old prejudices against the tribal peoples to the fore and further eroded their rights.
The Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 faced stiff opposition from two quarters. First, a few environmentalists advocated management of forest, wildlife and other bio-diversity with complete exclusion of tribal people, local communities or forest dwellers contrary to the Rio Declaration, decisions of the Conference of Parties of the Convention on Biological Diversity and recommendations of the United Nations Forum on Forest.
The poaching of the tigers in the Sariska sanctuary provided much needed excuse. Second, the Ministry of Environment and Forest had opposed the Bill on the ground that implementation of the bill will result in the depletion of the country's forest cover by 16 per cent. This reflects the culture of the tribal peoples to conserve forest. On the other hand, the Ministry of Environment and Climate Change has diverted 73% (9.81 lakh hectares of forestland) of the total encroached areas for non-forest activities such as industrial and development projects.
Following objections to the 2005 Draft Bill, it was referred to the Joint Parliamentary Committee (JPC) headed by V Kishore Chandra S Deo of the Congress party. On 23 May 2006, the JPC submitted its recommendations on the issue of cut-off date, inclusion of all forest dwellers under its purview, increase in the ceiling on land occupation and the empowering of Gram. Many of the recommendations were against the intended beneficiaries i.e. tribals.
The Ministry of Tribal Affairs objected to some of these recommendations of the JPC. A Group of Ministers (GoM), headed by External Affairs Minister Pranab Mukherjee was established to evolve a consensus. On 15 November
2005, the GoM managed to reach consensus. The Act would not have seen the light of the day had the ‘Other Traditional Forest Dwellers' not included in the revised draft.
A critical examination of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 reveals that the rights of the tribals were further compromised.
However, the recently passed Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 states, “An Act to recognise and vest the forest rights and occupation in forest land in forest dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded.”
The present law has only diluted the interests of the forest dwelling Scheduled Tribes with that of the “Other Traditional Forest Dwellers”. The forest dwelling Scheduled Tribes no longer remain the focus of the law contrary to what it originally envisaged. With such dilution, the law has lost its aims, objectives, essence and spirit that the Ministry of Tribal Affairs initiated with so much fan fare to undo what it calls “historic injustice” that the forest dwelling Scheduled Tribes have been facing. Rather than improving the lot of the tribals, the Act will lead to conflict of interest between the forest dwelling Scheduled Tribes and other traditional forest dwellers.
Increase in the ceiling on land occupation
Sub-section (6) of Section 4 states, “Where the forest rights recognized and vested by sub-section (1) are in respect of land mentioned in clause (a) of subsection (1) of section 3 such land shall be under the occupation of an individual or family or community on the date of commencement of this Act and shall be restricted to the area under actual occupation and shall in no case exceed an area of four hectares.” This provision hardly benefits the Scheduled Tribes. A large number of forest dwelling Scheduled Tribes would have to mandatorily part with large chunks of ancestral lands that they have been actually occupying before the enactment of this Act. The provision is also inapplicable in the northeast India.
Criminals under the Forest Conservation Act of 1980
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 has not taken into account the fact that hundreds of forest dwelling scheduled tribes face charges under different provisions of the draconian Forest Conservation Act of 1980 for accessing minor produce. Although the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 ensures a steady tenure of security and legitimizes the scheduled tribes' ownership over the minor forest produce and their role in the conservation of forest, it failed to address charges/prosecution pending against the tribal under the Forest Conservation Act of 1980 and Indian Forest Act of 1927 with retrospective view. There is no provision in the Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act, 2006 providing that cases under the Forest Conservation Act of 1980 against the forest dwelling scheduled tribes for accessing minor forest produce would be dropped.
INTERNATIONAL PERPECTIVE OF TRIBAL CUTOMARY LAWS
The United Nations Permanent Forum on Indigenous Issues (UNPFII)
Indigenous peoples around the world have sought recognition of their identities, their ways of life and their right to traditional lands, territories and natural resources; yet throughout history, their rights have been violated. Indigenous peoples are arguably among the most disadvantaged and vulnerable groups of people in the world today.
