Ouriginal Report - Aamir Raza Khan - Seminar@ 13.11.2011.docx (D118538113)

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Faculty of Law, Jamia Millia Islamia
TRIBAL CUTOMARY LAW & THE INDIGENOUS IN INDIA- A CRITICAL ANALYSIS
SEMINAR COURSE – I
Submitted By: Name- Aamir Raza Khan
Student ID: 20177912
B.A.LL.B. (IXth Semester) (Regular)
Submitted to: Dr.Parag Chahal, Faculty of Law, Jamia Millia Islamia, New Delhi
Date of Submission - 21.11.2021
ACKNOWLEDGEMENT
The success and final outcome of this project report required lots of guidance and support of many people and assistance
from various books, journals, articles and websites. I am extremely fortunate to have got all this along the completion of it.
I owe my profound gratitude to my guide, Dr. Parag Chahal, who guided me all through by providing all the necessary
information and instructions for developing it well. I am heartily thankful and fortunate enough to get constant
encouragement, guidance and support from my parents for providing me with all amenities and the apt environment for
carrying my project work ahead and completing it successfully.
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
A.I.R All India Reporter
B.A.L.C.O Bharat Aluminium Corporation
BC Before Christ
E.g Example gratia
EDN Edition
I.e. Idest
I.L.O International Labour Organization
Ibid Ibidium (in the same place or work)
Id Iden (in the same source; variation of pages)
IPC Indian Penal Code
p., pp page, pages
Para Paragraph
PESA Panchayat (Extension to Scheduled Areas) Act, 1996
Pg Page
PIL Public Interest Litigation
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S.C Supreme Court S.C.C Supreme Court Cases
2/68
V versus
VIZ Vide licet (namely)
JUDICIAL PRECEDENTS
1.
Amrendra Pratap Singh v. Tej Bahadur Prajapati 2004 10
S.C.C. 65 at para.15 2. BALCO v. Union of India……………………………………………….2002 2 S.C.C. 333 3.
Daulat
Singh Surana v. First Land Acquisition Collector 2006 11 SCALE 482 4. Edwingson Bareh v. State of
Assam……………………………A.I.R.1966 S.C. 1220 ¶ 47 5. Hukumdev Narain Yadav v. Lalit Narain Mishra…………...1974 2 S.C.C.
133 at para. 17 6.
Indira Sawhney
v. Union of India…………………………………….A.I.R.1993 S.C. 477 7. Lakshmi Khandsari v. State of Uttar Pradesh………………...1981

2 SCC 600 at para. 12 8. Pu Myllai Hlychho v. State of Mizoram………………………………….2005 2 S.C.C. 92 9. R. K. Sabharwal
v. State of Punjab………………………………1995 2 S.C.C. 745 at para. 4 10. Ram Kripal Bhagat v. State of
Bihar…………………………..A.I.R.1970 S.C. 951 at 958 11. Saghir Ahmad v. State of Uttar Pradesh……………………A.I.R 1954 SC 728
at para 27 12. Samatha v. State of Andhra Pradesh 1997 4 SCALE 746 13. State of Andhra Pradesh v. V. Sarma
Rao…………………A.I.R.2007 S.C. 137 at para. 6 14.
V.S.S. Sastry v. State of Andhra Pradesh………………………...A.I.R.1967 S.C. 71 at 74
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.
TRIBAL CUSTOMARY LAW IN INDIA
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‘Justice has emanated from nature. Therefore, certain matters have passed into custom by reason of their utility. Finally
the fear of law, even religion, gives sanction to those rules which have both emanated from nature and have been
approved by custom.’
Cicero
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The Indian Constitution guarantees protection to the Scheduled tribes in order to let them develop according to their
own genius. In jurisprudence, an immemorial custom is not merely an adjunct of ordinary law but is also its constituent
part. In this thinking, the unwritten tribal customary laws recognized as binding by their communities interact with the
larger corpus of the law enacted and enforced by the formal State. This interaction often overlooks their role in the
maintenance of Tribal solidarity and identity. That is why the present study on tribal customary laws focuses on the role
they play not merely as traditional and normative rules of regulating their societies but also of keeping the tribe together.
Specific to most tribal customary laws is their community dimension. This aspect evolved out of area-specific
management of the natural resources or the environment that was their livelihood. Most such practices helped their
communities to be self-reliant and were cantered round agriculture, especially jhum that was their main subsistence.
The forest was one more component.
Traditionally tribal villages and communities have their village chiefs to perform the specific socio- religious functions. The
village chief is called by various names viz ‘Majhi’, ‘Patel’, ‘Chalki’, ‘Pradhan’ and ‘Mukkadam’. The ‘Baiga’, ‘Bhumia’, ‘Gaita’
and ‘Sirha’. Sirha acts as village priest and performs traditional rituals and rites during festive occasions for the tribal
communities. Even in the present context of three tiers Panchayat Raj System the traditional village councils are honoured
and settle disputes at the village and community levels in their respective hamlets. The old ‘Parha Panchayat’ of Oraons is
famous but, has vanished. Besides, some socio-economic institutions like ‘Ghotul’ among the ‘Murias’, ‘Dhumkuria’
among the Orans had been highly recognized, allowing youth to learn their socio-economical and religious pattern of life
and sexual training under disciplined institutionalized system. ‘Dhumkuria’ is now a legend, but ‘Ghotul’ could be seen in
Narayanpur District of Chhattisgarh State. Among the ‘Muria’ tribes the taboo against sex relationship during the
menstruation is most stringent. It is believed that the man who goes to menstruating women will die (Elwin, 1947) In brief,
the life and culture of the tribes are
highly colourful and multi-dimensional, but they are distinct in character and in the presently they are in the transitory
stage and thus are in the process of some significant the social changes, especially regarding taboos on sex relationship.
The taboos on sexual intercourse are associated with the religious festivals, fast days, and phases of the moon, economic
and social life of the communities, beliefs and customs prevalent in the society when coitus has to be avoided. In general
abstinence from taboo is insisted upon under broad sets of circumstances, during post-partum period and on certain
ceremonial and religious occasions. The main reasons for observance of restraint are uncleanness of women, lack of
desire for sexual intercourse on the part of female during this period. In addition to these biological restrictions there are
other restrictions associated with some social occasions.1
India’s population includes nearly one hundred million tribal people.2 These numbers are matched only by the
remarkable diversity of India’s tribes.3 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.4 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.5
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 homogeneous and more self-contained than the non-tribal social groups.6Consequently,
several tensions (both perceptible and obscure) pervade relations between tribals and non- tribals, 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 1 (
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Jaiswal, 1979) 2
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The 2001 Government of India Census recorded 8.2 per cent of India’s population as tribal. 3 There are 622 recognized
tribes in India. See Ministry of Tribal Affairs, Government of India, online: >http://tribal.nic.in/index1.html< 4 W.V. Grigson,
The Aboriginal in the Future India (1944) 74 J. Royal Anthropological Inst. Gr. Brit. & Ir. 33. 5 Chanana Karuna, Accessing
Higher Education: The Dilemma of Schooling Women, Minorities, Scheduled Castes and Scheduled Tribes in
Contemporary India (1993) 26 Higher Educ. 69 at 71. 6 Virginius Xaxa, Empowerment of Tribes in Debal K. Singha Roy,
ed., Social Development and the Empowerment of Marginalised Groups: Perspectives and Strategies (Thousand Oaks,
CA: Sage Publications, 2001) at 203.
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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.7 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 administration8 that they have a right to seek justice within their own
traditional or customary laws;9 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 and through tribal-people-specific statutes, but there are considerable
differences in the way the north-eastern and peninsular tribes are treated in the Indian legal system.10 The distinction in
the extant law is based on the two criteria that had guided the colonial British Indian government in determining the
degree of self-government that the tribes would exercise: a. Whether the tribe had the ability to manage its own
affairs,11 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 7
Known as the development-deference dichotomy. Shubhankar Dam, Legal Systems as Cultural Rights: A Rights Based
Approach to Traditional Legal Systems under the Indian Constitution (2006) 16 Ind. Intl & Comp. L. Rev. 295 (claiming
that development and deference cannot triumph together). 8
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Throughout this paper I use the terms decentralization and autonomy contradistinctively. 9
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This is important because customary law traditionally settled tribal disputes until English common law became the sole
legitimate recourse for enforcing rights. Predictably, the usual difficulties with any imposed law prolonged procedures,
impractical rules of evidence, and delays in disposal of cases hinder a verdict even in the simplest of cases. Indigenous
communities therefore prefer the swift justice delivered by extremists (such as the Naxalites and Maoists) flourishing in
the hinterlands over the procrastinated conventional court system to which they are unaccustomed. They thus become
ready recruits for extremist groups like the Maoists in central and south India who promise protection of the tribes’
natural rights in return for material and political support. See a Spectre Haunting India the Economist (17 August 2006),
online: The Economist >http://www.economist.com/world/asia/displaystory.cfm?story_id=7799247<. 10 I want to
emphasize that tribal rights in India are generally argued without reference to indigenousness. Much of the
anthropological research suggests that almost all races that have lived on the subcontinent are in some respect
‘indigenous’. See Crispin Bates, ‘Lost Innocents and the Loss of Innocence’: Interpreting Adivasi Movements in South
Asia in R.H. Barnes, Andrew Gray & Benedict Kingsbury, eds., Indigenous Peoples of Asia (Michigan: American
Association for Asian Studies, 1995) at 103-104. The domestic consensus thus appears to be in favour of discarding
references to indigenousness for simply the equitable term tribal. The distinction is crucial, because a policy predicated
on ‘indigenousness’ raises apprehensions that autonomy or self- government will lead to further divisions of the society
and fuel violent ethnic separatism. Bengt G. Karlsson, Anthropology and the ‘Indigenous Slot’: Claims to and Debates
about Indigenous Peoples’ Status in India (2003) 23 Critique of Anthropology. 11 Amit Prakash, Decolonisation and Tribal
Policy in Jharkhand: Continuities with Colonial Discourse (1999) 27 Soc. Scientist 113.
governors.12 This arrangement has been codified in the Constitution’s Fifth Schedule for tribes
in peninsular India, and the Sixth Schedule for the north-eastern tribes.13 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.14 In this
paper, I focus on the Fifth Schedule areas. Though an overwhelming majority of India’s tribal people inhabit this region,
they were only recently introduced to decentralization when the Indian Parliament has 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
non-tribal).15 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.16 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 12
In Indian legal parlance such socially and educationally disadvantaged communities are termed backward, a term used
in contrast to forward communities in the Constitution. See e.g. Constitution of India, 1950, Art. 15(4) and Art. 15(5). See
also R. K. Sabharwal v. State of Punjab, [1995] 2 S.C.C. 745 at para. 4 and Indira Sawhney v. Union of India, A.I.R. [1993]
S.C. 477. 13
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Currently, the Fifth Schedule covers tribal areas in nine peninsular states, namely, Andhra Pradesh, Orissa, Jharkhand,
Chhattisgarh, Madhya Pradesh, Maharashtra, Gujarat, Rajasthan and Himachal Pradesh. Tribal areas in the northeastern
states of Assam, Meghalaya, Tripura and Mizoram are excluded from the purview of the Fifth Schedule, and are instead
governed by the Sixth Schedule. 14 B. Shiva Rao, The Framing of India’s Constitution: Select Documents (Delhi: The
Indian Institute of Public Administration, 1967) at 771-772 15 The Act had been hailed as perhaps the most progressive
law passed since independence, granting tribal communities radical powers to preserve their traditions and customs,
besides entrusting them with the authority to manage their community resources. See Vidhya Das, PESAA Reality Check
(Agragamee, 2005), online: Agragamee >http://www.agragamee.org/ newinitiatives_pesa.htm<. See also Abha
Chauhan, Sustainability through Self-Governance in Tribal Areas of IndiaA Gender Perspective (paper presented to the
International Sociological Association, 1998) [unpublished]. 16 Stuart Corbridge, The Continuing Struggle for India’s
Jharkhand: Democracy, Decentralisation and the Politics of Names and Numbers (2002) 40 Commonwealth & Comp.
Pol. 55.
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.
Almost all interest groups presume that the fault lies not with the substantive content of the Fifth Schedule or PESA, but
with their implementation. But this hardly tells the whole story. I argue that a major cause for the failure of governance
in these tribal areas is the top-down approach of decentralization adopted in the Fifth Schedule and PESA. I therefore
advocate a range of constitutional and statutory reforms that would institutionalize tribal autonomy (a bottom-up
approach),17 such as the introduction of a fundamental right to tribal property in the Constitution, exclusive
administrative and legislative powers for the predominantly tribal communities, and (time-sensitive) duties to be
discharged by the centre (both the central government, that is the administration, and the central legislature, that is the
Indian Parliament) and the states.
STATEMENT OF PROBLEM
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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 and through tribal-people-specific statutes, but there are considerable differences
in the way the north eastern and peninsular tribes are treated in the Indian legal system. 17
However, I strictly differentiate autonomy from self-determination. See Russel Lawrence Barsh, Revision of ILO
Convention No. 107 (1987) 81 Am. J. Int’l L. 756 at 759-760.
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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 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 Tribal 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: 1. proper understanding of the subject tribal customary laws and
the issues faced by it in India and abroad 2. to understand the factors that are causing divide between the state and the
tribal population 3. 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.
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.18 “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 18
Constitution of India, 1950, Article 245(1)
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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,19
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”20 and subject to only two restrictions: 1. That the Governor would consult a Tribes
Advisory Council “before making any regulation”; and, 2. 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 19
Edwingson Bareh v. State of Assam, A.I.R. [1966] S.C. 1220 ¶ 47 20 Ram Kripal Bhagat v. State of Bihar, A.I.R. [1970] S.C.
951 at 958, and V.S.S. Sastry v. State of Andhra Pradesh, A.I.R. [1967] S.C. 71 at 74.
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
the case of
Pu Myllai Hlychho21 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. 1. The tribes in Fifth Schedule areas were considered incapable of self-government. 2. 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.”22 21
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Pu Myllai Hlychho v. State of Mizoram, [2005] 2 S.C.C. 92 22 Amrendra Pratap Singh v. Tej Bahadur Prajapati, [2004] 10
S.C.C. 65 at para 15
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
self-government.23” On the other hand, while devolving power to the local communities the states were to ensure that
1. Their laws comported “with the customary law, social and religious practices and traditional management practices of
community resources,24 2. 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.25 PESA is
therefore considered by many as a “logical extension of both the Fifth Schedule” and Part IX of the Constitution.26 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. 23
Article 243G Constitution of India, 1950 24 PESA, s. 4(a) 25 Ibid., s. 4(c). 26 http://tribal.nic.in/fifthschedule.htm
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.27 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.” 27 73
rd Amendment bill 1991 of constitution
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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 neighbouring 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”28 or enacted incomplete laws. 28
As required by PESA, s. 4(a
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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.29 In contrast, the tribes can only invoke a legal right to property
under Article 300A of the Constitution.30
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Since the tribes right to property is merely a legal right, and not a fundamental 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. 29
Laxmi Khandsari v. State of Uttar Pradesh, [1981] 2 SCC 600 at para 12 and Saghir Ahmad v. State of Uttar Pradesh,
A.I.R[1954] SC 728 at para 27 30 (
no person shall be deprived of his property save by authority of law);
Constitution of India, 1950, Art. 26(c).
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.31 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.32 The central and state government’s 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.33 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 PESA34. 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 governors 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.35 31
Daulat Singh Surana v. First Land Acquisition Collector, [2006] 11 SCALE 482 32 State of Andhra Pradesh v. V. Sarma Rao,
A.I.R. [2007] S.C. 137 at para. 6 33 Hukumdev Narain Yadav v. Lalit Narain Mishra, [1974] 2 S.C.C. 133 at para 17 34 BALCO
v. Union of India, [2002] 2 S.C.C. 333 35 Samatha v. State of Andhra Pradesh, [1997] 4 SCALE 746
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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 communities 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 jurisdiction 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
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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 non-native 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.36 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. 36
http://www.moef.gov.in/public-information/other-reports
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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 fanfare 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 subsection (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 forests 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.37 These conventions oblige governments to identify the lands and protect these rights. It ensures recognition
of tribal people’s 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 37
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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 self-
determination 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 is 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
that
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had previously supported the declaration this time raised concerns about the phrase “right to self-determination”
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 those 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. • The human right of indigenous
peoples to exist. • The human right to freedom from genocide and ‘ethnic cleansing’. • 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. • 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. • The human right to use manage and safeguard the natural resources pertaining to their lands. • The human
right to freedom of association. • The human right to enjoy and develop their own culture and language. • 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. • 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. • 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
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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 Number 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 processes 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 peoples38 and ensure that appropriate mechanisms and means are
available39. 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.
DESIGNING AN ALTERNATIVE LEGAL SYSTEM FOR TRIBAL GOVERNANCE IN INDIA
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It has been
now attempt a structural reconstruction of tribal governments. This shift from an abstract general legal notion of
autonomy to a fuller, more textured model of local 38 (Article 3) 39 (Article 33) government will focus on constitutional
amendments, supporting legislation by the states, and the contribution of civil society actors. It is difficult to classify the
proposed structure strictly in the mould of “minimal” or “maximal” autonomy, but in the “complex spectrum of
gradations” that lie in between, the framework leans more toward maximal autonomy with broad legislative and
executive faculties that require a distribution of competences that is constitutionally regulated and supported by
status,40 My suggestions are normative and begin by highlighting the importance of securing tribal property rights
which form the core of other overlapping rights and duties. SECURING TRIBAL PROPERTY RIGHTS As noted earlier,
securing property rights has been a key part of modern Indigenous peoples’ movements around the world; yet the
tribes in India are regularly deprived of these rights. Also noted was the root of the problem that the tribes have a legal
rather than fundamental right to property
under
Indian law, which has made it possible for the State to acquire tribal lands if it meets the low threshold of having
consulted or sought recommendations before doing so. The most straightforward way of substituting ‘consent’ for
‘consultation’ is to alter the balance of power between the states and the tribal local governments by making property a
fundamental right for the tribes as well.41 Even though states can still acquire tribal community property by qualifying
this right (as almost all other fundamental rights are) and 40
The author rightly cautions that, what may be seen as maximal autonomy in one situation may be considered minimal in
another and vice versa.” 41
Private property rights have had a checkered history in India. Individuals currently do not exercise a fundamental right to
property and any appropriations—including those of tribal lands—can only be challenged if it violates the legal right
guaranteed in Article 300A cited earlier. However, what is interesting to note is that in the last 15 years India has taken a
turn with the New Economic Policy adopted in 1991 which deregulated and liberalized the economy. The resultant
growth in capitalism has made private property and the modern social relations theory, which connects property rights
to “personhood, health, dignity, liberty, and distributive justice,” increasingly relevant. See Madhavi Sunder, “IP3” (2006)
59 Stan. L. Rev. 257 at 259 (citing Margaret Jane Radin, “Property and Personhood” (1982) 34 Stan. L. Rev. 957, Joseph
William Singer, Introduction to Property (New York: Aspen Law & Business, 2001) at 2-19, and Stephen R. Munzer,
“Property as Social Relations” in Stephen R. Munzer, ed., New Essays in the Legal and Political Theory of Property
(Cambridge: Cambridge University Press, 2001) at 36). As a result, some sections of society have begun appealing for
the reinstatement of the fundamental right for all citizens. See, e.g., Kaushik Das, “The Right to Property: It is High Time
the Government Makes it a Fundamental Right Again” Business Standard (14 April 2004). In order to navigate between
the conceptual shoals that may be implicated when thinking about the possibility of granting the tribes such a right, I
offer a beginning. The tribes’ right to property should be considered a corollary to the various state laws that prohibit
alienation of tribal lands. Many, such as the Andhra Pradesh Scheduled Areas Land Transfer (Amendment) Regulation of
1970, vest all land in the Fifth Schedule areas with the tribes unless proven otherwise. A fundamental right would ensure
that this default rule is not altered in the future because of political pressure.
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paying just compensation,42 the extent of police powers would be significantly curtailed, since any state action43
interfering with fundamental rights will be judicially reviewable for its effects and consequences under the well-
established principles of the Indian Supreme Court.44 The mandate for such a provision has been constitutionally given
to Parliament, which can make “any special provision for the advancement of … the Scheduled Tribes.”45 If recognized,
the fundamental right would be one of many provisions securing tribal interests. The Fifth and Sixth
Schedules are examples, and so is Parliaments ability to legislatively restrict a citizen’s right to travel or reside in any part
of India if such law was “for the protection of the interests of any Scheduled Tribe.46 On a conceptual plane, this
fundamental right ought to lie between the “castle” model and the “investment” model of property.47 It is supported by
Professor Joseph Singer, who argues that owners do not live alone and when their exercise of property rights affects
others, the interests of those others need to be taken into account to determine whether any obligation imposed on a
property owner is just or fair. There would be numerous occasions where the use of tribal property would be imperative
for national development, and where an absolute right for the tribes may unduly jeopardize the greater good.
In order to balance rights with concomitant duties, the ‘just and fair’ test mentioned above allows us to abjure the
extreme positions of the two models, fitting in nicely with the fact that the test would be applied by the Indian judiciary,
which has usually supported tribal property rights.48 In this way, my proposal would be an extraordinary 42
The Constitution may place “reasonable restrictions” on the right. Such restrictions qualify most other fundamental
rights in the Constitution, including the fundamental right of religious minorities to own and acquire property. 43 “The
prerequisite for invoking the enforcement of a fundamental right … is that the violator of that right should be a State
[entity].” Zee Telefilms Ltd. v. Union of India, [2005] 4 S.C.C. 649 at para. 28. 44 Delhi Transport Corporation v. D.T.C.
Mazdoor Congress, A.I.R. [1991] S.C. 101 at para. 294 (“The effect of restriction or deprivation and not of the form
adopted to deprive the right is the conclusive test.”). 45 Constitution of India, 1950, Art. 15(4). 46
Art. 19. A fundamental property right specifically for tribal communities would not violate the principle of equality
embodied in the Constitution of India. The Indian Constitution, like that of every other modern democracy, has an equal
protection clause (Article 14) with a “generality-requiring task” as well as a “generality-correcting task” which “prevent[s]
government from establishing or reinforcing through the laws collective disadvantages inconsistent with the principle
that in a democracy each person should count as one.” Roberto Mangabeira Unger, “The Critical Legal Studies
Movement” (1983) 96 Harv. L. Rev. 561 at 603. In other words, a fundamental right to property for tribal communities in
the Scheduled Areas would correct the unexplained imbalance in the Constitution where minority religious
communities alone are guaranteed such rights while other socially coherent groups like the tribes are not. 47 The
“castle” model “conceptualizes owners as having absolute domain over their property as long as they do not use it to
harm others,” while the “investment” model “conceptualizes
property
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as a form of investment in a market economy that creates reasonable expectations likely to yield economic rewards.”
See Joseph William Singer, “The Ownership Society and Takings of Property: Castles, Investments, and Just Obligations”
(2006) 30 Harv. Envtl. L. Rev. 309.
measure to remedy the “collective inferiority” of the tribal peoples.49
TOWARDS AUTONOMOUS TRIBAL LOCAL GOVERNMENTS Once property rights are secured, they must be sustained
by a legal paradigm that strengthens tribal autonomy. Tribal autonomy is not a challenge to India’s sovereignty. Rather,
in claiming the right to self-determination the Indigenous communities are “seeking new ways’ of being recognized by
national laws and systems of decision making without losing their autonomy and their own values.50 Before I venture to
reconstruct the schema of tribal local governments in Fifth Schedule areas, it might be helpful to revisit the Sixth
Schedule. While by no means an ideal,51 the Sixth Schedule, as described in Part II of this paper, has certain features that
can be implanted in any governance model for tribal areas in the rest of the country.52 In particular, I am interested in
drawing from the Sixth Schedules concepts of constitutionally specified administrative and legislative subjects that are
the exclusive domain of the local governments, the proscription on the states’ executive authority, and financial
independence for the local governments. The Constitutional Scheme for Tribal Autonomy in the Fifth Schedule Areas
The structural reconstruction that I propose envisages discarding PESA and revising the Fifth Schedule. Embedding the
new autonomous scheme in the Constitution would give a level of legitimacy 48
Samatha v. State of Andhra Pradesh, [1997] 4 SCALE 746. The Samatha court did not qualify the government’s right to
acquire tribal mineral resources because the Fifth Schedule, as it stood then (and now), provides no such limitation
where the appropriation is in national interest. If there was a fundamental right to property for the tribes, the court’s
opinion leads me to conclude that it would have surely truncated the State’s power to take tribal property. 49 A phrase I
borrow from Roberto Unger. See supra note 181 at 606. Interestingly, Mahapatra et al. provide a vivid account of 1,500
tribal villages in a resource-rich region that declared themselves “village republics” in a desperate attempt to prevent
non-tribal intrusions and takings by the State. See Richard Mahapatra et al., The Second Independence: What Makes
Villages Declare Themselves Republics?” Down to Earth (31 August 2002). 50
Marcus Colchester & Fergus Mackay, “In Search of Middle Ground: Indigenous Peoples, Collective Representation and
the Right to Free, Prior and Informed Consent” (paper presented to the 10th Conference of the International Association
for the Study of Common Property, Oaxaca, Mexico, 9-13 August 2004) [unpublished], online: Forest Peoples
Programme. >http://www.forestpeoples.org/documents/law_hr/fpic_ips_text_only_aug04_eng.pdf<. 51 (“[T]he Sixth
Schedule … cannot be accepted as sacrosanct. It can be taken as a model for guidance but with a clear proviso that
such elements … must be suitably adapted and even could be rejected outright wherever necessary”). Sharma however
argues that the “Sixth Schedule was designed for the most favourable setting of homogen[e]ous single-tribe tracts ….
The first premise in any scheme of transformation in this situation, therefore, has to be that the system must be built on
what exists on the ground.” 52 Perhaps in recognition, Parliament required that “the State Legislature shall endeavour to
follow the pattern of the Sixth Schedule to the Constitution while designing the administrative arrangements in the
Panchayats at district levels in the Scheduled Areas.” PESA, s. 4(o).
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and permanency that legislation would otherwise not provide. The basic unit of administration in an alternative structure
should continue to be a community that manages its affairs in accordance with [shared] traditions and customs.53
On the contrary,
the community is the fundamental institution of all tribes whether settled or nomadic. At the grassroots, the tribal
community should be empowered to constitute a local government that, for reasons given elsewhere, is based on
traditional systems of government. The revised Fifth Schedule should also prescribe the method of determining the
hierarchically superior levels of tribal administration which may in many cases lie entirely within a homogeneous tribe
settled over a vast area. For example, the Biar and Bhinjhal tribes of central India split their traditional governing bodies
into two tiers —one at the village level, and the other at the regional level. It is also extremely important that the Fifth
Schedule allow sufficient flexibility to accommodate traditional governments that may not closely follow the
conventional division of authority between the legislative, executive and judicial branches. Many tribes in peninsular
India appoint traditional councils that act both as executive and legislative bodies. Note that PESA itself does not draw a
bright line between legislative and executive branches of local governments, and entrusts certain powers at the village
level to both that is, to the elected Panchayats and to the adult body of electors (the Gram Sabhas). At this juncture I
want to introduce the concept of legislative autonomy for the local governments at each hierarchical level. For this
purpose, I propose a fourth constitutional list alongside the earlier described Union, State, and Concurrent Lists with a
diverse range of subjects that would be exclusively legislated by the tribal local governments.
We could also look at the Sixth Schedule, which lists various subjects on which “the [tribal District and Regional
Councils] shall have power to make laws.54’ Taken together, these sources are indicative of the possibility and
plausibility of codifying exclusive subjects for legislation by tribal local governments in the Fifth Schedule areas.
CONCLUSION The
introduction of PESA in 1996 definitively signalled 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
53 PESA, s. 4(b). 54
K.S. Singh, The Scheduled Tribes (New Delhi: The Anthropological Survey of India, 1994) at 175-178 .
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concentration, delegation and divestment have 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 1. Tribal Law and Justice by W.G. Archer 2.
Tribal Self Governance PESA and Its Implementation by Nupur Tiwari 3. Social Movements In Tribal India By S.N.
Chaudhary 4. www.ilo.org; Indigenous and Tribal Peoples › Conventions 5. http://www.moef.gov.in/public-
information/other-reports 6. http://tribal.nic.in/fifthschedule.htm 7. http://tribal.nic.in/index1.html 8.
https://www.law.msu.edu/indigenous/papers/2006-04.pdf
9. http://www.ncsl.org/print/lrl/seldon07-2.pdf 10.
http://www.worldwidejournals.com/ijar/file.php?val=December_2012_1357020524_b ecca_26.pdf 11.

