Notion of Indigenous People’s Right and Fifth

Schedule: A Case Study

Submitted by-

Ch Animes Prusty

DIV.-C, PRN-15010223017

BA.LLB. 2015-20

Symbiosis Law School, NOIDA

Symbiosis International University, PUNE

IN

October, 2016

UNDER THE GUIDANCE OF

Mr. Sudhir Verma, Mr. Satya Prakash, Mr. Ahmed Ali

(Constitutional Law)
Professor, Symbiosis Law School, NOIDA

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 CERTIFICATE

The project entitled “Notion of Indigenous People’s Right and Fifth

Schedule: A case study” submitted to the Symbiosis Law School, NOIDA
for Constitution Law I as part of Internal Assessment is based on my
original work carried out under the guidance of Sudhir Verma Sir from July,
2016 to October, 2016.

The Research work has not been submitted elsewhere for award of any
degree.

The material borrowed from other sources and incorporated in the research
paper has been duly acknowledged.

I understand that I myself would be held responsible and accountable for

plagiarism, if any, detected later on.

Signature of the Candidate

Date :

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 ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to

my guide Sudhir Verma Sir for his exemplary guidance, monitoring and
constant encouragement throughout the course of this project. The blessing,
help and guidance given by his time to time shall carry me a long way in the
journey of life.

I also take this opportunity to express a deep sense of gratitude to my parents

whose constant support, valuable information and guidance, helped me in
completing this task through various stages.

I am highly obliged to staff members of college library, for the valuable

information provided by them. I am grateful for their cooperation during the
period of assessment.

Lastly, I would like to thank my friends for their constant encouragement

without which this assignment would not be possible.

Ch Animes Prusty

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 Contents

1. Abstract…………………………………………………………….5
2. Objective of the Project…………………………………………….5
3. Introduction………………………………………………………...5
4. Synopsis
a. Bsic Amenities……………………………………………….6
b. Protection of Land and Natural Resources…………….…...8
5. Conclusion……………………………………………….12
6. Recommendation…………………………………………13
7. Bibliography……………………………………………..13

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Notion of Indigenous People’s Right and Fifth Schedule: A Case
Study

Abstract:

Indigenous people are considers to be the deprived class of the society that often leads to
the exploitation of them. Even though the government tries to get them with the basic
amenities as declared by the United Nations Human Rights commission for survival of
them, due to failure on part of government or due to the lack of adequate sources the
amenities cannot be given at best. The claim of right to property is often a question of
conflict between the state and the people, the state role is obvious and the ownership
sustains with the state. The land alienation by the state for the development program of
state is result of various problems faced by the people and the various ecological
problems faced due to the alienation of land. Every person has the right to preserve their
language and culture. The fifth schedule of the constitution helps these people to preserve
their culture.

Objective of the Project:

The main aim of the project is to find out the problems faced by the indigenous people
and the rights they are entitled under the fifth schedule of the Indian Constitution. In this
project it has also been discussed about what are the problems being faced by these
people and the role of state in protecting their rights.

Introduction:

There is no universal and unambiguous definition of the concept of 'indigenous peoples',

but there are a number of criteria by which indigenous peoples globally can be identified
and from which each group can be characterized.

The ILO Convention no. 169 states that a people are considered indigenous either:

 because they are descendants of those who lived in the area before colonization;
or

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  because they have maintained their own social, economic, cultural and political
institutions since colonization and the establishment of new states.

Indigenous people are known to be the first habitant or the native people of an area.
These groups are usually described as indigenous because they maintain their traditions
or other aspects of their culture that is associated with that region. In India these
indigenous groups are known as Adivasi’s and are generally found in the forests. India is
considered to be a land of diversity where people from different groups, culture stay
together out of which indigenous people are a part of them.

The tribal community of India though is in minority, represents the diversity. According
to the census of 2011 the tribal population if India constitutes 8.6 % of the total
population with wide range of diversities among them with respect to languages spoken,
population and their way of living. These people are spread all over India but are mainly
concentrated in the eastern, central and western belt mainly covering nine states. These
groups are listed in the Indian Constitution when it came into being in the year 1950.
These groups are listed under article 342 of the Constitution. The fifth schedule of the
Indian Constitution deals with the Administration, provisions, their rights, and control of
their areas and their tribes. A community or area in India can be considered to a
Scheduled community or a scheduled area if it is notified by the president of or it is
according to Article 366(24) read with Article 341. These groups are mainly found in the
forest which is considered to be one of main inhabiting area.

