How Effective Are Tribal Laws in India?

This article is written by Vaasu Agrawal.

Introduction

Tribes are the integral part of our eclectic Indian Society, surviving mainly in Eastern and North Eastern states like Andhra Pradesh, Arunachal Pradesh, Assam and in central and southern plains. These are minority groups which are often suppressed or overlooked by the state and they continue to have a spat with the authority and law makers, as they vehemently oppose any legislation which takes away their indigenous culture. Considering this, several laws have been made which broaden the horizon of these communities and prioritize them over the rest of the population. The ultimate question is whether the laws created for these communities are doing any good or if it is merely on paper.

Legislations

There are plenty of legislations and legal provisions stipulated in the constitution itself and there have been a number of rulings and judgements by the Apex court in this regard. Firstly, the constitution provides greater autonomy to the tribal population of Central and Southern highlands and North Eastern tribes under fifth and sixth schedule respectively. These Schedules were part of the Indian Constitution since independence as the constitution framers have observed and anticipated the stance and predicted the fate of tribal communities. This is further substantiated by the landmark judgement by Supreme Court in Samantha v. State of Andhra Pradesh, where the Apex court held that transfer of land belonging to the tribes, to any third party as void and would be seen as encroachment upon the fundamental rights of tribals as well. This was indeed a core judgement in the favor of tribes, however, there have been a number of instances where this is dishonored and the Supreme court remains silent and does not haul to enforce its contempt jurisdiction. The Schedule Caste and Scheduled Tribes Act was passed in 1989, this was a big breakthrough, and it was made to ensure more safety and sophistication to the tribes. Though there were flaws in this act, it provided a sufficient sense of security to tribals. However, this legislation was later alleged by many communities, largely by upper castes as according to their appeal, this particular act was not in accordance with the spirit of constitutional equality.

One such significant legislation was made in 1996, Provisions of the Panchayat (Extension to Scheduled Areas) Act, or PESA. This was going to bring a rebellion, as the motive behind this act, was to transfer power to the people. It was intended to be passed only in tribal regions of Central and Southern Highlands. It was formulated in such a manner which made it unique and gathered criticisms from the people already in power. Although the motive was positive, which was to protect the tribes from the oppression of the people in power, it failed to bring the act into reality. Many respective states adopted PESA, but on ground reality has proven beyond doubt that it is a mere paper law, which was believed to be radical. States while adopting this law, deliberately misinterpreted the clauses by playing with the words of the Act itself. This made the act dubious and in circumstances of any legislation being vague, the state assumes power to discard or reject some of its provisions.

Precedents

There happened a big legal tussle in the landmark case of Subhash Kashinath Mahajan V. State of Maharashtra, wherein an SC employee sued two of his senior officials on the prima facie that they made adverse comments about him in Annual confidential report. The petition of that employee contained that the adverse comments were made by the two seniors since he belonged to a lower caste. This was filed under SC ST Atrocities Act, harshly deals with the accused. Any complaint filed under this Act, won’t require any preliminary inquiry to be done, added to that, the remedy of Anticipatory Bail is not actionable under this particular legislation. However, these pointers were considered and well acknowledged by the Apex Court and granted bail to the accused. This stirred riots and conflicts leading to violent protests by Dalit groups, who strongly believed that the order passed by the Apex court diluted the act in a non-negotiable manner. Though, eventually the Parliament in order to settle the protest and handle the situation, over turned the order of Supreme Court by introducing an amendment in the Act.

Conclusion

Can we move on like this or is there really something where we can work upon? The author still believes that we have great infrastructure and ideal legislations, the core problem is over regulation and under administration, which can be addressed by taking recourse to judiciary as much as possible. Disobeying judicial decree must attract a hefty punitive action, thus creating a deterrent among the states, and compel the them to adhere to the regulations and norms.

This article is edited by Kavana Rao.