http://www.ipu.ac.in/seminar/semtribsms150914.pdf
12. http://shodhganga.inflibnet.ac.in/bitstream/10603/14823/15/15_bibliography.pdf
JUDICIAL PRECEDENTS
1.
Amrendra Pratap Singh v. Tej Bahadur Prajapati 2004 10
S.C.C. 65 at para.15 2. BALCO v. Union of India……………………………………………….2002 2 S.C.C. 333 15.
Daulat
Singh Surana v. First Land Acquisition Collector 2006 11 SCALE 482 16. Edwingson Bareh v. State of
Assam……………………………A.I.R.1966 S.C. 1220 ¶ 47 17. Hukumdev Narain Yadav v. Lalit Narain Mishra…………...1974 2 S.C.C.
133 at para. 17 18.
Indira Sawhney
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v. Union of India…………………………………….A.I.R.1993 S.C. 477 19. Lakshmi Khandsari v. State of Uttar Pradesh………………...1981
2 SCC 600 at para. 12 20. Pu Myllai Hlychho v. State of Mizoram………………………………….2005 2 S.C.C. 92 21. R. K.
Sabharwal v. State of Punjab………………………………1995 2 S.C.C. 745 at para. 4 22. Ram Kripal Bhagat v. State of
Bihar…………………………..A.I.R.1970 S.C. 951 at 958 23. Saghir Ahmad v. State of Uttar Pradesh……………………A.I.R 1954 SC 728
at para 27 24. Samatha v. State of Andhra Pradesh 1997 4 SCALE 746 25. State of Andhra Pradesh v. V. Sarma
Rao…………………A.I.R.2007 S.C. 137 at para. 6 26.
V.S.S. Sastry v. State of Andhra Pradesh………………………...A.I.R.1967 S.C. 71 at 74 10 311 211 20 30 46 40 12 111
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Hit and source - focused comparison, Side by Side
Submitted text As student entered the text in the submitted document.
Matching text As the text appears in the source.
1/65 SUBMITTED TEXT 14 WORDS 100% MATCHING TEXT 14 WORDS
S.C Supreme Court S.C.C Supreme Court Cases S.C Supreme Court S.C.C Supreme Court Cases
https://qdoc.tips/tribal-customary-laws-autosaveddocx-pdf-free.html
S.C.C. 65 at para.15 2. BALCO v. Union of S.C.C. 133 at para. 17. • BALCO v. Union of India, [2002] 2
India……………………………………………….2002 2 S.C.C. 333 3. S.C.C. 333 •
Singh Surana v. First Land Acquisition Collector 2006 11 Singh Surana v. First Land Acquisition Collector, [2006] 11
SCALE 482 4. Edwingson Bareh v. State of SCALE 482. • State of Andhra v. V. Sarma A.I.R. [2007]
Assam……………………………A.I.R.1966 S.C. 1220 ¶ 47 5. S.C. 137 para. 6. • Hukumdev Narain Yadav v. Lalit Narain
Hukumdev Narain Yadav v. Lalit Narain Mishra…………...1974 Mishra, [1974] 2 S.C.C. 133 at para. 17. •
2 S.C.C. 133 at para. 17 6.
v. Union of India…………………………………….A.I.R.1993 S.C. 477 v. State of Bihar, A.I.R. [1970] S.C. 951 V.S. Sastry v. State of
7. Lakshmi Khandsari v. State of Uttar Andhra Pradesh, A.I.R. [1967] S.at 74 • Pu Myllai Hlychho v.
Pradesh………………...1981 2 SCC 600 at para. 12 8. Pu Myllai State of Mizoram, [2005] 2 S.C.C. 92. Amrendra Pratap
Hlychho v. State of Mizoram………………………………….2005 2 Singh v. Tej Bahadur Prajapati, [2004] 10 S.C.C. 65 at
S.C.C. 92 9. R. K. Sabharwal v. State of para.15 • Laxmi Khandsari v. State of Uttar Pradesh,
Punjab………………………………1995 2 S.C.C. 745 at para. 4 10. [1981] 2 SCC 600 at Saghir Ahmad v. State of Uttar
Ram Kripal Bhagat v. State of Pradesh, A.I.R[1954] SC 728 at para 27 Daulat
Bihar…………………………..A.I.R.1970 S.C. 951 at 958 11. Saghir Singh v. First Acquisition Collector, [2006] 11
Ahmad v. State of Uttar Pradesh……………………A.I.R 1954 SC SCALE 482. • State of Andhra Pradesh v. V. Sarma Rao,
728 at para 27 12. Samatha v. State of Andhra Pradesh A.I.R. [2007] S.C. 137 at para. 6. •
1997 4 SCALE 746 13. State of Andhra Pradesh v. V. Sarma
Rao…………………A.I.R.2007 S.C. 137 at para. 6 14.
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V.S.S. Sastry v. State of Andhra V.S.S. Sastry v. State of Andhra Pradesh, A.I.R. [1967] S.C. 71
Pradesh………………………...A.I.R.1967 S.C. 71 at 74 at 74 •
REVIEW OF LITERATURE Tribal Customary Laws in the REVIEW OF LITERATURE Tribal Customary Laws In The
Recent Years Has Gained Some Momentum among Recent Years Has Gained Some Momentum Among
Activist and Law Makers to Make an In Depth Study the Activist And Law Makers To Make An In Depth Study The
Following Literature Has Been Reviewed Tribal Law and Following Literature Has Been Reviewed Tribal Law and
Justice by W.G. Archer. The Author Seeks To Explain The Justice by W.G. Archer The Author Seeks To Explain The
Principles Of Tribal Law Which Santals Of The Santal, Principles Of Tribal Law Which Santals Of The Santal
Parganas Accept As Defining Their Civil Rights And Duties. ,Parganas Accept As Defining Their Civil Rights And Duties.
These Principles Cover A Wide Range Of Subjects Such As These Principles Cover A Wide Range Of Subjects Such As
The Rights Of Santal Men And Women, The Law Of The Rights Of Santal Men And Women, The Law Of
Marriage And Divorce, The Claims Which Arise At The Marriage And Divorce, The Claims Which Arise At The
Crises Of Birth, Sickness And Death. Moreover, the Tribe as Crises Of Birth, Sickness And Death. Moreover, The Tribe
A Whole Is Also An Important Subject For Law. Tribal Self As A Whole Is Also An Important Subject For Law Tribal
Governance PESA and Its Implementation by Nupur Self Governance PESA and Its Implementation by Nupur
Tiwari. The Author Seeks to Explain That PESA Act gives Tiwari The Author Seeks To Explain That PESA Act gives
radical governance powers to the tribal community and radical governance powers to the tribal community and
recognizes its traditional community rights over local recognizes its traditional community rights over local
natural resources. This Act has also made it mandatory for natural resources. This Act has also made it mandatory for
the states having Scheduled Areas to make specific the states having Scheduled Areas to make specific
provisions for giving a broad range of powers to the tribals provisions for giving a broad range of powers to the tribals
on matters relating to decision- making and development on matters relating to decision-making and development
of their community. Social Movements in Tribal India by of their community. Social Movements In Tribal India By
S.N. Chaudhary. The Author Seeks to explain that the S.N. Chaudhary The Author Seeks To Explain That The
history of tribal social movements in India is very old. history of tribal social movements in India is very old.
These social movements have impacted tribal culture and These social movements have impacted tribal culture and
tradition in multiple ways. Initially most of these tradition in multiple ways. Initially most of these
movements were local and largely reformative in movements were local and largely reformative in
character. But as interaction of tribals with outside forces, character. But as interaction of tribals with outside forces,
culture and tradition increased the nature, magnitude and culture and tradition increased, the nature, magnitude and
intensity of social movements also increased. intensity of social movements also increased
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The Indian Constitution guarantees protection to the The Indian Constitution guarantees protection to the
Scheduled tribes in order to let them develop according Scheduled tribes in order to let them develop according
to their own genius. In jurisprudence, an immemorial to their own genius. In jurisprudence, an immemorial
custom is not merely an adjunct of ordinary law but is also custom is not merely an adjunct of ordinary law but is also
its constituent part. In this thinking, the unwritten tribal its constituent part. In this thinking, the unwritten tribal
customary laws recognized as binding by their customary laws recognised as binding by their
communities interact with the larger corpus of the law communities interact with the larger corpus of the law
enacted and enforced by the formal State. This interaction enacted and enforced by the formal State. This interaction
often overlooks their role in the maintenance of Tribal often overlooks their role in the maintenance of tribal
solidarity and identity. That is why the present study on solidarity and identity. That is why the present study on
tribal customary laws focuses on the role they play not tribal customary laws focuses on the role they play not
merely as traditional and normative rules of regulating merely as traditional and normative rules of regulating
their societies but also of keeping the tribe together. their societies but also of keeping the tribe together.
Specific to most tribal customary laws is their community Specific to most tribal customary laws is their community
dimension. This aspect evolved out of area-specific dimension. This aspect evolved out of area-specific
management of the natural resources or the environment management of the natural resources or the environment
that was their livelihood. Most such practices helped their that was their livelihood. Most such practices helped their
communities to be self-reliant and were cantered round communities to be self-reliant and were centred round
agriculture, especially jhum that was their main agriculture, especially jhum that was their main
subsistence. The forest was one more component. subsistence. The forest was one more component.
http://ncwapps.nic.in/pdfreports/Customary%20Law.pdf
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India’s population includes nearly one hundred million India’s population includes nearly one hundred million
tribal people.2 These numbers are matched only by the tribal people. These numbers are matched only by the
remarkable diversity of India’s tribes.3 The two main remarkable diversity of India’s tribes. The two main
regions of tribal settlement are the country’s north- regions of tribal settlement are the country’s north-
eastern states bordering China and Burma, and the eastern states bordering China and Burma, and the
highlands and plains of its central and southern regions.4 highlands and plains of its central and southern regions.
The latter is home to more than 80 per cent of the tribes, The latter is home to more than 80 per cent of the tribes,
which differ from the north-eastern tribes in ethnicity and which differ from the north-eastern tribes in ethnicity and
in having experienced greater intrusion of the Indian in having experienced greater “intrusion of the Indian
mainstream and of the pan Indian model of the state, mainstream and of the pan- Indian model of the state,
society, economy and culture.5 There are also differences society, economy and culture.” There are also differences
in the extent to which the tribes interact with non-tribal in the extent to which the tribes interact with non-tribal
communities. While the north-eastern tribes are usually communities. While the north-eastern tribes are usually
isolated communities, the tribes in peninsular India may at isolated communities, the tribes in peninsular India may at
times coexist with non-tribal people. Despite some times coexist with non-tribal people. Despite some
regional variation, the tribes share many traits, including regional variation, the tribes share many traits, including
living in relative geographical isolation, and being living “in relative geographical isolation,” and being
relatively more homogeneous and more self-contained “relatively more homogeny” and “more self-contained
than the non-tribal social groups.6Consequently, several than the non-tribal social groups.” Consequently, several
tensions (both perceptible and obscure) pervade relations tensions (both perceptible and obscure) pervade relations
between tribals and non- tribals, on the one hand, and the between and non-tribes, on the one hand, and the
tribes and the State, on the other. The conventional, and tribes and the State, on the other. The conventional, and
largely accepted, solution is to balance the dichotomy largely accepted, solution is to balance the dichotomy
between assimilation of tribal peoples 1 ( between assimilation of tribal peoples
The 2001 Government of India Census recorded 8.2 per The 2001 Government of India Census recorded 8.2 per
cent of India’s population as tribal. 3 There are 622 cent of India’s population as tribal. 2 There are 622
recognized tribes in India. See Ministry of Tribal Affairs, recognized tribes in India. See Ministry of Tribal Affairs,
Government of India, online: Government of India, online:
>http://tribal.nic.in/index1.html< 4 W.V. Grigson, The >http://tribal.nic.in/index1.html<. 3 W.V. Grigson, “The
Aboriginal in the Future India (1944) 74 J. Royal Aboriginal in the Future India” (1944) 74 J. Royal
Anthropological Inst. Gr. Brit. & Ir. 33. 5 Chanana Karuna, Anthropological Inst. Gr. Brit. & Ir. 33. 4 Chanana Karuna,
Accessing Higher Education: The Dilemma of Schooling “Accessing Higher Education: The Dilemma of Schooling
Women, Minorities, Scheduled Castes and Scheduled Women, Minorities, Scheduled Castes and Scheduled
Tribes in Contemporary India (1993) 26 Higher Educ. 69 at Tribes in Contemporary India” (1993) 26 Higher Educ. 69
71. 6 Virginius Xaxa, Empowerment of Tribes in Debal K. at 71. 5 Virginius Xaxa, “Empowerment of Tribes” in Debal
Singha Roy, ed., Social Development and the K. Singha Roy, ed., Social Development and the
Empowerment of Marginalised Groups: Perspectives and Empowerment of Marginalised Groups: Perspectives and
Strategies (Thousand Oaks, CA: Sage Publications, 2001) Strategies (Thousand Oaks, CA: Sage Publications, 2001)
at 203. at 203. 6
https://tspace.library.utoronto.ca/bitstream/1807/17375/1/ILJ-7.1-Kurup.pdf
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and their independent identity, and delineate the contours and their independent identity, and delineate the contours
of a national policy that would allow them to preserve of a national policy that would allow them to preserve
their way of life without compromising development.7 their way of life without compromising development.
Although relatively simple to capture as a concept, India Although relatively simple to capture as a concept, India
has struggled to maintain the balance in practice. The has struggled to maintain the balance in practice. The
most common problems relate to recognizing that the most common problems relate to recognizing that the
tribes have a right to autonomy and not merely tribes have a right to autonomy and not merely
decentralized administration8 that they have a right to decentralized administration; that they have a right to
seek justice within their own traditional or customary seek justice within their own traditional or customary
laws;9 and that they have a right to own and exploit the laws; and that they have a right to own and exploit the
natural resources in their habitat. These issues are natural resources in their habitat. These issues are
addressed in the Constitution of India and through tribal- addressed in the Constitution of India (“Constitution”) and
people-specific statutes, but there are considerable through tribal-people-specific statutes, but there are
differences in the way the north-eastern and peninsular considerable differences in the way the northeastern
tribes are treated in the Indian legal system.10 The and peninsular tribes are treated in the Indian legal
distinction in the extant law is based on the two criteria system. The distinction in the law is based on the two
that had guided the colonial British Indian government in criteria that had guided the colonial British Indian
determining the degree of self-government that the tribes government in determining the degree of self-
would exercise: a. Whether the tribe had the ability to government that the tribes would exercise: (a) whether
manage its own affairs,11 and b. Whether the tribal region the tribe had the ability to manage its own affairs, and (b)
in question had a significant non-tribal population. whether the tribal region in question had a significant
Judged by these two criteria, the north-eastern tribes non-tribal population. Judged by these two criteria, the
who are also isolated but seen to be more ‘socially north-eastern tribes—who are also isolated but seen to be
advanced have been given considerable autonomy under more ‘socially advanced’—have been given considerable
the Constitution, while the tribes in the rest of the country autonomy under the Constitution, while the tribes in the
have been placed under the aegis of provincial 7 rest of the country have been placed under the aegis of
provincial
http://www.legalservicesindia.com/article/847/Tribal-Laws-&-Customs-in-India.html
Known as the development-deference dichotomy. Known as the “development-deference dichotomy”. See