The international community now recognizes that special measures are required to protect the rights of the world’s indigenous peoples. Indigenous people have often found their lands and cultures overridden by more dominant societies.
Many Europeans at that time saw native peoples from regions such as Africa, Asia and the Americas as “primitives,” or “savages” to be dominated. This would help justify settlement and expansion into those lands, and even slavery. Without civilization these people could be regarded as inferior, and if seen as “non-people” then European colonialists would not be impeding on anyone else’s territory. Instead, they would be settling “virgin territory” (sometimes “discovered”) overcoming numerous challenges they would face with much courage. Under international law, tribal people, for example, do have some recognized rights. The two most important laws about tribal peoples are Conventions 107 and 169 under the International Labour Organization (ILO), part of the UN system. These conventions oblige governments to identify the lands and protect these rights. It ensures recognition of tribal peoples’ cultural and social practices, obliges governments to consult with tribal peoples about laws affecting them, guarantees respect for tribal peoples’ customs, and calls for protection of their natural resources. The struggle for such rights is still not over. Many governments routinely violate the rights of indigenous people. A slow process is, however, raising hope for a more comprehensive set of rights, although some major countries are still against some particular aspects.
U.N. Draft on Declaration on the Rights of Indigenous Peoples.
The Declaration emphasizes the right of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in accordance with their aspirations and needs. Although it would not be legally binding if it were ever adopted by the General Assembly, indigenous communities around the world have pressed hard for this and have felt that the adoption of the declaration will help indigenous people in their efforts against discrimination, racism, oppression, marginalization and exploitation.
Major Countries Opposed To Various Rights For Indigenous Peoples
The process to draft the aforementioned declaration moved very slowly, not because of some imagined slowness and inefficiencies of an over-sized bureaucracy, but because of concerns expressed by particular countries at some
of the core provisions of the draft declaration, especially the right to selfdetermination of indigenous peoples and the control over natural resources existing on indigenous peoples’ traditional lands. Some historically and currently powerful countries have been opposed to various rights and provisions for indigenous peoples, because of the implications to their territory, or because it would tacitly recognize they have been involved in major injustices during periods of colonialism and imperialism. Giving such people’s the ability to regain some lost land, for example, would be politically explosive. Inter Press Service (IPS) notes, for example, that countries such as the United States, Australia, and New Zealand, have all been opposed to this declaration. These countries have noted in a joint statement that “ No government can accept the notion of creating different classes of citizens.” Furthermore, as IPS also noted, the delegation claimed that the indigenous land claims ignore current reality “by appearing to require the recognition to lands now lawfully owned by other citizens.” The problem with the delegation’s views are that they ignore historical reality. To say that “creating different classes of citizens” is objectionable does sound fair. However, in this case, different classes were created from the very beginning as indigenous people were cleared off their lands and either treated as second class citizens, or, not even considered to be citizens in the first place. Many of these laws then, were often made by a society that never recognized or accepted that such people had rights, and so the law only applied to the new dominant society, not the original people. There are of course complications to this. For example, there is often a contentious debate about whether some European settlers colonized land that was not inhabited before, or were used by nomadic people, in which case European settlers could argue (from their perspective) that the land was not properly settled. Also, European settlers can also note that sometimes agreements were made with indigenous people to obtain certain lands, but it is also contentious as to whether all these agreements would have been made fairly, as some were made at gun point, while other agreements were achieved through deception and various forms of manipulation. Survival International criticizes Britain and France, of being opposed to some aspects of rights for indigenous peoples, as well as the United States. These two countries, formerly commanding vast empires and colonies have also subjected native peoples to cruel denial of rights and oppression. A key part of the declaration has been the “collective” right of indigenous peoples, for they are seen by many indigenous communities as “essential for the integrity, survival and well-being of our distinct nations and communities. They are inseparably linked to our cultures, spirituality and worldviews.