Every person who is born in this world is born with some rights which are indispensible
from the person. However some persons are deprived from their rights since their birth or
their rights are being taken away by means by act of the state. According to Universal
Declaration of Human Rights human beings can never be granted or parted from their
rights. In the era of globalization, there are the people who have to fight for their rights.
These are none other the indigenous groups. The issue of rights of these people, problems
faced by them and is one of the important issues in the international arena and India.

Synopsis:

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Basic Amenities:

Every individual born in this world have the right to get identified and they are entitled to
get registered. Self-identification as an indigenous individual and acceptance as such by
the group is an essential component of indigenous peoples’ sense of identity. It is
important for them to recognize because to avail any of facilities or to claim the rights
one should be citizen of the India. The registration or recognisation of a person enables
him for the claims. According to the United Nation Human Rights Declaration every
person is entitled to get the basic amenities like good education, better health, livelihood
and also to have good socio economic status.

Right to education is part of Article 21 and is the duty of the government to provide free
compulsory education to all children in the age group of 6- 14 years. the constitution of
India has given the state to take special care of the education of of the children’s of the
Scheduled or the indigenous people because of the only reason that these people were
backward at the time impendence as compared to other non tribal population. The
government took many important steps for the upliftment of the educational status by
bringing various programs for the children of these people. The main aim of the
government should not only to provide education but also basic facilities. In providing
education to these people or to get education they have face discrimination with other
section of the society mainly the dalits. Their entitlements to education is hampered as
teachers of the schools in these area remain absent as it has been to remote for them.
Though the government has just implemented the programs but there is no intention for
the upliftments. Although in some cases where teachers are present the quality of the
teachers are detoriated. They not being properly trained or just appoinyted for the sake of
filling the posts but not for the purpose of teaching. Language is one of the most
important barrier in the education system of them children. As the tribal languages are
not a part the common languages the books being published in the common language.
There is no publication in the tribal. Even if a student is intresed in the studying cannot
attain his studies as he could nto understand the text.

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Even if the government takes initiatives but there should be an intention on the part of the
government because for the education of these students new curriculum should be
followed which is not the same as of the general students.

Other basic amenities include the basic health care facilities that are provided. The basic
amenties should include the improved sources of drinking water, clean fuel, electricity
and sanitation for the easy assess to the socio economic status as well as to fundamental
health of the society. Having an access to tap water or a water from a treated sources will
not only improve the health conditions but also help in preventing water borne diseases.
According to the census held in year 2011 only 11% of the tribal population of India has
an access to safe water or water from a treated source. Sanitation is one of main basic
amenities. According to census of 2011 only 17 % of the population has the access to
proper sanitation as compared to other non scheduled area.

Health does not include water or sanitation but the most important thing in health is
proper public health care centers that can give proper health services to these people at
critical situation. In the non tribal area good health care facilities decrease the mortality
rate because of the proximity to proper health care hospitals. The appointment of good
doctors or providing good facilities to the patients of these areas is one of main issues or
the rights of these people. Every person in this world has the right to good health care,
proper education, sanitation, but the most important is nutrition and proper medication.
These people are deprived of proper nutrition as there is shortage in supply or absence of
proper medicines and food. The major difficulty that the government face in the
providing the face is the lack of the proper health care human resources willing to work
in those conditions or those area. Inappropriate infrastructure, dysfunctional of health
care sub centres also report to poor health care delivery. Also the language barrier
between the doctors and patients is an important problem. As there is no proper training
of the doctors before appointment of them in these area makes it difficult for them to
understand their language and give proper medication. There are very few area in the
country where the hospitals or the health care centers of these area are well equipped with
all machineries for the ailments of all diseases.

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We cannot say that people are deprived of the basic amenities but the belief of the people
depends a lot which affect their health sometimes favorably and sometimes unfavorable.
The use of traditional healing methods using herbs which addresses both the body and
mind is different from modern point of view. The traditional methods of healing is a
strong choice of these tribal peoples which may be harmful as they wait till the last and
when nothing happens, they are bought to health care centre’s.

