Tribal Pluralism

And the Court has stated the underlying position plainly. In Kailas v. State of Maharashtra, (2011) 1 SCC 793; AIR 2011 SC 598, decided on 5 January 2011. Facts. A woman of the Bhil tribe was beaten, stripped and paraded naked in a village in Maharashtra by persons of a dominant community, after which her family left the village; the trial court convicted the accused under section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 and under the Penal Code, the High Court acquitted them of the Atrocities Act charge and reduced the sentence, and the accused appealed. Held. The appeal was dismissed. The Court held the conduct shameful and deserving of harsh punishment, and stated the position of the Scheduled Tribes in Indian constitutional law: that the tribal people are probably the descendants of the original inhabitants of India, that the injustice done to them is a shameful chapter of the country's history, that they are today the most marginalised of the disadvantaged groups, and that articles 15(4), 16(4), 16(4A) and 46 exist for their upliftment. It directed that the mentality of the country towards them must change and that they must be given the respect they deserve. Why it matters here is that it is the Supreme Court's own statement of why the special provisions exist, in language a candidate can use.

Land: the rule that a Scheduled Area is not for sale

Every State with Scheduled Areas has a land transfer regulation forbidding the transfer of land in those areas to a non-tribal. The question that decides everything is whether the Government itself is bound by it.

In Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191; AIR 1997 SC 3297, decided on 11 July 1997. Facts. The Government of Andhra Pradesh granted mining leases of GOVERNMENT land in a Scheduled Area to non-tribals. The Andhra Pradesh Scheduled Areas Land Transfer Regulation prohibited the transfer of land in a Scheduled Area to a non-tribal, and the question was whether the word "person" in section 3 of the Regulation included the Government.

Held. It does. The word "person" in section 3 includes the GOVERNMENT, so any lease of land in a Scheduled Area to a non-tribal, INCLUDING OF GOVERNMENT LAND, is in violation of section 3 and void. A mining lease in a forest area for a non-forest purpose, or its renewal, without the prior approval of the Central Government also violates section 2 of the Forest (Conservation) Act 1980. The Court directed that mining operations in Scheduled Areas be prohibited except in accordance with those requirements.

Why it matters here is that it closes the obvious escape. A prohibition on private transfers is worthless if the State may lease the same land to the same people, and Samatha holds that the State is a "person" for this purpose. It is the leading authority on tribal land in Scheduled Areas.

Self-government: the Act of 1996

Part IX of the Constitution, on panchayats, did not extend to the Scheduled Areas. The Panchayats (Extension to the Scheduled Areas) Act 1996 extended it, but on terms that are unlike ordinary panchayat law, because the unit it empowers is the GRAM SABHA and not the elected panchayat. Section 4 states the terms on which a State Legislature may make panchayat law for Scheduled Areas. A candidate should know these:

• Section 4(d): every Gram Sabha shall be COMPETENT TO SAFEGUARD AND PRESERVE THE TRADITIONS AND CUSTOMS OF THE PEOPLE, THEIR CULTURAL IDENTITY, COMMUNITY RESOURCES AND THE CUSTOMARY MODE OF DISPUTE RESOLUTION. This is legal pluralism in a statute: the customary mode of dispute resolution is preserved by name.
• Section 4(e): the Gram Sabha approves plans, programmes and projects for social and economic development BEFORE the panchayat implements them, and identifies beneficiaries under poverty alleviation programmes.
• Section 4(g): reservation of seats in proportion to population, with a proviso that reservation for the Scheduled Tribes shall not be LESS THAN ONE-HALF of the seats, and a further proviso that ALL seats of Chairpersons at all levels shall be reserved for the Scheduled Tribes.
• Section 4(i): the Gram Sabha or the panchayat at the appropriate level shall be CONSULTED BEFORE THE ACQUISITION OF LAND in the Scheduled Areas for development projects and before resettling or rehabilitating persons affected by such projects.
• Section 4(k) and (l): the recommendation of the Gram Sabha or the panchayat is MANDATORY before the grant of a prospecting licence or mining lease for MINOR MINERALS, and before the grant of a concession for their exploitation by auction.

Read the verbs. Section 4(i) says CONSULTED; sections 4(k) and (l) say the recommendation is MANDATORY. The difference between consultation and mandatory recommendation is the difference between being heard and being able to refuse, and it is exactly the sort of distinction an examiner rewards.

Forest: the Act of 2006

The long title records the grievance: the forest rights of forest dwelling Scheduled Tribes and other traditional forest dwellers were not adequately recognised when forests were consolidated in the colonial period and after independence, resulting in a HISTORICAL INJUSTICE.

Section 3(1) lists the forest rights, which secure individual or community tenure or both. Among them: the right to hold and live in forest land for habitation or self-cultivation; community rights such as nistar; the right of OWNERSHIP, access to collect, use and dispose of MINOR FOREST PRODUCE traditionally collected within or outside village boundaries; other community rights such as fish, grazing and the seasonal resource access of nomadic or pastoralist communities; community tenures of habitat and habitation for primitive tribal groups and pre-agricultural communities; and rights in disputed lands.