Shubhankar Dam, Legal Systems as Cultural Rights: A Shubhankar Dam, “Legal Systems As Cultural Rights: A
Rights Based Approach to Traditional Legal Systems under Rights Based Approach To Traditional Legal Systems
the Indian Constitution (2006) 16 Ind. Intl & Comp. L. Rev. Under The Indian Constitution” (2006) 16 Ind. Int’l &
295 (claiming that development and deference cannot Comp. L. Rev. 295 (claiming that development and
triumph together). 8 deference cannot triumph together). #
Throughout this paper I use the terms decentralization Throughout this paper I use the terms "decentralization"
and autonomy contradistinctively. 9 and "autonomy" contradistinctively.
https://heinonline.org/HOL/PDFsearchable?collection=journals&handle=hein.journals/ilj7&div=6&sect ...
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This is important because customary law traditionally This is important because customary law traditionally
settled tribal disputes until English common law became settled tribal disputes until English common law became
the sole legitimate recourse for enforcing rights. the sole legitimate recourse for enforcing rights.
Predictably, the usual difficulties with any imposed law Predictably, the usual difficulties with any imposed law—
prolonged procedures, impractical rules of evidence, and prolonged procedures, impractical rules of evidence, and
delays in disposal of cases hinder a verdict even in the delays in disposal of cases—hinder a verdict even in the
simplest of cases. Indigenous communities therefore simplest of cases. Indigenous communities therefore
prefer the swift justice delivered by extremists (such as the prefer the swift justice delivered by extremists (such as the
Naxalites and Maoists) flourishing in the hinterlands over Naxalites and Maoists) flourishing in the hinterlands over
the procrastinated conventional court system to which the procrastinated conventional court system to which
they are unaccustomed. They thus become ready recruits they are unaccustomed. They thus become ready recruits
for extremist groups like the Maoists in central and south for extremist groups like the Maoists in central and south
India who promise protection of the tribes’ natural rights India who promise protection of the tribes’ natural rights
in return for material and political support. See a Spectre in return for material and political support. See “A Spectre
Haunting India the Economist (17 August 2006), online: Haunting India” The Economist (17 August 2006), online:
The Economist The Economist >http://www.economist.com/world/asia/
>http://www.economist.com/world/asia/displaystory.cfm displaystory.cfm?story_id=7799247<. 9 I want to
?story_id=7799247<. 10 I want to emphasize that tribal emphasize that tribal rights in India are generally argued
rights in India are generally argued without reference to without reference to indigenousness. Much of the
indigenousness. Much of the anthropological research anthropological research suggests that almost all races
suggests that almost all races that have lived on the that have lived on the subcontinent are in some respect
subcontinent are in some respect ‘indigenous’. See Crispin ‘indigenous’. See Crispin Bates, “‘Lost Innocents and the
Bates, ‘Lost Innocents and the Loss of Innocence’: Loss of Innocence’: Interpreting Adivasi Movements in
Interpreting Adivasi Movements in South Asia in R.H. South Asia” in R.H. Barnes, Andrew Gray & Benedict
Barnes, Andrew Gray & Benedict Kingsbury, eds., Kingsbury, eds., Indigenous Peoples of Asia (Michigan:
Indigenous Peoples of Asia (Michigan: American American Association for Asian Studies, 1995) at 103-104.
Association for Asian Studies, 1995) at 103-104. The The domestic consensus thus appears to be in favour of
domestic consensus thus appears to be in favour of discarding references to indigenousness for simply the
discarding references to indigenousness for simply the equitable term “tribal”. The distinction is crucial, because a
equitable term tribal. The distinction is crucial, because a policy predicated on ‘indigenousness’ raises
policy predicated on ‘indigenousness’ raises apprehensions that autonomy or self-government “will
apprehensions that autonomy or self- government will lead to further divisions of the society and fuel violent
lead to further divisions of the society and fuel violent ethnic Bengt G. Karlsson, “Anthropology and the
ethnic separatism. Bengt G. Karlsson, Anthropology and ‘Indigenous Slot’: Claims to and Debates about
the ‘Indigenous Slot’: Claims to and Debates about Indigenous Peoples’ Status in India” (2003) 23 Critique of
Indigenous Peoples’ Status in India (2003) 23 Critique of Anthropology 10 See e.Amit Prakash, “Decolonisation and
Anthropology. 11 Amit Prakash, Decolonisation and Tribal Tribal Policy in Jharkhand: Continuities with Colonial
Policy in Jharkhand: Continuities with Colonial Discourse Discourse” (1999) 27 Soc. Scientist 113. 11
(1999) 27 Soc. Scientist 113.
governors.12 This arrangement has been codified in the governors. This arrangement has been codified in the
Constitution’s Fifth Schedule for tribes Constitution's Fifth Schedule for tribes 7
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95%
14/65 SUBMITTED TEXT 270 WORDS MATCHING TEXT 270 WORDS
in peninsular India, and the Sixth Schedule for the north- in peninsular India, and the Sixth Schedule for the
eastern tribes.13 The separate systems were approved by northeastern tribes. 12 The separate systems were
the Constituent Assembly formed at the time of approved by the Constituent Assembly formed at the time
independence after receiving recommendations that the of independence after receiving recommendations that
distinct community structures’ and ‘attitudes’ of the tribes the distinct 'community structures' and 'attitudes' of the
in the two regions could not be treated in a common tribes in the two regions could not be treated in a
law.14 In this paper, I focus on the Fifth Schedule areas. common law. 13 In this paper, I focus on the Fifth
Though an overwhelming majority of India’s tribal people Schedule areas. Though overwhelming majority of
inhabit this region, they were only recently introduced to India's tribal people inhabit this region, they were only
decentralization when the Indian Parliament has legislated recently introduced to decentralization when the Indian
the Panchayat (Extension to Scheduled Areas) Act, 1996 Parliament legislated the Panchayat (Extension to
(or PESA) exclusively for these areas. PESA mandated the Scheduled Areas) Act, 1996 (or PESA) exclusively for these
states to devolve certain political, administrative and fiscal areas. PESA mandated the states to devolve certain
powers to local governments elected by the communities political, administrative and fiscal powers to local
(whether tribal or non-tribal).15 PESA did not amend the governments elected by the communities (whether tribal
Fifth Schedule, however. Instead, it sought to secure the or non-tribal). 14 PESA did not amend the Fifth Schedule,
participation of the tribal communities through limited however. Instead, it sought to secure the participation of
self-government, expecting this arrangement to be better the tribal communities through limited self- government,
suited to their ‘level of advancement’. After a decade, it is expecting this arrangement to be better suited to their
apparent that PESA is clearly not achieving that objective. 'level of advancement'. After a decade, it is apparent that
On the contrary, blatant violation of tribal interests and the PESA is clearly not achieving that objective. On the
reluctance (in some cases, sheer procrastination) of the contrary, blatant violation of tribal interests and the
state administrations to cede authority have often reluctance (in some cases, sheer procrastination) of the
compelled tribes in the Fifth Schedule areas to reassert state administrations to cede authority have often
their identity and rights violently.16 Yet, there has never compelled tribes in the Fifth Schedule areas to reassert
been a serious debate about alternative schemes for their identity and rights violently. 15 Yet, there has never
governing the tribal regions in peninsular India, even been a serious debate about alternative schemes for
though various developments in the past few years the governing the tribal regions in peninsular India, even
creation of two new states, Jharkhand and Chhattisgarh, though various dev- in the past few years-the
in 2000 through tribal political 12 creation of two new states, Jharkhand and Chhattisgarh,
in 2000 through tribal political
In Indian legal parlance such socially and educationally In Indian legal parlance such socially and educationally
disadvantaged communities are termed backward, a term disadvantaged communities are termed "backward," a
used in contrast to forward communities in the term used in contrast to "forward" communities in the
Constitution. See e.g. Constitution of India, 1950, Art. 15(4) Constitution. See e.g. Constitution of India, 1950, Art. 15(4)
and Art. 15(5). See also R. K. Sabharwal v. State of Punjab, and Art. 15(5). See also R. K. Sabharwal v. State of Punjab,
[1995] 2 S.C.C. 745 at para. 4 and Indira Sawhney v. Union [1995] 2 S.C.C. 745 at para. 4 and Indira Sawhney v. Union
of India, A.I.R. [1993] S.C. 477. 13 of India, A.I.R. [1993] S.C. 477.
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Currently, the Fifth Schedule covers tribal areas in nine Currently, the Fifth Schedule covers tribal areas in nine
peninsular states, namely, Andhra Pradesh, Orissa, peninsular states, namely, Andhra Pradesh, Orissa,
Jharkhand, Chhattisgarh, Madhya Pradesh, Maharashtra, Jharkhand, Chhattisgarh, Madhya Pradesh, Maharashtra,
Gujarat, Rajasthan and Himachal Pradesh. Tribal areas in Gujarat, Rajasthan and Himachal Pradesh. Tribal areas in
the northeastern states of Assam, Meghalaya, Tripura and the northeastern states of Assam, Meghalaya, Tripura and
Mizoram are excluded from the purview of the Fifth Mizoram are excluded from the purview of the Fifth
Schedule, and are instead governed by the Sixth Schedule. Schedule, and are instead governed by the Sixth Schedule.
14 B. Shiva Rao, The Framing of India’s Constitution: 13 B. Shiva Rao, The Framing of India’s Constitution:
Select Documents (Delhi: The Indian Institute of Public Select Documents (Delhi: The Indian Institute of Public
Administration, 1967) at 771-772 15 The Act had been Administration, 1967) at 771-772. 14 The Act had been
hailed as perhaps the most progressive law passed since hailed as “[p]erhaps the most progressive law passed since
independence, granting tribal communities radical powers [i]ndependence,” granting tribal communities radical
to preserve their traditions and customs, besides powers to preserve their traditions and customs, besides
entrusting them with the authority to manage their entrusting them with the authority to manage their
community resources. See Vidhya Das, PESAA Reality community resources. See Vidhya Das, PESA—A Reality
Check (Agragamee, 2005), online: Agragamee Check (Agragamee, 2005), online: Agragamee
>http://www.agragamee.org/ newinitiatives_pesa.htm<. >http://www.agragamee.org/ newinitiatives_pesa.htm<.
See also Abha Chauhan, Sustainability through Self- See also Abha Chauhan, “Sustainability through Self-
Governance in Tribal Areas of IndiaA Gender Perspective Governance in Tribal Areas of India—A Gender
(paper presented to the International Sociological Perspective” (paper presented to the International Socio-
Association, 1998) [unpublished]. 16 Stuart Corbridge, The logical Association, 1998) [unpublished]. 15 See e.Stuart
Continuing Struggle for India’s Jharkhand: Democracy, Corbridge, “The Continuing Struggle for India’s
Decentralisation and the Politics of Names and Numbers Jharkhand: Democracy, Decentralisation and the Politics
(2002) 40 Commonwealth & Comp. Pol. 55. of Names and Numbers” (2002) 40 Commonwealth &
Comp. Pol. 55. 92
movements, the soon-to-be introduced revision of the movements, the soon-to-be introduced revision of the
National Tribal Policy, and the Scheduled Tribes and Other National Tribal Policy, and the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Traditional Forest Dwellers (Recognition of Forest Rights)
Act, passed in December 2006, which grants tribes some Act passed in December 2006, which grants tribes some
measure of ownership in forest lands and produce for the measure of ownership in forest lands and produce for the
first time emphasize that tribal rights are increasingly first time—emphasize that tribal rights are increasingly
figuring as a prominent national concern. figuring as a prominent national concern.
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Almost all interest groups presume that the fault lies not Almost all interest groups presume that the fault lies not
with the substantive content of the Fifth Schedule or with the substantive content of the Fifth Schedule or
PESA, but with their implementation. But this hardly tells PESA, but with their implementation. But this hardly tells
the whole story. I argue that a major cause for the failure the whole story. I argue that a major cause for the failure
of governance in these tribal areas is the top-down of governance in these tribal areas is the top-down
approach of decentralization adopted in the Fifth approach of decentralization adopted in the Fifth
Schedule and PESA. I therefore advocate a range of Schedule and PESA. I therefore advocate a range of
constitutional and statutory reforms that would constitutional and statutory reforms that would institu-
institutionalize tribal autonomy (a bottom-up tionalize tribal autonomy (a bottom-up approach), 16
approach),17 such as the introduction of a fundamental such as the introduction of a fundamental right to tribal
right to tribal property in the Constitution, exclusive property in the Constitution, exclusive administrative and
administrative and legislative powers for the legislative powers for the predominantly tribal com-
predominantly tribal communities, and (time-sensitive) munities, and (time-sensitive) duties to be discharged by
duties to be discharged by the centre (both the central the centre (both the central government, that is the
government, that is the administration, and the central administration, and the central legislature, that is the
legislature, that is the Indian Parliament) and the states. Indian Parliament) and the states.
The conventional, and largely accepted, solution is to The conventional, and largely accepted, solution is to
balance the dichotomy between assimilation of tribal balance the dichotomy between assimilation of tribal
peoples and their independent identity, and delineate the peoples and their independent identity, and delineate the
contours of a national policy that would allow them to contours of a national policy that would allow them to
preserve their way of life without compromising preserve their way of life without compromising
development. Although relatively simple to capture as a development.   Although relatively simple to capture as
concept, India has struggled to maintain the balance in a concept, India has struggled to maintain the balance in
practice. The most common problems relate to practice. The most common problems relate to
recognizing that the tribes have a right to autonomy and recognizing that the tribes have a right to autonomy and
not merely decentralized administration; that they have a not merely decentralized administration; that they have a
right to seek justice within their own traditional or right to seek justice within their own traditional or
customary laws; and that they have a right to own and customary laws; and that they have a right to own and
exploit the natural resources in their habitat. These issues exploit the natural resources in their habitat. These issues
are addressed in the Constitution of India and through are addressed in the Constitution of India and through
tribal-people-specific statutes, but there are considerable tribal-people-specific statutes, but there are considerable
differences in the way the north eastern and peninsular differences in the way the north eastern and peninsular
tribes are treated in the Indian legal system. 17 tribes are treated in the Indian legal system.
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HYPOTHESES The Current Research Is Based On The HYPOTHESES The Current Research Is Based On The
Following Hypotheses: 1. PESA Is Ill equipped To Deal with Following Hypotheses 1. PESA Is Ill equipped To Deal With
Tribal Customary Issues. 2. The States Approach To Tribal Tribal Customary Issues 2. The States Approach To Tribal
Customary Issues Is Not Conducive To The Interest Of Customary Issues Issues Is Not Conducive To The Interest
Tribal People 3. PESAs’ Role In Degradation Of Tribal Right Of Tribal People 3. PESAs’ Role In Degradation Of Tribal
Over Natural Resources 4. Half Hearted Efforts Of Nation Right Over Natural Resources 4. Half Hearted Efforts Of
States Regarding The Right Of Tribal In International Nation States Regarding The Right Of Tribals In
Forums OBJECTIVES OF STUDY In this research work, the International Forums OBJECTIVES OF STUDY In This
researcher aims to impart the knowledge and give insight Research Work ,The Researcher Aims To Impart The
to the people at large: 1. proper understanding of the Knowledge And Give Insight To The People At Large •
subject tribal customary laws and the issues faced by it in Proper Understanding Of The Subject Tribal Customary
India and abroad 2. to understand the factors that are Laws And The Issues Faced By It In India and Abroad • To
causing divide between the state and the tribal population Understand The Factors That Are Causing Divide Between
3. to devise a clear strategy to harmonize the differences The State And The Tribal Population • To Devise A Clear
between state and the tribal SCOPE OF STUDY Any Strategy To Harmonize The Differences Between State
perception of this work would perhaps seem minuscule And The Tribal SCOPE OF STUDY Any perception of this
considering the fact that this work has produced from a work would perhaps seem minuscule considering the fact
mere student of law, particularly in the light of the that this work has produced from a mere student of law,
knowledge that so many legal luminaries have deliberated particularly in the light of the knowledge that so many
on the matter since time immemorial. The study due to legal luminaries have deliberated on the matter since time
incorporation of a number of restrictions like time and immemorial. The study due to incorporation of a number
resources, deals keeping in focus all the states and union of restrictions like time and resources, deals keeping in
territories in India. The study by putting forward its focus all the states and union territories in India.The study
recommendations, most humbly, hopes to make a small by putting forward its recommendations, most humbly,
contribution in the field of legal reforms in India. The hopes to make a small contribution in the field of legal
study by putting forward its recommendations, most reforms in India. The study by putting forward its
humbly, hopes to make a small contribution in the field of recommendations, most humbly, hopes to make a small
legal reforms in India. The study also relates and contribution in the field of legal reforms in India. The
incorporates International study also relates and incorporates International
Instruments/Conventions/foreign legislations and policies Instruments/Conventions/foreign legislations and policies
of the United Nation Organisation and different foreign of the United Nation Organisation and different foreign
National laws. RESEARCH METHODOLOGY The present National laws. RESEARCH METHODOLOGY The present
work has been undertaken with guided intellectual work has been undertaken with guided intellectual
inquisition based on organized and systematic inquisition based on organized and systematic
investigation by employing doctrinal research investigation by employing doctrinal research
methodology. The methodology followed by the methodology. The methodology followed by the
Researcher in the present work has been undertaken with Researcher in the present work has been undertaken with
guided intellectual inquisition based and organized and by guided intellectual inquisition based and organized and by
systematic investigation by employing purely systematic investigation by employing purely
doctrinal/non-empirical in nature. For the purpose of doctrinal/non-empirical in nature. For the purpose of
preparing this research work, the Researcher has relied on preparing this research work, the Researcher has relied on
various books, statutes, articles, journals, newspaper various books, statutes, articles, journals, newspaper
articles and other such literature. The Researcher has also articles and other such literature. The Researcher has also
relied on various case laws to substantiate or refute his relied on various case laws to substantiate or refute his
points as and when they arise. points as and when they arise.
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BACKGROUND: FEDERALISM AND TRIBAL GOVERNANCE BACKGROUND: FEDERALISM AND TRIBAL GOVERNANCE
IN INDIA The Constitution of India establishes a detailed IN INDIA The Constitution of India establishes a detailed
federal structure in which legislative authority is divided federal structure in which legislative authority is divided
between the Indian Parliament and the central between the Indian Parliament and the central
government (‘the Union’) on one hand and the state government (“the Union”) on one hand and the state
legislatures and governments on the other.18 “Local legislatures and governments on the other. “Local
government, that is to say local authorities for the government, that is to say local authorities for the
purpose of local self-government or village purpose of local self-government or village
administration” is a subject of state legislation. These local administration” is a subject of state legislation. These local
governments are of two types local governments in the governments are of two types local governments in the
urban areas (termed ‘municipalities’) and those in the rural urban areas (termed “municipalities”) and those in the rural
areas (traditionally, and now statutorily, called areas (traditionally, and now statutorily, called “
“Panchayats”). Though states could invoke their Panchayats”). Though states could invoke their jurisdiction
jurisdiction under the Seventh Schedule of the under the Seventh Schedule of the Constitution to
Constitution to legislate for municipalities and Panchayat legislate for municipalities and Panchayat when required,
when required, 40 years of experience revealed that 40 years of experience revealed that power remained
power remained captured within state administrations and captured within state administrations and the local
the local governments were non-functional. Therefore, in governments were non-functional. Therefore, in 1992 the
1992 the Indian Parliament decided to decentralize state Indian Parliament decided to decentralize state executive
executive and legislative authority by adding two entirely and legislative authority by adding two entirely new parts
new parts to the Constitution Part IX required the states to to the Constitution Part IX required the states to establish
establish local government bodies (or Panchayats) in rural local government bodies (or Panchayats) in rural areas,
areas, while Part IX-A similarly mandated municipalities in while Part IX-A similarly mandated municipalities in urban
urban areas. The intention was ‘to enshrine in the areas. The intention was “to enshrine in the Constitution
Constitution certain basic and essential features’ of such certain basic and essential features” of such local bodies
local bodies ‘to impart certainty, continuity and strength “to impart certainty, continuity and strength to them.” The
to them.’ The state legislatures were then tasked with state legislatures were then tasked with determining
determining through departmental rule-making or statute through departmental rule-making or statute the precise
the precise political, administrative and fiscal authority political, administrative and fiscal authority that such local
that such local bodies would exercise. While Part IX bodies would exercise. While Part IX broadly lays down
broadly lays down the composition and jurisdiction of the the composition and jurisdiction of the local
local governments, the states, as mentioned earlier, have a governments, the states, as mentioned earlier, have a
significant role to play in this scheme. Almost all the significant role to play in this scheme. Almost all the
provisions in Part IX require implementation through state provisions in Part IX require implementation through state
law. Initially, Part IX was intended to create local law. Initially, Part IX was intended to create local
governments only in nontribal rural areas. With the governments only in nontribal rural areas. With the
introduction of PESA in 1996, however, Part IX was introduction of PESA in 1996, however, Part IX was
extended (albeit exclusively) to the Fifth Schedule tribal extended (albeit exclusively) to the Fifth Schedule tribal
areas. Thereafter, states that had jurisdiction over these areas. Thereafter, states that had jurisdiction over these
areas were to somehow foster tribal self-government, areas were to somehow foster tribal self-government,
even though the Fifth Schedule was not amended and even though the Fifth Schedule was not amended and
continued to 18 continued to
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perpetuate state government control in tribal affairs. The perpetuate state government control in tribal affairs. The
resultant legal scheme in place today thus appears resultant legal scheme in place today thus appears
inherently unworkable. In the following sections I will inherently unworkable. In the following sections I will
provide a summary of the relevant constitutional and provide a summary of the relevant constitutional and
PESA provisions, and examine their impact on tribal PESA provisions, and examine their impact on tribal
governance in peninsular India. The Authority of the governance in peninsular India The Authority of the
Centre and the States in Tribal Affairs (THE FIFTH AND Centre and the States in Tribal Affairs (The Fifth and Sixth
SIXTH SCHEDULES OF THE CONSTITUTION) The term Schedules of the Constitution) The term “Scheduled
“Scheduled Areas” denotes the tribal regions to which Areas” denotes the tribal regions to which either the Fifth
either the Fifth Schedule or the Sixth Schedule applies. Schedule or the Sixth Schedule applies. The two
The two Schedules have very different mechanisms for Schedules have very different mechanisms for governing
governing their jurisdictional areas. The Fifth Schedule their jurisdictional areas. The Fifth Schedule was, until
was, until PESA was legislated, an entirely centralized PESA was legislated, an entirely centralized system where
system where the communities—the majority being tribal the communities—the majority being tribal—were
—were directed in their affairs by provincial governors. directed in their affairs by provincial governors. The
The Schedule permitted the states to extend their Schedule permitted the states to extend their executive
executive power to the Scheduled Areas, and granted the power to the Scheduled Areas, and granted the Governor
Governor of each state the authority to “make regulations of each state the authority to “make regulations for the
for the peace and good government of any area in a State peace and good government of any area in a State which
which is for the time being a Scheduled Area.” The is for the time being a Scheduled Area.” The Governor was
Governor was thus the “sole legislature for the Scheduled thus the “sole legislature for the Scheduled Areas and the
Areas and the Scheduled Tribes,19 competent to make Scheduled Tribes,” competent to make laws on all
laws on all subjects enumerated in the Constitution’s subjects enumerated in the Constitution’s Union, State,
Union, State, and Concurrent Lists. The Governor could and Concurrent Lists. The Governor could also preclude
also preclude the application of any federal or state law in the application of any federal or state law in the Fifth
the Fifth Schedule areas. Gubernatorial authority was “of a Schedule areas. Gubernatorial authority was “of a very
very wide nature”20 and subject to only two restrictions: wide nature” and subject to only two restrictions: (That
1. That the Governor would consult a Tribes Advisory the Governor would consult a Tribes Advisory Council
Council “before making any regulation”; and, 2. That all “before making any regulation”; and, (ii) That all
regulations would receive Presidential assent before regulations would receive Presidential assent before
taking effect. In contrast, the Sixth Schedule has always taking effect. In contrast, the Sixth Schedule has always
given the tribes considerable autonomy. This Schedule given the tribes considerable autonomy. This Schedule
divides the tribal areas in India’s north-eastern states into divides the tribal areas in India’s north-eastern states into
“autonomous” regions, each allocated to a particular tribe. “autonomous” regions, each allocated to a particular tribe.
The elected councils in the Sixth Schedule areas are 19 The elected councils in the Sixth Schedule areas are
Edwingson Bareh v. State of Assam, A.I.R. [1966] S.C. 1220 Edwingson Bareh v. State of Assam, A.I.R. [1966] S.C. 1220
¶ 47 20 Ram Kripal Bhagat v. State of Bihar, A.I.R. [1970] ¶ 47 (Justice Hidayatullah Ram Kripal Bhagat v. State of
S.C. 951 at 958, and V.S.S. Sastry v. State of Andhra Bihar, A.I.R. [1970] S.C. 951 at 958, • V.S.S. Sastry v. State of
Pradesh, A.I.R. [1967] S.C. 71 at 74. Andhra Pradesh, A.I.R. [1967] S.C. 71 at 74 •
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vested with administrative authority, make laws with vested with administrative authority, make laws with
respect to a variety of subjects, and even exercise judicial respect to a variety of subjects, and even exercise judicial
authority through traditional legal systems embedded authority through traditional legal systems embedded
with certain features of federal law. The councils are also with certain features of federal law. The councils are also
financially independent and do not labour under the financially independent and do not labour under the
executive authority of the states. Though the Sixth executive authority of the states. Though the Sixth
Schedule’s scheme renders all exercise of executive and Schedule’s scheme renders all exercise of executive and
legislative authority by the councils subject to the legislative authority by the councils subject to the
approval of the provincial Governor, the superior courts approval of the provincial Governor, the superior courts
have interpreted the Governor’s authority to be have interpreted the Governor’s authority to be
considerably restricted. The Indian Supreme Court’s considerably restricted. The Indian Supreme Court’s
decision in decision in
Pu Myllai Hlychho21 clarified that even though the Sixth Pu Myllai Hlychho clarified that even though the Sixth
Schedule is not a “self-contained code” or a “Constitution Schedule is not a “ self-contained code”or a “Constitution
within the Constitution,” the courts must nevertheless within the Constitution,” the courts must nevertheless
defer to the legislative, administrative and judicial defer to the legislative, administrative and judicial
independence that the Schedule grants District and independence that the Schedule grants District and
Regional Councils. There were two reasons for the Regional Councils. There were two reasons for the
different treatment that the tribes received. 1. The tribes in different treatment that the tribes received. (The tribes in
Fifth Schedule areas were considered incapable of self- Fifth Schedule areas were considered incapable of self-
government. 2. Unlike the Sixth Schedule areas, some government. (Unlike the Sixth Schedule areas, some tribal
tribal communities in peninsular India coexisted with a communities in peninsular India coexisted with a minority
minority non-tribal population, and autonomy for the non tribal population, and autonomy for the tribes in such
tribes in such a case seemed impractical. These were a case seemed impractical. These were considerations
considerations that had been settled well before that had been settled well before independence, so that
