PROPERTY RIGHTS OF TRIBALS

Tribes are spread all over the country from Himalaya to Lakshadweep, from west to north-eastern states. Tribes have been a significant part of our Indian history and our Constitution. Keeping in mind their situation, the Constitution makers have made numerous provisions for their benefit. From the very beginning, tribal people used to face a lot of discrimination, and they are believed as lower caste who, according to the caste system, were obliged to obey the orders of upper castes, and they mostly worked as servants.

The term "Scheduled Tribes."

The Constitution gives the meaning to the term "Scheduled Tribes". Article 366(25) of the Constitution of India reads as follows:

‘Scheduled Tribes means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed under Article 342 to be Scheduled Tribes for this Constitution’

.

According to Article 342, the President, after consultation with the Governor, has the power to specify the Scheduled Tribes in the country by public notification, and Parliament has the power to include or exclude any tribe or community from the list given in the notification by the President.

Rights of the Tribal

Numerous privileges are in the Constitution itself for the welfare of these communities. Some of the benefits provided by the Constitution are as follows:

• Firstly, Article 15 which prohibits discrimination on the basis of religion, race, caste, sex or place of birth, gives the power to the Government to make special provisions for the advancement of the Scheduled Tribes. Also, clause 5 of the said article empowers the State to make special provisions for the advancement of Scheduled Tribes. It reads as follows:

Nothing in this article or in sub-clause(g) of clause(1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause(1) of Article 30.

• Article 16(4A) which was inserted by the 77th Amendment gives the power to the Government to make any provision for the reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Schedules Tribes.
• Further, Article 19(5) enables the Government to impose reasonable restrictions on the rights of the citizens "to move freely throughout the territory of India" and "to reside and settle in any part of the territory of India" for the protection of the interests of Scheduled Tribes.
• Provisions for promotion of educational and economic interests of the Tribes have been made under Article 46 of the Constitution of India.
• In order to eliminate the discrimination and making the opportunities wider, by the provisions under Article 330 and 332, seats have been reserved for the Scheduled Tribes in the House of People and Legislative Assemblies.
• Article 338A makes provisions for the National Commission for Scheduled Tribes whose duties range from investigating and monitoring matters relating to the safeguards of Scheduled Tribes to the functions like welfare, development, and advancement of this community.

Fifth and Sixth Schedules

Article 244(1), the Fifth Schedule of the Constitution, makes the provisions relating to the administration and control of Scheduled areas and Scheduled tribes with respect to all the States excluding the States of Assam, Meghalaya, Tripura or Mizoram.

Clause 4 of the Fifth Schedule makes the provision for the establishment of Tribes Advisory Council, whose function is to advise on the matters relating to the welfare and advancement of the Scheduled Tribes.

Part C of the Schedule defines "Scheduled Area" as the areas which the President may by order declare to be Scheduled Areas. According to this, the President can increase, alter, rescind, or limit the Scheduled Areas. Clause 5 empowers the Governor to make regulations for the peace and good Government of any area in a State. Provisions mentioned under Clause 5 of Fifth Schedule, which is applicable to the Scheduled Areas can be read as follows:

(2) The Governor may make regulations for the peace and good Government of any area in a State which is for the time being a Scheduled Area.

In particular, and without prejudice to the generality of the foregoing power, such regulations may—

(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;

(b) regulate the allotment of land to members of the Scheduled Tribes in such area;

(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.

Therefore, it is clear that through the provisions of the Governor, transfer, allotment, regulation of business, etc of the Scheduled areas can be regulated.

The sixth schedule makes provisions for the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura, and Mizoram. Clause 1 of the said schedule reads as follows:

If there are different Scheduled Tribes in an autonomous district, the Governor may, public notification, divide the area or areas inhabited by them into autonomous regions.

Governors can include, exclude, increase or diminish the area of any autonomous district. Clause 3 gives power to Regional Council and District Council to make laws with respect to management, allotment, occupation, use and for other activities related to reserved forests.

Other Statutes

Panchayats (Extension to Scheduled Areas) Act, 1996 ensures community rights of the tribal people, it safeguards and preserves the traditions and customs of the people, their cultural identity, community resources, and customary mode of dispute resolution. Section 4(i) of the Act says that the Gram Sabha or Panchayat has to be consulted before making the acquisition of land in some scheduled regions for development projects.

Also, The Forest (Conservation) Act, 1980, imposes restrictions on the use of forest land for non-forest purposes, and the prior approval of the Central Government is needed in such cases.

References:

The Constitution of India

Panchayats (Extension to Schedule Areas) Act, 1996

The Forest (Conservation) Act, 1980

[Authors Profile: Ritika Sharma, pursuing B.com LLB from UILS, Panjab University, Chandigarh.]