This year marks the celebration of thirty years of the existence of the Panchayats (Extension to Scheduled Areas) Act, 1996. In discussions about the conflict between self-protection and autonomy of the tribals versus state intervention, the PESA Act plays a central role. Its purpose was to legalise the right of tribal communities to govern themselves through their customary laws, social practices and traditional management of community resources. The constitution of India safeguards the rights of the tribals through the fifth and sixth schedules; these schedules ensure tribal protection and autonomy, yet issues with the Great Nicobar Project have come to the fore. This invites serious debate on the overlap between governance and welfare and the need for tribal autonomy and self-protection.
The Fifth Schedule mandates the establishment of a Tribal Advisory Council and the appointment of the State Governor for the control of Scheduled Castes and Scheduled Tribes in all areas except in Assam, Meghalaya, Tripura, and Mizoram. It aims to protect tribal interests, cultural heritage, and land rights. The fifth schedule provides a certain level of autonomy to the scheduled tribes living in scheduled areas.
In the recent past, the Great Nicobar Project has ignited debates; it involves the building of a trans-shipment port, Greenfield airport, military base, and a township, said to be a geostrategic and economic necessity. However, it will directly disrupt the life of the island’s largest indigenous community, the Nicobarese, and semi-nomadic Shompens, characterised as a particularly vulnerable tribal group. Yet again, there has been a significant back-and-forth between the tribal community and the government about the nationwide conflict between tribal self-protection and the government’s over-administration or overreach. The Nicobarese have argued that the local administration had falsely certified community consent to get the approval for the project. Furthermore, the Shompen, who live in complete isolation, are not capable of giving informed consent to legalistic or bureaucratic decisions because the latter are presented to them in languages they cannot speak. The state’s intervention has been called paternalistic rather than participatory, and the fate of tribal lands has been decided directly by the centre, in breach of local governance promised by the Constitution.
For its part, the state defends the Great Nicobar Project as a necessary step for “balanced nation building”, arguing that it would provide a needed equilibrium between economic growth and robust tribal safeguards. However, critics point out that the state is forcefully trying to dismantle the tribal ability for self-protection by forcing them into state-managed dependency rather than requiring the “Free, Prior and Informed consent” of the indigenous communities as had been promised to them under the Forest Rights Act 2006.
Issues like these reaffirm the need to solve the clash between the requirement of tribal self-autonomy and protection versus the government’s attempt to provide welfare measures and governance to the scheduled tribes in the scheduled areas. The law must not only manage the tension between these competing interests and accommodate them simultaneously, but also lay down structured procedures to ensure its implementation.
The Government of India currently recognises approximately seven hundred distinct tribes. Tribal groups are found in various states and union territories throughout India; the tribal population is clubbed together into Scheduled Tribes under the Indian Constitution. For this discussion it is imperative to understand the features and characteristics that distinguish a group from the general population to qualify as a “tribe'”.
According to the Lokur Committee, established in 1965, the essential characteristics to qualify a certain group as a tribe are: indication of primitive traits, distinctive culture, reluctance to have contacts with the community at large, geographical isolation and ‘backwardness’.
The government ensures tribal protection through various laws, policies and acts. It is provided in Part III of the Constitution, that is, the Fundamental Rights. Article 15(4) that ensures social and educational protection of the tribal communities. It mandates the state to reserve seats for these communities in educational institutions, technical, engineering, medical colleges, and in scientific and specialised courses.
A crucial step towards the protection of the tribals was the introduction of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This Act provides for punishments of those who commit atrocities against SCs and STs. It empowerss the Central Government to enact rules for the same, which are to be implemented in the states and union territories by the respective State Governments and the Union Territory Administrations.
Other important welfare schemes and policies introduced by the government include the Pradhan Mantri Janjati Adivasi Nyaya Maha Abhiyan (PM JANMAN) which aims to enhance the socio-economic conditions of 75 particularly vulnerable tribal groups. The Eklavya Model Residential Schools are set up to impart quality education to scheduled tribe children in remote areas from class VI to class XII. Similar to the fifth schedule, the government administers governance in the north-eastern areas through the Sixth Schedule which focuses on the northeastern states of Assam, Meghalaya, Tripura and Mizoram.
Post-independence, Jawaharlal Nehru articulated the Tribal Panchsheel within which the best way to balance tribal self-preservation, and self-governance with state intervention was discussed; a few points were laid out. It was resolved to prevent external imposition on the tribals and allow them to develop their own communities autonomously . Moreover, respect for tribal rights to land and forests was required . Nehru called for setting up an administration and development service which would include some officers from the mainstream population but would avoid introducing too many outsiders on tribal territories. One of the imperative principles of the Panchsheel was to prevent a multiplicity of development schemes, to avoid the over-administration of tribal areas.
Nevertheless, it must be acknowledged that despite constitutional and procedural safeguards, there are shortcomings in their implementation. The issue requires stronger and more affirmative action.
To prevent manipulation, the state must replace arbitrary administrative clearances with an inviolable protocol for free prior and informed local consent which must be codified, and verifiable. Independent oversight has to be ensured by the introduction of judicial officers, environmentalists, and anthropologists for the review of the projects.
The concept of “procedural veto” might be formulated. It would require the creation of an administrative checklist where every step taken towards the project would have to secure tribal consent. All the steps, procedures and their long-term impact must be explained to the Adivasi communities. They should be able to raise questions and vote on projects related to their land and governance at any time. From all revenues generated through projects carried out in tribal areas, a share must be paid to the tribes.
Consequently, a harmonious balance between tribal self-governance and state administration can be achieved as both these objectives are not mutually exclusive. If the constitutional vision is preserved and welfare measures are adopted, a balanced co-existence can be achieved between tribal welfare and the broader national interest.
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