Tribal people and the law

Print edition : October 22, 2004

The common thread running through the Cover Story articles on the tribal people of Visakhapatnam district ("Tribal travails", September 24) was too obvious to be missed: the continuing irrelevance of the law in their lives. However, anyone who has been closely following the fate of the `specially created' separate legal framework in India for the empowerment of the tribal people would not really contest the finding that people live under the shadow of an overcrowded regime of paper laws.

An evaluation of laws' interface with tribal life in India should first bring out the paradox of the poor people living with a rich assortment of fundamental rights. Although an activist interpretation of the Constitution in recent years has meant that on the whole the tribal people's rights have increased, there has been no visible evidence of these rights providing the remedies.

The Frontline investigation shows that " the interior (tribal) villages do not have power, safe water supply, primary health centres (PHCs), schools, balwadis, or means of transportation". These are not just amenities, but enforceable legal entitlements. This is because the Supreme Court has made it clear time and again that the rights to education, water, shelter and even livelihood are fundamental rights enforceable against the state by every citizen of the country. These rights and the tribal people's miseries are two realities that should never coexist as they do now.

There are other questions that the Frontline survey throws open: Why has the laws governing forest preservation and use not reflected the basic understanding that the laws need to protect tribal people living near the forests, especially when the forest produce form their life-support system? Why is the constitutionally mandated gram sabha being bypassed even as committees proliferate in villages as `parallel bodies' powered by funds from lending institutions? Why has not the flood of land alienation cases involving tribal people abated despite a bevy of national and State laws that have the specific objective of protecting the interests of tribal people in their lands? Why has the Supreme Court not invoked its contempt jurisdiction to haul up those who continue to mine tribal lands in violation of its landmark Samata judgment?

These are questions with no easy answers. However they do provide some useful pointers. One, the tribal people in Vishakapatnam distict may be learning after a successful legal battle culminating in the Samata judgment that winning in courts is one thing and winning in life is another. After knowing that nobody - not even the state - can mine their land and after getting a declaration from the Supreme Court that they have a fundamental right to development, they are realising that formal rights are easier pronounced then enforced. Second, notwithstanding the growing mass of evidence of problems in tribal life, one has to agree with Upendra Baxi that "the state human rights discourse in its enunciations of human rights does not relate to languages of human pain and suffering." The fact that human suffering does not hurt the judicial psyche hard is part of the reason behind the continued suffering of the tribal people in present- day India.

Finally, there is an important yet simple lesson to learn again and again: that enacting protective laws is not the end but a beginning. The law could perhaps work for the tribal people only if we - and they - work on the law.

A look at one of the most significant laws for the tribal people enacted in independent India provides a clear pointer to a law's efficacy in the tribal lands. The law in question here is the Provisions of the Panchayat (Extension To Scheduled Areas) Act, or PESA, enacted by the Centre in 1996.

The Frontline findings refer to this law in some detail. The PESA, applicable only in tribal areas (excluding those in the northeastern region) sought to empower the rural people, through the Gram Sabha, to protect community resources, control social sector functionaries, own minor forest produce, manage water bodies, give recommendations for mining leases, be consulted for land acquisition, enforce prohibition, identify beneficiaries for poverty alleviation and other government programmes and have a decisive say in all development projects in the villages. This was indeed a radical law and it attempted a significant transfer of power to the people. Despite criticism from certain quarters, it needs to be conceded that perhaps no law in independent India has talked so eloquently about `customary law' `community resources', village as a community, village people safeguarding their `traditions and customs', and so on.

However, experience shows that, even after eight years of its enactment, PESA has not had an impact on the ground. All the nine States with tribal areas were to adopt this law within one year after it came into being. Almost all these States have done that but without internalising the sprit of the law. First, there are critical omissions of some of the fundamental principles behind PESA. Secondly, the States have invariably twisted certain words in the Central PESA, which has resulted in powers being taken away from the gram sabha. Thirdly, even while affirming some provisions of the law in principle, the States have made their applicability subject to framing of rules/ orders. Such enabling rules are not yet in place in most cases. Even where rules have been sought to be made, as for example in Rajasthan, they do not specify (a) the operational responsibility between one level of panchayat and the other with respect to precisely identified activity/scheme/programmes, and (b) the relationship of the panchayati raj Institutions with the State government departments. This has been deliberately kept as a grey area because `in the absence of clarity of jurisdictions it is the State administration that retains the power.'

What is really the way ahead? To begin with all rules need to be formulated urgently by the States to make the law operational. If needed, the States may be forced to do so under court orders. However, invoking the judiciary's power can at best be one of the means to energise the government but by itself is not likely to give results. And one gets a feeling that when it comes to PESA more than legal action, it is legal education that could be more result oriented. However, the need to take recourse to the judiciary would be increasingly felt, as the States are likely to hold on to their powers unless they are forced to relent. The contradiction in relying on the same legislative and judicial mechanisms that have failed to deliver the goods is again obvious here. However in the specific Indian context of over-regulation and under administration, creative utilisation of available legal spaces to enforce things would always be needed. This is not to deny that there are critical areas where there is a crying need to dislodge some entrenched legal principles and practices. These include reversing the pervasive applicability of the principle of eminent domain, addressing the question of ownership and control over natural resources, and so on.

Pending the conceptualisation and incorporation of this `alternative jurisprudence' in our dominant legal tradition, we need to make the best use of what already exists while being aware of both the limits and the reach of such an approach. But still I believe that the laws relating to the tribal people can still be converted into instruments of justice. The challenge is to find the will to do it.

Videh Upadhyay Advocate, Supreme Court of India

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