These basic amenities are the indispensible right of a person. No one can take away his
rights to get the basic amenities are mere essentials for the existence of a person in
present scenario. As per the UNHRC declaration they should be provided with these
amenities and the government should take the initative in providing it.

Protection of Land and Natural Resources:

In some cases the act the government is for the betterment of the people but in some
cases the main aim of the government of the state or the government is development of
the country. In this era of globalization and development there is requirement of
industries in the country. Natural resources act a raw material to the industries which are
mainly found in the forests. The states that act a guardian of these resources on behalf of
the people of the country have the right to use these resources in a efficient manner for
the development of the people and the country. As the indigenous people are considered
to be the native people of the area or the forest, they always claim for the forest as part of
their property. They also claim the forest as part of their property which helps them in
earning their livelihood and employment.

Securing property rights is part of modern indigenous people however the tribal’s of
India are deprived of this right. According to the constitution of India Right to property is
a legal right not a fundamental right which deprives them from claiming this right. The
right to property under the Indian law made possible to acquire the tribal land for the
development purposes and for industrialization or exploitation of the natural resources.

In many of the cases there is no claim of the rights by the tribals are entertaine in the
court because the land given to these people by trhe government are on lease basis and
and they cannot claim the land as their own property. State can take back their own land

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once the lease is complete or even if there is need. Also this process attracts a lot of
advocacy because these land are registered in the name of these people as they do not
have their own identity proofs which makes difficult for them to ask for the right.

Tribal communities mainly live in the areas which are rich in minerals and forest cover,
which is also the basis of socio cultural, religious identity livelihood and existence of the
tribal’s. forest and the hills are main sources of the tribal community. The main aim of
the Fifth Schedule of the Indian Constitution provides protection to the adivasi (tribal)
people living in the Scheduled Areas of nine states in the country from alienation of their
lands and natural resources to non tribals.1 This schedule prohibit the transfer of lands by
or aming the members the scheduled tribes in the scheduled areas. In the landmark
judgment of Samantha the Supreme Court upholds and protects the land rights of tribals.

The Samantha judgment, delivered in the context of Andhra Pradesh Scheduled Area
Land Transfer Regulation 1959, held that private mining industries are a non-tribal
‘person’ therefore, mining leases to private industries in tribal lands of Scheduled Areas
are null and void and any transfer of land to a non-tribal was prohibited. The judgment
went on to state that in Scheduled Areas, every Gram Sabha should prevent alienation of
land, and minerals of these areas should be exploited by the tribal people themselves. 2

The majority of the Supreme Court held that:

 the word 'person' includes the State Government, and the transfer of land in
scheduled areas by way of mining leases to non-tribal people or companies is
prohibited by the Fifth Schedule and s 3 of the Regulation;
 tribals can exploit the minerals in the scheduled areas, without disturbing the
ecology or the forest, either individually or through cooperative societies with the
financial assistance of the State;

1
Samatha v.State of Andhra Pradesh, 1997 8 SCC 191
2
ibid

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  transfer of tribal lands to State instrumentalities (i.e. state-owned organizations or
corporations) are excluded from the prohibition since ... a public corporation acts
in public interest and not for private gain’; and
 in the absence of a total prohibition on the transfer of lands, any licensee or lessee
must provide certain duties and obligations to the tribals as part of the
administration of projects. At least 20 per cent of the lessee’s net profits would
have to be set aside as a permanent fund for the people’s development needs on
top of any expenditure for reforestation and the maintenance of ecology.

Finally the Supreme Court directed that the Prime Minister should convene a conference
of all relevant ministers to develop a national scheme based on the guidelines laid down
in the judgment in relation to tribal lands throughout the country.3

When there is dispute of ownership between the people and the state for the natural
resources like water, land, forest are concerned it is relevant that the state has the
sovereign dominant owner.4

In another matter, the January 2003 Supreme Court judgment declares: ‘The power to
acquire by State the land owned by its subjects hails from the right of eminent domain
vesting in the State, which is essentially an attribute of sovereign power of the State. So
long as the public purpose subsists, the exercise of the power by the State to acquire land
of its subjects without regard to the wishes of the owner or person interested in the land
cannot be questioned’.5

