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Tribal customary laws

Submitted By Suyash Bhatnagar

Semester 9 (5th year)

ACKNOWLEGMENT

I am also thankful to Dr. Asad Malik, for his invaluable support,

encouragement, supervision and useful suggestions throughout this research

work. His moral support and continuous guidance enabled me to complete my

work successfully. His intellectual thrust and blessings motivated me to work rigorously on this study. In fact this study could not have seen the light of the

day if his contribution had not been available. It would be no exaggeration tosay that it is his unflinching faith and unquestioning support that has provided

the sustenance necessary to see it through to its present shape.


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I express my gratitude to my all teachers and friends who has supported and

encouraged me during my study at Faculty of Law, Jamia Millia Islamia, New

Delhi

LIST OF ABREVEATIONS

A.I.R All India Reporter

S.C Supreme Court

S.C.C Supreme Court Cases


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

Para Paragraph

PESA Panchayat (Extension to Scheduled Areas) Act, 1996

I.L.O International Labour Organization

Table of Contents

ACKNOWLEGMENT

2

LIST OF ABREVEATIONS

3TABLE OF CASES 7

INTRODUCTION

8

STATEMENT OF PROBLEM 10


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HYPOTHESES 11

OBJECTIVES OF STUDY

11

SCOPE OF STUDY

12

RESEARCH METHODOLOGY

12

REVIEW OF LITERATURE

13

BACKGROUND: FEDERALISM AND TRIBALGOVERNANCE IN INDIA

14

The Authority of the Centre and the States in Tribal

Affairs

15

(The Fifth and Sixth Schedules of the Constitution) 15

The Panchayat (Extension to Scheduled Areas) Act

1996 17

A Review of PESA:The Impairment of Tribal Rights in a

Decentralized Government

18

The Anathema of State Legislative Incompetence

19

The Tribal Struggle to Cope with Imposed Laws

20

The Fading Tribal Rights in Natural Resources 21

The Continuous Erosion of Tribal Land Rights

22

Insufficient Protection for Tribal Forest Rights 24

Tribal Rights to Water Resources Remain

Ambiguous

25The Tribal Struggle to Cope with Imposed Laws

26

India’s Forest Rights Act of 2006

27

Increase in the ceiling on land occupation

29

Criminals under the Forest Conservation Act of

1980

29

INTERNATIONAL PERPECTIVE OF TRIBAL

CUTOMARY LAWS 30

The United Nations Permanent Forum on Indigenous

Issues (UNPFII) 30

U.N. Draft on Declaration on the Rights of Indigenous

Peoples. 31

Major Countries Opposed To Various Rights For

Indigenous Peoples

31

Customary Law—Backward Or Relevant Justice

Systems?

33Indigenous Peoples’ Struggle around The World 34

The Human Rights at Issue

35

Implementation of Convention No. 169 38


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CONCLUSION 38


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TABLE OF CASES

• R. K. Sabharwal v. State of Punjab, [1995] 2 S.C.C. 745 at para. 4

• Indira Sawhney v. Union of India, A.I.R. [1993] S.C. 477.

• Edwingson Bareh v. State of Assam, A.I.R. [1966] S.C. 1220 ¶ 47 (Justice

Hidayatullah dissenting)


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• Ram Kripal Bhagat v. State of Bihar, A.I.R. [1970] S.C. 951 at 958,

• V.S.S. Sastry v. State of Andhra Pradesh, A.I.R. [1967] S.C. 71 at

74

• Pu Myllai Hlychho v. State of Mizoram, [2005] 2 S.C.C. 92.

• Amrendra Pratap Singh v. Tej Bahadur Prajapati, [2004] 10 S.C.C. 65 at

para.15

• Laxmi Khandsari v. State of Uttar Pradesh, [1981] 2 SCC 600 at

para. 12

• Saghir Ahmad v. State of Uttar Pradesh, A.I.R[1954] SC 728 at para

27

• Daulat Singh Surana v. First Land Acquisition Collector, [2006] 11

SCALE 482.

• State of Andhra Pradesh v. V. 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

para. 17.

• BALCO v. Union of India, [2002] 2 S.C.C. 333

• Samatha v. State of Andhra Pradesh, [1997] 4 SCALE 746

INTRODUCTION

India’s population includes nearly one hundred million tribal people. These

numbers are matched only by the remarkable diversity of India’s tribes. 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


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PESA mandated the states to devolve certain political, administrative and fiscal

powers to local governments elected by the communities (whether tribal or non-

tribal). 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.

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 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 landsand produce for the first time—emphasize that tribal rights are increasinglyfiguring as a prominent national concern.

STATEMENT OF PROBLEM

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 (“Constitution”) andthrough tribal-people-specific statutes, but there are considerable differences in

the way the northeastern and peninsular tribes are treated in the Indian legal

system.


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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 Issues Is Not

Conducive To The Interest Of Tribal People

3. PESAs’ Role In Degradation Of Tribal Right Over NaturalResources

4. Half Hearted Efforts Of Nation States Regarding The Right Of

Tribals 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

• Proper Understanding Of The Subject Tribal Customary Laws AndThe Issues Faced By It In India and Abroad

• To Understand The Factors That Are Causing Divide Between The


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State And The Tribal Population

• 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 alsorelates 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.