independence, so that by voting on the inclusion of the by voting on the inclusion of the Fifth Schedule in the
Fifth Schedule in the Constitution the founding fathers Constitution the founding fathers were, in a sense,
were, in a sense, continuing the colonial typecast that the continuing the colonial typecast that the tribes’
tribes’ contentment depended not so much on “rapid contentment depended not so much on “rapid political
political advance as on experienced and sympathetic advance as on experienced and sympathetic handling,
handling, and on protection from economic subjugation and on protection from economic subjugation by the
by the non-tribal neighbours.” Even the Supreme Court of non-tribal neighbours.” Even the Supreme Court of India
India later endorsed this paternalist justification when it later endorsed this paternalist justification when it said
said that “The tribes need to be taken care of by the that “The tribes need to be taken care of by the protective
protective arm of the law, so that they may prosper and arm of the law, so that they may prosper and by an
by an evolutionary process join the mainstream of the evolutionary process join the mainstream of the society.”
society.”22 21
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Pu Myllai Hlychho v. State of Mizoram, [2005] 2 S.C.C. 92 Pu Myllai Hlychho v. State of Mizoram, [2005] 2 S.C.C. 92.
22 Amrendra Pratap Singh v. Tej Bahadur Prajapati, [2004] Amrendra Pratap Singh v. Tej Bahadur Prajapati, [2004] 10
10 S.C.C. 65 at para 15 S.C.C. 65 at para.15 •
THE PANCHAYAT (EXTENSION TO SCHEDULED AREAS) The Panchayat (Extension to Scheduled Areas) Act 1996 In
ACT 1996 In 1996, however, Parliament exercised its 1996, however, Parliament exercised its reserved
reserved legislative authority to extend the provisions of legislative authority to extend the provisions of the
the Constitution’s Part IX exclusively to the Fifth Schedule Constitution’s Part IX exclusively to the Fifth Schedule
areas. As a result, any habitation or hamlet “comprising a areas. As a result, any habitation or hamlet “comprising a
community and managing its affairs in accordance with community and managing its affairs in accordance with
traditions and customs” could now exercise limited self- traditions and customs” could now exercise limited self-
government. After PESA was enacted, communities in the government. After PESA was enacted, communities in the
Fifth Schedule areas (the majority of whom were tribal) Fifth Schedule areas (the majority of whom were tribal)
were directed to follow democratic elections, conform to were directed to follow democratic elections, conform to
the hierarchical Panchayat system stipulated in Part IX, the hierarchical Panchayat system stipulated in Part IX,
and exercise the powers thought “necessary to enable and exercise the powers thought “necessary to enable
them to function as institutions of self-government.23” them to function as institutions of self-government.” On
On the other hand, while devolving power to the local the other hand, while devolving power to the local
communities the states were to ensure that 1. Their laws communities the states were to ensure that (their laws
comported “with the customary law, social and religious comported “with the customary law, social and religious
practices and traditional management practices of practices and traditional management practices of
community resources,24 2. The Gram Sabhas (bodies community resources,” and (the Gram Sabhas (bodies
“consisting of persons whose names are included in the “consisting of persons whose names are included in the
electoral rolls for the Panchayat at the village level”) were electoral rolls for the Panchayat at the village level”) were
“competent to safeguard and preserve the traditions and “competent to safeguard and preserve the traditions and
customs of the people, their cultural identity, community customs of the people, their cultural identity, community
resources and the customary mode of dispute resources and the customary mode of dispute resolution.”
resolution.25 PESA is therefore considered by many as a PESA is therefore considered by many as a “logical
“logical extension of both the Fifth Schedule” and Part IX extension of both the Fifth Schedule” and Part IX of the
of the Constitution.26 But, as innocuous as it may seem, Constitution. But, as innocuous as it may seem, this—top-
this top down model has in the last 10 years progressively down—model has in the last 10 years progressively denied
denied tribal communities self-government and rights to tribal communities self-government and rights to their
their community’s natural resources. 23 community’s natural resources.
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A REVIEW OF PESA THE IMPAIRMENT OF TRIBAL RIGHTS A Review of PESA:The Impairment of Tribal Rights in a
IN A DECENTRALIZED GOVERNMENT Even though PESA Decentralized Government Even though PESA is
is projected as legislation transforming tribal projected as legislation transforming tribal representation
representation in Fifth Schedule areas, the tribes feel as in Fifth Schedule areas, the tribes feel as much “culturally
much “culturally deprived and economically robbed” as deprived and economically robbed” as under colonial rule.
under colonial rule. Neither PESA in the last decade, nor Neither PESA in the last decade, nor the Fifth Schedule
the Fifth Schedule before it, has helped the tribal before it, has helped the tribal communities “acquire the
communities “acquire the status and dignity of viable and status and dignity of viable and responsive people’s
responsive people’s bodies,” as Parliament had bodies,” as Parliament had intended. Tribal local
intended.27 Tribal local governments are often ignored in governments are often ignored in development plans and
development plans and the benefits of any actual the benefits of any actual development “rarely percolate
development “rarely percolate down to the local tribes,” down to the local tribes,” which are “ subordinated to
which are “subordinated to outsiders, both economically outsiders, both economically and culturally.” PESA and the
and culturally.” PESA and the Fifth Schedule have also not Fifth Schedule have also not prevented large corporations
prevented large corporations from gaining “control over from gaining “control over the natural resources which
the natural resources which constituted the life-support constituted the life-support systems of the tribal
systems of the tribal communities;” neither have they communities;” neither have they made the tribes
made the tribes prosperous from the mineral-rich land on prosperous from the mineral-rich land on which they live.
which they live. In fact, the tribes have “gradually lost In fact, the tribes have “ gradually lost control over
control over community resources such as forests” to community resources such as forests” to both settlers and
both settlers and the State and one author would go so the State and one author would go so far as to equate
far as to equate non-tribal acquisitions with tribal non-tribal acquisitions with tribal displacement. Deceit
displacement. Deceit and the active connivance of state and the active connivance of state employees with non-
employees with non-tribal communities is another tribal communities is another debilitating factor reversing,
debilitating factor reversing, in this case, the benefits of in this case, the benefits of land reform legislation.
land reform legislation. Shankar’s study of tribal lands in Shankar’s study of tribal lands in the northern state of
the northern state of Uttar Pradesh revealed a nexus Uttar Pradesh revealed a nexus between traditionally
between traditionally influential nontribal landowners and influential nontribal landowners and corrupt government
corrupt government officials. The latter exercised their officials. The latter exercised their discretionary powers to
discretionary powers to favour non-tribes by transferring favour non-tribes by transferring lands over which tribal
lands over which tribal communities may have had a valid communities may have had a valid claim. Even in a tribal
claim. Even in a tribal majority state like Jharkhand in the majority state like Jharkhand in the north, the tribes are
north, the tribes are the worst affected in the population the worst affected in the population since the state
since the state government’s mining operations and government’s mining operations and hydroelectric power
hydroelectric power projects exploit natural resources in projects exploit natural resources in the resource-rich
the resource-rich tribal areas, thus making the tribes tribal areas, thus making the tribes “outsiders in their own
“outsiders in their own land.” 27 73 land.”
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Faced with this onslaught, many tribes have resisted Faced with this onslaught, many tribes have resisted
settlers, the government and private enterprises, and settlers, the government and private enterprises, and
sought to reassert their identity. For instance, in the sought to reassert their identity. For instance, in the
Bengal region the Kamatapur tribal movement has cited Bengal region the Kamatapur tribal movement has cited
neglect, exploitation, and discrimination, and demanded a neglect, exploitation, and discrimination, and demanded a
separate state. Tribes in the neighbouring state of Orissa separate state. Tribes in the neighbouring state of Orissa
have demanded a prohibition on private consortiums that have demanded a prohibition on private consortiums that
intend to mine bauxite from one of the most richly intend to mine bauxite from one of the most richly
endowed regions in India. Similarly, in the south, Kerala’s endowed regions in India. Similarly, in the south, Kerala’s
tribal population has recently begun to defend its rights by tribal population has recently begun to defend its rights by
banding together in various political groups at the state banding together in various political groups at the state
and local community levels in order to compel the and local community levels in order to compel the
administration to review land alienation, poverty, and administration to review land alienation, poverty, and
exploitation by private enterprises. It is far too easy to exploitation by private enterprises. It is far too easy to
dismiss these incidents as mere consequences of dismiss these incidents as mere consequences of
“misplaced development strategies” and lack of interest “misplaced development strategies” and lack of interest
among state administrations. The critics of tribal among state administrations. The critics of tribal
governance in India see the dangers in an extremely governance in India see the dangers in an extremely
narrow compass, criticizing provisions in PESA as narrow compass, criticizing provisions in PESA as
“impracticable” or the states as legislatively ignorant. In “impracticable” or the states as legislatively ignorant. In
sum, they believe that good civil administration alone will sum, they believe that good civil administration alone will
assuage tribal woes. THE ANATHEMA OF STATE assuage tribal woes. The Anathema of State Legislative
LEGISLATIVE INCOMPETENCE To begin with, PESA only Incompetence To begin with, PESA only marginally altered
marginally altered the power balance between state the power balance between state governments and the
governments and the tribes because of ineffectual tribes because of ineffectual participation by the former,
participation by the former, and the “general tendency at and the “general tendency at the state level to
the state level to monopolize power rather than share monopolize power rather than share power with people
power with people at large.” This apathetic attitude has at large.” This apathetic attitude has manifested itself in
manifested itself in two forms. First, the majority of the two forms. First, the majority of the states with tribal
states with tribal populations procrastinated in their populations procrastinated in their decentralization
decentralization programs. Although all states with programs. Although all states with Scheduled Areas have
Scheduled Areas have now enforced PESA, their past now enforced PESA, their past dilatory performance has
dilatory performance has led to the risk of delays in future led to the risk of delays in future amendments necessary
amendments necessary to reflect changed to reflect changed circumstances. Second, when they did
circumstances. Second, when they did legislate, the states legislate, the states either ignored tribal “customary law,
either ignored tribal “customary law, social and religious social and religious practices and traditional management
practices and traditional management practices of practices of community resources” or enacted incomplete
community resources”28 or enacted incomplete laws. 28 laws.
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Though PESA stipulates a community as the basic unit of Though PESA stipulates a community as the basic unit of
governance, the Orissa Gram Panchayat (Amendment) governance, the Orissa Gram Panchayat (Amendment)
Act of 1997 conferred authority on the larger Gram Sabha Act of 1997 conferred authority on the larger Gram Sabha
comprising all communities in a demarcated territory. As a comprising all communities in a demarcated territory. As a
result, the Orissa legislation disregarded the “distinct result, the Orissa legislation disregarded the “distinct
socio-cultural practices and different interests” of the socio-cultural practices and different interests” of the
individual communities within that territory. The individual communities within that territory. The
unenthusiastic response of the states appears to be a unenthusiastic response of the states appears to be a
product of policies advocated by the first national product of policies advocated by the first national
commission on Scheduled Areas and Scheduled Tribes commission on Scheduled Areas and Scheduled Tribes
established in 1960. The Dhebar Commission, as it was established in 1960. The Dhebar Commission, as it was
known, allegedly did not favour the creation of more known, allegedly did not favour the creation of more
Scheduled Areas in the country, and is said to have Scheduled Areas in the country, and is said to have
considered the Fifth Schedule “as a temporary expedient” considered the Fifth Schedule “as a temporary expedient”
until the tribes were brought on par with the rest of until the tribes were brought on par with the rest of
society. The Commission’s 1961 report thus gave “State society. The Commission’s 1961 report thus gave “State
Governments, which had ‘openly’ or ‘subtly’, practiced the Governments, which had ‘openly’ or ‘subtly’ practiced the
art of rebalancing demographic equations in tribal areas art of rebalancing demographic equations in tribal areas
an alibi to stall demands for ‘tribal republics” The later an alibi to stall demands for ‘tribal republics” The later
realization that assimilation alone could not be the realization that assimilation alone could not be the
solution to tribal underdevelopment caused Parliament solution to tribal underdevelopment caused Parliament
and the federal executive to change tack, but the damage and the federal executive to change tack, but the damage
had already been done. The states which exercised actual had already been done. The states which exercised actual
authority in the Scheduled Areas had settled into a mode authority in the Scheduled Areas had settled into a mode
of governance predicated on the belief that programmatic of governance predicated on the belief that programmatic
state- supervised development was the only solution to state-supervised development was the only solution to
primitive tribal societies. Attempts to devolve decision- primitive tribal societies. Attempts to devolve decision-
making powers upon tribal communities have since been making powers upon tribal communities have since been
largely unsuccessful because the primary responsibility for largely unsuccessful because the primary responsibility for
implementing PESA remains the prerogative of those very implementing PESA remains the prerogative of those very
states. This reinforces the view that self-government is, in states. This reinforces the view that self-government is, in
many ways, a privilege granted to the tribal communities many ways, a privilege granted to the tribal communities
rather than an inherent right. THE TRIBAL STRUGGLE TO rather than an inherent right. The Tribal Struggle to Cope
COPE WITH IMPOSED LAWS Contrary to PESA’s with Imposed Laws Contrary to PESA’s guarantees that
guarantees that state laws would respect tribal customs state laws would respect tribal customs and traditions, the
and traditions, the Act has debased the tribal traditions of Act has debased the tribal traditions of self-governance.
self-governance. The propensity to violate tribal norms is The propensity to violate tribal norms is not only a
not only a product of sub national apathy, but also the product of sub national apathy, but also the outcome of a
outcome of a statutory scheme that compels the tribes to statutory scheme that compels the tribes to adopt
adopt nontribal concepts. By promoting the system of nontribal concepts. By promoting the system of local
local government prescribed for non-tribal communities government prescribed for non-tribal communities in Part
in Part IX of the Constitution, the Indian Parliament has IX of the Constitution, the Indian Parliament has instantly
instantly abolished centuries-old systems of Indigenous abolished centuries-old systems of Indigenous
governance. The abrupt shift from traditional institutions governance. The abrupt shift from traditional institutions
to alien concepts of elected representatives and to alien concepts of elected representatives and
Panchayats has resulted in “very low” tribal participation Panchayats has resulted in “very low” tribal participation
and an underutilization of the institutions. Thus, for and an underutilization of the institutions. Thus, for
example, the Lanjia Saoras, a tribe in the state of Orissa, example, the Lanjia Saoras, a tribe in the state of Orissa,
have been unable to adopt the electoral system of have been unable to adopt the electoral system of
government mandated by Part IX of the Constitution, as government mandated by Part IX of the Constitution, as
have the Santals. Similarly, the tribes in Madhya Pradesh have the Santals. Similarly, the tribes in Madhya Pradesh
that were asked to adopt the Panchayat form of that were asked to adopt the Panchayat form of
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government have not seen “the importance of Panchayat government have not seen “the importance of Panchayat
for their own welfare or societal development,” While in for their own welfare or societal development ,” While in
Gond and Bhil societies the Panchayat system eroded the Gond and Bhil societies the Panchayat system eroded the
significance of traditional councils and strained ties within significance of traditional councils and strained ties within
the community. A more subtle reason for the tension the community. A more subtle reason for the tension
between the customary and the received is the between the customary and the received is the
entrenched perception in India that the tribes are primitive entrenched perception in India that the tribes are primitive
communities with little or no order in society. Of course, communities with little or no order in society. Of course,
such a view can only be seen as a product of the such a view can only be seen as a product of the
dominant culture’s prejudice against, and ignorance of, dominant culture’s prejudice against, and ignorance of,
the culture of both settled and nomadic tribal peoples, the culture of both settled and nomadic tribal peoples,
particularly those deemed ‘primitive’, since each of these particularly those deemed ‘primitive’, since each of these
groups, of course, has its own customs, traditions and groups, of course, has its own customs, traditions and
laws. The Manki-Munda system in the state of Jharkhand, laws. The Manki-Munda system in the state of Jharkhand,
for instance, competes with state laws enacted to enforce for instance, competes with state laws enacted to enforce
PESA because the tribes prefer their traditional law’s PESA because the tribes prefer their traditional law’s
emphasis on collective and consensual decision-making. emphasis on collective and consensual decision-making.
PESA’s drafters mistakenly believed that an ambiguous PESA’s drafters mistakenly believed that an ambiguous
directive to the states to design their laws in consonance directive to the states to design their laws in consonance
with such “customary law, social and religious practices with such “customary law, social and religious practices
and traditional management practices of community and traditional management practices of community
resources” would resolve the dichotomy. What they resources” would resolve the dichotomy. What they
overlooked was the inevitable displacement of indigenous overlooked was the inevitable displacement of indigenous
laws and institutions that accompanies the imposition of a laws and institutions that accompanies the imposition of a
nonnative system of governance. THE FADING TRIBAL nonnative system of governance. The Fading Tribal
RIGHTS IN NATURAL RESOURCES In 10 years PESA has Rights in Natural Resources In 10 years PESA has
facilitated the gradual evisceration of tribal rights in the facilitated the gradual evisceration of tribal rights in the
natural resources of the Scheduled Areas. The natural resources of the Scheduled Areas. The
complication arises because PESA delegates the complication arises because PESA delegates the
management of natural resources to tribal communities, management of natural resources to tribal communities,
without divesting control or ownership by the State. My without divesting control or ownership by the State. My
objective here is to provide support for this claim in the objective here is to provide support for this claim in the
context of tribal rights in land, forest and water resources. context of tribal rights in land, forest and water resources.
THE CONTINUOUS EROSION OF TRIBAL LAND RIGHTS The Continuous Erosion of Tribal Land Rights One of the
One of the most basic rights that inures to the benefit of a most basic rights that inures to the benefit of a
community is a right in the commons. Therefore, property community is a right in the commons. Therefore, property
rights have become a natural rallying point for modern rights have become a natural rallying point for modern
Indigenous peoples movements around the world and Indigenous peoples movements around the world and
nations have been seen to have a duty to recognize nations have been seen to have a duty to recognize
people’s proprietorship of the land they occupy and to people’s proprietorship of the land they occupy and to
which they have long had a sense of belonging as a which they have long had a sense of belonging as a
principle of human justice. Yet, the tribes in India are principle of human justice. Yet, the tribes in India are
regularly deprived of their property rights predicated on regularly deprived of their property rights predicated on
the low (and ambiguous) thresholds of consultation and the low (and ambiguous) thresholds of consultation and
recommendation. While some states have individually recommendation While some states have individually
sought to protect tribal rights through laws prohibiting sought to protect tribal rights through laws prohibiting
private non-tribal purchases of land, there is no legislation private non-tribal purchases of land, there is no legislation
restricting acquisitions by the State in the public interest. restricting acquisitions by the State in the public interest.
Instead, appropriations are legislatively backed by the Instead, appropriations are legislatively backed by the
Land Acquisition Act of 1894 in order to justify the Land Acquisition Act of 1894 in order to justify the
government taking personal property for numerous government taking personal property for numerous
purposes. The root of the problem is that the tribes purposes. The root of the problem is that the tribes
cannot exercise a fundamental right to property under cannot exercise a fundamental right to property under
Indian law. Fundamental rights are given much greater Indian law. Fundamental rights are given much greater
deference and have a special status in the Constitution.29 deference and have a special status in the Constitution. In
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In contrast, the tribes can only invoke a legal right to contrast, the tribes can only invoke a legal right to
property under Article 300A of the Constitution.30 property under Article 300A of the Constitution (
Since the tribes right to property is merely a legal right, Since the tribes right to property is merely a legal right,
and not a fundamental right, the State can acquire their and not a fundamental right, the State can acquire their
property with just compensation if it can establish that property with just compensation if it can establish that
such appropriations are by authority of law .That authority such appropriations are by authority of law .That authority
of law is found in section 4(i) of PESA which explicitly of law is found in section 4(i) of PESA which explicitly
authorizes the acquisition of land in Scheduled Areas authorizes the acquisition of land in Scheduled Areas
What is also evident is that the categorization of tribal What is also evident is that the categorization of tribal
property rights as legal rights reinforces PESA’s low and property rights as legal rights reinforces PESA’s low and
ambiguous thresholds mentioned earlier. Because the ambiguous thresholds mentioned earlier. Because the
burden of establishing a violation of the legal right to burden of establishing a violation of the legal right to
property lies with the tribes, they face a formidable task property lies with the tribes, they face a formidable task
disproving that the State did not properly consult or seek disproving that the State did not properly consult or seek
recommendations. 29 recommendations.
Laxmi Khandsari v. State of Uttar Pradesh, [1981] 2 SCC Laxmi Khandsari v. State of Uttar Pradesh, [1981] 2 at
600 at para 12 and Saghir Ahmad v. State of Uttar Pradesh, para. 12 and Saghir Ahmad v. State of Uttar Pradesh, at
A.I.R[1954] SC 728 at para 27 30 ( para 94
no person shall be deprived of his property save by no person shall be deprived of his property save by
authority of law); authority of law)
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Moreover, the Indian Supreme Court has ruled that the Moreover, the Indian Supreme Court has ruled that the
government is the best judge to determine if a public government is the best judge to determine if a public
purpose is served by an acquisition.31 This substantially purpose is served by an acquisition. This substantially
eases the burden on central and state governments to eases the burden on central and state governments to
defend a particular acquisition, and, with later Supreme defend a particular acquisition, and, with later Supreme
Court decisions opining that the Land Acquisition Act is a Court decisions opining that the Land Acquisition Act is a
complete Code by itself.32 The central and state complete Code by itself The central and state
government’s powers of appropriation have been governments powers of appropriation have been
strengthened because government agencies are no strengthened because government agencies are no
longer obligated to refer to any other legislation for longer obligated to refer to any other legislation for
determining the propriety of their actions.33 It also means determining the propriety of their actions. It also means
that the Land Acquisition Act, which does not provide that the Land Acquisition Act, which does not provide
special protective rights in tribal land, can be incidentally special protective rights in tribal land, can be incidentally
applied to prevail over any proprietary rights otherwise applied to prevail over any proprietary rights otherwise
guaranteed to the tribal communities in either PESA or the guaranteed to the tribal communities in either PESA or the
Fifth Schedule. Against this background, it appears illogical Fifth Schedule. Against this background, it appears illogical
that the maximum protection provided in PESA against that the maximum protection provided in PESA against
usurpation of tribal land is the obligation that state usurpation of tribal land is the obligation that state
agencies should consult the local governments before agencies should consult the local governments before
making the acquisition of land in the Scheduled Areas. making the acquisition of land in the Scheduled Areas.
PESA does not stipulate the precise manner in which PESA does not stipulate the precise manner in which
those consultations should take place, and the ambiguity those consultations should take place, and the ambiguity
lowers the standard for ensuring procedural safeguards lowers the standard for ensuring procedural safeguards
since the courts are unlikely to assail an acquisition for a since the courts are unlikely to assail an acquisition for a
public purpose unless that action was shown to be public purpose unless that action was shown to be
egregious or patently illegal. Consequently, egregious or patently illegal. Consequently,
administrations conveniently refrain from investing any administrations conveniently refrain from investing any
more time and effort than that required to satisfy the more time and effort than that required to satisfy the
requirement for a consultation as mandated by PESA34. requirement for a consultation as mandated by PESA. The
The inconsistency regarding the true nature of the rights inconsistency regarding the true nature of the rights in
in land that Parliament afforded tribal communities when land that Parliament afforded tribal communities when it
it enacted PESA has become a source of discord between enacted PESA has become a source of discord between
the judicial and executive branches of the State. The the judicial and executive branches of the State. The
controversy can be traced back to the Supreme Court’s controversy can be traced back to the Supreme Court’s
Samatha decision in 1997, where the court had ruled that Samatha decision in 1997, where the court had ruled that
the Fifth Schedule enjoined governors to make the Fifth Schedule enjoined governors to make
regulations preventing the purchase and exploitation of regulations preventing the purchase and exploitation of
tribal land for mining activities by any entity that was not tribal land for mining activities by any entity that was not
state-owned or a tribal enterprise.35 31 state-owned or a tribal enterprise.
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Daulat Singh Surana v. First Land Acquisition Collector, Daulat Singh Surana v. First Land Acquisition Collector,
[2006] 11 SCALE 482 32 State of Andhra Pradesh v. V. [2006] 11 SCALE 482. • State of Andhra Pradesh v. V.
Sarma Rao, A.I.R. [2007] S.C. 137 at para. 6 33 Hukumdev 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 Narain Yadav v. Lalit Narain Mishra, [1974] 2 S.C.C. 133 at
para 17 34 BALCO v. Union of India, [2002] 2 S.C.C. 333 35 para. 17. • BALCO v. Union of India, [2002] 2 S.C.C. 333 •
Samatha v. State of Andhra Pradesh, [1997] 4 SCALE 746 Samatha v. State of Andhra Pradesh, [1997] 4 SCALE 746
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The judgment had prompted an opposite reaction from The judgment had prompted an opposite reaction from
the federal Ministry of Mines, which proposed a the federal Ministry of Mines, which proposed a
constitutional amendment that granted governors constitutional amendment that granted governors
unfettered authority in the transfer of land by members of unfettered authority in the transfer of land by members of
the scheduled tribes to the Government or allotment by the scheduled tribes to the Government or allotment by
Government of its land to a non-tribal for undertaking any Government of its land to a non-tribal for undertaking any
non-agricultural operations. The Ministry also believed non-agricultural operations. The Ministry also believed
that Samatha had altered the balance of power stipulated that Samatha had altered the balance of power stipulated
in the Fifth Schedule by taking away the sovereign right of in the Fifth Schedule by taking away the sovereign right of