Alienation of land of tribal communities and loss of rights to Common Property

Resources, mainly forests and large scale displacement and enforced migration takes
place because of the Development-induced displacement by acquisition of land by the
State based on principle of ‘eminent domain’ for ‘public purpose’ without a ‘land for
land’ provision for rehabilitation. Acquisition by the State for development projects also
leads to alienation of land and displacement. Illegal land alienation takes place due to
participation of revenue functionaries and officials, and incorrect interpretation of laws,
3
ibid
4
Tekaba AO v. Sakumeren AO (2004) 5 SCC 672.
5
Sharda Devi v. State of Bihar (2003) SCALE 85 at pg. 98, para 31.

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manipulation of records and permission accorded to alienate land. Community land of
tribal communities is recorded as Government land in survey and settlement operations
and most State tenancy laws recognize only individually owned registered land. Such
lands have not been fully surveyed and there is no record of user practices, which would
be shown as Government land.

Mineral and hydro-electric resource-rich States of India tend to be the very places, which
are home to vast majority of tribal people. that people are not partners in the process of
decision making regarding construction of dams, areas of submergence, environment
impact, allocation of resources and allocation of benefits and adverse impacts of
development. Displacement is a process in which marginalized sections, the majority
being tribal people, are pushed out of their own habitat and dispossessed of their
resources and indeed their universe around them. In post-independence period, their
experience of displacement is as dehumanizing as before independence.6

Due to displacement of the people in these area because of the development projects
these people have to face poverty among the immigrants in the situation. Due poor
education, hostile policy of the state and discrimination they cannot access to public
facilities like public distribution system to the places they migrate. Due to development
induced displacement there is loss of land doe to acquisition for the project that gives
commercial, economic benefit to trade and industry. The ecology has also been affected
due to deforestation that lowers the productivity that leads to migration.

Due to migration the communities which were self sufficient earlier are now dependent
on other sources of income such as labor or so. The traditional livelihoods of these people
are based on the customary rights of the communities on the forest and land.

Due this migration the tribal society faces losses because of their dependence on forests
for food, livelihood, this loss is not compensated due to displacement. Due to lack of
proper recognisation of the tribes over the forest and the hill tracts gives rise to problem
when its comes to compensation.
6
Baxi, Upendra, 2008. Development, displacement and resettlement: A human rights perspective’ in ‘India
social development report 2008’. ‘Development and displacement’. New Delhi: Center for Social
Development, Oxford University Press.

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The land rights structure in tribal societies is altogether different from what it is in other
societies. Tribal communities do not confer any individual rights in a legal sense. The
community rights they confer are the utilitarian rights on nature but not the proprietary rights
which attract the provisions of compensatory measure.
Due to migration of the people for the projects of the state, their right to livelihood is
disregarded which have poor indicators with the concentration of tribals that results in
poverty, illiteracy or lack of skills.
Recommendations/ Suggestions:

1. There should be rights- based approach to comprehensive rehabilitation for socio-

economic reconstitution of victims of development, including for the backlog of
displaced.
2. the whole process of displacement should be democratic and rights of tribal
communities to say ‘no’ to acquisition of their land and to access and manage forests
3. There is plenty of unutilized tribal land available with Central/State/PSUs, and
Central/State Governments which is not being used for the purpose for which it was
acquired. Governments should be legally mandated to return such land to the original
landowner/successors or use the same for resettlement of displaced tribals

Every person in this society has the right to safeguard his culture, traditions, language and
culture. Article 350 of the Indian constitution provides the provision for the right to conserve
distinct language, script or culuture and also instruction in mother Tongue. The fifth schedule
of the Constitution provides and controls the administration of the tribal areas and the tribes.
The controlling of the tribal areas and tribes include the preservation of their language and
culture. Article 350 clearly states and provides provisons for the conserving of the distinct
language and script or culture. The tribal population being small in number and the languages
spoken by the as compared to other people is very less. The provision of Article 350 has the
ambit to protect the tribal languages as they are distinct in nature. With the decreasing area of
forests and the degrading population of the tribes it quite clear that their culture should be
protected and preserved under the fifth schedule as it has the provisions and have the direct
administration of this class of the society.

