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UNDERSTANDING TRIBALS IN NATIONAL AND INTERNATIONAL SCENARIO: A HISTORICAL PERSPECTIVE
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UNDERSTANDING TRIBALS IN NATIONAL
AND INTERNATIONAL SCENARIO: A HISTORICAL PERSPECTIVE
AUTHORED BY
- YASHRAJ SINGH PARIHAR
Abstract:
The following article defines the
tribals and it mention about the historical background of them. It mentions
about the characteristics and behavior of tribals, the similarities and
differences between the tribals and definition provided in the Constitution of
India about the tribals. The article also mentions about the international
declaration about the indigenous people and how tribals of India is also
indigenous. The article also compares the pre and post independent India’s
approach with respect to tribals and comparison and discussion of legislations
along with various cases decided by the Supreme Court of India. The article
mainly focuses upon the development of tribals and related laws and legislation
and importance of development for all.
Keywords: Tribals, Indigenous,
Development, Constitution, Right to Development, Conflict of Rights.
Who are
Tribals in India?
According to 2011 census, there are
more than hundred million tribals in India.[1]
The tribals are mainly concentrated in central and south India Parts of
Rajasthan, Madhya Pradesh, Odisha, Chhattisgarh, Jharkhand, Andhra Pradesh
which constitutes about 80% of the total tribal population of India[2],
and in north- eastern India, mainly Assam, along with some part of Andaman
& Nicobar Islands. They have lived for centuries in these areas. The following are some of the characteristics
of the tribals[3]:
(a) Relative
geographic isolation of the community;
(b) Reliance on
forest, ancestral and water bodies within the territory of the community for
food and their necessities;
(c) A
distinctive culture which is community oriented and gives primacy to nature;
(d) Relative freedom
of women within their society;
(e) Non-existence
of caste system or system of division of labor;
(f) Lack of
food taboos.
However, there are diversities within
the tribals of India. For example, the tribals who are settled in central and
southern India are different from north eastern tribals mainly in following
ways:
·
Ethnicity;
·
Greater
influence of Indian mainstream society and impact of mainstream society culture
over tribal culture;
·
Relatively
less isolated than north eastern tribals.
However, these are some regional
dissimilarities of the tribals in India, and it have a huge impact over the
characteristics of the tribals, as stated earlier, the tribals settled in the
parts of India, the tribals who remain in comparatively more isolation are
quite different in their approach regarding mainstream society, this is due to
their less interaction with the mainstream society, if we compare the Jarawa
tribe of Nicobar islands, they are purely hostile toward the outside society or
influence. So, one can’t describe the behavior of a tribal community in an
accurate way.
According to Dr. B. H. Mehta[4],
the tribal population can be classified into following heads:
·
Forest
dwellers;
·
Ruralized
tribals;
·
Acculturised
tribals;
·
Assimilated
tribals.
So, it is important to note that for
the better understanding of tribals, one must consider all of these factors
which is quite difficult because the common conception for the tribals is
scheduled tribes which includes inclusion of tribes under Article
342 of Constitution of India, which provides for addition or removal of status
of scheduled tribes. The Constitution of India gives status of Scheduled tribes
to over four hundred communities as provided in Article 366 (25) and more than
170 tribes as unrecognized tribal groups.
and Article 342 of the Constitution of India. This article says that
only those communities who have been notified as Scheduled Tribes (STs) by the
President of India through a public notification or through a subsequent
amending act of the Parliament are the Scheduled Tribes of India. So, it can be deduced that there is no
universal way in determining the status of tribals in India, though it is very
possible that the tribals are mentioned above as ‘forest dwellers’ etc. have
been listed as scheduled tribes but it is important to note that there are many
criteria for the declaration of particular community to be declared as
scheduled tribes. The Government still follows Lokur Committee Report of 1965
which describe scheduled tribes as the group of indigenous people who are
characterized by, “primitive traits, distinctive culture, geographical
isolation, shyness of contact with the community at large and backwardness.”[5]
Concept of
Right to Development
Since the advent of human-beings, one thing that has been a constant
force, is development, from a caveman to modern homo-sapiens, the humans have
seen from stone-age to nuclear-age, and some inventions are beyond imagination,
humans have reached moon and mars due to development. So, we can say that the
concept of development is now wholly anthropocentric in nature.