the government to transfer its land in any manner. the government to transfer its land in any manner.
Although the Constitution was ultimately not amended, Although the Constitution was ultimately not amended,
the controversy has since encouraged various states to the controversy has since encouraged various states to
express similar views on their competence to permit express similar views on their competence to permit
exploitation of natural resources in the Scheduled Areas exploitation of natural resources in the Scheduled Areas
by private, non-tribal enterprises. INSUFFICIENT by private, non-tribal enterprises. Insufficient Protection
PROTECTION FOR TRIBAL FOREST RIGHTS Forest laws in for Tribal Forest Rights Forest laws in India classify forests
India classify forests into three categories: 1. Reserve into three categories 1. reserve forests (which should be
forests (which should be left untouched) 2. protected left untouched) 2. protected forests (where exploitation is
forests (where exploitation is allowed unless specifically allowed unless specifically prohibited) 3. village forests
prohibited) 3. Village forests (that are assigned to local (that are assigned to local communities for management
communities for management and use). The ability of a and use). The ability of a tribal community to exploit a
tribal community to exploit a forested region for forested region for consumption would thus depend on
consumption would thus depend on its classification. So, its classification. So, for instance, even though PESA
for instance, even though PESA grants tribal communities grants tribal communities the ownership of minor forest
the ownership of minor forest produce, the right is almost produce, the right is almost sterile unless state
sterile unless state governments ensure that forested governments ensure that forested areas near tribal com-
areas near tribal communities are denoted village forests munities are denoted village forests and not reserve
and not reserve forests. Despite such clear federal forests. Despite such clear federal restrictions on forest
restrictions on forest use, PESA does not provide any use, PESA does not provide any guidance on the manner
guidance on the manner in which the states should in which the states should protect tribal rights to
protect tribal rights to forestlands. Interestingly, even a forestlands. Interestingly, even a program that encourages
program that encourages cooperation between the state cooperation between the state forest departments and
forest departments and village communities for village communities for conservation has proved
conservation has proved counterproductive. The Joint counterproductive. The Joint Forest Management (JFM)
Forest Management (JFM) program is the preferred program is the preferred national policy for forest
national policy for forest conservation under which a state conservation under which a state can constitute separate
can constitute separate village committees supervised by village committees supervised by that state’s forest
that state’s forest department, alongside local department, alongside local governments and
governments and empowered under PESA Although such empowered under PESA Although such committees
committees would ideally be staffed entirely by members would ideally be staffed entirely by members of the tribal
of the tribal community in Fifth Schedule areas, they are community in Fifth Schedule areas, they are for all intents
for all intents and purposes separate institutions and purposes separate institutions controlled by the state
controlled by the state administration. The lack of administration. The lack of interoperability between village
interoperability between village committees constituted committees constituted under PESA and those formed
under PESA and those formed under the JFM program is under the JFM program is evident from the fact that the
evident from the fact that the JFM guidelines released in JFM guidelines released in 2000 (and revised in 2002) by
2000 (and revised in 2002) by the federal Ministry of the federal Ministry of Environment and Forests does not
Environment and Forests does not so much as mention so much as mention PESA. State conservation agencies
PESA. State conservation agencies have also frequently have also frequently asserted that PESA should not be
asserted that PESA should not be interpreted as securing interpreted as securing tribal rights over protected
tribal rights over protected forestlands, irrespective of forestlands, irrespective of whether the communities have
whether the communities have traditionally exploited traditionally exploited those resources. Sarin et al.
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those resources. Sarin et al. therefore conclude that therefore conclude that devolution policies [such as JFM]
devolution policies [such as JFM] have largely reinforced have largely reinforced state control over forest users,
state control over forest users, giving the relationship new giving the relationship new form rather than changing its
form rather than changing its balance of power or balance of power or reducing the conflict between state
reducing the conflict between state and local interests and local interests Tribal Rights to Water Resources
TRIBAL RIGHTS TO WATER RESOURCES REMAIN Remain Ambiguous PESA provides that local communities
AMBIGUOUS PESA provides that local communities in in Scheduled Areas should be entitled to manage minor
Scheduled Areas should be entitled to manage minor water bodies a statutorily undefined term. While states
water bodies a statutorily undefined term. While states would typically follow administrative guidelines setting out
would typically follow administrative guidelines setting out the rules for managing such water bodies, the difficulty is
the rules for managing such water bodies, the difficulty is that the directives identify a minor water body based on
that the directives identify a minor water body based on acreage rather than territorial jurisdiction and traditional
acreage rather than territorial jurisdiction and traditional use patterns of the tribal communities. The problems are
use patterns of the tribal communities. The problems are compounded when some states either devolve
compounded when some states either devolve management responsibilities without ascertaining
management responsibilities without ascertaining community needs or neglect to pass new laws. The
community needs or neglect to pass new laws. The contrasting actions taken by the states of Madhya Pradesh
contrasting actions taken by the states of Madhya Pradesh and Maharashtra are noteworthy: while the state of
and Maharashtra are noteworthy: while the state of Madhya Pradesh in central India swiftly and properly
Madhya Pradesh in central India swiftly and properly delineated rules for the use of minor water bodies in
delineated rules for the use of minor water bodies in Scheduled Areas, the Maharashtra legislature entrusted
Scheduled Areas, the Maharashtra legislature entrusted management of minor water bodies to local
management of minor water bodies to local governments, but left the actual determination of
governments, but left the actual determination of authority amongst the tiers of local government to the
authority amongst the tiers of local government to the absolute discretion of the state executive. The lack of
absolute discretion of the state executive. The lack of community participation in policies to manage water
community participation in policies to manage water resources in Scheduled Areas is also an issue that the
resources in Scheduled Areas is also an issue that the federal government has been unable to resolve. Though
federal government has been unable to resolve. Though the National Water Policy released in 2002 recommends
the National Water Policy released in 2002 recommends special efforts to investigate and formulate projects either
special efforts to investigate and formulate projects either in, or for the benefit of, areas inhabited by tribal or other
in, or for the benefit of, areas inhabited by tribal or other specially disadvantaged groups, the policy fails to identify
specially disadvantaged groups, the policy fails to identify the rights and responsibilities of tribal local governments.
the rights and responsibilities of tribal local governments. The Tribal Struggle to Cope with Imposed Laws Contrary
THE TRIBAL STRUGGLE TO COPE WITH IMPOSED LAWS to PESA’s guarantees that state laws would respect tribal
Contrary to PESA’s guarantees that state laws would customs and traditions, the Act has debased the tribal
respect tribal customs and traditions, the Act has debased traditions of self-governance. The propensity to violate
the tribal traditions of self-governance. The propensity to tribal norms is not only a product of subnational apathy,
violate tribal norms is not only a product of subnational but also the outcome of a statutory scheme that compels
apathy, but also the outcome of a statutory scheme that the tribes to adopt nontribal concepts. By promoting the
compels the tribes to adopt nontribal concepts. By system of local government prescribed for non-tribal
promoting the system of local government prescribed for communities in Part IX of the Constitution, the Indian
non-tribal communities in Part IX of the Constitution, the Parliament has instantly abolished centuries-old systems
Indian Parliament has instantly abolished centuries-old of Indigenous governance. The abrupt shift from
systems of Indigenous governance. The abrupt shift from traditional institutions to alien concepts of elected
traditional institutions to alien concepts of elected representatives and Panchayats has resulted in very low
representatives and Panchayats has resulted in very low tribal participation and an underutilization of the
tribal participation and an underutilization of the institutions. Thus, for example, the Lanjia ,Saoras, a tribe in
institutions. Thus, for example, the Lanjia ,Saoras, a tribe in the state of Orissa, have been unable to adopt the
the state of Orissa, have been unable to adopt the electoral system of government mandated by Part IX of
electoral system of government mandated by Part IX of the Constitution, as have the Santals. Similarly, the tribes
the Constitution, as have the Santals. Similarly, the tribes in Madhya Pradesh that were asked to adopt the
in Madhya Pradesh that were asked to adopt the Panchayat form of government have not seen the
Panchayat form of government have not seen the importance of panchayat for their own welfare or societal
importance of panchayat for their own welfare or societal development while in Gond and Bhil societies the
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development while in Gond and Bhil societies the Panchayat system eroded the significance of traditional
Panchayat system eroded the significance of traditional councils and strained ties within the community. A subtler
councils and strained ties within the community. A subtler reason for the tension between the customary and the
reason for the tension between the customary and the received is the entrenched perception in India that the
received is the entrenched perception in India that the tribes are primitive communities with little or no order in
tribes are primitive communities with little or no order in society. Of course, such a view can only be seen as a
society. Of course, such a view can only be seen as a product of the dominant culture’s prejudice against, and
product of the dominant culture’s prejudice against, and ignorance of, the culture of both settled and nomadic
ignorance of, the culture of both settled and nomadic tribal peoples, particularly those deemed primitive, since
tribal peoples, particularly those deemed primitive, since each of these groups, of course, has its own customs,
each of these groups, of course, has its own customs, traditions and laws. The Manki Munda system in the state
traditions and laws. The Manki Munda system in the state of Jharkhand, for instance, competes with state laws
of Jharkhand, for instance, competes with state laws enacted to enforce PESA because the tribes prefer their
enacted to enforce PESA because the tribes prefer their traditional law’s emphasis on collective and consensual
traditional law’s emphasis on collective and consensual decision-making. PESA’s drafters mistakenly believed that
decision-making. PESA’s drafters mistakenly believed that an ambiguous directive to the states to design their laws
an ambiguous directive to the states to design their laws in consonance with such customary law, social and
in consonance with such customary law, social and religious practices and traditional management practices
religious practices and traditional management practices of community resources would resolve the dichotomy.
of community resources would resolve the dichotomy. What they overlooked was the inevitable displacement of
What they overlooked was the inevitable displacement of indigenous laws and institutions that accompanies the
indigenous laws and institutions that accompanies the imposition of a nonnative system of governance. India’s
imposition of a non-native system of governance. INDIA’S Forest Rights Act of 2006 After acrimonious public debate
FOREST RIGHTS ACT OF 2006 After acrimonious public for more than a year since tabling in the parliament on 13
debate for more than a year since tabling in the December 2005, the Scheduled Tribes (Recognition of
parliament on 13 December 2005, the Scheduled Tribes Forest Rights) Bill, 2005 which was re-christened as “The
(Recognition of Forest Rights) Bill, 2005 which was re- Scheduled Tribes and Other Traditional Forest Dwellers
christened as “The Scheduled Tribes and Other Traditional (Recognition of Forest Rights) Act, 2006” was passed in
Forest Dwellers (Recognition of Forest Rights) Act, 2006” the parliament, lower house of Indian parliament, on 13
was passed in the parliament, lower house of Indian December 2006. President of India assented to the Bill on
parliament, on 13 December 2006. President of India 29 December 2006 and the Act came into force.
assented to the Bill on 29 December 2006 and the Act However, the debate since the tabling of the initial bill in
came into force. However, the debate since the tabling of December 2005 to the passage of the Act in the Lok
the initial bill in December 2005 to the passage of the Act Sabha have brought the age-old prejudices against the
in the Lok Sabha have brought the age-old prejudices tribal peoples to the fore and further eroded their rights.
against the tribal peoples to the fore and further eroded The Draft Scheduled Tribes (Recognition of Forest Rights)
their rights. The Draft Scheduled Tribes (Recognition of Bill, 2005 faced stiff opposition from two quarters. First, a
Forest Rights) Bill, 2005 faced stiff opposition from two few environmentalists advocated management of forest,
quarters. First, a few environmentalists advocated wildlife and other bio-diversity with complete exclusion of
management of forest, wildlife and other bio-diversity tribal people, local communities or forest dwellers
with complete exclusion of tribal people, local contrary to the Rio Declaration, decisions of the
communities or forest dwellers contrary to the Rio Conference of Parties of the Convention on Biological
Declaration, decisions of the Conference of Parties of the Diversity and recommendations of the United Nations
Convention on Biological Diversity and recommendations Forum on Forest. The poaching of the tigers in the Sariska
of the United Nations Forum on Forest. The poaching of sanctuary provided much needed excuse. Second, the
the tigers in the Sariska sanctuary provided much needed Ministry of Environment and Forest had opposed the Bill
excuse. Second, the Ministry of Environment and Forest on the ground that implementation of the bill will result in
had opposed the Bill on the ground that implementation the depletion of the country's forest cover by 16 per cent.
of the bill will result in the depletion of the country's forest This reflects the culture of the tribal peoples to conserve
cover by 16 per cent. This reflects the culture of the tribal forest. On the other hand, the Ministry of Environment
peoples to conserve forest. On the other hand, the and Climate Change has diverted 73% (9.81 lakh hectares
Ministry of Environment and Climate Change has diverted of forestland) of the total encroached areas for non-forest
73% (9.81 lakh hectares of forestland) of the total activities such as industrial and development projects.
encroached areas for non-forest activities such as Following objections to the 2005 Draft Bill, it was referred
industrial and development projects.36 Following to the Joint Parliamentary Committee (JPC) headed by V
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objections to the 2005 Draft Bill, it was referred to the Kishore Chandra S Deo of the Congress party. On 23 May
Joint Parliamentary Committee (JPC) headed by V Kishore 2006, the JPC submitted its recommendations on the
Chandra S Deo of the Congress party. On 23 May 2006, issue of cut-off date, inclusion of all forest dwellers under
the JPC submitted its recommendations on the issue of its purview, increase in the ceiling on land occupation and
cut-off date, inclusion of all forest dwellers under its the empowering of Gram. Many of the recommendations
purview, increase in the ceiling on land occupation and were against the intended beneficiaries i.e. tribals. The
the empowering of Gram. Many of the recommendations Ministry of Tribal Affairs objected to some of these
were against the intended beneficiaries i.e. tribals. The recommendations of the JPC. A Group of Ministers
Ministry of Tribal Affairs objected to some of these (GoM), headed by External Affairs Minister Pranab
recommendations of the JPC. A Group of Ministers Mukherjee was established to evolve a consensus. On 15
(GoM), headed by External Affairs Minister Pranab November 2005, the GoM managed to reach consensus.
Mukherjee was established to evolve a consensus. On 15 The Act would not have seen the light of the day had the
November 2005, the GoM managed to reach consensus. ‘Other Traditional Forest Dwellers' not included in the
The Act would not have seen the light of the day had the revised draft.
‘Other Traditional Forest Dwellers' not included in the
revised draft. 36
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A critical examination of the Scheduled Tribes and Other A critical examination of the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006 reveals that the rights of the tribals were further Act, 2006 reveals that the rights of the tribals were further
compromised. However, the recently passed Scheduled compromised. However, the recently passed Scheduled
Tribes and Other Traditional Forest Dwellers (Recognition Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006 states, “An Act to recognise of Forest Rights) Act, 2006 states, “An Act to recognise
and vest the forest rights and occupation in forest land in and vest the forest rights and occupation in forest land in
forest dwelling Scheduled Tribes and other traditional forest dwelling Scheduled Tribes and other traditional
forest dwellers who have been residing in such forests for forest dwellers who have been residing in such forests for
generations but whose rights could not be recorded.” The generations but whose rights could not be recorded.” The
present law has only diluted the interests of the forest present law has only diluted the interests of the forest
dwelling Scheduled Tribes with that of the “Other dwelling Scheduled Tribes with that of the “Other
Traditional Forest Dwellers”. The forest dwelling Traditional Forest Dwellers”. The forest dwelling
Scheduled Tribes no longer remain the focus of the law Scheduled Tribes no longer remain the focus of the law
contrary to what it originally envisaged. With such dilution, contrary to what it originally envisaged. With such dilution,
the law has lost its aims, objectives, essence and spirit that the law has lost its aims, objectives, essence and spirit that
the Ministry of Tribal Affairs initiated with so much fanfare the Ministry of Tribal Affairs initiated with so much fan fare
to undo what it calls “historic injustice” that the forest to undo what it calls “historic injustice” that the forest
dwelling Scheduled Tribes have been facing. Rather than dwelling Scheduled Tribes have been facing. Rather than
improving the lot of the tribals, the Act will lead to conflict improving the lot of the tribals, the Act will lead to conflict
of interest between the forest dwelling Scheduled Tribes of interest between the forest dwelling Scheduled Tribes
and other traditional forest dwellers. INCREASE IN THE and other traditional forest dwellers. Increase in the
CEILING ON LAND OCCUPATION Sub-section (6) of ceiling on land occupation Sub-section (6) of Section 4
Section 4 states, “Where the forest rights recognized and states, “Where the forest rights recognized and vested by
vested by subsection (1) are in respect of land sub-section (1) are in respect of land mentioned in clause
mentioned in clause (a) of subsection (1) of section 3 such (a) of subsection (1) of section 3 such land shall be under
land shall be under the occupation of an individual or the occupation of an individual or family or community
family or community on the date of commencement of on the date of commencement of this Act and shall be
this Act and shall be restricted to the area under actual restricted to the area under actual occupation and shall in
occupation and shall in no case exceed an area of four no case exceed an area of four hectares.” This provision
hectares.” This provision hardly benefits the Scheduled hardly benefits the Scheduled Tribes. A large number of
Tribes. A large number of forests dwelling Scheduled forest dwelling Scheduled Tribes would have to
Tribes would have to mandatorily part with large chunks mandatorily part with large chunks of ancestral lands that
of ancestral lands that they have been actually occupying they have been actually occupying before the enactment
before the enactment of this Act. The provision is also of this Act. The provision is also inapplicable in the
inapplicable in the northeast India. CRIMINALS UNDER northeast India. Criminals under the Forest Conservation
THE FOREST CONSERVATION ACT OF 1980 The Act of 1980 The Scheduled Tribes and Other Traditional
Scheduled Tribes and Other Traditional Forest Dwellers Forest Dwellers (Recognition of Forest Rights) Act, 2006
(Recognition of Forest Rights) Act, 2006 has not taken has not taken into account the fact that hundreds of
into account the fact that hundreds of forest dwelling forest dwelling scheduled tribes face charges under
scheduled tribes face charges under different provisions different provisions of the draconian Forest Conservation
of the draconian Forest Conservation Act of 1980 for Act of 1980 for accessing minor produce. Although the
accessing minor produce. Although the Scheduled Tribes Scheduled Tribes and Other Traditional Forest Dwellers
and Other Traditional Forest Dwellers (Recognition of (Recognition of Forest Rights) Act, 2006 ensures a steady
Forest Rights) Act, 2006 ensures a steady tenure of tenure of security and legitimizes the scheduled tribes'
security and legitimizes the scheduled tribes' ownership ownership over the minor forest produce and their role in
over the minor forest produce and their role in the the conservation of forest, it failed to address
conservation of forest, it failed to address charges/prosecution pending against the tribal under the
charges/prosecution pending against the tribal under the Forest Conservation Act of 1980 and Indian Forest Act of
Forest Conservation Act of 1980 and Indian Forest Act of 1927 with retrospective view. There is no provision in the
1927 with retrospective view. There is no provision in the Forest Dwelling Scheduled Tribes and Other Traditional
Forest Dwelling Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act, 2006
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Forest Dwellers (Recognition of Rights) Act, 2006 providing that cases under the Forest Conservation Act of
providing that cases under the Forest Conservation Act of 1980 against the forest dwelling scheduled tribes for
1980 against the forest dwelling scheduled tribes for accessing minor forest produce would be dropped.
accessing minor forest produce would be dropped. INTERNATIONAL PERPECTIVE OF TRIBAL CUTOMARY
INTERNATIONAL PERPECTIVE OF TRIBAL CUTOMARY LAWS The United Nations Permanent Forum on
LAWS THE UNITED NATIONS PERMANENT FORUM ON Indigenous Issues (UNPFII) Indigenous peoples around the
INDIGENOUS ISSUES (UNPFII) Indigenous peoples around world have sought recognition of their identities, their
the world have sought recognition of their identities, their ways of life and their right to traditional lands, territories
ways of life and their right to traditional lands, territories and natural resources; yet throughout history, their rights
and natural resources; yet throughout history, their rights have been violated. Indigenous peoples are arguably
have been violated. Indigenous peoples are arguably among the most disadvantaged and vulnerable groups of
among the most disadvantaged and vulnerable groups of people in the world today. The international community
people in the world today. The international community now recognizes that special measures are required to
now recognizes that special measures are required to protect the rights of the world’s indigenous peoples.
protect the rights of the world’s indigenous peoples. Indigenous people have often found their lands and
Indigenous people have often found their lands and cultures overridden by more dominant societies. Many
cultures overridden by more dominant societies. Many Europeans at that time saw native peoples from regions
Europeans at that time saw native peoples from regions such as Africa, Asia and the Americas as “primitives,” or
such as Africa, Asia and the Americas as “primitives,” or “savages” to be dominated. This would help justify
“savages” to be dominated. This would help justify settlement and expansion into those lands, and even
settlement and expansion into those lands, and even slavery. Without civilization these people could be
slavery. Without civilization these people could be regarded as inferior, and if seen as “non-people” then
regarded as inferior, and if seen as “non-people” then European colonialists would not be impeding on anyone
European colonialists would not be impeding on anyone else’s territory. Instead, they would be settling “virgin
else’s territory. Instead, they would be settling “virgin territory” (sometimes “discovered”) overcoming numerous
territory” (sometimes “discovered”) overcoming numerous challenges they would face with much courage. Under
challenges they would face with much courage. Under international law, tribal people, for example, do have
international law, tribal people, for example, do have some recognized rights. The two most important laws
some recognized rights. The two most important laws about tribal peoples are Conventions 107 and 169 under
about tribal peoples are Conventions 107 and 169 under the International Labour Organization (ILO), part of the
the International Labour Organization (ILO), part of the UN system. These conventions oblige governments to
UN system.37 These conventions oblige governments to identify the lands and protect these rights. It ensures
identify the lands and protect these rights. It ensures recognition of tribal peoples’ cultural and social
recognition of tribal people’s cultural and social practices, practices, obliges governments to consult with tribal
obliges governments to consult with tribal peoples about peoples about laws affecting them, guarantees respect for
laws affecting them, guarantees respect for tribal peoples tribal peoples’ customs, and calls for protection of their
customs, and calls for protection of their natural natural resources. The struggle for such rights is still not
resources. The struggle for such rights is still not over. over. Many governments routinely violate the rights of
Many governments routinely violate the rights of indigenous people. A slow process is, however, raising
indigenous people. A slow process is, however, raising hope for a more comprehensive set of rights, although
hope for a more comprehensive set of rights, although some major countries are still against some particular
some major countries are still against some particular aspects. U.N. Draft on Declaration on the Rights of
aspects. U.N. DRAFT ON DECLARATION ON THE RIGHTS Indigenous Peoples.
OF INDIGENOUS PEOPLES 37
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The Declaration emphasizes the right of indigenous The Declaration emphasizes the right of indigenous
peoples to maintain and strengthen their own institutions, peoples to maintain and strengthen their own institutions,
cultures and traditions and to pursue their development in cultures and traditions and to pursue their development in
accordance with their aspirations and needs. Although it accordance with their aspirations and needs. Although it
would not be legally binding if it were ever adopted by the would not be legally binding if it were ever adopted by the
General Assembly, indigenous communities around the General Assembly, indigenous communities around the
world have pressed hard for this and have felt that the world have pressed hard for this and have felt that the
adoption of the declaration will help indigenous people in adoption of the declaration will help indigenous people in
their efforts against discrimination, racism, oppression, their efforts against discrimination, racism, oppression,
marginalization and exploitation. MAJOR COUNTRIES marginalization and exploitation. Major Countries
OPPOSED TO VARIOUS RIGHTS FOR INDIGENOUS Opposed To Various Rights For Indigenous Peoples The
PEOPLES The process to draft the aforementioned process to draft the aforementioned declaration moved
declaration moved very slowly, not because of some very slowly, not because of some imagined slowness and
imagined slowness and inefficiencies of an over-sized inefficiencies of an over-sized bureaucracy, but because
bureaucracy, but because of concerns expressed by of concerns expressed by particular countries at some of
particular countries at some of the core provisions of the the core provisions of the draft declaration, especially the
draft declaration, especially the right to self-determination right to self-determination of indigenous peoples and the
of indigenous peoples and the control over natural control over natural resources existing on indigenous
resources existing on indigenous peoples’ traditional peoples’ traditional lands. Some historically and currently
lands. Some historically and currently powerful countries powerful countries have been opposed to various rights
have been opposed to various rights and provisions for and provisions for indigenous peoples, because of the
indigenous peoples, because of the implications to their implications to their territory, or because it would tacitly
territory, or because it would tacitly recognize they have recognize they have been involved in major injustices
been involved in major injustices during periods of during periods of colonialism and imperialism. Giving
colonialism and imperialism. Giving such people’s the such people’s the ability to regain some lost land, for
ability to regain some lost land, for example, would be example, would be politically explosive. Inter Press Service
politically explosive. Inter Press Service (IPS) notes, for (IPS) notes, for example, that countries such as the United
example, that countries such as the United States, States, Australia, and New Zealand, have all been opposed
Australia, and New Zealand, have all been opposed to this to this declaration. These countries have noted in a joint
declaration. These countries have noted in a joint statement that “No government can accept the notion of
statement that “No government can accept the notion of creating different classes of citizens.” Furthermore, as IPS
creating different classes of citizens.” Furthermore, as IPS also noted, the delegation claimed that the indigenous
also noted, the delegation claimed that the indigenous land claims ignore current reality “by appearing to require
land claims ignore current reality “by appearing to require the recognition to lands now lawfully owned by other
the recognition to lands now lawfully owned by other citizens.” The problem with the delegation’s views are that
