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How Fair Have We Been to the Tribals of India?

Have we been honest to our Constitution when administering tribal areas and dealing with the tribes of India. This has to be seen in the context of news that Australia is proposing to make an amendment to its Constitution to declare the aboriginals as the First Citizens of that country.

The Fifth Schedule of our Constitution lays down sweeping provisions as to the Administration and control of scheduled areas and scheduled tribes.
Apart from the provision that a Tribes Advisory Council is to be set up, the Governor has a significant role to play in these areas and can make regulations for the peace and good government of any scheduled area. Such regulations may-prohibit or restrict the transfer of land by or among members of the Scheduled Tribes, regulate the allotment of land to members of the Scheduled Tribes in such area or regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area. Most importantly, the Governor may, after consulting the TAC, repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the scheduled area in question. All this with retrospective effect!
Thus, while just about any law of the land can be uniquely withdrawn for tribal areas, there is another provision enshrined in Articles 243M and 243ZC of the Constitution that envisage the need for a special dispensation for scheduled tribes. Thereby, normal devolutions of Panchayati Raj and Municipal Government brought about by the 73rd and 74th Constitutional Amendments respectively are also held in abeyance for the Scheduled Areas. "Nothing in this Part shall apply to the Scheduled Areas referred to in clause (1) and the tribal areas referred to in clause (1) of the tribal areas referred to in clause (2) of article 244."

While the 73rd Constitutional Amendment has, vide Articles 243A-243L made it obligatory throughout India for elections to be held for the Panchayats in 5 years, for reservation of seats for scheduled tribes as per their population in the Council of the local body, defined reasons for their disqualification from membership of local bodies, authorized them to levy taxes and appropriate them and so on, yet, in the case of Scheduled Areas, it is envisaged that Government will give due consideration to the special needs of the tribal areas and mandate a unique methodology for their development. "Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law..."
To stretch the imagination, based on the aforementioned provisions, such unique treatment could be that no non-tribal can work in tribal areas, that no non-tribal can extract minerals and that their land cannot be expropriated in favor of a non-tribal. As regards Panchayats in the Scheduled areas, it could well be mandated that only people from the tribes will be eligible to become Council members and that only a person from the tribes shall necessarily head a meeting of a Gram Sabha, that minor offences under the laws of the land relating to excise/forest would not disqualify a tribal from contesting the elections, that tribal local bodies would have powers to validate relief and rehabilitation measures, that they may veto land acquisition proposals, that (even if octroi was abolished for the State in general) such local bodies would be allowed to impose octroi/export tax/ cess on mining royalties (for minerals extracted and exported from their territories, or on minor forest produce emanating from there) and so on. Such special provisions would not be gifts from a magnanimous Sovereign, but in fact, be reflections of the State's empathetic spirit of sharing and respect for tribes.

It is in the light of this mandate of the Constitution that the Panchayats (Extension to Scheduled Areas) Act, better known as PESA Act, was born in 1996. However, the fact that this Act has a tardy history of its application is well known. This has something to do with its confusing name, because the emphasis currently is on Panchayati Raj methodology and not on special provisions for Scheduled Areas. Moreover, PESA is really only an enabling Act, and lacks teeth.

As per the Fifth Schedule and as per the special provisions that have been echoed in Articles 243M and 243ZC of the Constitution, Central Government could have (keeping in view its larger and more holistic understanding of tribal issues) deliberated and decided the minimum special treatment that it wanted to deliver to the tribal areas. For instance, to merely take the context of Panchayats, does it perceive the need for elections in tribal areas, or would it recommend locally determined traditional tribal councils keeping in view the sui-generis aspirations and needs of the tribal people? Does it want elections every five years or as per a different frequency? Who should conduct the elections? PESA could have been fashioned into a proactive instrument of national tribal policy, but it has been a passive law.

Thus, Section 4 of PESA merely stipulates that "the Legislature of a State shall not make any law under that Part which is inconsistent with any of the following features namely..........." In other words, if a State chooses not to equip its laws suitably for the proactive safeguarding of the interests of tribes, PESA is silent, as long as no provision is inconsistent with the low threshold hinted at by PESA; these are-requirement of an alert Gram Sabha, reservation of 50% seats for tribes in Panchayats(which in any case has to happen in a scheduled area!), consultation with Gram Sabha before Land Acquisition, grant of mining lease, rights over minor forest produce etc. However, since Central Government has not invoked its residual and over-arching mandate as defined in the Fifth Schedule, its cajoling can only be fruitful if matching changes and beyond can be made in the relevant State laws. The status in this respect is, as can only be expected, far from satisfactory.

