1. TRIBAL ADMINISTRATION
Introduction:
The British were the first rulers to evolve a conscious and deliberate policy towards administering the tribal areas. The main features of British Administrative Policy towards the tribes were (i) segregation; and (ii) Laissez Faire or live and let live. As the freedom struggle gained momentum, the British demonstration ensured that the tribals who were already known for their fierce independence and opposition to external authority, did not in any way join hands with the leaders of the national movement. The British strengthened the isolation of tribal areas, particularly in the North –east, by not developing any means of communication. Whatever communication network they developed was only to facilities the exploitation of tribals by contractors and for their own security purposes.
First Phase (1782-1827):
The British, in their pursuit of territorial expansion, came into contact with the Indian tribal first in Bengal. The seeds of British policy towards tribals emerged out of their attempts to curb the revolt of the Paharias of Rajmahal Hills in Bengal who revolted against the Hindu zamindars. The British suppressed the Paharias revolt at first, but later on, the tribal leaders were bribed and pacified. In order to keep a vigil on the Paharias, retired/ ex-services men were encouraged to settle in and around the areas where the Paharias lived. In 1782, August Clevelend, the administrator of the area put forward a scheme of special administration for the Rajmahal hills. On his suggestion, the Rajmahal hill tracts was removed from the general pattern of administration. The government created local courts made up of local tribal leaders who were given civil and criminal jurisdiction over the Rajmahal Hill area. The Paharias were also allowed to hold rent-free land. Clevelend’s policy marked the beginning of the British approach to the administration of tribal areas, which, by and large, continued till independence.
In 1796 the government passed a regulation for the demonstration of justice and for other demonstrative matters for Rajmahal Hill Assembly. However, this experiment of Clevelend did not succeed because of corruption and maladministration. In 1827, the Government was forced to withdraw the 1796 regulation and bring the Paharias and other tribes under the partial jurisdiction of the ordinary courts of the land, and providing for special exemption for the tribals in certain cases.
Second Phase (1888-1919):
The pattern of administration experimented in the case of Paharia remained till 1855 Santhal Revolt. The upheavals of the Santhals forced the British government to rethink. As a result, they more or less rehabilitation-introduced the policy of separate demonstrative zones for tribal areas. The tribal areas were brought under special administration (called Non-regulation Area) where their officers were given special civil and penal powers. By the Indian councils Act of 1861, the British Parliament gave statutory recognition to the specially administered non-regulation areas.
The Government of India Act of 1870 gave formal powers to GovernorGeneral-in Council to enforce various regulations/laws in the socalled nonregulation areas. The 1870 Act used the term “the scheduled tracts” for tribal areas. for example, Darjeeling, Kumaon, Garhwal, Chotta Nagpur, Santhal Pangnas, Lakshadweep, North Andhra Pradesh, etc Were declared as scheduled Tracts.
In 1874, a Scheduled District Act was passed, to give effects to the provisions of the Government of India Act 1870 in so far as the administration of scheduled tract was concerned. The 1874 Act empowered the local governments to specify the laws and regulations including any modifications required to be applied in the cases of these specially administered tribal areas. The above policy more or less continued till the passing of Government of India Act 1919. The Government of India Act 1919 brought in the concept of backward tracts. There were two types of tribal areas (a) Scheduled tracts where the tribals more or loss constituted the entire population and (b) the backward tracts where the tribals lived along with others, though this distinction was not always maintained. In the case of backward tracts, the government thought that only modification of all India/local laws were enough whereas, in the case of Scheduled tracts, exclusive administrative and local arrangements were necessary.
Third Phase (1935-1947):
Under the Government of India Act, 1935 divided the tribal areas into (a) Partially excluded and (b) wholly excluded areas in continuity with the earlier division of backward tracts and scheduled tracts. The following were the main features that distinguished excluded areas from partially excluded areas.
- (a) In wholly excluded areas, the Governor functioned on his own discretion. In partially excluded areas, he had to seek the advice of the village administrators.
