Constitutional Provisions for Safeguarding Tribal Land

Constitutional Provisions for Safeguarding Tribal Land

Question : Enumerate the constitutional provisions which are essential to protecting the interests of ST as they struggle to hold onto traditional lands belonging to them.

A lesser used provision in the Indian Constitution could help in protecting the interests of ST as they fight to hold on to tribal lands

Importance of Tribal Lands

- Following 67 years after Independence, issues being faced by the ST community are about accessing basic needs

- This is not restricted to elementary education, community healthcare, PDS, sustainable livelihood support, food security, sanitation and drinking water, debt and infrastructure

- Equality of opportunity remains unfulfilled and values of tribal culture must be transmitted without any exploitation and/or commodification

- Adivasis’ unhindered access to land as well as forests including full access to commons in scheduled areas is understated

- Tribal communities have witnessed fragmentation of natural habitats and homelands and disruption of culture through uncontrolled tourism

- This has left them shattered and impoverished

- Tribal people have been reduced from resource owners and self sufficient communities to wage earners in agriculture and urban centres

- However, rights of these communities are protected by the Constitution

Constitution(Schedule Tribes) Order 1950

- Most of the protection is available to tribal communities named in this order yet there are some tribal communities which fall within the category of SC and OBC

- Within the ST, there are 500 groups from which around 70 are part of the sub-classification Particularly Vulnerable Tribal Groups

- This includes the Jarawas of Andaman Islands, AP’s Chenchus and Baigas in Chhattisgarh

- Groups such as these are facing a massive survival crisis especially in dwindling numbers

- There is need for special protection even within larger ST category

- Tribal communities especially ST are subject to special constitutional assistance

Other Constitutional Safeguards

- Rights of tribal people for development are set out through the A21 and Schedules V and VI of the Indian Constitution

- These form the core of Adivasi rights

- The often quoted Samata Judgement of 1997 is also rich in the defence of tribal rights for their land and posits inter-reading of A14(equality), A15(non-discrimination), A16 (equality of opportunity), A17 (abolition of untouchability), A21 (life and liberty) and A23 (right against exploitation) from the chapter on Fundamental Rights in the Indian Constitution

- This is along with DPSP’s A38(securing just social order), 39 (guiding principles of policy) and 46(promotion of educational and economic interests of SCs, STs and other weaker sections

- Consider the constitutional arguments in the AP HC resisting the Polavaram dam based on whether state could change(diminish) boundaries of scheduled area without presidential assent

- Submergence alters boundaries and causes villages to disappear

- rendering people vulnerable through dispossession and displacement

- These are subject to special protection for the STs

- Biggest volume of litigation in scheduled areas is concerning non tribal occupation of their traditional land and derogation of land transfer regulation laws

- Financial inclusion is yet another problem tribal people face as moneylenders continue to thrive in these areas


- A19’s part has to do with special protection of STs as distinct from other marginalised groups

- A19 of the Constitution is understood via text and case law as it protects freedom of speech, expression, movement, assembly, association, calling, movement and residence

- First clause of A19 reads that all citizens should have right to the following:

- Freedom of speech and expression

- Peaceable assembly without arms

- Forming associations or unions

- Moving freely through India’s territories

- Residing and settling in any part of the Indian territory

- Clauses 19(2) to (4) have established reasonable restrictions to speech, assembly and association in terms of public morality, integrity, decency and sovereignty of the state

- Clause (5) of A19 also protects the right of STs as distinct from other marginalised groups via limitation on right to freedom of movement

- This Article is the key to understanding constitutional protection for STs

Facts and Stats

- Census, NSSO, NFHS, SRS, AIES, Government Departments, Budget Documents, Government Schemes (both State and Central level), Special Component Plan for SCs/ STs, Nodal and Line Ministries are responsible for assessing tribal welfare in India

- As per the 2011 census, 10.4 crore of the population constitutes ST of which 5.3 crore are male and 5.1 crore are female.

- Change in Percentage of ST to total population:

- Change within +0.2 percent points: Uttarakhand, Mizoram, Meghalaya, Assam, Jharkhand, Gujarat, Tamil Nadu

- Decrease by more than 0.2% percent points: Nagaland, Chhattisgarh, Daman & Diu, Dadra & Nagra Haveli, Andaman & Nicobar Islands

- Increase by more than 1 percent points: Himachal Pradesh, Sikkim, Arunachal Pradesh, Goa)

- Increase by 0.2 to 1 Percent points: 14 States/UTs namely all except the above
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