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CONCLUSION
Tribal communities continue to be vulnerable even today, not because they are poor,
asset-less and illiterate compared to the general population; but often their distinct
vulnerability arises from their inability to negotiate and cope with the consequences of
their integration with the mainstream society. Tribal institutions and practices were
forced into uneasy co-existence, which paved the way to market or formal State
institutions. Also, the tribals found themselves at a great disadvantage in the face of an
influx of better equipped outsiders into tribal areas. The repercussions for the already
fragile socio-economic sustenance base of the tribals were devastating ranging from the
loss of livelihoods and land alienation on a vast scale to hereditary bondage. As the
tribals grapple with these tragic consequences, a small clutch of bureaucratic programs
could do little to resist the precipitous pauperization, exploitation and disintegration of
tribal communities. As a result of this, the tribals continue to suffer and bear with a
number of „Unresolved Issues‟ and „Persisting Problems‟, which require immediate
attention of the Government. Indigenous peoples continue to face civil and political rights
violations, land alienation, displacement and false prosecution for accessing minor forest
produce. As India’s booming economy requires more resources, indigenous peoples‟ land
and resources have been grabbed, resulting in a strong sense of alienation among the
indigenous peoples and further exacerbating conflicts. The laws aimed at protecting
indigenous peoples have numerous shortcomings and their implementation is far from
satisfactory. India has a long history of indigenous peoples” movements aimed at
asserting their rights.

Recommendations:
From the colonial era the tribal communities were partially excluded for the purpose f
administration. in the post independence India this legal provision continued but not
directly applicable unless the governor thinks it is desirable to impose under the sixth
schedule but in case of the fifth schedule the law passed is applicable automatically

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unless the governor thinks it to be not in interest or welfare of the tribal people. There
have been laws and policies passed by the Parliament and State Legislatures such as the
Forest Conservation Act, 1980, the Wildlife Protection Act, 1972, the Panchayat Acts etc
which have had an adverse and detrimental impact on tribal communities, yet the
Governors have not exercised their constitutional power towards the protection and
welfare of the tribal communities.
Laws and policies enacted by the Parliament and State Legislatures should not be
automatically applied in the Fifth Schedule areas. Its applicability should be made
contingent on the discretion of the Governor who would determine its applicability or
non-applicability or applicability with modifications/amendments on the advice of Tribes
Advisory Council and issue a Statement of Objectives and Reasons for decisions on both
applicability and inapplicability of laws and policies. In case the above is untenable, the
Governor should be mandated to take the advice of the Tribes Advisory Council and
examine legislations and policies (particularly, though not exclusively, those pertaining to
issues such as forests, land acquisition, conservation, mines and minerals, health and
education) passed by the Parliament or State Legislatures and the implications of the
same on tribal welfare. A mechanism for such examination and action should be clearly
stated and established. This will keep a check on the state legislature that will
automatically bind to work for the betterment of the indigenous people. If any law is
passed that is detrimental these people the governors should scrap that will protect them
from being exploited by the state or any private entity for the personal profit and he state
will not make any law against them in pursuance of the fifth schedule.

Bibliography:
1. Virginius Xaxa, U. R. (May, 2014). REPORT OF THE HIGH LEVEL
COMMITTEE ON SOCIO-ECONOMIC, HEALTH AND EDUCATIONAL
STATUS OF TRIBAL COMMUNITIES OF INDIA. Ministry of Tribal Affairs,
Government of India.

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 2. Woldemelekot, W. B. (2008). Liability of Transnational Corporations for
Indigenous Peoples. Faculty of Social Science, University of Tromsø.

3. KURUP A (2008)“ Tribal Law in India: How Decentralized Administration Is

Extinguishing Tribal Rights and Why Autonomous Tribal Governments Are
Better” Indigenous Law Journal/Volume 7
4. Jena, M. (2016, september 24). The Pioneer. sts continue to suffer in Odisha's 5th
Schedule area .

5. Ruma Pal, S. P. (2011). Professor M P Jain Indian Constitutional Law. Nagpur:

Lexis Nexis Butterworths Wadhwa.

Singh, M. P. (2016). V. N. Shukla's Constitution Of India. Ebc Book Company

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7. Hingorani, Aman(2013) “Public Interest Litigation” Annual Survey Of Indian ,

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