(b) The expenditure with regard to excluded areas was not subject to vote by the legislature, whereas in the case of partially excluded areas they were subject to vote. - (c) Any discussion in the legislature on any matter concerning excluded areas needed the prior approval of the Governor.
- (d) In the partially excluded areas, people were allowed to elect representatives to provincial legislature with a more limited franchise, whereas in excluded areas the tribals were not given any representation. However, the governor could nominate representative from excluded areas. In fact, the tribals were not allowed to form any political parties. The demonstration of these areas was more or less of an authoritarian paternalistic type. The Deputy Commissioners, who were mostly drawn from I.C.S. were virtually the masters working under the direct control of the Governor. However, the British allowed the tribals, specially in excluded areas, to have their own native political institutions like Siemship, the Lyngdoship, Sirdarship, the Doloship in the Khasi Hills )of the present state of Meghalaya). In the partially excluded areas, popular ministries in Bihar, Orissa, Bombay, etc., appointed tribal enquiry Committees to go into the conditions of the tribals. However, not much work could be done as the congress ministries resigned in the wake of the Second World War.
Post-Independence Policy:
After independence, the national leaders decided to bring the tribal areas into the national main stream. As a life step, the distinction between the excluded and partially excluded areas was abolished. However, since the tribal areas in some parts of the country needed protection and safeguards, the constituent assembly appointed a sub-committee under the Chairmanship of Shri. Gopinath Bardoloi to examine a set up for tribal areas. On the recommendation of Bardoloi Committee, the Sixth Scheduled of the Constitution was incorporates providing for special administrative set up for tribal areas of North-east . The government has now extended the concept, of district councils to tribal areas outside the north-east as well, to Darjeeling hill district in west Bengal to Ladak in Jammu and Kashmir
Scheduled Areas
In the wake of tribal rebellions in the nineteenth century, the British became convinced of the vulnerability of tribal populations in the form of various ‘outsiders’ and assumed the role of paternalist protectors of tribals against the non-tribal exploiters. This brand of protectionism, however, worked to justify British presence in tribal areas as the guardian of their interests. Indeed, British policy toward tribals followed a contradictory path: on the one hand, it advocated protection of these areas through exclusion from the operation of general laws nd on the other hand, it facilitated assimilation with the larger social structures through the market. Even prior to the development of a delineation of the characteristic features of a tribe, there existed a separate system of governance for predominantly tribal
areas marked by special legal provisions and the non-applicability of general laws in these areas. Thus, the creation of distinctive tribal spaces in legal-administrative terms preceded the classification of specific groups as tribes based on established criteria. These areas are referred as Scheduled Areas in the post Independence period.
In the Singhbhum area, for example, the British introduced a system of administration, similar to that already in place in Ramgarh and Jungle Mahals through Regulation XIII of 1833. Wilkinson’s Rules meant the withdrawal of regulations in force in other parts of British India and the assignment of all
governance in the district to the Political Agent to the Governor-General. These areas came to be known as Non-Regulation Provinces and were to be governed by special rules for civil and criminal justice, collection of land revenue, and so on. In 1874, another law was passed which renamed the non-regulation tracts as Scheduled Districts and defined their geographical boundaries. In the Northeast region, in addition, the British put in force the Inner Line Regulation in 1873, as the point beyond which general laws for the colony would not be applicable and entry of subjects living outside the area was strictly prohibited.
The separation of these areas continued with the Government of India Act, 1919 which renamed the Scheduled Tracts as ‘Backward Tracts’ and also distinguished between ‘really backward tracts’ wherein the Governor General was exclusively responsible for law and administration and the ‘backward tracts’
wherein the Governor General could act through local officials. This nomenclature was altered to ‘wholly excluded areas’ and ‘partially excluded areas’ respectively by the Simon Commission according to the level of backwardness. The Government of India Act, 1935 followed from this, stating that the Governor could determine policy directly or through his agents in the tribal areas and prohibited legislative Council members from asking any questions about the administration of the excluded areas. Functionaries of the colonial government were, therefore, singularly responsible for about 15 million people in the sub-continent.
