Winston Churchill, in a now famous radio broadcast in 1939, said about Russia, “I think it is a riddle, wrapped in mystery, inside an enigma; but perhaps there is a key.” In many ways, this applies to India. At the very time when India’s politics is riddled with tribalism and is getting more and more chauvinistic, it is attempting to integrate its large tribal population into the mainstream.
India has more than 100 million “tribal people”. They principally inhabit the north-east states bordering China and Myanmar, and also the highlands and plains of peninsular India. A majority of tribal groups live in Chhattisgarh, Jharkhand, Maharashtra, Bihar, Andhra Pradesh and Orissa. This area also happens to be the “Naxal belt”. The Gonds of central India, the Bhils of Rajasthan, and the Santhals of West Bengal are large tribal groups in peninsular India. The umbrella term for this heterogeneous, aboriginal population is Adivasi.
The fifth schedule of the Constitution enshrines the rights of these Adivasis under the now famous category “Scheduled Caste and Tribes”. Despite this constitutional protection, the “progress” of Adivasis is a mixed bag more than 60 years after independence. The semantics of the word Adivasi is a clue to an earlier autonomy that was interrupted by over 300 years of British rule. The Constitution and its implementation have attempted to balance that ancient right with the requirement of living within a republic. Many would say that the balancing act has so far failed the Adivasis.
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The Union government in 1996 amended the Panchayats (Extension to the Scheduled Areas) Act, or Pesa, to cover tribal groups. Pesa was intended to provide some autonomy and greater ownership of land and land use rather than the “dole” framework that had characterized the relationship between the states and Adivasis until then. The labyrinth of rules related to forests—the Indian Forest Act of 1927 and the Forest Rights Act (FRA) 2006—intersecting with Pesa has created an unworkable framework. Pesa attempted to vest legislative powers in the village unit, gram sabha, specifically in matters relating to development planning, management of natural resources and adjudication of disputes in accordance with prevalent traditions. All scheduled states were given a year to amend their respective Panchayat Acts to conform to the letter and spirit of Pesa. Accordingly, most states introduced some amendments. A closer look reveals that almost all powers have been made subject to the final authority “as may be prescribed by the state governments”. The control over prospecting of minerals, planning and management of water bodies and minor forest produce de facto remains with state governments.
Informed gram sabha consent is one of the major points of contention in Vedanta’s Niyamgiri bauxite mining project. The environment ministry quoted FRA extensively in its rejection of Vedanta’s proposal. But FRA contradicts itself in so many ways that it is far from clear that this position is legally unambiguous. This lack of clarity arises mostly because legislation at the Central and state levels have been written to be vague. This ambiguity allows for rent seeking, arbitrary application based on politics and a “let’s see if the policy will work” mindset. It is also the crux of many approvals, delays and rejections ruled upon by the environment ministry recently—Polavaram (Andhra Pradesh), Posco (Orissa) and Niyamgiri (Orissa).
Does the answer lie in improving the language and implementation of existing laws or in a wholly different framework? In the US, for example, tribal governments are “domestic dependent nations” with many sovereign powers retained from the “pre-contact” period. As tribal governments have grown in political and economic power, the supreme court, the US Congress, the federal executive, and the tribes have engaged in an increasingly important discussion to determine the scope of their powers. The result is a legal regime of fascinating complexity. The US recognizes more than 500 tribal governments. Some like the Navajo Nation have large membership bases and control vast domains. Each tribal government operates according to a constitution modelled after form constitutions prepared by the US department of the interior pursuant to the Indian Reorganization Act of 1934. It is a mess.
In Canada, the so-called First Nations represent aboriginal interests. The Canadian Republic usurped land from the First Nations over 100 years ago. The model of relationship is still evolving. In Australia, aboriginal land rights are murky.
With the stakes so high in politics and business, and no effective global models to choose from, India will have to define its own path. In this case, the key Churchill spoke of probably lies in harmonizing regulation, adopting crisper rules and providing more effective political autonomy to tribal communities. It won’t be easy, but the long-term solution to the Naxal problem has to be a political one.
P.S.: “It is through this mysterious power that we too have our?being,?and we therefore yield to our neighbours, even to our animal neighbours, the same right as ourselves to inhabit this vast land,” Sitting Bull, legendary chief of the Sioux.
Narayan Ramachandran is an investor and entrepreneur based in Bangalore. He writes on the interaction between society, government and markets. Comments are welcome at email@example.com