In the case of urban areas that fall in the purview of the scheduled areas the void is more compelling. Article 243ZC of the Constitution mandates that the provisions of the 44th Constitutional Amendment shall not be applicable to urban local bodies until the Central Government makes a law (like it has done for the Panchayat areas, namely PESA) for governing them. But, despite the fact that these provisions have been mandated in the Constitution since 1993, there is no Central law that has been enacted yet. As a result, in 2009, elections to local bodies could not be conducted in 55 Nagar Panchayats and Nagar Palikas of Madhya Pradesh and the State had to appoint local Tahsildars, and in some cases, nominated Committees to run the urban local bodies. Thus, the mandate of the Constitution to have local democratic aspirations answered, let alone to have a unique treatment for tribes in the Scheduled Areas, remained unfulfilled!

How accurately does PESA mirror the aspirations of those living in the Scheduled Areas? Let us consider this in the context of land acquisition which is currently relevant. As it is the Land Acquisition Act (of 1894!) is silent regarding the role of the Gram Sabha in advising the State about public purpose, local objections, compensation etc. But merely seeking the consultation of the Gram Sabha is not good enough as the vocal members can be influenced at the local level. What is necessary is the meeting of the entire Gram Sabha and for it to be presided over by a person from the tribes. It is necessary to balance the rights of the tribal with the requirements of economic development. What are the instances where the right to eminent domain will give precedence to the sentiments of the tribals and will allow them to veto the acquisition process? How should compensation be determined? There is ambiguity about the methodology to be deployed. Should it be the average of three years sales, or of only one year? Should current market value based on Collector guidelines be taken as benchmarks or potential value based on opportunity cost/replacement value? What happens where because land of tribals is historically prohibited from alienation, the market for land is non-existent, and due to this market-failure land values are preposterously low? Should tribals not be made primary shareholders in the Project that is arising over their land, so that they benefit from the premium accruing on their land? Should equivalent cultivable land as compensation not be necessary, keeping in view the evanescence of monetary compensation? Should tribal land not revert back to him or his heirs once the Project for which it was acquired ceases to exist? Unfortunately, even the Central Rehabilitation Policy of 2007, which has hinted in this direction, could not be converted into law.

Madhya Pradesh has been the only State that had amended its Land Revenue Code (Article 170B), in the year...by inserting a clause that Gram Sabha in a scheduled area finds that a non-tribal is in possession of tribal land, then it can restore possession of the land to the original holder and if he is no longer alive, then to his legal heir. In case the Gram Sabha is unable to enforce this, then it can forward the case to the Sub-Divisional Officer who will restore possession in 3 months.

Clearly there is enormous scope for proactive legislation to protect and foster the development of tribes in the light of Jawaharlal Nehru's tribal Panchshila of 1955, which finds resonance even today in its call not just to allow tribes to develop along the lines of their own genius, but "to train and build up a team of their own people to do the work of administration and development."

Lastly, and not the least, there is a need to appreciate that it is a comprehensive public administration approach, in which all wings of government are involved that is required to deal with tribal disaffection, not just a uniformed-police one.

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Raghav Chandra

Public & Government Service

Delhi ,  INDIA

IAS, 1982 Batch, MP Cadre. B.Sc.Honors and M.Sc Maths, St Stephens College, Delhi University, Secretary Maths Society, National Science Talent Scholar and won Ground colors in Squash racquets.1997-1998:Harvard University, USA– divided time between John F Kennedy School and Harvard Business School, Masters in Public Administration 1998.Presently Joint Secretary, Ministry of Road Transport and Highways, Government of India. Earlier postings: Principal Secretary Urban Development Department, Govt. of MP, MD MPSIDC, MD MPRDC, Commissioner MP Housing Board, Director Ministry of Commerce, GOI.Plays vigorous badminton and leisurely golf. Written for ET,HT,and varous other journals.Author of "Soul, Mind, Body:Mapping the Global Citizen" released by CIC on 30/3/2007.Creator of concept and methodology for www.scratchmysoul.com

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