citizens.” The problem with the delegation’s views is that they ignore historical reality. To say that “creating different
they ignore historical reality. To say that “creating different classes of citizens” is objectionable does sound fair.
classes of citizens” is objectionable does sound fair. However, in this case, different classes were created from
However, in this case, different classes were created from the very beginning as indigenous people were cleared off
the very beginning as indigenous people were cleared off their lands and either treated as second class citizens, or,
their lands and either treated as second class citizens, or, not even considered to be citizens in the first place. Many
not even considered to be citizens in the first place. Many of these laws then, were often made by a society that
of these laws then were often made by a society that never recognized or accepted that such people had
never recognized or accepted that such people had rights, and so the law only applied to the new dominant
rights, and so the law only applied to the new dominant society, not the original people. There are of course
society, not the original people. There are of course complications to this. For example, there is often a
complications to this. For example, there is often a contentious debate about whether some European
contentious debate about whether some European settlers colonized land that was not inhabited before, or
settlers colonized land that was not inhabited before, or were used by nomadic people, in which case European
were used by nomadic people, in which case European settlers could argue (from their perspective) that the land
settlers could argue (from their perspective) that the land was not properly settled. Also, European settlers can also
was not properly settled. Also, European settlers can also note that sometimes agreements were made with
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note that sometimes agreements were made with indigenous people to obtain certain lands, but it is also
indigenous people to obtain certain lands, but it is also contentious as to whether all these agreements would
contentious as to whether all these agreements would have been made fairly, as some were made at gun point,
have been made fairly, as some were made at gun point, while other agreements were achieved through deception
while other agreements were achieved through deception and various forms of manipulation. Survival International
and various forms of manipulation. Survival International criticizes Britain and France, of being opposed to some
criticizes Britain and France, of being opposed to some aspects of rights for indigenous peoples, as well as the
aspects of rights for indigenous peoples, as well as the United States. These two countries, formerly
United States. These two countries, formerly commanding vast empires and colonies have also
commanding vast empires and colonies have also subjected native peoples to cruel denial of rights and
subjected native peoples to cruel denial of rights and oppression. A key part of the declaration has been the
oppression. A key part of the declaration has been the “collective” right of indigenous peoples, for they are seen
“collective” right of indigenous peoples, for they are seen by many indigenous communities as “essential for the
by many indigenous communities as “essential for the integrity, survival and well-being of our distinct nations
integrity, survival and well- being of our distinct nations and communities. They are inseparably linked to our
and communities. They are inseparably linked to our cultures, spirituality and worldviews. They are also critical
cultures, spirituality and worldviews’. They are also critical to the exercise and enjoyment of the rights of indigenous
to the exercise and enjoyment of the rights of indigenous individuals.A reason such countries may be opposed to
individuals. A reason such countries may be opposed to collective rights is that it implies land and resource rights,
collective rights is that it implies land and resource rights, whereas supporting only individual rights would not.
whereas supporting only individual rights would not. Collective rights could therefore threaten access to
Collective rights could therefore threaten access to valuable resources if they cannot be exploited, or if they
valuable resources if they cannot be exploited, or if they are used for, and by, the indigenous communities. As
are used for, and by, the indigenous communities. As Survival International also notes, individual rights is
Survival International also notes, individual rights is sometimes an alien concept to some societies, and it can
sometimes an alien concept to some societies, and it can be easier to exploit individuals than a collective people.
be easier to exploit individuals than a collective people. Full collective rights over land and resources are essential
Full collective rights over land and resources are essential for the survival of tribal peoples. The Yanomami of
for the survival of tribal peoples. The Yanomami of Amazonia, for example, live in large communal houses
Amazonia, for example, live in large communal houses called yanos. The concept of ‘individual ownership’ of
called yanos. The concept of ‘individual ownership’ of such a building is nonsensical. A tribe’s right to decide, for
such a building is nonsensical. A tribe’s right to decide, for example, whether a mining company should be allowed
example, whether a mining company should be allowed to operate on its land, also only makes sense as a
to operate on its land, also only makes sense as a collective right. The UK claims, however, that these vital
collective right. The UK claims, however, that these vital collective rights should be individual rights ‘exercised
collective rights should be individual rights ‘exercised collectively.’ In the USA, the infamous Dawes Act of 1887
collectively.’ In the USA, the infamous Dawes Act of 1887 demonstrated the danger of this approach. The Act
demonstrated the danger of this approach. The Act turned communally-held Indian lands into individual
turned communally-held Indian lands into individual plots; 90 million acres of Indian land were removed at a
plots; 90 million acres of Indian land were removed at a stroke, and the reservations were broken up. As reported
stroke, and the reservations were broken up. As reported by IPS, some African countries
by IPS, some African countries
https://www.legalindia.com/tribal-laws-in-india-and-tribal-conventions-on-rights-of-indigenous-pe ...
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had previously supported the declaration this time raised had previously supported the declaration this time raised
concerns about the phrase “right to self-determination” concerns about the phrase “right to selfdetermination”
because much of Africa is considered indigenous and they because much of Africa is considered indigenous and they
feared unwanted rebellions by some groups within their feared unwanted rebellions by some groups within their
borders. Some indigenous leaders, disappointed by this, borders. Some indigenous leaders, disappointed by this,
claimed it was pressure from US, Canada, Australia, New claimed it was pressure from US, Canada, Australia, New
Zealand and others opposed to the declaration that had Zealand and others opposed to the declaration, that had
lobbied for this position, behind the scenes. CUSTOMARY lobbied for this position, behind the scenes. Customary
LAW—BACKWARD OR RELEVANT JUSTICE SYSTEMS? Law—Backward Or Relevant Justice Systems? Many
Many indigenous cultures having developed their own indigenous cultures having developed their own societal
societal traditions and norms naturally have ways to deal traditions and norms naturally have ways to deal with
with crimes. Various anthropologists and others have crimes. Various anthropologists and others have noted
noted some interesting differences between some some interesting differences between some traditional
traditional systems of justice and modern law. Indigenous systems of justice and modern law. Indigenous law
law consists of a series of unwritten oral principles that are consists of a series of unwritten oral principles that are
abided by and socially accepted by a specific community. abided by and socially accepted by a specific community.
Although these norms may vary from one community to Although these norms may vary from one community to
another, they are all based on the idea of recommending another, they are all based on the idea of recommending
appropriate behaviour rather than on prohibition. appropriate behaviour rather than on prohibition.
Customary indigenous law aims to restore the harmony Customary indigenous law aims to restore the harmony
and balance in a community it is essentially collective in and balance in a community it is essentially collective in
nature, whereas the Western judicial system is based on nature, whereas the Western judicial system is based on
individualism. Customary law is based on the principle individualism. Customary law is based on the principle
that the wrongdoer must compensate his or her victim for that the wrongdoer must compensate his or her victim for
the harm that has been done so that he or she can be the harm that has been done so that he or she can be
reinserted into the community, whereas the Western reinserted into the community, whereas the Western
system seeks punishment. In various countries in Africa, system seeks punishment. In various countries in Africa,
traditional systems of justice have often helped people traditional systems of justice have often helped people
come to term with conflict as part of a rebuilding process. come to term with conflict as part of a rebuilding process.
Truth and reconciliation commissions, such as the well- Truth and reconciliation commissions, such as the well-
known one in South Africa have bought victims and known one in South Africa have bought victims and
perpetrators together. Truth commissions attempt to perpetrators together. Truth commissions attempt to
establish what happened, why, by whom, and may even establish what happened, why, by whom, and may even
include provisions for amnesty, forgiveness, or appropriate include provisions for amnesty, forgiveness, or appropriate
justice, all in the hope that “never again” should such justice, all in the hope that “never again” should such
gross human rights abuses occur. Victims get the chance gross human rights abuses occur. Victims get the chance
to be heard and perpetrators have the opportunity to to be heard and perpetrators have the opportunity to
reintegrate back into society without the fear of backlash. reintegrate back into society without the fear of backlash.
In Africa, there have been commissions in South Africa, In Africa, there have been commissions in South Africa,
Sierra Leone, Rwanda, the Central African Republic, Sierra Leone, Rwanda, the Central African Republic,
Ghana, Nigeria, and Kenya. Liberia and the Democratic Ghana, Nigeria, and Kenya. Liberia and the Democratic
Republic of Congo have also hinted at the prospect of Republic of Congo have also hinted at the prospect of
truth commissions. These systems are not perfect, as truth commissions. These systems are not perfect, as
sometimes war criminals may get off lighter than sometimes war criminals may get off lighter than
expected. INDIGENOUS PEOPLES’ STRUGGLE AROUND expected. Indigenous Peoples’ Struggle around The World
THE WORLD The International Work Group for The International Work Group for Indigenous Affairs
Indigenous Affairs (IWGIA) has for years worked on these (IWGIA) has for years worked on these issues. Their world
issues. Their world reports detail issues and struggles for reports detail issues and struggles for indigenous people
indigenous people around the world. Human Rights are around the world. Human Rights are universal, and civil,
universal, and civil, political, economic, social and cultural political, economic, social and cultural rights belong to all
rights belong to all human beings, including indigenous human beings, including indigenous people. Every
people. Every indigenous woman, man, youth and child is indigenous woman, man, youth and child is entitled to the
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entitled to the realization of all human rights and realization of all human rights and fundamental freedoms
fundamental freedoms on equal terms with others in on equal terms with others in society, without
society, without discrimination of any kind. Indigenous discrimination of any kind. Indigenous people and peoples
people and peoples also enjoy certain human rights also enjoy certain human rights specifically linked to their
specifically linked to their identity, including rights to identity, including rights to maintain and enjoy their
maintain and enjoy their culture and language free from culture and language free from discrimination, rights of
discrimination, rights of access to ancestral lands and land access to ancestral lands and land relied upon for
relied upon for subsistence, rights to decide their own subsistence, rights to decide their own patterns of
patterns of development, and rights to autonomy over development, and rights to autonomy over indigenous
indigenous affairs. THE HUMAN RIGHTS AT ISSUE The affairs. The Human Rights at Issue The human rights of
human rights of indigenous people and peoples are indigenous people and peoples are explicitly set out in the
explicitly set out in the ILO Indigenous and Tribal Peoples ILO Indigenous and Tribal Peoples Convention (No. 169),
Convention (No. 169), the Universal Declaration of Human the Universal Declaration of Human Rights, the
Rights, the International Covenants, the Convention on International Covenants, the Convention on the
the Elimination of All Forms of Racial Discrimination, the Elimination of All Forms of Racial Discrimination, the
Convention on the Rights of the Child, and other widely Convention on the Rights of the Child, and other widely
adhered to international human rights treaties and adhered to international human rights treaties and
Declarations. They include the following indivisible, Declarations. They include the following indivisible,
interdependent and interrelated human rights. The human interdependent and interrelated human rights. The human
right to freedom from any distinction, exclusion, right to freedom from any distinction, exclusion,
restriction or preference based on their indigenous status restriction or preference based on their indigenous status
which has the purpose or effect of impairing the which has the purpose or effect of impairing the
enjoyment of human rights and fundamental freedoms enjoyment of human rights and fundamental freedoms
those are: • The human right to freedom from that are The human right to freedom from discrimination
discrimination in access to housing, education, social in access to • housing, education, social services, health
services, health care or employment. • The human right to care or employment. • The human right to equal
equal recognition as a person before the law, to equality recognition as a person before the law, to equality before
before the courts, and to equal protection of the law. • the courts, and to equal protection of the law. • The
The human right of indigenous peoples to exist. • The human right of indigenous peoples to exist. • The human
human right to freedom from genocide and ‘ethnic right to freedom from genocide and ‘ethnic cleansing’. •
cleansing’. • The human right to livelihood and work The human right to livelihood and work which is freely
which is freely chosen and to subsistence and access to chosen, and to subsistence and access to land to which
land to which they have traditionally had access and relied they have traditionally had access and relied upon for
upon for subsistence. • The human right to maintain their subsistence. • The human right to maintain their
distinctive spiritual and material relationship with the distinctive spiritual and material relationship with the
lands, to own land individually and in community with lands, to own land individually and in community with
others, and to transfer land rights according to their own others, and to transfer land rights according to their own
customs. • The human right to use manage and safeguard customs. • The human right to use, manage and
the natural resources pertaining to their lands. • The safeguard the natural resources pertaining to their lands. •
human right to freedom of association. • The human right The human right to freedom of association. • The human
to enjoy and develop their own culture and language. • right to enjoy and develop their own culture and
The human right to establish and maintain their own language. • The human right to establish and maintain
schools and other training and educational institutions, their own schools and other training and educational
and to teach and receive training in their own languages. • institutions, and to teach and receive training in their own
The human right to full and effective participation in languages. • The human right to full and effective
shaping decisions and policies concerning their group and participation in shaping decisions and policies concerning
community, at the local, national and international levels, their group and community, at the local, national and
including policies relating to economic and social international levels, including policies relating to
development. • The human right to self-determination economic and social development. • The human right to
and autonomy over all matters internal to the group, self-determination and autonomy over all matters internal
including in the fields of culture, religion, and local to the group, including in the fields of culture, religion,
government. In recognition of the fact that indigenous and local government. In recognition of the fact that
and tribal peoples are likely to be discriminated against in indigenous and tribal peoples are likely to be
many areas, the first general, fundamental principle of The discriminated against in many areas, the first general,
Tribal People’s Convention No. 169 is non-discrimination. fundamental principle of The Tribal People’s Convention
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Article 3 of the Convention states that indigenous peoples No. 169 is non-discrimination. Article 3 of the Convention
have the right to enjoy the full measure of human rights states that indigenous peoples have the right to enjoy the
and fundamental freedoms without hindrance or full measure of human rights and fundamental freedoms
discrimination. In Article 4, the Convention also without hindrance or discrimination. In Article 4, the
guarantees enjoyment of the general rights of citizenship Convention also guarantees enjoyment of the general
without discrimination. Another principle in the rights of citizenship without discrimination. Another
Convention concerns the application of all its provisions principle in the Convention concerns the application of all
to male and female indigenous persons without its provisions to male and female indigenous persons
discrimination (Article 3). Article 20 provides for without discrimination (Article 3). Article 20 provides for
prevention of discrimination against indigenous workers. prevention of discrimination against indigenous workers.
In response to the vulnerable situation of indigenous and In response to the vulnerable situation of indigenous and
tribal peoples, Article 4 of the Convention calls for special tribal peoples, Article 4 of the Convention calls for special
measures to be adopted to safeguard the persons, measures to be adopted to safeguard the persons,
institutions, property, labour, cultures and environment of institutions, property, labour, cultures and environment of
these peoples. In addition, the Convention stipulates that these peoples. In addition, the Convention stipulates that
these special measures should not go against the free these special measures should not go against the free
wishes of indigenous peoples. Recognition of the cultural wishes of indigenous peoples. Recognition of the cultural
and other specificities of indigenous and tribal peoples and other specificities of indigenous and tribal peoples
and consultation of the Tribal People’s convention and consultation of the Tribal People’s convention No.
Number 169. Indigenous and tribal peoples’ cultures and 169 Indigenous and tribal peoples’ cultures and identities
identities form an integral part of their lives. Their ways of form an integral part of their lives. Their ways of life,
life, customs and traditions, institutions, customary laws, customs and traditions, institutions, customary laws,
forms of land use and forms of social organization are forms of land use and forms of social organization are
usually different from those of the dominant population. usually different from those of the dominant population.
The Convention recognizes these differences, and aims to The Convention recognizes these differences, and aims to
ensure that they are protected and taken into account ensure that they are protected and taken into account
when any measures are being undertaken that are likely to when any measures are being undertaken that are likely to
have an impact on these peoples. The spirit of have an impact on these peoples. The spirit of
consultation and participation constitutes the cornerstone consultation and participation constitutes the cornerstone
of Convention No. 169 on which all its provisions are of Convention No. 169 on which all its provisions are
based. The Convention requires that indigenous and tribal based. The Convention requires that indigenous and tribal
peoples are consulted on issues that affect them. It also peoples are consulted on issues that affect them. It also
requires that these peoples are able to engage in free, requires that these peoples are able to engage in free,
prior and informed participation in policy and prior and informed participation in policy and
development processes that affect them. The principles of development proce sses that affect them. The principles
consultation and participation in Convention No. 169 of consultation and participation in Convention No. 169
relate not only to specific development projects, but also relate not only to specific development projects, but also
to broader questions of governance, and the participation to broader questions of governance, and the participation
of indigenous and tribal peoples in public life. In Article 6, of indigenous and tribal peoples in public life. In Article 6,
the Convention provides a guideline as to how the Convention provides a guideline as to how
consultation with indigenous and tribal peoples should be consultation with indigenous and tribal peoples should be
conducted: Consultation with indigenous peoples should conducted: Consultation with indigenous peoples should
be undertaken through appropriate procedures, in good be undertaken through appropriate procedures, in good
faith, and through the representative institutions of these faith, and through the representative institutions of these
peoples; The peoples involved should have the peoples; The peoples involved should have the
opportunity to participate freely at all levels in the opportunity to participate freely at all levels in the
formulation, implementation and evaluation of measures formulation, implementation and evaluation of measures
and programmes that affect them directly; Another and programmes that affect them directly; Another
important component of the concept of consultation is important component of the concept of consultation is
that of representatively. If an appropriate consultation that of representatively. If an appropriate consultation
process is not developed with the indigenous and tribal process is not developed with the indigenous and tribal
institutions or organizations that are truly representative of institutions or organizations that are truly representative of
the peoples in question, then the resulting consultations the peoples in question, then the resulting consultations
would not comply with the requirements of the would not comply with the requirements of the
Convention. The Convention also specifies individual Convention. The Convention also specifies individual
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circumstances in which consultation with indigenous and circumstances in which consultation with indigenous and
tribal peoples is an obligation. Consultation should be tribal peoples is an obligation. Consultation should be
undertaken in good faith, with the objective of achieving undertaken in good faith, with the objective of achieving
agreement. The parties involved should seek to establish a agreement. The parties involved should seek to establish a
dialogue allowing them to find appropriate solutions in an dialogue allowing them to find appropriate solutions in an
atmosphere of mutual respect and full participation. atmosphere of mutual respect and full participation.
Effective consultation is consultation in which those Effective consultation is consultation in which those
concerned have an opportunity to influence the decision concerned have an opportunity to influence the decision
taken. This means real and timely consultation. For taken. This means real and timely consultation. For
example, a simple information meeting does not example, a simple information meeting does not
constitute real consultation, nor does a meeting that is constitute real consultation, nor does a meeting that is
conducted in a language that the indigenous peoples conducted in a language that the indigenous peoples
present do not understand. The challenges of present do not understand. The challenges of
implementing an appropriate process of consultation with implementing an appropriate process of consultation with
indigenous peoples have been the subject of a number of indigenous peoples have been the subject of a number of
observations of the ILO’s Committee of Experts, as well as observations of the ILO’s Committee of Experts, as well as
other supervisory procedures of the ILO, which the ILO other supervisory procedures of the ILO, which the ILO
has now compiled in a Digest. Adequate consultation is has now compiled in a Digest. Adequate consultation is
fundamental for achieving a constructive dialogue and for fundamental for achieving a constructive dialogue and for
the effective resolution of the various challenges the effective resolution of the various challenges
associated with the implementation of the rights of associated with the implementation of the rights of
indigenous and tribal peoples. IMPLEMENTATION OF indigenous and tribal peoples. Implementation of
CONVENTION NO. 169 Since its adoption, Convention Convention No. 169 Since its adoption, Convention No.
No. 169 has gained recognition well beyond the number 169 has gained recognition well beyond the number of
of actual ratifications. Its provisions have influenced actual ratifications. Its provisions have influenced
numerous policy documents, debates and legal decisions numerous policy documents, debates and legal decisions
at the regional and international levels, as well as national at the regional and international levels, as well as national
legislation and policies. The Provisions of Convention No. legislation and policies. The Provisions of Convention No.
169 are compatible with the provisions of the United 169 are compatible with the provisions of the United
Nations Declaration on the Rights of Indigenous Peoples Nations Declaration on the Rights of Indigenous Peoples,
and the adoption of the Declaration illustrates the broader and the adoption of the Declaration illustrates the broader
acceptance of the principles of Convention No. 169 well acceptance of the principles of Convention No. 169 well
beyond the number of ratifications. The Convention beyond the number of ratifications. The Convention
stipulates that governments shall have the responsibility stipulates that governments shall have the responsibility
for developing co- ordinated and systematic action to for developing co-ordinated and systematic action to
protect the rights of indigenous and tribal peoples38 and protect the rights of indigenous and tribal peoples (Article
ensure that appropriate mechanisms and means are 3) and ensure that appropriate mechanisms and means
available39. With its focus on consultation and are available (Article 33). With its focus on consultation
participation, Convention No. 169 is a tool to stimulate and participation, Convention No. 169 is a tool to
dialogue between governments and indigenous and tribal stimulate dialogue between governments and indigenous
peoples and has been used as a tool for development and tribal peoples and has been used as a tool for
processes, as well as conflict prevention and resolutions. development processes, as well as conflict prevention and
Indigenous peoples around the world have sought resolutions. Indigenous peoples around the world have
recognition of their identities, their ways of life and their sought recognition of their identities, their ways of life and
right to traditional lands, territories and natural resources; their right to traditional lands, territories and natural
yet throughout history, their rights have been violated. resources; yet throughout history, their rights have been
Indigenous peoples are arguably among the most violated. Indigenous peoples are arguably among the
disadvantaged and vulnerable groups of people in the most disadvantaged and vulnerable groups of people in
world today. The international community now the world today. The international community now
recognizes that special measures are required to protect recognizes that special measures are required to protect
the rights of the world’s indigenous peoples. the rights of the world’s indigenous peoples.
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DESIGNING AN ALTERNATIVE LEGAL SYSTEM FOR TRIBAL Designing an Alternative Legal System for Tribal
GOVERNANCE IN INDIA Governance in India 116
now attempt a structural reconstruction of tribal now attempt a structural reconstruction of tribal
governments. This shift from an abstract general legal governments. This shift from an abstract general legal
notion of autonomy to a fuller, more textured model of notion of autonomy to a fuller, more textured model of
local 38 (Article 3) 39 (Article 33) government will focus local government will focus on constitutional
on constitutional amendments, supporting legislation by amendments, supporting legislation by the states, and
the states, and the contribution of civil society actors. It is the contribution of civil society actors. It is difficult to
difficult to classify the proposed structure strictly in the classify the proposed structure strictly in the mould of
mould of “minimal” or “maximal” autonomy, but in the "minimal" or "maximal" autonomy, but in the "complex
“complex spectrum of gradations” that lie in between, the spectrum of gradations" that lie in between, the
framework leans more toward maximal autonomy with framework leans more toward "[m]aximal autonomy with
broad legislative and executive faculties that require a broad legislative and executive faculties" that require "a
distribution of competences that is constitutionally distribution of competences that is constitutionally
regulated and supported by status,40 My suggestions are regulated and supported by status." '179 My suggestions
normative and begin by highlighting the importance of are normative and begin by highlighting the importance
securing tribal property rights which form the core of of securing tribal property rights which form the core of
other overlapping rights and duties. SECURING TRIBAL other overlapping rights and duties. Securing Tribal
PROPERTY RIGHTS As noted earlier, securing property Property Rights As noted earlier, securing property rights
rights has been a key part of modern Indigenous peoples’ has been a key part of modern Indigenous peoples'
movements around the world; yet the tribes in India are movements around the world; yet the tribes in India are
regularly deprived of these rights. Also noted was the root regularly deprived of these rights. Also noted was the root
of the problem that the tribes have a legal rather than of the problem that the tribes have a legal rather than
fundamental right to property fundamental right to property
Indian law, which has made it possible for the State to Indian law, which has made it possible for the State to
acquire tribal lands if it meets the low threshold of having acquire tribal lands if it meets the low threshold of having