They are also critical to the exercise and enjoyment of the rights of indigenous individuals. A reason such countries may be opposed to collective rights is that it implies land and resource rights, whereas supporting only individual rights would not. Collective rights could therefore threaten access to valuable resources if they cannot be exploited, or if they are used for, and by, the indigenous communities. As Survival International also notes, individual rights is sometimes an alien concept to some societies, and it can be easier to exploit individuals than a collective people. Full collective rights over land and resources are essential for the survival of tribal peoples. The Yanomami of Amazonia, for example, live in large communal houses called yanos. The concept of ‘individual ownership’ of such a building is nonsensical.
A tribe’s right to decide, for example, whether a mining company should be allowed to operate on its land, also only makes sense as a collective right. The UK claims, however, that these vital collective rights should be individual rights ‘exercised collectively.’ In the USA, the infamous Dawes Act of 1887 demonstrated the danger of this approach. The Act turned communally-held Indian lands into individual plots; 90 million acres of Indian land were removed at a stroke, and the reservations were broken up. As reported by IPS, some African countries who had previously supported the declaration this time raised concerns about the phrase “right to selfdetermination” because much of Africa is considered indigenous and they feared unwanted rebellions by some groups within their borders. Some indigenous leaders, disappointed by this, claimed it was pressure from US, Canada, Australia, New Zealand and others opposed to the declaration, that had lobbied for this position, behind the scenes.
Customary Law—Backward Or Relevant Justice Systems?
Many indigenous cultures having developed their own societal traditions and norms naturally have ways to deal with crimes. Various anthropologists and others have noted some interesting differences between some traditional systems of justice and modern law. Indigenous law consists of a series of unwritten oral principles that are abided by and socially accepted by a specific community. Although these norms may
vary from one community to another, they are all based on the idea of recommending appropriate behaviour rather than on prohibition. Customary indigenous law aims to restore the harmony and balance in a community it is essentially collective in nature, whereas the Western judicial system is based on individualism. Customary law is based on the principle that the wrongdoer must compensate his or her victim for the harm that has been done so that he or she can be reinserted into the community, whereas the Western system seeks punishment. In various countries in Africa, traditional systems of justice have often helped people come to term with conflict as part of a rebuilding process. Truth and reconciliation commissions, such as the well-known one in South Africa have bought victims and perpetrators together. Truth commissions attempt to establish what happened, why, by whom, and may even include provisions for amnesty, forgiveness, or appropriate justice, all in the hope that “never again” should such gross human rights abuses occur. Victims get the chance to be heard and perpetrators have the opportunity to reintegrate back into society without the fear of backlash. In Africa, there have been commissions in South Africa, Sierra Leone, Rwanda, the Central African Republic, Ghana, Nigeria, and Kenya. Liberia and the Democratic Republic of Congo have also hinted at the prospect of truth commissions. These systems are not perfect, as sometimes war criminals may get off lighter than expected.
Indigenous Peoples’ Struggle around The World
The International Work Group for Indigenous Affairs (IWGIA) has for years worked on these issues. Their world reports detail issues and struggles for indigenous people around the world. Human Rights are universal, and civil, political, economic, social and cultural rights belong to all human beings, including indigenous people. Every indigenous woman, man, youth and child is entitled to the realization of all human rights and fundamental freedoms on equal terms with others in society, without discrimination of any kind. Indigenous people and peoples also enjoy certain human rights specifically linked to their identity, including rights to maintain and enjoy their culture and language free from discrimination, rights of access to ancestral lands and land relied upon for subsistence, rights to decide their own patterns of development, and rights to autonomy over indigenous affairs.