The role of the Agent of the Governor-General in these areas was two-fold: to protect the tribal from the non-tribal populations and to exert a civilizing influence on them through programmes of reform. The policy of exclusion came from the belief of the colonial government that their government would be best for the tribals and that the Indian government would only impose dominant cultural values on them. Thus, a special class of areas with tribal-majority populations was created, within which a distinctive legal framework would operate with the following characteristics: rule by district officers under the governor, simple procedures in dispute settlement, restriction of entry of nontribals, the exclusion of these areas from the operation of ordinary laws. One of the primary features of the Partially Excluded areas was that no general laws would apply to these areas, unless the Governor saw it fit to apply these legislations.
In the post-1947 period, however, this feature was altered vis-à-vis the Fifth Schedule areas since now all Central and State laws would automatically apply to tribal areas unless the Governor took the decision to prevent application or modify/amend the legislation in keeping with the circumstances of the Scheduled Areas. Rarely do Governors invoke this power leading to a situation where in all legislations, irrespective of their suitability in Scheduled Areas, are operational without any amendment or alteration.
At the same time, one of the assumptions behind the creation of these spaces was the idea that the tribes could not cope with the complexity of representative institutions. The Montagu-Chelmsford Report which was to later form the basis of the Government of India Act, 1919 even noted that “there was no political
material on which to found political institutions” in these areas. The demand for political autonomy by tribals was overlooked, despite several on-going agitations for political rights. Further, this view neatly separated the related issues of social and economic well-being and political power. The resultant policies were based on the economic integration of tribals through development programmes while attempting to ensure that the cultural aspects of their society such as language and customs were left untouched. This understanding of the tribal question continued into the post-colonial period. The Constitution of India continued with this system of governance through the separate, but inter-linked categories of Scheduled Tribes and Scheduled Areas.
Similar to Scheduled Tribes, the definition for Scheduled Areas (under the Fifth Schedule of the Constitution) is “such areas as the President may by order declare to be Scheduled Areas”. The criterion for the declaration of an area as a Scheduled Area was identified by the first Scheduled Areas and Scheduled Tribes Commission (Dhebar Commission). The features of such an area were: the preponderance of tribal population, compactness and reasonable size of the area, under-developed nature of the area, and marked disparity in the economic standard of the people. Several orders relating to Scheduled Areas have been passed by the President over the years. The present Scheduled Areas follows the pattern of the erstwhile Partially Excluded Areas, although more orders regarding Scheduled Areas have been passed by the President in the post-Independence period. Since 1976, there have been efforts to ensure that the Scheduled Areas coincide with the Tribal Sub-Plan areas through several orders, although this task is still not complete.
It is important to reiterate that there are several tribal-populated and tribaldominant areas across the country which are not Scheduled Areas and therefore, are not covered by the protections offered under the Fifth Schedule. These include tribals living in the nine States of India which have Scheduled Areas as well as those living outside of these States – for example, in West Bengal, Bihar, Uttar Pradesh, Uttarakhand, Goa, Tamil Nadu, Kerala, and Karnataka and the Union Territories of Daman and Diu, Dadra and Nagar Haveli, Lakshadweep, and the Andaman and Nicobar Islands. For example, the southern region comprising Karnataka, Kerala and Tamil Nadu comprise over five per cent of the total Scheduled Tribe population. Karnataka alone has 50 recognised tribal groups within its State boundaries while Tamil Nadu has 37 Scheduled Tribes and Kerala has 36 Scheduled Tribes. A large proportion of the tribal population of South India belongs to the Nilgiri hills region, covering all these three States. Although, a survey by the British in 1847 apparently revealed that about 78 per cent of the people in the Nilgiri plateau region were tribal hunter-gatherers, pastoralists and shifting cultivators, these areas were never scheduled, possibly due to British economic interests in the emerging plantation economy. Tribals in this region face serious problems of landlessness, land alienation, malnutrition, bonded labour, eviction from National Parks and Sanctuaries, as well as displacement due to mines and hydroelectric projects. However, by and large, discussions around tribal rights tend to focus on Fifth and Sixth Schedule Areas to the neglect of other non-Scheduled regions with substantial tribal populations.
