Constitutional Safeguards for Tribal Rights

Abstract

The Indian Constitution provides a robust framework for the protection of tribal rights,
addressing their unique socio-economic vulnerabilities. This assignment critically examines
the constitutional safeguards for tribal rights, focusing on key provisions such as the Fifth and
Sixth Schedules, Articles 15, 16, 19, 244, and 275, and legislative acts like the Panchayats
(Extension to Scheduled Areas) Act, 1996 (PESA), and the Forest Rights Act, 2006. The study
also explores relevant judicial interpretations through landmark cases such as Samatha v. State
of Andhra Pradesh and Orissa Mining Corporation Ltd v. Ministry of Environment & Forests
(Niyamgiri Judgement), which have helped shape the understanding and enforcement of tribal
rights.

Furthermore, the study adopts both doctrinal and empirical methods to analyze the challenges
faced by tribal communities in realizing these rights. It delves into the limitations of the existing
legal framework, issues in implementation, and the growing demand for tribal autonomy in
governance, particularly in the Sixth Schedule areas. The impact of international legal
standards, including the ILO Convention 169 and the UN Declaration on the Rights of
Indigenous Peoples (UNDRIP), is also examined to draw comparative insights for improving
the Indian framework.

This research concludes with recommendations for legislative reforms and policy
enhancements aimed at strengthening tribal rights, ensuring better implementation, and
promoting their socio-economic empowerment.

Keywords: Tribal rights, Indian Constitution, Fifth Schedule, Sixth Schedule, Forest Rights Act,
PESA, Samatha case, Niyamgiri Judgement, ILO Convention 169, UNDRIP, tribal autonomy,
indigenous governance.
Table of Contents

1. Introduction
1.1 Background of Tribal Rights in India
1.2 Importance of Constitutional Safeguards for Tribes
1.3 Key Constitutional Provisions
1.4 Objectives of Study
1. 5 Challenges and criticism
2. Legal Materials and Methods
2.1 Overview of Constitutional Provisions for Tribal Rights (Fifth and Sixth Schedules)
2.2 Relevant Case Law and Judicial Precedents
2.3 International Legal Standards (ILO Convention, UNDRIP)
2.4 Methodology of the Study (Doctrinal and Empirical Analysis)
3. Discussion and Results
3.1 Critical Analysis of Constitutional Provisions (Articles 15, 16, 19, 244, 275, etc.)
3.2 Role of Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA)
3.3 Impact of Forest Rights Act, 2006 on Tribal Communities
3.4 Examination of Tribal Autonomy and Governance (Sixth Schedule Areas)
3.5 Challenges Faced by Tribal Communities Despite Constitutional Safeguards
4. Conclusion and Suggestions
4.1 Summary of Findings
4.2 Strengthening the Constitutional Framework
4.3 Enhancing Implementation of Tribal Rights
4.4 Suggestions for Legislative and Policy Reforms
5. Future Research and Development
5.1 Areas of Further Legal Research on Tribal Rights
5.2 Scope for Comparative Analysis with Other Jurisdictions
5.3 Advancements in Tribal Empowerment Programs and Policies
Additional Sections
•Conflict of Interest(s):
(To be addressed if applicable)
•Funding Information:
(To be provided if necessary)
•References:
All sources cited should follow APA referencing style, with appropriate footnoting.

Introduction: Constitutional Safeguards for Tribal Rights in India

1.1 Background of Tribal Rights in India

India is home to a diverse range of tribal communities, officially categorised as Scheduled

Tribes (STs) under the Indian Constitution. These indigenous groups have distinct cultural,
social, and economic practices, and they typically reside in geographically isolated areas such
as forests, hills, and plateaus. Historically marginalised and economically disadvantaged, tribal
communities have faced centuries of exploitation and neglect, particularly in areas concerning
land rights, forest use, and political autonomy. Recognising these vulnerabilities, the framers
of the Indian Constitution incorporated several provisions to safeguard the rights and interests
of these communities.

