Anthropology optional 2019 Paper II

What are the constitutional safeguards to protect the interests of the Indian tribes?

Verified Answer

The Constitution of India, recognizing the historical marginalization and unique socio-cultural identity of its tribal populations (referred to as Scheduled Tribes or STs), has incorporated several specific safeguards and provisions to protect their interests, promote their development, and ensure their integration into the national mainstream while preserving their distinct way of life. These safeguards are broadly categorized into protective, developmental, and affirmative action measures.

1. Protective Safeguards:

  • Fifth Schedule (Article 244(1)): This schedule deals with the administration and control of Scheduled Areas and Scheduled Tribes in states other than Assam, Meghalaya, Tripura, and Mizoram. It empowers the Governor of a state to make regulations for the peace and good government of Scheduled Areas, particularly to prohibit or restrict the transfer of land by or among members of the Scheduled Tribes and to regulate the allotment of land to them. It also mandates the establishment of a Tribes Advisory Council (TAC) in each state having Scheduled Areas, to advise on matters pertaining to the welfare and advancement of STs.
  • Sixth Schedule (Article 244(2) and 275(1)): This schedule provides for the administration of Tribal Areas in the states of Assam, Meghalaya, Tripura, and Mizoram. It establishes Autonomous District Councils (ADCs) and Autonomous Regional Councils (ARCs) with powers to make laws on land, forest management, customary laws, inheritance, marriage, social customs, and to administer justice. These councils also have powers of taxation and control over primary schools, dispensaries, markets, etc.
  • Article 19(5): While guaranteeing freedom of movement and residence, this article allows the state to impose reasonable restrictions for the protection of the interests of any Scheduled Tribe. This is crucial for preventing land alienation and cultural erosion.
  • Article 23: Prohibits forced labor and human trafficking, protecting vulnerable tribal populations from exploitation.

2. Affirmative Action and Developmental Safeguards:

  • Article 15(4) and 16(4): These articles enable the state to make special provisions for the advancement of any socially and educationally backward classes of citizens, including Scheduled Tribes, and for reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the state, is not adequately represented in the services under the state.
  • Article 46: Enjoins the state to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation.
  • Article 243D and 243M: Provide for reservation of seats for Scheduled Tribes in Panchayats (local self-government institutions in rural areas) and Municipalities (urban local bodies), ensuring their political representation at the grassroots level. Article 243M also exempts certain tribal areas from the application of the Panchayat provisions or allows for modifications.
  • Article 330, 332, and 335: Reserve seats for Scheduled Tribes in the Lok Sabha (House of the People) and the State Legislative Assemblies, and provide for their claims to services and posts, consistent with the maintenance of efficiency of administration.
  • Article 275(1): Provides for grants-in-aid from the Consolidated Fund of India to states for promoting the welfare of Scheduled Tribes and for raising the level of administration of Scheduled Areas.

3. Institutional Safeguards:

  • National Commission for Scheduled Tribes (Article 338A): This constitutional body is mandated to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under the Constitution or under any other law, and to evaluate the working of those safeguards. It also inquires into specific complaints regarding the deprivation of rights and safeguards of STs and participates in the planning process of socio-economic development of STs.

4. Legislative Measures (derived from Constitutional Principles):

  • The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA Act): Extends the provisions of Part IX of the Constitution relating to Panchayats to Scheduled Areas, with modifications and exceptions, to empower tribal communities with self-governance and control over their natural resources.
  • The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (Forest Rights Act - FRA): Recognizes and vests forest rights and occupation in forest land to 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.

These constitutional and legislative measures collectively aim to address the historical injustices faced by Indian tribes, protect their unique cultural heritage, ensure their participation in governance, and facilitate their equitable development.