However,
it is to be understood that human development means higher productivity. A
well-nourished, healthy, educated, skilled, alert labor force is the most
important productive asset. It can also be assumed that reduction in poverty,
increase in education contributes to a healthy civil society, democracy, and
greater social stability. So, the human development consists of all the
components of the basic human rights such as education, livelihood etc. so
right to development is also included in the human rights in various human
rights institutions.
After
the Second World War, the United Nations was formed with General Assembly as
one of its organs which in turn adopted Universal Declaration of Human Rights
in 1948 which is one of the land-mark declarations of Human Rights. It was
adopted on 10th December 1948 in Third Session of General Assembly
as Resolution 217 in Paris. This resolution paved way for the universal nature
of human rights with its adoption by 48 Nations out of 58. It was the first
step towards the International Bill of Human Rights.
The
international community wanted to negotiate one overall single covenant in
order to include the rights provided in UDHR (Universal Declaration of Human
Rights) so as to give these rights, validity as an international treaty,
however post Second World War, the situation changed, Cold War and division of
countries in their support of different human rights proved an obstacle for a single
unified covenant of human rights.[6]
So,
it paved way for two important instruments:
- ICCPR
(International Covenant on Civil and Political Rights)
- ICESCR
(International Covenant on Economic Social and Cultural Rights)
However, there had been dissatisfaction among the international
community regarding the separation of these rights which in turn led to
adoption of two separate instruments. However, in many declarations it has been
emphasized that both of these covenants are equally important.[7]
It was during the 1970s it has been realized that right to development is
also deemed to be human right and it must be included in both the covenants.
However,
due to many differences between developed and developing nations, the universal
acceptance of the concept of right to development was hindered. It was during
1980s, the said concept re-emerged and the UN General Assembly adopted
Declaration on the Right to Development (RTD Declaration) in 1986.
The development basically in its literal
sense means about change, it means a definite improvement; a change for
betterment. Today, right to development is a principle
of public international law and human rights law after the International
Community adopted the Declaration on right to development in 1986.
This
right to development led to the highlighting of issues which are needed to be
addressed like relation between economic growth and well-being of an
individual; problem of alienation, and non-participation of the people to be
affected is now the issue of right to development.
According
to oxford’s learner dictionary[8] development means the
gradual growth of something so that it becomes more advanced, stronger, etc.
with respect to construction, development means the process of using an area of
land, especially to make a profit by building on it, etc.[9]
this term usually refers to up-gradation from any initial position to final
position. According to Hugo Slim in the Article ‘What is
Development?’[10] he stated that, “the development is not only a matter of wealth, economics or growth; it
is much more than that.” The development is basically about change, it
means a definite improvement; a change for betterment. The development must be
continuing in nature and must be according to the values of the people, it
should include all the values namely cultural, social, economic, environmental
and technological.[11] Similarly according
to Gunnar Myrdal, development means, “movement
upward of the entire social system.”[12] According
to him this social system consists of various economic
and non-economic factors like consumption of every kind by various groups of
people, educational and health facilities etc.[13] it may also include the political,
institutional and geographical aspect of a nation also. The development of
nation includes all these factors cumulatively, that is all of these factors
must be present for the proper development of a society or a nation. As
we all know about the developed, developing and under-developed countries. The
various resolutions and declarations of organizations of United Nations have
made this unified or integrated approach for the development of a nation.
The
Right to development is process which lead to realization of human rights and
which has to be carried out in a right based manner and according to the
international human rights standards which are participatory, transparent,
non-discriminatory etc. and these values must be made explicit in international
law on human rights. The paragraph 1 of article 1 of RTD Declaration states,
“The right to development is an inalienable human right by virtue of which
every human person and all peoples are entitled to participate in, contribute
to, and enjoy economic, social, cultural and political development, in which
all human rights and fundamental freedoms can be fully realized.”[14]
It is
important to note that the adoption of RTD Declaration was based on majority of
Nations but not on consensus. However, in 1993, the Vienna Declaration and
Program of Action finally reached to a political consensus and it recognized
right to development as universal and inalienable right for a human. The time
taken by the international institutions proved very detrimental for the
vulnerable section of the world like tribals (in international conventions the
word indigenous people is used for the tribals). It was only after a working
group under Mr. Jose R. Martinez Cobo prepared a Draft Declaration on the Rights of Indigenous Peoples.[15] UN General Assembly proclaimed year 1993 as the International Year of the World’s Indigenous
People, and in 1994 proclaimed International Decade of the World’s
Indigenous Peoples till 2004 and started to give some importance regarding the
rights of the indigenous people.