The key constitutional provisions, such as the Fifth and Sixth Schedules, along with specific
articles like Articles 15(4), 16(4), 19(5), 244, and 275, were designed to promote affirmative
action and self-governance for tribal populations. Despite these safeguards, tribal rights
continue to be at risk due to multiple factors, including encroachments on tribal land,
inadequate legal enforcement, and poor implementation of protective laws.

1.2 Importance of Constitutional Safeguards for Tribes

The importance of these constitutional safeguards stems from the historical disadvantage and
continued marginalisation of tribal communities. Tribes depend heavily on forests and natural
resources for their livelihood, and the steady encroachment on their lands due to
industrialisation and development projects has threatened their traditional way of life. The
Constitution, through the provisions in the Fifth and Sixth Schedules, ensures that tribal areas
have special administrative measures, allowing tribal communities to manage their own
resources and govern their areas according to their customary laws and practices.

Case law plays a critical role in interpreting these constitutional provisions and resolving
conflicts between tribal interests and national development. Several landmark judgments of the
Supreme Court and High Courts have shaped the legal landscape of tribal rights in India,
ensuring that the constitutional safeguards are properly enforced.

1.3 Key Constitutional Provisions and Case Law

1.3.1 Article 244 and the Fifth Schedule

Article 244 provides the foundation for the Fifth Schedule, which applies to tribal areas in
several states. It grants the Governor the power to make regulations regarding the transfer of
land by or among members of Scheduled Tribes, thereby protecting them from land alienation.
The role of the Governor is central, as regulations under this schedule are to be made in
consultation with tribal advisory councils.

In Samatha v. State of Andhra Pradesh (1997)1, the Supreme Court interpreted the provisions
of the Fifth Schedule to uphold the protection of tribal lands. The case involved a dispute over
the leasing of tribal land to private mining companies. The Court held that the leasing of land
in scheduled areas to non-tribal entities was unconstitutional unless such transfers directly
benefited the local tribal communities. This judgment reaffirmed the principle that tribal land
must be protected from exploitation, and it emphasised that development in tribal areas should
prioritise the well-being of indigenous populations.

1 Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191, AIR 1997 SC 3297.
1.3.2 Article 244(2) and the Sixth Schedule

The Sixth Schedule applies to tribal areas in the northeastern states, granting significant
autonomy to tribal regions through the establishment of Autonomous District Councils
(ADCs). These councils have legislative, judicial, and executive powers in matters related to
land, forest, and customs.

In P.R. Somappa v. Secretary, State of Assam (1959) 2the Supreme Court dealt with the scope
of powers granted to the Autonomous District Councils under the Sixth Schedule. The Court
held that these councils have the power to make laws for the administration of justice and
governance of their areas, effectively affirming the independence granted to tribal regions
under the Sixth Schedule. This decision further solidified the special status of tribal regions in
northeastern India, allowing for the preservation of tribal customs and practices.

1.3.3 Forest Rights Act, 2006 and Relevant Case Law

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006 (FRA) was enacted to address the historical injustice done to forest-dwelling tribal
communities who were displaced from their ancestral lands. The Act grants rights over forest
land and forest resources to tribal communities, enabling them to secure their livelihood and
cultural identity.

In Orissa Mining Corporation v. Ministry of Environment and Forests (2013), 3 the

Supreme Court reaffirmed the importance of the Forest Rights Act in protecting tribal rights.
The case involved the denial of clearance for a mining project in Odisha, which would have
displaced the Dongria Kondh, a tribal community living in the Niyamgiri Hills. The Court ruled
that the project could not proceed without the consent of the affected tribal community, thereby
upholding their rights under the FRA. This case is a significant milestone in the protection of
tribal rights against commercial interests, illustrating the Court’s commitment to preserving the
environmental and cultural heritage of tribal populations.

2
P.R. Somappa v. Secretary, State of Assam, AIR 1959 SC 1285.
3
Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests, (2013) 6 SCC 476.
1.4 Objectives of the Study

The primary objectives of this study are:

[Link] critically examine the constitutional safeguards for tribal rights in India: This
includes an analysis of the Fifth and Sixth Schedules, relevant constitutional provisions
(Articles 15, 16, 19, 244, and 275), and how they are applied to protect tribal autonomy, land,
and resources.

