Scheduled Tribe as an Impoverishing Identity

- Nishant Gokhale I.D. No. 206008

The Pre-Independence Legal Framework for the Scheduled Areas

y 1874 - Scheduled Districts Act y 1918- Montagu-Chelmsford Reforms y 1919- Government of India Act y 1930- Simon Commission y 1931 - Census y 1935- Government of India Act y 1936-Wholly & Partly Excluded Areas Order y 1936- Backward Tribes Order y 1946- Cabinet Mission Plan

The Post-Independence Legal Framework for the Scheduled Areas

y Constituent Assembly y Advisory Committee on Fundamental Rights and Minorities y For Scheduled & Tribal Areas other than in Assam y For Scheduled & Tribal Areas in Assam y For Scheduled & Tribal Areas in Baluchistan y Structure Adopted was that of Vth & VIth Schedule

which created varying autonomous structures

degrees

of

semi-

Structures in the Vth & VIth Schedule

y Governor to act as the agent of the Centre in both the Vth

&VIth Schedule areas. y Tribes Advisory Council to be responsible in the Vth Schedule areas. Governor has filtering and law-making authority. y Autonomous District Councils to be responsible under the VIth Schedule. The District Councils have power to make laws relating to specified matters. Governor can exclude the areas from application of specific legislations.

Scheduled Tribes
No definition in the Constitution y List for each State mentioned under the ScheduledTribes Order, 1950. y Basis for this Order is the census of 1931 and Backward Tribes Order, 1936. y The Order now consists of more than 400 tribal groups. y Removal of tribe can only be by Act of Parliament
y

The Changing Framework

y Under the British scheme, the policy was that of

protective isolationism. Used as an strategic and exploitative measure. y Under the Constitutional Scheme gradual integration is sought. However, the framework does not allow for this. y Scheduled Tribes are seen largely from the equality lens which is different from the partial integration model for the Scheduled Areas.

The Problem of Equality- 1 Scheduled Tribe is not a Group

y Scheduled Tribe really is not a group, but a grouping. y Fiss, Owen, Groups and the Equal Protection Clause,Yale Law Journal y How is a group different from a mere collection of individuals who

happen to arrive at the same street corner at the same moment? y The characteristics of a group are: 1. The group has an existence apart from its members as well as an identity. 2. There is an interdependence between the members of the group as well as the group itself, i.e. the members of the group identify themselves by reference to their membership of the group. y Most members of the Scheduled Tribe would identify with their individual tribe rather than the notion of Scheduled Tribe

The Problem of Equality-2 Heterogeneity

y With the focus on aiding the Scheduled Tribes, the

Constitutional scheme largely ignores the heterogeneity of the tribal groups. y Intra-tribe conflicts ignored
y Examples from the Constituent Assembly Debates y Alcoholic Beverages y Naga Autonomy

y Categorization is of little help when most of the

conflicting groups are ScheduledTribes

The Problem of Equality- 3 Equality and Similarity

y Demands of the members of the tribal groups lose

distinctness when clubbed with other disadvantaged groupings in the Constitution y Equality is a comparative analysis. It can only be claimed when persons can show themselves to be sufficiently alike. y Members of the Scheduled Tribe can only claim equality if they show similarity to the dominant group which is the group of non-tribals. The distinct identity has to be abandoned to claim likeness to the dominant group. y The rationale of granting some protection or privilege to the members of the Scheduled Tribe is not that there is anything morally worthy about the group, but merely the similar traits that they display to the dominant group.

Exclusionary Reasons
y Raz, Joseph, Practical Reasons & Norms, Oxford Univ. Press y Reasons have of two dimensions:
y Weight- It is possible to balance reasons. The reason which prevails is the one

which has more weight y Authority-This excludes considering the reasons based on weight

y Lack of knowledge or understanding of the belief-

structures and demands of the tribal groups. y Relationship of inferiority y Lack of representation y Laws made for the ScheduledTribes and not by them

Old Wine In A New Bottle? From Tribe to Indigenous Peoples

y Internationally, there has been an move from the terminology of

tribe to indigenous peoples y United Nations Declaration on The Rights of Indigenous Peoples, 2007. India is a signatory. y Advantages:
y Move from the stage of development approach to distinct cultural practices y Abandons the welfarist approach y Rights-based approach y Bigger basket of rights

y Problems:
y Who is indigenous? y Is it creating a new class of citizens? y Can the current legal framework and practical situation cope with the change?

Tentative Proposal
y Rework the notions of Scheduled Tribe & Scheduled Areas y Comprehensive Legislation y Greater representation y Rights based approach y Bigger basket of rights y Update the list according to existing conditions y Abandon the equality approach in favour of social inclusion or

anti-discrimination y Identify sensitive areas: forests, property, mining, cultural property, conflict, sustainable livelihood opportunities

Thank You