However,
in the end it was on 13th September 2007, UN Declaration on the
Rights of Indigenous People (UNDRIP) was adopted by a majority of 144 states
favoring it including India, 11 abstentions and 4 voting against it (U.S.,
Canada, New Zealand & Australia).[16]
There
is United Nations Declaration on the Rights of Indigenous People (UNDRIP) which
has adopted by General Assembly in 2007 under Resolution 61/295. The objective
of this declaration is to recognize the rights of indigenous people and to
treat them equally; and it recognized that these rights are free from
discrimination from any kind and India also voted in favor of this declaration.
However, despite recognizing the UNDRIP, Indian Government do not call Indian
tribals as indigenous people, which also constitute one of the major problems
of UNDRIP, despite the fact UNDRIP provides for the rights of indigenous
people, it didn’t define it. It has been reasoned that it is due to the
diversity of indigenous people in various countries, it hasn’t been defined.
However, with the advent of time there were consideration for terms like adivasis,
janjaati, which are existent in India, it is to be noted that these terms
can also be used for the word indigenous people interchangeably. It was in case
of Kailas & Others v. State of Maharashtra[17] it was held
that Scheduled Tribes (Indigenous Peoples) are the original inhabitants, in
this case it was made with respect to a particular tribe, namely, Bhils.
The
court stated, “Bhils
are probably the descendants of some of the original inhabitants of India known
as the `aborigines' or Scheduled Tribes (Adivasis), who presently comprise of
only about 8% of the population of India. The rest 92 % of the population of
India consists of descendants of immigrants. Thus, India is broadly a country
of immigrants like North America.” However, the case was decided with respect
to particular scheduled tribe, but it can be deducted that it has included all
the tribals as indigenous people.
The
problem occurs when there is conflict between human rights and development.
Development can be of many types the problem will arise that is, the term
development differs from person to person, community to community or from
states to states and their goals, the development goals of a person living in
city may be different from the person living in a village, the same thing can
be stated about developed, developing or under-developed nations.
The
concept of development is also now become very restricted and limited as it
usually means the change or we can say the betterment on all spheres of an
individual but now, the definition of development is confined only to economic
or industrial development, the other spheres are either been neglected or not
given preference by the people and the Government. The things become even more
complicated in case of tribals.
In
case of India, during British rule, the tribals are exploited to a great extent
as these tribal people were never conquered over by the Muslim rulers, they
were ruled by them indirectly through their local chieftains or princes as
vassals, and they had their own laws so they never came in contact with these
civilizations. Initially, the British were also ignorant of tribal customs and
their existence as they lived in inaccessible areas in remote hills or marshy
forests, they were exploited to a great extent under British Rule, they were in
clutches of moneylenders and various contractors; the tribal interests were
subordinated to British Interest. There was a big resentment among the tribal
community regarding the exploitation and taking away of their rights of the
land they were living for centuries which was coupled with some resentment
among the tribals in India, many tribals become rebel and started to do some
crimes ranging from petty to serious ones like from being petty thieves to
being a thug. They also revolted against the regime due to the policies which
were detrimental to the tribals. There was controversial Criminal Tribes Act,
1871, which made some intense provisions regarding the tribals, the history of
enactment of this act was regarding the tribals who usually deviated from the
mainstream society and the lack of desire or ability to be settled in life, the
problem started to get bigger when the colonial powers started to exploit the
resources from the forests, as these tribals were the residents of the forest
areas which were resource rich and when the British tried to explore these
places for the search of raw materials and resources, the British formulated
the Forest Policy of 1884 which limited the rights of tribals over the forests,
the tribals thought it as an encroachment on their forest rights and it led to
many tribal revolts against the British, to name a few some of the revolts are
Tamar Revolts, Munda Revolt, Devi Movement in Gujarat etc. in order to curb
these uprisings the Criminal Tribes Act was further amended in 1897, 1911 and
1924 which further made the situation more miserable for the tribals. This act
provided for the many restrictions over a particular group of tribals who were
involved in some crime, this act indirectly punished even the innocent tribals
who were not related to the crimes. It restricted the movements of the tribals
to a great extent. This Act was repealed only after independence as
Constitution of India provided that no man should be considered guilty unless
proven under the valid procedure in the Court of law, the act was repealed on
30th August 1952 from all the states of India.[18]
Conflict of Rights:
The conflict of rights still hasn’t stopped between the tribals and
development, during 18th to mid of 20th century, there was domination of
European Nations over many African and Asian Nations and it led to development
of those colonial nations and exploitation of colonies, the mentality of
development have now been infected with this developing and under-developed
nations, one reason of this relation is that because now many developing
nations are doing that in their own lands which is just exploitation of peoples
who are weak or unaware and just the exploitation of these people.