consulted or sought recommendations before doing so. consulted or sought recommendations before doing so.
The most straightforward way of substituting ‘consent’ for The most straightforward way of substituting 'consent' for
‘consultation’ is to alter the balance of power between the 'consultation' is to alter the balance of power between
states and the tribal local governments by making the states and the tribal local governments by making
property a fundamental right for the tribes as well.41 Even property a fundamental right for the tribes as well. 180
though states can still acquire tribal community property Even though states can still acquire tribal community
by qualifying this right (as almost all other fundamental property by qualifying this right (as almost all other
rights are) and 40 fundamental rights are) and
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The author rightly cautions that, what may be seen as The author rightly cautions that ".... what may be seen as
maximal autonomy in one situation may be considered maximal autonomy in one situation may be considered
minimal in another and vice versa.” 41 minimal in another and vice versa."
Private property rights have had a checkered history in Private property rights have had a checkered history in
India. Individuals currently do not exercise a fundamental India. Individuals currently do not exercise a fundamental
right to property and any appropriations—including those right to property and any appropriations—including those
of tribal lands—can only be challenged if it violates the of tribal lands—can only be challenged if it violates the
legal right guaranteed in Article 300A cited earlier. legal right guaranteed in Article 300A cited earlier.
However, what is interesting to note is that in the last 15 However, what is interesting to note is that in the last 15
years India has taken a turn with the New Economic years India has taken a turn with the New Economic
Policy adopted in 1991 which deregulated and liberalized Policy adopted in 1991 which deregulated and liberalized
the economy. The resultant growth in capitalism has the economy. The resultant growth in capitalism has
made private property and the modern social relations made private property and the modern social relations
theory, which connects property rights to “personhood, theory, which connects property rights to “personhood,
health, dignity, liberty, and distributive justice,” increasingly health, dignity, liberty, and distributive justice,” increasingly
relevant. See Madhavi Sunder, “IP3” (2006) 59 Stan. L. Rev. relevant. See Madhavi Sunder, “IP3” (2006) 59 Stan. L. Rev.
257 at 259 (citing Margaret Jane Radin, “Property and 257 at 259 (citing Margaret Jane Radin, “Property and
Personhood” (1982) 34 Stan. L. Rev. 957, Joseph William Personhood” (1982) 34 Stan. L. Rev. 957, Joseph William
Singer, Introduction to Property (New York: Aspen Law & Singer, Introduction to Property (New York: Aspen Law &
Business, 2001) at 2-19, and Stephen R. Munzer, “Property Business, 2001) at 2-19, and Stephen R. Munzer, “Property
as Social Relations” in Stephen R. Munzer, ed., New Essays as Social Relations” in Stephen R. Munzer, ed., New Essays
in the Legal and Political Theory of Property (Cambridge: in the Legal and Political Theory of Property (Cambridge:
Cambridge University Press, 2001) at 36). As a result, some Cambridge University Press, 2001) at 36). As a result, some
sections of society have begun appealing for the sections of society have begun appealing for the
reinstatement of the fundamental right for all citizens. reinstatement of the fundamental right for all citizens.
See, e.g., Kaushik Das, “The Right to Property: It is High See, e.g., Kaushik Das, “The Right to Property: It is High
Time the Government Makes it a Fundamental Right Time the Government Makes it a Fundamental Right
Again” Business Standard (14 April 2004). In order to Again” Business Standard (14 April 2004) . In order to
navigate between the conceptual shoals that may be navigate between the conceptual shoals that may be
implicated when thinking about the possibility of granting implicated when thinking about the possibility of granting
the tribes such a right, I offer a beginning. The tribes’ right the tribes such a right, I offer a beginning. The tribes’ right
to property should be considered a corollary to the to property should be considered a corollary to the
various state laws that prohibit alienation of tribal lands. various state laws that prohibit alienation of tribal lands.
Many, such as the Andhra Pradesh Scheduled Areas Land Many, such as the Andhra Pradesh Scheduled Areas Land
Transfer (Amendment) Regulation of 1970, vest all land in Transfer (Amendment) Regulation of 1970, vest all land in
the Fifth Schedule areas with the tribes unless proven the Fifth Schedule areas with the tribes unless proven
otherwise. A fundamental right would ensure that this otherwise. A fundamental right would ensure that this
default rule is not altered in the future because of political default rule is not altered in the future because of political
pressure. pressure. 181
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paying just compensation,42 the extent of police powers paying just compensation, 181 the extent of police powers
would be significantly curtailed, since any state action43 would be significantly curtailed, since any state action 82
interfering with fundamental rights will be judicially interfering with fundamental rights will be judicially
reviewable for its effects and consequences under the reviewable for its effects and consequences under the
well-established principles of the Indian Supreme well- established principles of the Indian Supreme Court.
Court.44 The mandate for such a provision has been 183 The mandate for such a provision has been
constitutionally given to Parliament, which can make “any constitutionally given to Parliament, which can make "any
special provision for the advancement of … the Scheduled special provision for the advancement of ... the Scheduled
Tribes.”45 If recognized, the fundamental right would be Tribes." '84 If recognized, the fundamental right would be
one of many provisions securing tribal interests. The Fifth one of many provisions securing tribal interests: the Fifth
and Sixth and Sixth 180
Schedules are examples, and so is Parliaments ability to Schedules are examples, and so is Parliament's ability to
legislatively restrict a citizen’s right to travel or reside in legislatively restrict a citizen's right to travel or reside in
any part of India if such law was “for the protection of the any part of India if such law was "for the protection of the
interests of any Scheduled Tribe.46 On a conceptual interests of any Scheduled Tribe." '185 On a conceptual
plane, this fundamental right ought to lie between the plane, this fundamental right ought to lie between the
“castle” model and the “investment” model of property.47 "castle" model and the "investment" model of property. 18
It is supported by Professor Joseph Singer, who argues The middle ground is supported by Professor Joseph
that owners do not live alone and when their exercise of Singer, who argues that "[o]wners do not live alone and
property rights affects others, the interests of those others when their exercise of property rights affects others, the
need to be taken into account to determine whether any interests of those others need to be taken into account to
obligation imposed on a property owner is just or fair. determine whether any obligation imposed on a property
There would be numerous occasions where the use of owner is just or fair." '187 There would be numerous
tribal property would be imperative for national occasions where the use of tribal property would be
development, and where an absolute right for the tribes imperative for national development, and where an
may unduly jeopardize the greater good. absolute right for the tribes may unduly jeopardize the
greater good.
In order to balance rights with concomitant duties, the In order to balance rights with concomitant duties, the
‘just and fair’ test mentioned above allows us to abjure the 'just and fair' test mentioned above allows us to abjure the
extreme positions of the two models, fitting in nicely with extreme positions of the two models, fitting in nicely with
the fact that the test would be applied by the Indian the fact that the test would be applied by the Indian
judiciary, which has usually supported tribal property judiciary, which has usually supported tribal property
rights.48 In this way, my proposal would be an rights. 89 In this way, my proposal would be an
extraordinary 42 extraordinary
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The Constitution may place “reasonable restrictions” on The Constitution may place “reasonable restrictions” on
the right. Such restrictions qualify most other fundamental the right. Such restrictions qualify most other fundamental
rights in the Constitution, including the fundamental right rights in the Constitution, including the fundamental right
of religious minorities to own and acquire property. 43 of religious minorities to own and acquire property. See
“The prerequisite for invoking the enforcement of a supra note 87. 182 “The prerequisite for invoking the
fundamental right … is that the violator of that right should enforcement of a fundamental right … is that the violator
be a State [entity].” Zee Telefilms Ltd. v. Union of India, of that right should be a State [entity].” Zee Telefilms Ltd. v.
[2005] 4 S.C.C. 649 at para. 28. 44 Delhi Transport Union of India, [2005] 4 S.C.C. 649 at para. 28. 183 See
Corporation v. D.T.C. Mazdoor Congress, A.I.R. [1991] S.C. e.g., Delhi Transport Corporation v. D.T.C. Mazdoor
101 at para. 294 (“The effect of restriction or deprivation Congress, A.I.R. [1991] S.C. 101 at para. 294 (“The effect of
and not of the form adopted to deprive the right is the restriction or deprivation and not of the form adopted to
conclusive test.”). 45 Constitution of India, 1950, Art. 15(4). deprive the right is the conclusive test.”). 184 See
46 Constitution of India, 1950, Art. 15(4). 118
Art. 19. A fundamental property right specifically for tribal Art. 19. A fundamental property right specifically for tribal
communities would not violate the principle of equality communities would not violate the principle of equality
embodied in the Constitution of India. The Indian embodied in the Constitution of India. The Indian
Constitution, like that of every other modern democracy, Constitution, like that of every other modern democracy,
has an equal protection clause (Article 14) with a has an equal protection clause (Article 14) with a
“generality-requiring task” as well as a “generality- ",generality-requiring task" as well as a "generality-
correcting task” which “prevent[s] government from correcting task" which "prevent[s] government from
establishing or reinforcing through the laws collective establishing or reinforcing through the laws collective
disadvantages inconsistent with the principle that in a disadvantages inconsistent with the principle that in a
democracy each person should count as one.” Roberto democracy each person should count as one." Roberto
Mangabeira Unger, “The Critical Legal Studies Movement” Mangabeira Unger, "The Critical Legal Studies Movement"
(1983) 96 Harv. L. Rev. 561 at 603. In other words, a (1983) 96 Harv. L. Rev. 561 at 603. In other words, a
fundamental right to property for tribal communities in fundamental right to property for tribal communities in
the Scheduled Areas would correct the unexplained the Scheduled Areas would correct the unexplained
imbalance in the Constitution where minority religious imbalance in the Constitution where minority religious
communities alone are guaranteed such rights while communities alone are guaranteed such rights while
other socially coherent groups like the tribes are not. 47 other socially coherent groups like the tribes are not. 186
The “castle” model “conceptualizes owners as having The "castle" model "conceptualizes owners as having
absolute domain over their property as long as they do absolute domain over their property as long as they do
not use it to harm others,” while the “investment” model not use it to harm others," while the "investment" model
“conceptualizes "conceptualizes
62/68
as a form of investment in a market economy that creates as a form of investment in a market economy that creates
reasonable expectations likely to yield economic rewards.” reasonable expectations likely to yield economic rewards."
See Joseph William Singer, “The Ownership Society and See Joseph William Singer, "The Ownership Society and
Takings of Property: Castles, Investments, and Just Takings of Property: Castles, Investments, and Just
Obligations” (2006) 30 Harv. Envtl. L. Rev. 309. Obligations" (2006) 30 Harv. Envtl. L. Rev. 309. 187
measure to remedy the “collective inferiority” of the tribal measure to remedy the "collective inferiority" of the tribal
peoples.49 peoples. 90 185
TOWARDS AUTONOMOUS TRIBAL LOCAL Towards Autonomous Tribal Local Governments Once
GOVERNMENTS Once property rights are secured, they property rights are secured, they must be sustained by a
must be sustained by a legal paradigm that strengthens legal paradigm that strengthens tribal autonomy. Tribal
tribal autonomy. Tribal autonomy is not a challenge to autonomy is not a challenge to India's sovereignty. Rather,
India’s sovereignty. Rather, in claiming the right to self- in claiming the right to self-determination the Indigenous
determination the Indigenous communities are “seeking communities are "seeking new ways of being recognized
new ways’ of being recognized by national laws and by national laws and systems of decision making without
systems of decision making without losing their losing their autonomy and their own values." 191 Before I
autonomy and their own values.50 Before I venture to venture to reconstruct the schema of tribal local
reconstruct the schema of tribal local governments in governments in Fifth Schedule areas, it might be helpful to
Fifth Schedule areas, it might be helpful to revisit the Sixth revisit the Sixth Schedule. While by no means an ideal, 192
Schedule. While by no means an ideal,51 the Sixth the Sixth Schedule, as described in Part II of this paper, has
Schedule, as described in Part II of this paper, has certain certain features that can be implanted in any governance
features that can be implanted in any governance model model for tribal areas in the rest of the country. 193 In
for tribal areas in the rest of the country.52 In particular, I particular, I am interested in drawing from the Sixth
am interested in drawing from the Sixth Schedules Schedule's concepts of constitutionally specified
concepts of constitutionally specified administrative and administrative and legislative subjects that are the
legislative subjects that are the exclusive domain of the exclusive domain of the local governments, the
local governments, the proscription on the states’ proscription on the states' executive authority, and
executive authority, and financial independence for the financial independence for the local governments. 1 94
local governments. The Constitutional Scheme for Tribal The Constitutional Scheme for Tribal Autonomy in the
Autonomy in the Fifth Schedule Areas The structural Fifth Schedule Areas The structural reconstruction that I
reconstruction that I propose envisages discarding PESA propose envisages discarding PESA and revising the Fifth
and revising the Fifth Schedule. Embedding the new Schedule. Embedding the new autonomous scheme in
autonomous scheme in the Constitution would give a the Constitution would give a level of legitimacy
level of legitimacy 48
63/68
Samatha v. State of Andhra Pradesh, [1997] 4 SCALE 746. Samatha v. State of Andhra Pradesh, [1997] 4 SCALE 746.
The Samatha court did not qualify the government’s right The Samatha court did not qualify the government’s right
to acquire tribal mineral resources because the Fifth to acquire tribal mineral resources because the Fifth
Schedule, as it stood then (and now), provides no such Schedule, as it stood then (and now), provides no such
limitation where the appropriation is in national interest. If limitation where the appropriation is in national interest. If
there was a fundamental right to property for the tribes, there was a fundamental right to property for the tribes,
the court’s opinion leads me to conclude that it would the court’s opinion leads me to conclude that it would
have surely truncated the State’s power to take tribal have surely truncated the State’s power to take tribal
property. 49 A phrase I borrow from Roberto Unger. See property. 190 A phrase I borrow from Roberto Unger. See
supra note 181 at 606. Interestingly, Mahapatra et al. supra note 181 at 606. Interestingly, Mahapatra et al.
provide a vivid account of 1,500 tribal villages in a provide a vivid account of 1,500 tribal villages in a
resource-rich region that declared themselves “village resource-rich region that declared themselves “village
republics” in a desperate attempt to prevent non-tribal republics” in a desperate attempt to prevent non-tribal
intrusions and takings by the State. See Richard Mahapatra intrusions and takings by the State. See Richard Mahapatra
et al., The Second Independence: What Makes Villages et al., “The Second Independence: What Makes Villages
Declare Themselves Republics?” Down to Earth (31 August Declare Themselves Republics?” Down to Earth (31 August
2002). 50 2002).
Marcus Colchester & Fergus Mackay, “In Search of Middle Marcus Colchester & Fergus Mackay, "In Search of Middle
Ground: Indigenous Peoples, Collective Representation Ground: Indigenous Peoples, Collective Representation
and the Right to Free, Prior and Informed Consent” (paper and the Right to Free, Prior and Informed Consent" (paper
presented to the 10th Conference of the International presented to the 10th Conference of the International
Association for the Study of Common Property, Oaxaca, Association for the Study of Common Property, Oaxaca,
Mexico, 9-13 August 2004) [unpublished], online: Forest Mexico, 9-13 August 2004) [unpublished], online: Forest
Peoples Programme. Peoples Programme.
>http://www.forestpeoples.org/documents/law_hr/fpic_i >http://www.forestpeoples.org/documents/law hr/fpic ips
ps_text_only_aug04_eng.pdf<. 51 (“[T]he Sixth Schedule text only aug04_eng.pdf<. 192 See Sharma, supra note 72
… cannot be accepted as sacrosanct. It can be taken as a at 181 ("[T]he Sixth Schedule ... cannot be accepted as
model for guidance but with a clear proviso that such sacrosanct. It can be taken as a model for guidance but
elements … must be suitably adapted and even could be with a clear proviso that such elements ... must be suitably
rejected outright wherever necessary”). Sharma however adapted and even could be rejected outright wherever
argues that the “Sixth Schedule was designed for the most necessary"). Sharma however argues that the "Sixth
favourable setting of homogen[e]ous single-tribe tracts …. Schedule was designed for the most favourable setting of
The first premise in any scheme of transformation in this homogen[e]ous single-tribe tracts .... The first premise in
situation, therefore, has to be that the system must be any scheme of transformation in this situation, therefore,
built on what exists on the ground.” 52 Perhaps in has to be that the system must be built on what exists on
recognition, Parliament required that “the State Legislature the ground." Ibid. 193 Perhaps in recognition, Parliament
shall endeavour to follow the pattern of the Sixth required that "the State Legislature shall endeavour to
Schedule to the Constitution while designing the follow the pattern of the Sixth Schedule to the
administrative arrangements in the Panchayats at district Constitution while designing the administrative
levels in the Scheduled Areas.” PESA, s. 4(o). arrangements in the Panchayats at district levels in the
Scheduled Areas." PESA, s. 4(o). 194 1
64/68
and permanency that legislation would otherwise not and permanency that legislation would otherwise not
provide. The basic unit of administration in an alternative provide. The basic unit of administration in an alternative
structure should continue to be a community that structure should continue to be a community that
manages its affairs in accordance with [shared] traditions manages its "affairs in accordance with [shared] traditions
and customs.53 and customs." 195
the community is the fundamental institution of all tribes the community is the fundamental institution of all tribes
whether settled or nomadic. At the grassroots, the tribal whether settled or nomadic. 196 At the grassroots, the
community should be empowered to constitute a local tribal community should be empowered to constitute a
government that, for reasons given elsewhere, is based on local government that, for reasons given elsewhere, is
traditional systems of government. The revised Fifth based on traditional systems of government. The revised
Schedule should also prescribe the method of Fifth Schedule should also prescribe the method of
determining the hierarchically superior levels of tribal determining the hierarchically superior levels of tribal
administration which may in many cases lie entirely within administration which may in many cases lie entirely within
a homogeneous tribe settled over a vast area. For a homogeneous tribe settled over a vast area. 197 For
example, the Biar and Bhinjhal tribes of central India split example, the Biar and Bhinjhal tribes of central India split
their traditional governing bodies into two tiers —one at their traditional governing bodies into two tiers one at the
the village level, and the other at the regional level. It is village level, and the other at the regional level. 198 It is
also extremely important that the Fifth Schedule allow also extremely important that the Fifth Schedule allow
sufficient flexibility to accommodate traditional sufficient flexibility to accommodate traditional
governments that may not closely follow the governments that may not closely follow the
conventional division of authority between the legislative, conventional division of authority between the legislative,
executive and judicial branches. Many tribes in peninsular executive and judicial branches. Many tribes in peninsular
India appoint traditional councils that act both as India appoint traditional councils that act both as
executive and legislative bodies. Note that PESA itself does executive and legislative bodies. Note that PESA itself does
not draw a bright line between legislative and executive not draw a bright line between legislative and executive
branches of local governments, and entrusts certain branches of local governments, and entrusts certain
powers at the village level to both that is, to the elected powers at the village level to both that is, to the elected
Panchayats and to the adult body of electors (the Gram Panchayats and to the adult body of electors (the Gram
Sabhas). At this juncture I want to introduce the concept Sabhas). At this juncture I want to introduce the concept
of legislative autonomy for the local governments at each of legislative autonomy for the local governments at each
hierarchical level. For this purpose, I propose a fourth hierarchical level. For this purpose, I propose a fourth
constitutional list alongside the earlier described Union, constitutional list alongside the earlier described Union,
State, and Concurrent Lists with a diverse range of State, and Concurrent Lists 199 with a diverse range of
subjects that would be exclusively legislated by the tribal subjects that would be exclusively legislated by the tribal
local governments. local governments. 2 0
65/68
We could also look at the Sixth Schedule, which lists We could also look at the Sixth Schedule, which lists
various subjects on which “the [tribal District and Regional various subjects on which "the [tribal District and Regional
Councils] shall have power to make laws.54’ Taken Councils] shall have power to make laws." 2 2 Taken
together, these sources are indicative of the possibility together, these sources are indicative of the possibility
and plausibility of codifying exclusive subjects for and plausibility of codifying exclusive subjects for
legislation by tribal local governments in the Fifth legislation by tribal local governments in the Fifth
Schedule areas. CONCLUSION The Schedule areas. 2 3 196 the
introduction of PESA in 1996 definitively signalled the introduction of PESA in 1996 definitively signalled the
Indian Parliament’s intention to abandon command-and- Indian Par- liament's intention to abandon command-
control for new governance in the tribal areas. However, and-control for "new governance" in the tribal areas. 2 30
by choosing decentralization the law-makers made the However, by choosing decentralization the law-makers
mistake of matching the right idea with the wrong made the mistake of matching the right idea with the
solution. Although decentralization including its many wrong solution. Although decentralization including its
subtypes:- devolution, many subtypes: devolution,
K.S. Singh, The Scheduled Tribes (New Delhi: The K.S. Singh, The Scheduled Tribes (New Delhi: The
Anthropological Survey of India, 1994) at 175-178 . Anthropological Survey of India, 1994) at 175-178. 199
66/68
concentration, delegation and divestment have proven concentration, delegation and divestment has proven
indispensable whenever national or provincial indispensable whenever national or provincial
governments have desired local solutions for local governments have desired local solutions for local
problems, the system is demonstrably inapposite for tribal problems, the system is demonstrably inapposite for tribal
governance. Instead, the right solution is some form of governance. Instead, the right solution is some form of
autonomous tribal government grounded in the Indian autonomous tribal government grounded in the Indian
Constitution and supported by the conventional Constitution and supported by the conventional
administration and civil society. In this paper, I provided administration and civil society. In this paper, I provided
one such arrangement. Autonomy is preferable to one such arrangement. Autonomy is preferable to
decentralization because while the decisions of the decentralization because while the decisions of the
decentralized organs may be replaced by the state; the decentralized organs may be replaced by the state; the
decisions of autonomous organs may be annulled but not decisions of autonomous organs may be annulled but not
definitively replaced. In other words, what I have definitively replaced. In other words, what I have
proposed is freedom within the law for almost one proposed is freedom within the law for almost one
hundred million tribal people. This is certainly achievable, hundred million tribal people. This is certainly achievable,
and the legal change would be a highly effective way of and the legal change would be a highly effective way of
transforming ideology to create a sense of entitlement transforming ideology to create a sense of entitlement
amongst the tribes. Significantly, the constitutional and amongst the tribes. Significantly, the constitutional and
statutory law governing tribal territories in India rather statutory law governing tribal territories in India rather
than reforms in civil administration by state departments than reforms in civil administration by state departments
and development programs. There were two reasons for and development programs. There were two reasons for
this choice. One was that current literature on tribal law in this choice. One was that current literature on tribal law in
India treats tribal concerns within the larger problem of India treats tribal concerns within the larger problem of
efficient implementation of development policies and efficient implementation of development policies and
bureaucratic apathy, rather than as a distinct issue in bureaucratic apathy, rather than as a distinct issue in
constitutional and statutory law requiring more systemic constitutional and statutory law requiring more systemic
change. The other was that tribal development policies change. The other was that tribal development policies
and state administrative departments provide area- and state administrative departments provide area-
specific solutions. The Fifth Schedule, as part of the specific solutions. The Fifth Schedule, as part of the
Constitution, applies to pockets of tribal areas scattered Constitution, applies to pockets of tribal areas scattered
within the peninsular regions of a vast country. within the peninsular regions of a vast country.
Encompassing these issues in a single work runs the risk Encompassing these issues in a single work runs the risk
of trivializing the distinct problems faced by the tribes. The of trivializing the distinct problems faced by the tribes. The
federalist autonomy model proposed here would be a federalist autonomy model proposed here would be a
major change, and it raises additional questions outside major change, and it raises additional questions outside
the scope of a single paper. One such issue is to consider the scope of a single paper. One such issue is to consider
the mechanisms that might be used by tribal governments the mechanisms that might be used by tribal governments
for funding and revenue generation. Another is to explore for funding and revenue generation. Another is to explore
the possibility of tribal courts, which has few precedents the possibility of tribal courts, which has few precedents
in India even beyond Fifth Schedule areas and poses a in India even beyond Fifth Schedule areas and poses a
number of challenges. There are likely others. I hope to number of challenges. There are likely others. I hope to
address some of these issues in future work. address some of these issues in future work. Bibliography
BIBLIOGRAPHY 1. Tribal Law and Justice by W.G. Archer 2. • • • Tribal Law and Justice by W.G. Archer Tribal Self
Tribal Self Governance PESA and Its Implementation by Governance PESA and Its Implementation by Nupur Tiwari
Nupur Tiwari 3. Social Movements In Tribal India By S.N. • Social Movements In Tribal India By S.N. Chaudhary •
Chaudhary 4. www.ilo.org; Indigenous and Tribal Peoples www.ilo.org › ... › Indigenous and Tribal Peoples ›
› Conventions 5. http://www.moef.gov.in/public- Conventions • http://www.moef.gov.in/public-
information/other-reports 6. information/other-reports •
http://tribal.nic.in/fifthschedule.htm 7. http://tribal.nic.in/fifthschedule.htm
http://tribal.nic.in/index1.html 8. http://tribal.nic.in/index1.html ×
67/68
S.C.C. 65 at para.15 2. BALCO v. Union of S.C.C. 133 at para. 17. • BALCO v. Union of India, [2002] 2
India……………………………………………….2002 2 S.C.C. 333 15. S.C.C. 333 •
Singh Surana v. First Land Acquisition Collector 2006 11 Singh Surana v. First Land Acquisition Collector, [2006] 11
SCALE 482 16. Edwingson Bareh v. State of SCALE 482. • State of Andhra v. V. Sarma A.I.R. [2007]
Assam……………………………A.I.R.1966 S.C. 1220 ¶ 47 17. S.C. 137 para. 6. • Hukumdev Narain Yadav v. Lalit Narain
Hukumdev Narain Yadav v. Lalit Narain Mishra…………...1974 Mishra, [1974] 2 S.C.C. 133 at para. 17. •
2 S.C.C. 133 at para. 17 18.
v. Union of India…………………………………….A.I.R.1993 S.C. 477 v. State of Bihar, A.I.R. [1970] S.C. 951 V.S. Sastry v. State of
19. Lakshmi Khandsari v. State of Uttar Andhra Pradesh, A.I.R. [1967] S.at 74 • Pu Myllai Hlychho v.
Pradesh………………...1981 2 SCC 600 at para. 12 20. Pu State of Mizoram, [2005] 2 S.C.C. 92. Amrendra Pratap
Myllai Hlychho v. State of Singh v. Tej Bahadur Prajapati, [2004] 10 S.C.C. 65 at
Mizoram………………………………….2005 2 S.C.C. 92 21. R. K. para.15 • Laxmi Khandsari v. State of Uttar Pradesh,
Sabharwal v. State of Punjab………………………………1995 2 [1981] 2 SCC 600 at Saghir Ahmad v. State of Uttar
S.C.C. 745 at para. 4 22. Ram Kripal Bhagat v. State of Pradesh, A.I.R[1954] SC 728 at para 27 Daulat
Bihar…………………………..A.I.R.1970 S.C. 951 at 958 23. Saghir Singh v. First Acquisition Collector, [2006] 11
Ahmad v. State of Uttar Pradesh……………………A.I.R 1954 SC SCALE 482. • State of Andhra Pradesh v. V. Sarma Rao,
728 at para 27 24. Samatha v. State of Andhra Pradesh A.I.R. [2007] S.C. 137 at para. 6. •
1997 4 SCALE 746 25. State of Andhra Pradesh v. V. Sarma
Rao…………………A.I.R.2007 S.C. 137 at para. 6 26.
V.S.S. Sastry v. State of Andhra V.S.S. Sastry v. State of Andhra Pradesh, A.I.R. [1967] S.C. 71
Pradesh………………………...A.I.R.1967 S.C. 71 at 74 10 311 211 at 74 •
20 30 46 40 12 111
68/68