Section 4(1) is the vesting provision: notwithstanding anything in any other law, the Central Government RECOGNISES AND VESTS the forest rights in forest dwelling Scheduled Tribes and in other traditional forest dwellers. The verb "recognises" matters: the Act treats the right as pre-existing and the statute as declaratory of it.

Section 4(2) protects against eviction from critical wildlife habitats in National Parks and Sanctuaries except on five conditions cumulatively satisfied, of which the fifth is the FREE INFORMED CONSENT OF THE GRAM SABHAS IN WRITING to the resettlement and to the package.

Section 5 places duties on the holders, the Gram Sabha and village level institutions: to protect wildlife, forest and biodiversity, to ensure that adjoining catchment areas and water sources are protected, to ensure that the habitat is preserved from destructive practices, and to ensure that decisions of the Gram Sabha to regulate access to community forest resources are complied with.

Section 6(1) is the procedural heart: THE GRAM SABHA SHALL BE THE AUTHORITY to initiate the process of determining the nature and extent of individual or community forest rights, by receiving, consolidating and verifying claims and preparing a map, then passing a resolution and forwarding it to the Sub-Divisional Level Committee. Section 6(2) gives an aggrieved person sixty days to petition that Committee, and no petition may be disposed of against him without a reasonable opportunity to present his case.

And the Supreme Court gave that section its most famous application. In Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476, decided on 18 April 2013. Facts. The Corporation challenged the Ministry's rejection of forest clearance for bauxite mining on the Niyamgiri hills in the Kalahandi and Rayagada districts; the State Government had certified compliance and that there was no habitation on the plateau top, while the Dongria Kondh and Kutia Kondh communities claimed individual, community and RELIGIOUS rights over the hills under the Act of 2006. Held. The question whether the communities held religious and cultural rights over the Niyamgiri hills, and whether the proposed mining would affect them, was FOR THE GRAM SABHAS TO DETERMINE. The Court directed the Gram Sabhas of Kalahandi and Rayagada to consider the claims, the State Government to facilitate the process, and the Ministry then to take a final decision; the order was to be communicated to the Ministry of Tribal Affairs and to the Gram Sabhas. Why it matters here is that a court referred a question of religious and cultural right to a village assembly rather than deciding it, which is the strongest recognition of tribal self-determination in the Indian reports.

The other tracks, briefly

Political representation. Article 330 reserves seats for the Scheduled Tribes in the House of the People and article 332 in the Legislative Assembly of every State, in proportion to their population.

Services. Article 335 requires the claims of the Scheduled Castes and Scheduled Tribes to be taken into consideration, CONSISTENTLY WITH THE MAINTENANCE OF EFFICIENCY OF ADMINISTRATION, in the making of appointments, with provisos permitting relaxation of qualifying marks and standards of evaluation.

The Commission. Article 338A creates the National Commission for Scheduled Tribes, a CONSTITUTIONAL body, unlike the National Commission for Minorities, with the duty to investigate and monitor safeguards, to inquire into complaints, and to participate in and advise on planning; it has the powers of a civil court for those functions and its reports are laid before Parliament.

Money. Article 275 provides grants-in-aid from the Consolidated Fund of India to States, including sums for schemes of development to promote the welfare of the Scheduled Tribes and to raise the level of administration of the Scheduled Areas.

Territory. Article 244 with the Fifth Schedule for Scheduled Areas elsewhere and the Sixth Schedule for the tribal areas of Assam, Meghalaya, Tripura and Mizoram, and article 371A for Nagaland, under which no Act of Parliament on Naga religious or social practices, Naga customary law and procedure, administration of civil and criminal justice involving decisions according to Naga customary law, or ownership and transfer of land and its resources applies to Nagaland unless the Legislative Assembly so decides. These are worked as federal arrangements in Module I.

A worked example

A State proposes to acquire 900 hectares in a Scheduled Area for a bauxite project, granting the mining lease to a company. Part of the land is government land; part is forest land on which a tribal community has grazed and collected minor forest produce for generations; the community says a hill within the area is sacred. Advise the community.

First, the land transfer regulation. On Samatha, "person" in the regulation includes the Government, so a lease of land in a Scheduled Area to a non-tribal, including government land, is void. That alone defeats the lease as framed.

Second, the Forest (Conservation) Act 1980. A mining lease in a forest area for a non-forest purpose without the prior approval of the Central Government violates section 2, as Samatha also held.

Third, the Act of 1996. Section 4(i) requires the Gram Sabha to be consulted before the acquisition of land in a Scheduled Area for a development project and before resettlement or rehabilitation. If the minerals were MINOR minerals, sections 4(k) and (l) would make the Gram Sabha's recommendation mandatory; bauxite is not a minor mineral, so the community's protection here is consultation and not a veto, which is precisely the distinction to state.

Fourth, the Act of 2006. The grazing and minor forest produce rights are forest rights under section 3(1)(c) and (d), recognised and vested by section 4(1). The authority to determine their nature and extent is the GRAM SABHA under section 6(1). Until that process is complete, the land is not free of claims.

Fifth, the sacred hill. Orissa Mining Corporation is directly in point: whether the community holds religious and cultural rights over the hills, and whether the mining would affect them, is for the Gram Sabhas to determine, with the Ministry taking the final decision afterwards.