The Human Rights at Issue
The human rights of indigenous people and peoples are explicitly set out in the ILO Indigenous and Tribal Peoples Convention (No. 169), the Universal Declaration of Human Rights, the International Covenants, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of the Child, and other widely adhered to international human rights treaties and Declarations. They include the following indivisible, interdependent and interrelated human rights. The human right to freedom from any distinction, exclusion, restriction or preference based on their indigenous status which has the purpose or effect of impairing the enjoyment of human rights and fundamental freedoms that are The human right to freedom from discrimination in access to • housing, education, social services, health care or employment. •
The human right to equal recognition as a person before the law, to equality before the courts, and to equal protection of the law.
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The human right of indigenous peoples to exist.
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The human right to freedom from genocide and ‘ethnic cleansing’.
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The human right to livelihood and work which is freely chosen, and to subsistence and access to land to which they have traditionally had access and relied upon for subsistence.
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The human right to maintain their distinctive spiritual and material relationship with the lands, to own land individually and in community with others, and to transfer land rights according to their own customs.
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The human right to use, manage and safeguard the natural resources pertaining to their lands.
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The human right to freedom of association.
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The human right to enjoy and develop their own culture and language.
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The human right to establish and maintain their own schools and other training and educational institutions, and to teach and receive training in their own languages.
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The human right to full and effective participation in shaping decisions and policies concerning their group and community, at the local, national and international levels, including policies relating to economic and social development.
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The human right to self-determination and autonomy over all matters internal to the group, including in the fields of culture, religion, and local government.
In recognition of the fact that indigenous and tribal peoples are likely to be discriminated against in many areas, the first general, fundamental principle of The Tribal People’s Convention No. 169 is non-discrimination. Article 3 of the Convention states that indigenous peoples have the right to enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. In Article 4, the Convention also guarantees enjoyment of the general rights of citizenship without discrimination. Another principle in the Convention concerns the application of all its provisions to male and female indigenous persons without discrimination (Article 3). Article 20 provides for prevention of discrimination against indigenous workers. In response to the vulnerable situation of indigenous and tribal peoples, Article 4 of the Convention calls for special measures to be adopted to safeguard the persons, institutions, property, labour, cultures and environment of these peoples. In addition, the Convention stipulates that these special measures should not go against the free wishes of indigenous peoples. Recognition of the cultural and other specificities of indigenous and tribal peoples and consultation of the Tribal People’s convention No. 169 Indigenous and tribal peoples’ cultures and identities form an integral part of their lives. Their ways of life, customs and traditions, institutions, customary laws, forms of land use and forms of social organization are usually different from those of the dominant population. The Convention recognizes these differences, and aims to ensure that they are protected and taken into account when any measures are being undertaken that are likely to have an impact on these peoples. The spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based. The Convention requires that indigenous and tribal peoples are consulted on issues that affect them. It also requires that these peoples are able to engage in free, prior and informed participation in policy and development proce sses that affect them. The principles of consultation and participation in Convention No. 169 relate not only to specific development projects, but also to broader questions of governance, and the participation of indigenous and tribal peoples in public life.
In Article 6, the Convention provides a guideline as to how consultation with indigenous and tribal peoples should be conducted: Consultation with indigenous peoples should be undertaken through appropriate procedures, in good faith, and through the representative institutions of these peoples; The peoples involved should have the opportunity to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly; Another important component of the concept of consultation is that of representatively. If an appropriate consultation process is not developed with the indigenous and tribal institutions or organizations that are truly representative of the peoples in question, then the resulting consultations would not comply with the requirements of the Convention. The Convention also specifies individual circumstances in which consultation with indigenous and tribal peoples is an obligation. Consultation should be undertaken in good faith, with the objective of achieving agreement. The parties involved should seek to establish a dialogue allowing them to find appropriate solutions in an atmosphere of mutual respect and full participation. Effective consultation is consultation in which those concerned have an opportunity to influence the decision taken. This means real and timely consultation. For example, a simple information meeting does not constitute real consultation, nor does a meeting that is conducted in a language that the indigenous peoples present do not understand. The challenges of implementing an appropriate process of consultation with indigenous peoples have been the subject of a number of observations of the ILO’s Committee of Experts, as well as other supervisory procedures of the ILO, which the ILO has now compiled in a Digest. Adequate consultation is fundamental for achieving a constructive dialogue and for the effective resolution of the various challenges associated with the implementation of the rights of indigenous and tribal peoples.