In
fact, the nations that were the colonies of western powers during this time
were compelled to think that they are not developed and that thing was not
true, if larger picture is seen they were not developed in industrialization or
in industrial mode of production but they may be developed in other spheres of
development say in environment or economically or even culturally but it has
been incorporated in the mind of people that industrial or infrastructural
development is the only form of development.
As it
can be stated that the earlier definitions of development focus more on
industries and not on people which led to poverty alongside the development
though it was claimed that development will automatically uplift the condition
of the people.
Generally,
in the human rights literature, to have a right means to have a claim to
something of value on other people, institutions, a State or the international
community, which in turn have the obligation to provide or help to provide that
something of value. “Rights are entitlements that require, in this view, correlated
duties. If person A has a right to some x, then there has to be some
agency, say B, that has a duty to provide A with x.”[19]
Recognition of the right will obligate the duty holder to fulfill or enable the
fulfillment of right.
So,
this means if one is claiming the right to development then it is the duty of
the person who has claimed his right to development to provide some value to
the people against whom this right to development is exercised which was not
present during the colonial times.
Even
in modern times after independence, the development of tribals were compromised
for the infrastructural development, like construction of dams, mines or even
protected forest areas. The post-independent period was reckoned as the period
of infrastructural development, many dams were built during this time which
include dams like Bhakra Nangal, Hirakud Dam in which a numerous people were
displaced, as at that time this was considered as the service of the nation and
the people were made to vacate their
places anytime for public purposes without any proper provisions of
compensation.[20]
"If
you are to suffer, you should suffer in the interest of the country.”
The most affected people
due to displacement were also tribals, according to report of Working Group on
Development and Welfare of Scheduled Tribes during the Eighth Five-Year Plan
(1990-95), Government of India, which was based on the comprehensive study of
110 projects, concluded that among all the people who were displaced due to
these projects, half of the affected people were tribal people. Such proportion
is constantly increasing after 1990 in India; he gave example of 20 dams above
50 meters that are under construction or being constructed, in that scenario also,
among the people who were displaced 59% were tribals.[21]
After 1990s, tribals were
made aware about their rights by various NGOs and Social workers, which led to
various cases and disputes before the Supreme Court of India. However, Supreme
Court refused to bring right of tribal
people to not to leave their lands as it is against their right to life and
liberty as per Article 21 of Constitution of India, according to the Court if this issue is
to be read with fundamental rights, then it will be next to impossible to
acquire the lands belonging to tribal people. So, the displaced people may have
right of rehabilitation but the right to not to vacate their land is not to be
read under the Article 21 of the Constitution.[22] The Supreme Court also
stated that the development should not be one dimensional, development should
not be at the cost of the rights of indigenous population.[23] However, the Supreme
Court also held that if the rehabilitation of the displaced population is
properly planned and executed, the displacement of people from a particular
place can’t be considered as infringement of their fundamental rights.[24] The Supreme Court also
refused to interfere in the policy decision of the Government regarding the
relocation of the displaced persons in High Court of Judicature for
Rajasthan v. Veena Verma[25], in the words of Court, “Judiciary
cannot strike down a policy decision taken by the government merely because it
feels that another decision would have been fairer or more scientific or
logical or wiser. The wisdom and advisability of the policies are ordinarily
not amenable to judicial review unless the policies are contrary to statutory
or constitutional provisions or arbitrary or irrational abuse of power.”
It can be deduced that the Supreme Court too have a
passive approach with regard to the conflict of rights of tribals as in most of
the decisions the Supreme Court only emphasized upon the fact that it is the
policy decision of Government to take care of the rights of the tribals.