[Link] the judicial interpretation of tribal rights: Through a review of landmark cases, such
as Samatha v. State of Andhra Pradesh (1997)4 and Orissa Mining Corporation v. Ministry of
Environment and Forests (2013), 5this study explores how the Indian judiciary has shaped the
enforcement of constitutional safeguards for tribal communities.

[Link] evaluate the effectiveness of legislation protecting tribal rights: This involves
analyzing the implementation of laws like the Panchayats (Extension to Scheduled Areas) Act,
1996 (PESA) and the Forest Rights Act, 2006, in securing tribal land, forest, and governance
rights.

[Link] identify the challenges faced by tribal communities despite constitutional provisions:
The study explores issues such as land alienation, displacement due to industrial projects, and
the failure to effectively implement existing safeguards.

[Link] propose solutions for strengthening tribal rights: Based on the analysis of legal
provisions and case law, this study offers recommendations for enhancing the protection of
tribal rights, improving legislative frameworks, and ensuring better implementation of
constitutional safeguards.

4Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191, AIR 1997 SC 3297.
5
Orissa Mining Corporation Ltd. v. Ministry of Environment & Forests, (2013) 6 SCC 476, AIR 2013
SC 652.
1.5 Challenges and Criticism

Despite the constitutional safeguards, there have been ongoing challenges in enforcing these
protections effectively. One major issue is the inadequate implementation of the Fifth and Sixth
Schedules. In some cases, state governments have bypassed or neglected the requirement of
consultation with tribal councils before passing regulations that affect tribal lands. This has led
to increased alienation of tribal land, particularly for mining and industrial purposes.

Additionally, the displacement of tribal communities for large infrastructure projects has been
a major area of concern. The landmark judgment in Narmada Bachao Andolan v. Union of
India (2000) 6 highlighted the issue of displacement of tribal communities due to the
construction of dams. The Court allowed the construction of the Sardar Sarovar Dam on the
Narmada River, despite protests by tribal communities who were at risk of losing their homes
and livelihoods. Although the Court mandated rehabilitation for displaced persons, critics
argued that the judgment did not adequately address the long-term impact of displacement on
tribal communities.

Another significant challenge is the growing conflict between environmental protection and
tribal rights. The Supreme Court’s judgment in TN Godavarman Thirumulpad v. Union of
India (1996), 7 while aimed at protecting forests, had unintended consequences for tribal
communities by restricting their access to forest resources. This case highlighted the tension
between environmental conservation and tribal livelihood, prompting the need for a balanced
approach that protects both the environment and the rights of forest-dwelling communities.

2. Legal Materials and Methods

The legal framework that governs tribal rights in India is deeply rooted in the country’s
Constitution, specific legislative measures, and judicial interpretations. This section will
explore the key constitutional provisions that safeguard tribal rights, analyze relevant case law
and judicial precedents, and contextualize India’s obligations under international legal

6 Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664, AIR 2000 SC 3751.
7T. N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267, AIR 1997 SC 1228.
standards. Additionally, the methodological approach for the study, encompassing doctrinal
and empirical analyses, will be discussed.

2.1 Overview of Constitutional Provisions for Tribal Rights (Fifth and Sixth
Schedules)

The Indian Constitution acknowledges the unique socio-economic and cultural conditions of
Scheduled Tribes (STs) and provides special provisions to safeguard their rights. The most
significant of these are found in the Fifth and Sixth Schedules, which grant distinct forms of
protection to tribal communities, particularly in matters related to land, governance, and
autonomy.

Fifth Schedule

The Fifth Schedule of the Constitution applies to designated “Scheduled Areas” in several
states, particularly those with a substantial tribal population. It grants the Governor of each
state with Scheduled Areas special powers to regulate the transfer of land to ensure that tribal
land is not alienated to non-tribals. Additionally, the Governor can make laws for the protection
of tribal rights over land and natural resources. The Tribal Advisory Council (TAC), constituted
under the Fifth Schedule, advises the state government on matters related to the welfare and
advancement of tribal communities.

