This Article written by Manasvita Tejsi, a student of Rajiv Gandhi National Law University.
Tribal Laws in India have been neglected for too long. There are around 500 tribes and more than a million tribal people in India. Tribes like Gonds, Bhils, Santhals, etc. have a different culture of their own. They are quite distinct from the modern ways or culture of the world. They celebrate their own festivals and have their own languages. Their food is also different from other cultures. They are typically called ‘Adivasi’ in Hindi. To protect them and their culture, the government has made efforts and enforced laws in the interest of the aforementioned. The Fifth and the Sixth Schedule of the Constitution have been enacted in the interest of these tribes. The Panchayat (Extension to Scheduled Areas) Act, 1996 and the Forest Rights Act, 2006 has also been enacted in the same interest.
CONSTITUTION OF INDIA ON TRIBAL LAWS
There are tribal laws that deal with Scheduled Tribes and their protection and interests. Article 342 under the Indian Constitution provides for the specification of tribes. Article 46 promotes the educational interests of these Scheduled Tribes and also protects their interests keeping in mind the injustices done to them. The reservation for these tribes is also provided in Articles 15 and 16. In the educational sphere, the reservation has been provided under Article 15(4) in the Indian Constitution; the reservation in job opportunities and posts have been provided in Article 16(4) A and 16(4)B. Scheduled tribes also have a reservation in Panchayats as given in Article 243D; Articles 330 and 332 provide reservation for Scheduled tribes in House of People and Legislative Assembly of the States, respectively. The fifth and the sixth schedule also deal with the interests of these scheduled tribes.
In the Fifth Schedule, there are provisions related to Scheduled areas and tribes. This schedule would be applied to every state except for Assam, Meghalaya, Tripura, and Mizoram. This schedule also calls for a Tribes Advisory Council. This council has to be in states which have Scheduled Areas. Otherwise, the Governor can decide about the Council in the states where there are Scheduled Tribes but no Scheduled Areas. The members in this Council will represent Scheduled Tribes in the Legislative Assembly of their state with three-fourth representation. The Governor can also issue notifications related to any law that has been passed, that it may not be applied to a particular Scheduled Area in that state. In this schedule, Part C Section 6 defines a Scheduled Area as,
“In this Constitution, the expression “Scheduled Areas” means such areas as the President may by order declare to be Scheduled Areas.”
Any area that the President of India declares to be a Scheduled Area will be made the same. The Fifth Schedule depends largely on these Scheduled Areas.
The Sixth Schedule strictly contains a provision which shall be adhered to by the states Assam, Meghalaya, Tripura, and Mizoram. This schedule has given autonomous power to these north-eastern states. The Governor has the power to turn autonomous districts into autonomous regions, by dividing them, if there are different Scheduled Tribes in those districts. There shall be a district and regional council for every district and region in the scheduled area. They both will have certain powers like allotment or use of land, management of any forest, the establishment of village committees and councils and their roles and powers, etc. District Council can also have the power to establish primary schools and collect taxes or revenue. There is independence given to these councils, namely- district council and regional council.
The Panchayati (Extension to Scheduled Areas) Act, 1996
The Panchayati Raj Act, 1996 or the 73rd Amendment Act contained provisions for panchayats but however, did not include Scheduled Areas. Through this Act, the Scheduled Areas were included in the same. It was enacted so that Scheduled Areas would have Gram Sabha which would ensure self-governance. This provided for the unchanging cultural value of tribes to govern themselves rather than the modern trends outside these Scheduled Areas. However, out of the ten states, only four states published about the PESA Act, 1996 and the remaining six states did not. The four states were- Andhra Pradesh, Himachal Pradesh, Maharashtra, and Rajasthan. Loss of land or their resources put stress on the tribes and these Scheduled Areas. This would ensure the control of land, water and resources of the area in the hands of these tribes. They would be in control of their own home. PESA Act, 1996 sort out the issue of projects undertaken which would do nothing for the tribal community but moreover, they would also destroy their area. The culture and identity of tribes would also be preserved and promoted.
The Forest Rights Act, 2006
After the PESA Act 1996, the Scheduled Areas were made safe but forests did not specifically come under these Scheduled Areas. Hence, The Forest Rights Act, 2006 was introduced which would also cover forests under its ambit. Under this Act, rights would be given to forest-dwelling Scheduled Tribes and with them, rights would also be provided to other traditional forest DWELLERS. In layman’s terms, two groups would get rights under this Act- first being tribes who live in these forests and second being people who have been living in these forests for a long time; the latter may or may not be tribes. This would conserve forests as well as the habitat of these two groups. It provides many rights like right against eviction, management of forest, owning and using that land, etc. This Act further expands the fifth and sixth schedule.
Even though there have been many tribal laws that have been enacted to preserve their community, their culture and their habitat, people have not truly accepted them as citizens of this country and looked at them as outsiders. They have a very different lifestyle than rural or urban residents and this has been the irrelevant cause behind their alienation. India is quite a diverse country but it has still not wholly accepted the tribal community. Nevertheless, it has accommodated the same in its Constitution and moreover, given a ‘Constitution within a Constitution’ (fifth schedule) to the tribal community which would serve in their favor and makes the alienation disappear.
- Anuj Kumar, Rights of tribals in india with respect to access to justice, Legal Desire ( 5, 2020, 10:00 AM), https://legaldesire.com/rights-of-tribals-in-india-with-respect-to-access-to-justice/
- Fifth Schedule, The Constitution of India, https://www.mea.gov.in/Images/pdf1/S5.pdf
- Sixth Schedule, The Constitution of India, https://meacms.mea.gov.in/Images/pdf1/S6.pdf
- Forest Rights Act, 2006, Drishti IAS ( 10, 2020, 8:37PM), https://www.drishtiias.com/to-the-points/Paper2/forest-rights-act-2006
- PESA Act, 1996, No. 40, Acts of Parliament; https://www.pesadarpan.gov.in/documents/26993/0/PESA+Act+1996.pdf/7a0e6cf5-3d28-4fce-a15e-39e513961cc8