Scheduled Tribe as an Impoverishing Identity

8/6/2019 Scheduled Tribe as an Impoverishing Identity

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- Nishant Gokhale

I.D. No. 206008

Scheduled Tribe as an Impoverishing

Identity


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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


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The Post-Independence Legal Framework

for the Scheduled Areas

y Constituent Assembly

yAdvisory 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

yStructure Adopted was that of V

th

& VIth

Schedulewhich created varying degrees of semi-

autonomous structures


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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-makingauthority.

y Autonomous District Councils to be responsible under

the VIth Schedule. The District Councils have power to

make laws relating to specified matters. Governor canexclude the areas from application of specific

legislations.


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Scheduled Tribes

y No definition in the Constitution

y List for each State mentioned under the

ScheduledTribes Order,195

0.y Basis for this Order is the census of 1931 and

BackwardTribes Order, 1936.

y The Order now consists of more than 400 tribal

groups.

y Removal of tribe can only be by Act of Parliament


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The Changing Framework

yUnder the British scheme, the policy was that of

protective isolationism. Used as an strategic and

exploitative measure.

yUnder the Constitutional Scheme gradual

integration is sought. However, the framework

does not allow for this.

y Scheduled Tribes are seen largely from theequality lens which is different from the partial

integration model for the Scheduled Areas.


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The Problem of Equality- 1

Scheduled Tribe is not a Group

y ScheduledTribe 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 identifythemselves 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 ScheduledTribe


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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 ConstituentAssembly Debates

y Alcoholic Beverages

y Naga Autonomy

y Categorization is of little help when most of the

conflicting groups are ScheduledTribes


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The Problem of Equality- 3

Equality and Similarity

y Demands of the members of the tribal groups losedistinctness when clubbed with other disadvantagedgroupings 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 thegroup of non-tribals. The distinct identity has to beabandoned to claim likeness to the dominant group.

y The rationale of granting some protection or privilege to themembers of the Scheduled Tribe is not that there is anythingmorally worthy about the group, but merely the similar traitsthat they display to the dominant group.


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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 inferiorityy Lack of representation

y Laws made forthe ScheduledTribes and not bythem


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Old Wine In A New Bottle?

From Tribe to Indigenous Peoplesy 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?


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Tentative Proposal

y Rework the notions of Scheduled Tribe & Scheduled Areas

y Comprehensive Legislation

y Greater representation

y Rights based approachy Bigger basket of rights

y Update the list according to existing conditions

y Abandon the equality approach in favour of social inclusion or

anti-discriminationy Identify sensitive areas: forests, property, mining, cultural

property, conflict, sustainable livelihood opportunities


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Thank You

Documents

Scheduled Tribe as an Impoverishing Identity