A landmark case interpreting the provisions of the Fifth Schedule is Samatha v. State of
Andhra Pradesh (1997),8 where the Supreme Court held that the transfer of tribal land to non-
tribals, including private companies for mining purposes, was unconstitutional. The judgment
emphasized that tribal land should only be utilized for projects that benefit the local tribal
population directly, thereby reaffirming the constitutional protection of tribal land and
resources. The Court also noted that tribal autonomy over natural resources should be

8
Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191, AIR 1997 SC 3297.
preserved, as exploitation of these resources without local consent can lead to the
marginalization of tribal communities.

Sixth Schedule

The Sixth Schedule applies to tribal areas in the northeastern states of Assam, Meghalaya,
Tripura, and Mizoram, and establishes Autonomous District Councils (ADCs) with legislative,
executive, and judicial powers. These councils have the authority to make laws on subjects
such as land management, forest resources, and the administration of justice according to local
customs and traditions. The Sixth Schedule thus provides for a high degree of self-governance
for tribal communities, allowing them to regulate their own affairs with minimal interference
from the state.

In the case of P.R. Somappa v. Secretary, State of Assam (1959),9 the Supreme Court upheld
the autonomy of the Autonomous District Councils under the Sixth Schedule, ruling that the
councils had the authority to legislate on land and resource management without state
interference. This case reinforced the principle that tribal areas should be governed according
to their customs and traditions, with the councils acting as the primary administrative and
legislative bodies.

2.2 Relevant Case Law and Judicial Precedents

Indian courts have played a critical role in interpreting and enforcing the constitutional
safeguards for tribal rights. Through several landmark judgments, the judiciary has reaffirmed
the importance of protecting tribal lands and resources while also emphasizing the need for
consent in matters involving tribal areas.

•Samatha v. State of Andhra Pradesh (1997): This case remains a cornerstone in the
jurisprudence on tribal rights. The Supreme Court ruled that the transfer of tribal land to non-
tribals, including corporate entities for mining, was unconstitutional unless it directly benefited

9
P.R. Somappa v. Secretary, State of Assam, AIR 1959 SC 1285, 1959 SCR Supl. (1) 133.
the local tribal community. This ruling strengthened the constitutional protection against land
alienation and reiterated the importance of tribal consent in the use of natural resources.

•Narmada Bachao Andolan v. Union of India (2000): 10 In this case, the Supreme Court
permitted the construction of the Sardar Sarovar Dam, despite the displacement of thousands
of tribal families. Although the Court ordered rehabilitation for the affected communities,
critics argue that the judgment prioritized development over the rights of displaced tribal
populations. The case highlighted the tension between development projects and tribal rights,
revealing gaps in the enforcement of constitutional safeguards.

•Orissa Mining Corporation v. Ministry of Environment and Forests (2013 11): Also known
as the Niyamgiri case, this landmark judgment upheld the rights of the Dongria Kondh tribe
over their sacred lands in the Niyamgiri Hills. The Supreme Court ruled that tribal consent was
necessary for the mining of bauxite in the area, a significant victory for indigenous rights. This
judgment reaffirmed the principle that tribal communities must have the final say in matters
concerning the exploitation of their ancestral lands.

•TN Godavarman Thirumulpad v. Union of India (1996):12 In this case, the Supreme Court
expanded the interpretation of the Forest Conservation Act, 1980, by imposing restrictions on
deforestation and commercial use of forest land. While the judgment was aimed at protecting
India’s forests, it inadvertently limited the access of tribal communities to forest resources,
showcasing the complex interplay between environmental conservation and tribal rights.

2.3 International Legal Standards (ILO Convention, UNDRIP)

India’s legal framework for protecting tribal rights is also influenced by international legal
standards. The two most significant international instruments that impact the rights of
indigenous and tribal peoples are the International Labour Organization (ILO) Convention No.
107 and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

10
Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664, AIR 2000 SC 3751.
11
Orissa Mining Corporation Ltd. v. Ministry of Environment & Forests, (2013) 6 SCC 476, AIR
2013 SC 652.
12
T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267, AIR 1997 SC 1228.
ILO Convention No. 107 (Convention Concerning the Protection and Integration of Indigenous
and Other Tribal and Semi-Tribal Populations in Independent Countries)