Answer: the lease is void on Samatha; the forest rights must be determined by the Gram Sabha under section 6 before the land can be treated as available; the Gram Sabha must be consulted under section 4(i); and the religious claim must go to the Gram Sabhas on the Niyamgiri pattern.

Distinctions

What it does NOT mean

It does not mean tribal protection is a form of reservation. Reservation is one track of four. Land, forest, custom and territorial administration are the others, and they do not turn on backwardness.

It does not mean the Government may do what a private person may not. Samatha holds that "person" in a Scheduled Areas land transfer regulation includes the Government.

It does not mean the Gram Sabha can veto every project. Section 4(i) of the Act of 1996 requires CONSULTATION on land acquisition; only for minor minerals is the recommendation mandatory, and only for resettlement out of a critical wildlife habitat is written consent required.

It does not mean the forest rights were created in 2006. Section 4(1) says the Central Government RECOGNISES AND VESTS them, and the Act's premise is that the failure to record them was a historical injustice. The right is treated as older than the statute.

And it does not mean the Fifth and Sixth Schedules are about culture alone. They are working arrangements of government, with a Tribes Advisory Council and a Governor's power to modify the application of laws under the Fifth Schedule, and autonomous district councils with legislative power under the Sixth. Those are worked in Module I.

Quick revision

Four tracks: equality (articles 15(4), 46, 335), political (330, 332, 338A), territorial (244 with the Fifth and Sixth Schedules, 371A, and grants under 275), and identification (342, the President notifies, only Parliament may vary). Kailas 2011: the Court's own statement that the tribal people are probably the descendants of the original inhabitants, that the injustice done to them is a shameful chapter, and that articles 15(4), 16(4), 16(4A) and 46 exist for their upliftment.

Land: Samatha 1997, "person" in the Andhra Pradesh Scheduled Areas Land Transfer Regulation includes the GOVERNMENT, so a lease of government land in a Scheduled Area to a non-tribal is void; and a mining lease for a non-forest purpose without Central approval violates section 2 of the Forest (Conservation) Act 1980. Self-government: Act of 1996, section 4(d) the Gram Sabha safeguards traditions, customs, cultural identity, community resources and the customary mode of dispute resolution; 4(e) approval of plans; 4(g) not less than one-half of seats and all Chairpersons reserved; 4(i) consultation before land acquisition and resettlement; 4(k) and (l) mandatory recommendation for minor minerals.

Forest: Act of 2006, section 3 the rights including ownership of minor forest produce; section 4(1) recognition and vesting; section 4(2) five cumulative conditions and written free informed consent before resettlement from a critical wildlife habitat; section 5 duties; section 6(1) THE GRAM SABHA IS THE AUTHORITY to determine the rights, with a sixty-day appeal to the Sub-Divisional Level Committee. Orissa Mining Corporation 2013: the religious and cultural claim over the Niyamgiri hills was referred to the GRAM SABHAS to determine.

Test yourself

1. Name the four tracks of constitutional protection for the Scheduled Tribes with an article for each. Equality, article 46; political representation, article 330; territorial administration, article 244 with the Fifth and Sixth Schedules; and identification, article 342.

2. What was decided in Samatha and why does it matter? That the word "person" in section 3 of the Andhra Pradesh Scheduled Areas Land Transfer Regulation includes the Government, so a lease of land in a Scheduled Area to a non-tribal, including government land, is void; and that a mining lease in a forest area for a non-forest purpose without the Central Government's prior approval violates section 2 of the Forest (Conservation) Act 1980. It closes the escape by which the State could grant what a private person could not transfer.

3. What does section 4(d) of the Act of 1996 preserve? The competence of every Gram Sabha to safeguard and preserve the traditions and customs of the people, their cultural identity, community resources and the CUSTOMARY MODE OF DISPUTE RESOLUTION.

4. Distinguish consultation, mandatory recommendation and consent under the two statutes. Section 4(i) of the Act of 1996 requires the Gram Sabha to be CONSULTED before acquisition and resettlement; sections 4(k) and (l) make its RECOMMENDATION MANDATORY before a prospecting licence or lease for minor minerals; section 4(2)(e) of the Act of 2006 requires the FREE INFORMED CONSENT of the Gram Sabhas in writing before resettlement from a critical wildlife habitat.

5. Who determines forest rights under the Act of 2006, and by what procedure? The Gram Sabha, under section 6(1), by receiving, consolidating and verifying claims, preparing a map and passing a resolution, which goes to the Sub-Divisional Level Committee; an aggrieved person may petition that Committee within sixty days and must be heard.

6. What did the Supreme Court direct in the Niyamgiri case? That the question whether the Dongria Kondh and Kutia Kondh held religious and cultural rights over the hills, and whether the mining would affect them, was for the GRAM SABHAS of Kalahandi and Rayagada to determine, the State facilitating the process and the Ministry taking the final decision afterwards.

7. Which of the two national commissions in this area is constitutional? The National Commission for Scheduled Tribes under article 338A. The National Commission for Minorities is statutory, under the Act of 1992.