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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. “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 andcontinued to perpetuate state government control in tribal affairs.

The resultant legal scheme in place today thus appears inherently unworkable.


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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,” 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” and subject to only two

restrictions:

(i) That the Governor would consult a Tribes Advisory Council“before making any regulation”; and,

(ii) That all regulations would receive Presidential assent beforetaking effect.

In contrast, the Sixth Schedule has always given the tribes considerableautonomy. 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 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 rendersall 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.


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The Indian Supreme Court’s decision in Pu Myllai Hlychho 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.

(i) The tribes in Fifth Schedule areas were considered incapable of self-government.

(ii) 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.”

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 communityand managing its affairs in accordance with traditions and customs” could nowexercise 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.” On the other hand, while devolving power to the local

communities the states were to ensure that

(i) Their laws comported “with the customary law, social andreligious practices and traditional management practices of

community resources,”

(ii) The Gram Sabhas (bodies “consisting of persons whose namesare included in the electoral rolls for the Panchayat at the


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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.”

PESA is therefore considered by many as a “logical extension of both the FifthSchedule” and Part IX of the Constitution. 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.

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 thestatus and dignity of viable and responsive people’s bodies,” as Parliament had

intended.

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 nontriballandowners 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.


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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.”

Faced with this onslaught, many tribes have resisted settlers, the governmentand 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 neighboring 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” or enacted incomplete laws.

Though PESA stipulates a community as the basic unit of governance, theOrissa Gram Panchayat (Amendment) Act of 1997 conferred authority on the

larger Gram Sabha comprising all communities in a demarcated territory. As aresult, the Orissa legislation disregarded the “distinct socio-cultural practices

and different interests” of the individual communities within that territory.


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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 FifthSchedule “as a temporary expedient” until the tribes were brought on par withthe rest of society. The Commission’s 1961 report thus gave “StateGovernments, 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 non-

tribal concepts.

By promoting the system of local government prescribed for non-tribalcommunities 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 Panchayatform 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


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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 nomadictribal 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.

The Fading Tribal Rights in Natural Resources

In 10 years PESA has facilitated the gradual evisceration of tribal rights in thenatural 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


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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. In contrast, the tribes can only

invoke a legal right to property under Article 300A of the Constitution (no

person shall be deprived of his property save by authority of law)

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 thatthe State did not properly consult or seek recommendations.

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.

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

The central and state governments 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.

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


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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 PESA.

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.

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 thegovernment 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 naturalresources 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 unlessspecifically 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


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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 onBiological 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 andClimate 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.

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


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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.

A critical examination of the Scheduled Tribes and Other Traditional Forest

Dwellers (Recognition of Forest Rights) Act, 2006 reveals that the rights of thetribals 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 itoriginally envisaged. With such dilution, the law has lost its aims, objectives,

essence and spirit that the Ministry of Tribal Affairs initiated with so much fan

fare 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 Tribesand 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 sub-section (1) are in respect of land mentioned in clause (a) of sub-section (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 forest

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


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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 naturalresources; 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.


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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.

These conventions oblige governments to identify the lands and protect these

rights. It ensures recognition of tribal peoples’ 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 hopefor 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.

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


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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 are 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 madefairly, 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 theintegrity, survival and well-being of our distinct nations and communities. They

are inseparably linked to our cultures, spirituality and worldviews.


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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 alienconcept 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 thisapproach. 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 who 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 hadlobbied 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 traditionalsystems 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


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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 beendone 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.


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• 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 theConvention states that indigenous peoples have the right to enjoy the full

measure of human rights and fundamental freedoms without hindrance or

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 No. 169

Indigenous and tribal peoples’ cultures and identities form an integral part of

their lives. Their ways of life, customs and traditions, institutions, customarylaws, 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 issuesthat 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.


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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 withthe 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 effectiveresolution 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


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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 peoples (Article 3) and ensure that appropriatemechanisms and means are available (Article 33). 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 thatspecial measures are required to protect the rights of the world’s indigenous

peoples.

CONCLUSION

The introduction of PESA in 1996 definitively signaled 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 mistakeof matching the right idea with the wrong solution. Although decentralization

including its many subtypes: devolution, DE concentration, delegation and

divestment has 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 conventionaladministration and civil society. In this paper, I provided one such arrangement.

Autonomy is preferable to decentralization because while the decisions of thedecentralized 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 thatcurrent literature on tribal law in India treats tribal concerns within the larger


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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 precedentsin 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

• Tribal Law and Justice by W.G. Archer

• Tribal Self Governance PESA and Its Implementation by Nupur

Tiwari

•

Social Movements In Tribal India By S.N. Chaudhary

• www.ilo.org › ... › Indigenous and Tribal Peoples › Conventions

• http://www.moef.gov.in/public-information/other-reports

• http://tribal.nic.in/fifthschedule.htm

• http://tribal.nic.in/index1.html


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Documents

Tribal Customary Laws (Autosaved).Docx