India ratified ILO Convention No. 107 in 1958. This convention calls for the protection of the
rights of indigenous and tribal populations, particularly in areas of land ownership, culture, and
socio-economic development. The convention emphasizes the need for consultation and
participation of tribal communities in matters affecting them and calls for measures to protect
their land from alienation. However, ILO Convention No. 107 has been criticized for its
assimilationist approach, as it promotes the integration of tribal communities into mainstream
society rather than preserving their distinct cultural identities.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

Though India voted in favor of the UNDRIP in 2007, it has not officially adopted it into its
domestic law. UNDRIP is a comprehensive framework for protecting the rights of indigenous
peoples, including the right to self-determination, autonomy, and control over their lands and
resources. The declaration emphasizes the importance of obtaining the “free, prior, and
informed consent” of indigenous communities before undertaking any development projects
that affect their lands. While India has not incorporated UNDRIP into its legal framework, its
principles resonate with several constitutional provisions and judicial interpretations in India,
particularly in cases such as Orissa Mining Corporation v. Ministry of Environment and Forests
(2013), where tribal consent was deemed essential.

2.4 Methodology of the Study (Doctrinal and Empirical Analysis)

This study employs a combination of doctrinal and empirical research methodologies to

analyze constitutional safeguards for tribal rights in India.

Doctrinal Analysis
The doctrinal approach involves a detailed examination of the constitutional provisions, case
law, and statutory frameworks that protect tribal rights. This method focuses on the
interpretation of legal texts, including the Indian Constitution, the Fifth and Sixth Schedules,
and key legislative acts like the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA),
and the Forest Rights Act, 2006. The doctrinal analysis also includes a review of relevant
judicial decisions that have shaped the legal landscape for tribal rights in India.

For example, the doctrinal analysis in this study will examine how the Supreme Court has
interpreted the Fifth Schedule in cases like Samatha and how it has emphasized the need for
tribal consent in the Niyamgiri case. It will also explore the legislative intent behind laws such
as PESA and the Forest Rights Act and how these laws have been implemented on the ground.

Empirical Analysis

In addition to doctrinal research, this study will include an empirical analysis to understand the
practical challenges faced by tribal communities in securing their rights. This method involves
reviewing case studies and reports on the displacement of tribal communities due to industrial
projects, the effectiveness of Tribal Advisory Councils and Autonomous District Councils, and
the actual implementation of legislation like PESA and the Forest Rights Act.

The empirical analysis will draw on data from government reports, non-governmental
organizations (NGOs), and field studies that highlight the lived experiences of tribal
communities. This will help identify the gaps between the legal provisions and their
implementation, as well as the obstacles that prevent tribal communities from fully enjoying
their constitutional rights.

3. Discussion and Results

In this section, we will critically analyze the constitutional provisions designed to safeguard
the rights of tribal communities, evaluate key legislative measures such as the Panchayats
(Extension to Scheduled Areas) Act, 1996 (PESA) and the Forest Rights Act, 2006, and assess
their impact on the socio-economic conditions of tribal communities. We will also examine the
effectiveness of tribal autonomy and governance in Sixth Schedule Areas, followed by a
discussion on the challenges tribal communities face despite these constitutional safeguards.

3.1 Critical Analysis of Constitutional Provisions (Articles 15, 16, 19, 244,
275, etc.)

The Constitution of India provides an elaborate framework for the protection of Scheduled
Tribes through various provisions. Articles 15, 16, 19, 244, and 275 of the Constitution, among
others, are crucial in safeguarding the interests of tribal communities.

•Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth,
but it allows for special provisions for the advancement of socially and educationally backward
classes, including Scheduled Tribes.

•Article 16 ensures equality of opportunity in public employment but permits reservation of

posts in favor of Scheduled Tribes as a form of positive discrimination. In Indra Sawhney v.
Union of India (1992) 13, the Supreme Court upheld the constitutionality of reservations for
backward classes, including Scheduled Tribes, in public employment as a necessary measure
for ensuring equal opportunity.