On the question of Scheduled Areas, the Bhuria Commission (2002-2004) requested the governments in the various States with sizeable tribal populations to comment on the existing criteria for scheduling of areas through an assessment of their validity within the contemporary context and through recommendations that could make the given criteria more specific and precise. For example, it remains unclear what exactly ‘preponderance’ of tribals means in terms of percentages of the population. There is also the question of the size of the administrative unit within which ‘preponderance’ is necessary – at the level of the district or the block or the village. This is an especially important question given that there has been considerable in-migration of non-tribals to Scheduled Areas as well as non-Scheduled areas with large tribal populations. This influx has changed the relative population of tribal and non-tribal communities in the area, often worsening the disparity between the two groups. The State Governments, in response to the Bhuria Commission, provided several suggestions on this issue, with some calling for changes in the criteria while others declaring their satisfaction with the status quo as regards their States.
The State Government of Chhattisgarh noted that while it has about 81,669 sq. km as Scheduled Areas, there are 88,000 sq. km in the state under the Tribal SubPlan (TSP), thus creating a disparity which must be addressed by making Scheduled Areas coterminous with TSP areas. They further suggested the
condition of 50% Scheduled Tribe population for declaration of Scheduled Area as well as the treatment of the Gram Sabha as a viable unit. Madhya Pradesh, on the other hand, has suggested a norm of 40% tribal population in a block and Gram Panchayat for eligibility. The government also argued that human
development indices may not be a viable standard for exclusion from Scheduled Areas, since there is considerable economic and social differentiation between and within tribal groups. The Rajasthan government recommended that the backwardness of an area be assessed, according to the following parameters: ST female literacy and availability of safe drinking water, healthcare, and electricity. Based on these suggestions, the Bhuria Commission recommended:
that the notification of Scheduled Areas should include villages as well as towns and cities in the blocks, tehsils and districts, including all forest and revenue lands that all the Integrated Tribal Development Projects (ITDPs), Modified Development Approach (MADA) pockets included in the Tribal Sub-Plan should
be considered for notification as Scheduled Areas subject to conformity with the established standards. The parameters for further inclusion of non-Scheduled Areas within the ambit of the Fifth Schedule must be debated by the central and State Governments and action must be taken in this regard immediately. The situation wherein a substantial number of Scheduled Tribes reside outside of the Scheduled Areas needs to be addressed to ensure that tribes are not denied the protections offered by the Constitution and other legislations pertaining to Scheduled Areas. Given the onslaught of global market forces on tribal lands, the extension of such provisions is of the utmost importance and urgency.
Section II: Legal and Administrative Framework in Scheduled Areas In the post-colonial period, the classification of an area (which may range in size from a single village to a block to an entire district within a State) as a Scheduled Area carries significant legal and political implications since it is on this basis that the provisions of either the Fifth or the Sixth Schedule apply. These constitutional arrangements for the Scheduled Tribes follow different patterns and provide for both protections from non-tribals (particularly on land alienation, money-lending and political representation) and provisions for autonomous decision-making on various matters. These frameworks constitute the recognition of the adverse inclusion of tribal communities within the global political economy as well as the distinctiveness of tribal culture and identity threatened by the cultural imperialism of the non-tribal majority. At the same time, it must be noted that several of these provisions are paternalistic in nature and are not entirely adequate to the onerous task of ensuring the protection of tribal land and resources given the current context of liberalisation. Moreover, the experience of the functioning of the institutions created under these constitutional provisions demonstrates that stricter implementation and further strengthening of laws is an urgent necessity. This section examines the various arrangements instituted for the Scheduled Tribes and briefly analyses the strengths and weaknesses of each. Such an analysis is essential in order to objectively assess whether these provisions have fulfilled their stated goals over the last sixty years and to begin a discussion on potential mechanisms to strengthen their functioning in the future.