Implementation of Convention No. 169
Since its adoption, Convention No. 169 has gained recognition well beyond the number of actual ratifications. Its provisions have influenced numerous policy documents, debates and legal decisions at the regional and international levels, as well as national legislation and policies.
The Provisions of Convention No. 169 are compatible with the provisions of the
United Nations Declaration on the Rights of Indigenous Peoples, and the adoption of the Declaration illustrates the broader acceptance of the principles of Convention No. 169 well beyond the number of ratifications. The Convention stipulates that governments shall have the responsibility for developing co-ordinated and systematic action to protect the rights of indigenous and tribal peoples (Article 3) and ensure that appropriate mechanisms and means are available (Article 33). With its focus on consultation and participation, Convention No. 169 is a tool to stimulate dialogue between governments and indigenous and tribal peoples and has been used as a tool for development processes, as well as conflict prevention and resolutions. Indigenous peoples around the world have sought recognition of their identities, their ways of life and their right to traditional lands, territories and natural resources; yet throughout history, their rights have been violated. Indigenous peoples are arguably among the most disadvantaged and vulnerable groups of people in the world today. The international community now recognizes that special measures are required to protect the rights of the world’s indigenous peoples.
CONCLUSION
The introduction of PESA in 1996 definitively signaled the Indian Parliament’s intention to abandon command-and-control for new governance in the tribal areas. However, by choosing decentralization the law-makers made the mistake of matching the right idea with the wrong solution. Although decentralization including its many subtypes: devolution, DE concentration, delegation and divestment has proven indispensable whenever national or provincial governments have desired local solutions for local problems, the system is demonstrably inapposite for tribal governance. Instead, the right solution is some form of autonomous tribal government grounded in the Indian Constitution and supported by the conventional administration and civil society. In this paper, I provided one such arrangement. Autonomy is preferable to decentralization because while the decisions of the decentralized organs may be replaced by the state; the decisions of autonomous organs may be annulled but not definitively replaced. In other words, what I have proposed is freedom within the law for almost one hundred million tribal people. This is certainly achievable, and the legal change would be a highly effective way of transforming ideology to create a sense of entitlement amongst the tribes.
Significantly, the constitutional and statutory law governing tribal territories in India rather than reforms in civil administration by state departments and development programs. There were two reasons for this choice. One was that current literature on tribal law in India treats tribal concerns within the larger
problem of efficient implementation of development policies and bureaucratic apathy, rather than as a distinct issue in constitutional and statutory law requiring more systemic change. The other was that tribal development policies and state administrative departments provide area-specific solutions. The Fifth Schedule, as part of the Constitution, applies to pockets of tribal areas scattered within the peninsular regions of a vast country. Encompassing these issues in a single work runs the risk of trivializing the distinct problems faced by the tribes.
The federalist autonomy model proposed here would be a major change, and it raises additional questions outside the scope of a single paper. One such issue is to consider the mechanisms that might be used by tribal governments for funding and revenue generation. Another is to explore the possibility of tribal courts, which has few precedents in India even beyond Fifth Schedule areas and poses a number of challenges. There are likely others. I hope to address some of these issues in future work.
Bibliography •
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Tribal Law and Justice by W.G. Archer Tribal Self Governance PESA and Its Implementation by Nupur Tiwari
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Social Movements In Tribal India By S.N. Chaudhary
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www.ilo.org › ... › Indigenous and Tribal Peoples › Conventions
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http://www.moef.gov.in/public-information/other-reports
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http://tribal.nic.in/fifthschedule.htm
http://tribal.nic.in/index1.html