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Submitted 2021-11-14 21:04:00

Submitted by Faizanur Rahman

Submitter email frahman@jmi.ac.in

Analysis address frahman.jmi@analysis.urkund.com

Sources included in the report

TRIBAL CUTOMARY LAW & THE INDIGENOUS IN INDIA- A CRITICAL ANALYSIS

Submitted By: Name- Aamir Raza Khan

Student ID: 20177912

B.A.LL.B. (IXth Semester) (Regular)

Date of Submission - 21.11.2021

A.I.R All India Reporter

B.A.L.C.O Bharat Aluminium Corporation

E.g Example gratia

I.L.O International Labour Organization

Ibid Ibidium (in the same place or work)

Id Iden (in the same source; variation of pages)

IPC Indian Penal Code

p., pp page, pages

PESA Panchayat (Extension to Scheduled Areas) Act, 1996

PIL Public Interest Litigation

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S.C Supreme Court S.C.C Supreme Court Cases

VIZ Vide licet (namely)

Amrendra Pratap Singh v. Tej Bahadur Prajapati 2004 10

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S.C.C. 65 at para.15 2. BALCO v. Union of India……………………………………………….2002 2 S.C.C. 333 3.

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v. Union of India…………………………………….A.I.R.1993 S.C. 477 7. Lakshmi Khandsari v. State of Uttar Pradesh………………...1981

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V.S.S. Sastry v. State of Andhra Pradesh………………………...A.I.R.1967 S.C. 71 at 74

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TRIBAL CUSTOMARY LAW IN INDIA

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Constitution of India, 1950, Article 245(1)

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rd Amendment bill 1991 of constitution

As required by PESA, s. 4(a

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no person shall be deprived of his property save by authority of law);

Constitution of India, 1950, Art. 26(c).

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