Constitutional conversations on Adivasi rights

Impoverished: “For Adivasis, equality of opportunity remains largely unfulfilled.” Picture shows Adivasis from Koraput, Odisha, in Visakhapatnam. Photo: K.R. Deepak

Impoverished: “For Adivasis, equality of opportunity remains largely unfulfilled.” Picture shows Adivasis from Koraput, Odisha, in Visakhapatnam. Photo: K.R. Deepak   | Photo Credit: K_R_DEEPAK

Even 67 years after Independence, the problems of Adivasi communities are about access to basic needs. These include, but are not restricted to, elementary education, community healthcare, sustainable livelihood support, the public distribution system, food security, drinking water and sanitation, debt, and infrastructure. For them, equality of opportunity remains largely unfulfilled. In this context, it is important to stress that the values of tribal culture are transmitted in a manner that protects the right of the bearers of knowledge to determine the terms of the transmission without exploitation or commodification. Nor can the Adivasis’ unhindered access to land and forests, including full access to the commons, especially in scheduled areas, be understated. Tribal communities have, over the decades, witnessed the fragmentation of their habitats and homelands and the disruption of their cultures through predatory tourism. All this has left them shattered and impoverished. Entire communities across States have been dispossessed systematically through state action, and have been reduced from owners of resources and well-knit, largely self-sufficient communities to wage earners in agriculture and urban agglomerates with uncertain futures. Yet, we can scarcely forget that the rights of tribal communities in India are protected by the Constitution and special legislations.

Rights enumerated

While most of these protections are available to groups named in The Constitution (Schedule Tribes) Order 1950, there are some tribal communities that fall within the categories of Scheduled Castes (SC) and Other Backward Classes (OBC) and some that don’t fall into any of these categories. Within the category of Scheduled Tribes (ST), there are over 500 groups listed of whom roughly 70 are part of the sub-classification Particularly Vulnerable Tribal Groups, a small cluster of groups that include the Jarawas of the Andaman Islands, the Chenchus of Andhra Pradesh and Telangana, and the Baigas of Chhattisgarh. These groups face an acute crisis of survival, evident in their rapidly dwindling numbers. Therefore, they are in need of special protection even within the larger ST category, protections in relation to non-tribal communities as well as in relation to other tribal communities. Notwithstanding these complex intersections and overlaps (and exclusions in some instances), tribal communities, especially the STs, are the subject of special constitutional attention.

The right of tribal peoples to development through pathways that affirm their autonomy and dignity, as set out in Article 21 and under Schedules V and VI of the Indian Constitution, is often seen as the core of Adivasi rights. And indeed, they are. The oft-quoted Samata judgment of 1997, rich in its defence of the rights of Adivasi communities to their homelands, posits an inter-reading of Articles 14 (equality), 15 (non-discrimination), 16 (equality of opportunity), 17 (abolition of untouchability), 21 (life and liberty), 23 (right against exploitation) from the Fundamental Rights chapter of the Constitution and Articles 38 (securing a just social order), 39 (guiding principles of policy) and 46 (promotion of educational and economic interests of SCs, STs, and other weaker sections) from the Directive Principles of State Policy.

The constitutional arguments in the High Court of Andhra Pradesh resisting the Polavaram dam centred on whether the state could alter (diminish) the boundaries of a scheduled area without presidential assent. Submergence, in fact, alters boundaries, causes disappearance of villages and village institutions, and renders people from these communities vulnerable through dispossession by displacement — all of which are the subject of special protections for the STs. The largest volume of litigation in scheduled areas has to do with non-tribal occupation of tribal land and the blatant derogation of land transfer regulation laws. Financial inclusion poses the third major problem: despite policy commitments to financial inclusion of vulnerable communities as a measure to lift them out of debt bondage and predatory money lending and usury, moneylenders continue to thrive in tribal areas.

An important part of Article 19 protections have to do specifically with protection of interests of STs.

Hidden provision

It is in this overall context that I flag an unused constitutional provision as perhaps holding a key to the justiciable, mandatory protection of the interests of the STs as distinct from other marginalised groups.

Article 19 of the Constitution is commonly understood, through text and case law, as a provision that protects freedom of speech, expression, assembly, association, movement, residence and calling. The first clause of Article 19 reads as follows: 19(1) All citizens shall have the right (a) To freedom of speech and expression; (b) To assemble peaceably and without arms; (c) To form associations or unions; (d) To move freely throughout the territory of India; (e) To reside and settle in any part of the territory of India; and (f) omitted (g) To practise any profession, or to carry on any occupation, trade or business. Clauses 19 (2) to (4) set out the reasonable restrictions to speech, assembly and association in the interests of public morality, decency and integrity and sovereignty of the state — these aspects and their restrictions are what figure most often in animated fashion in debates around Article 19.

Clause 5 of Article 19 reads as follows: 19 (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe (emphasis added).

In other words, an important part of Article 19 protections have to do specifically with protection of interests of STs (Clause 5) as distinct from other marginalised groups through limitations on right to freedom of movement [sub-cause 1(d)] and right to freedom of residence [sub-clause 1(d)]. This, I would argue, when read with existing protections (for instance as set out in Samata or similar cases) offers a core and express fundamental right protection to Adivasis (as distinct from legal/ statutory protection) from a range of state and non-state intrusions in scheduled areas as well as from the perennial threat of eviction of Adivasis from their homelands.

It is the interests of STs that are paramount in this fundamental right provision, which is presented importantly as a restriction on an enumerated right that is clear and specific — not a restriction of a general nature, namely, the “sovereignty and integrity of India” or “public order,” “decency” or “morality,” as is the case with the other constituent freedoms in Article 19.

Understanding the situation of tribal communities is key to understanding the Constitution, its framework and its possibilities in the fullest sense. Perhaps it is time to reinvigorate our reading of the Constitution in the troubled times we live in. We may find answers to other questions as well around an idea of justice that we grapple with every day.

(Kalpana Kannabiran is Professor and Director, Council for Social Development)

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Printable version | Sep 23, 2020 1:24:22 PM |

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