Concluding Remarks:
The main aim of the article is to enlighten the
position of development of tribals, in a historical perspective. The position
of tribals has changed to a great extent, after the independence and their
rights are now being considered more vigilantly than previously. The tribals
are quite complex to define and to protect their rights are even more
difficult. This paper has tried to provide information about the behavior of
tribals and to provide the light upon the fact that the tribes in India are not
limited to the umbrella of Scheduled Tribes (STs) but also to greater subsets.
The tribals too have right to development and there is a need to protect the
rights of the tribals.
The paper does mention about the various hardships faced by the
tribals during the pre-independence period and how the tribal rights are now
being one of the most discussed topics in the World. India, as a nation is a
home of many tribal community. The stand of the Government with respect to the
tribals is also changed to a great extent. Various legislations and tribal
friendly procedures in order to protect the rights of the tribals is now giving
hope towards the development and protection of tribals in India.
References:
1. A.
Sengupta, On the Theory and Practice of the Right to Development, 24 Human
Rights Quarterly 837 (2002).
2. G. Myrdal,
What Is Development?, 8 Journal of Economic Issues 729 (1974).
3. Observations
on the State of Indigenous Human Rights in India, 3rd Cycle of the Universal
periodic Review (UPR) of India, 27 Session of Human Rights Council (2016).
5.
W. Fernandes, Singur and the Displacement Scenario, 42
Economic and Political Weekly 203 (2007).
6.
B.H. Mehta, Historical Background of Tribal
Population, IJSW Online, Sir Dorabji Tata Memorial Library.
7.
S. Kothari, Whose Nation? The Displaced as Victims of
Development, 31 Economic and Political Weekly 1476 (1996).
8. J.K. Das,
Human Rights and Indigenous Peoples (A.P.H. Publishing Corporation 2001).
[1] Joint Stakeholders’ submission
on the Situation on rights of indigenous people in India, 3rd
Cycle of the Universal periodic Review (UPR) of India, 27 Session of Human
Rights Council 1,
1 (2017).
[2] B.H. Mehta,
Historical Background of Tribal Population, IJSW Online, Sir Dorabji
Tata Memorial Library 236, 236, http://ijsw.tiss.edu/collect/ijsw/index/assoc/HASH018b/22b1969f.dir/doc.pdf
(last seen 26 October, 2021).
[3] V. Xaxa, Tribes as Indigenous
People of India, 34 Economic and Political Weekly 3589, 3589 (1999).
[4] Supra note 2 at 237.
[6] A.
Sengupta, On the Theory and Practice of the Right to Development, 24 Human Rights Quarterly 837, 839 (2002).
[7] Id.
[8]
https://www.oxfordlearnersdictionaries.com/definition/english/development (last
visited on April 17, 2019).
[9] Id.
[10] Hugo Slim, What Is
Development?, 5 Development in
Practice 143, 143 (1995).
[11] Id., at 144-145.
[13] Id.
[14] A/RES/41/128, Declaration on the Right to Development, 4 December 1986 https://www.un.org/documents/ga/res/41/a41r128.html (last seen 26 October, 2021).
[15]J.K. Das,
Human Rights and Indigenous People 51 (S.P. Nangia, A.P.H. Publishing Corporation 2001).
[16] S.N. Variava, New Direction in the Human Rights Movement, Human Rights Year Book, Universal Law Publishing Co. Pvt. Ltd.
13, 13 (2010).
[17] (2011) 1 SCC 793.
[19] A. Sen, Development as Freedom (New York, Alfred A. Knopf, 1999), at. 228.
[20] S.
Kothari, Whose Nation? The Displaced as Victims of Development, 31 Economic and Political Weekly 1476, 1476
(1996).
[21] W.
Fernandes, Singur and the Displacement Scenario, 42 Economic and Political Weekly 203,
203–04 (2007).
[22] State of Kerala v. Peoples Union
for Civil Liberties, Kerala State Unit, AIR 1998 SC 1703.
[23] Nadini Sundar v. State of
Chattisgarh
[24] Naramda Bachao Andolan-I Case,
(2009) 8 SCC 46.
[25] AIR 2009 SC 2938.
Article Information
UNDERSTANDING TRIBALS IN NATIONAL AND INTERNATIONAL SCENARIO: A HISTORICAL PERSPECTIVE
Authors: YASHRAJ SINGH PARIHAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/10
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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