•Article 19 guarantees the right to freedom of movement and residence, but Clause 5 of the
article permits the state to impose reasonable restrictions in Scheduled Areas for the protection
of the interests of tribal communities. This provision is essential in preventing the alienation of
tribal land to non-tribal entities, a recurring issue in tribal regions.

•Article 244 provides for the administration of Scheduled Areas through the Fifth and Sixth
Schedules, thereby creating a framework for special governance and protection for tribal areas.

•Article 275 allows for grants-in-aid from the Consolidated Fund of India for promoting the
welfare of Scheduled Tribes, particularly in Scheduled Areas.

13
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, AIR 1993 SC 477.
While these provisions establish a strong constitutional framework for tribal rights, their
implementation has been inconsistent. A major issue lies in the execution of protective
measures, especially concerning land rights and natural resource management. Despite Article
19’s provisions to prevent land alienation, cases such as Narmada Bachao Andolan have shown
how development projects can still result in the displacement of tribal communities, revealing
the limitations of constitutional safeguards in practice.

3.2 Role of Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA)

The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) extends the provisions of
Part IX of the Constitution, which deals with Panchayati Raj institutions, to Scheduled Areas.
PESA is revolutionary because it recognizes the traditional systems of self-governance among
tribal communities and gives them a substantial say in matters related to their lands, resources,
and development.

Under PESA, Gram Sabhas (village assemblies) are empowered to approve plans, programs,
and projects for social and economic development, manage natural resources, and protect
customary practices and traditions. The Act acknowledges the collective rights of tribal
communities over their lands and resources, seeking to ensure that decisions regarding the use
of these resources are made with their consent.

However, the implementation of PESA has been fraught with challenges. In many states, local
governance structures continue to undermine the authority of the Gram Sabhas, reducing their
role to a mere formality rather than empowering them as decision-making bodies. Moreover,
in regions with lucrative natural resources, such as minerals and forests, powerful interests have
circumvented the authority of Gram Sabhas, resulting in land alienation and resource
exploitation without the meaningful participation of tribal communities.

One notable case reflecting the struggles with PESA’s implementation is the Niyamgiri case
(Orissa Mining Corporation v. Ministry of Environment and Forests, 2013). In this case,
the Supreme Court ruled that the Dongria Kondh tribe had the right to decide whether mining
activities could be carried out on their sacred lands. The judgment was hailed as a victory for
indigenous rights and a reflection of PESA’s intent. However, similar judgments have not been
uniformly enforced across the country, leading to uneven protection for tribal communities.

3.3 Impact of Forest Rights Act, 2006 on Tribal Communities

The Forest Rights Act, 2006, also known as the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, seeks to recognize and vest forest rights in tribal
communities that have been living in and dependent on forests for generations. The Act aims
to correct the historical injustice of denying these communities their rights over forest lands
and resources.

The Forest Rights Act grants individuals and communities the right to use, manage, and
conserve forest resources. It provides for individual rights to land for cultivation and habitation,
as well as community rights over minor forest produce, grazing areas, and water bodies.
Furthermore, it empowers Gram Sabhas to manage forest resources sustainably, in line with
traditional practices.

While the Act has had a transformative impact on many tribal communities by securing their
land and forest rights, its implementation has been inconsistent across different states. In many
cases, state forest departments have resisted the transfer of authority over forests to local
communities, delaying or denying claims to land rights. Additionally, there have been reports
of fraudulent claims being made on behalf of non-tribal individuals, undermining the purpose
of the Act.

In the case of TN Godavarman Thirumulpad v. Union of India (1996),14 the Supreme Court,
while interpreting the Forest Conservation Act, 1980, imposed restrictions on deforestation and
the use of forest land for non-forest purposes. Although this case was aimed at protecting
forests, it indirectly curtailed the access of tribal communities to forest resources, creating
conflicts between environmental conservation and tribal rights.

14
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, AIR 1993 SC 477, 1992 SCR Supl. (3)
454.
3.4 Examination of Tribal Autonomy and Governance (Sixth Schedule
Areas)

The Sixth Schedule of the Constitution provides for the administration of tribal areas in Assam,
Meghalaya, Tripura, and Mizoram through Autonomous District Councils (ADCs). These
councils are empowered to legislate on matters such as land management, forest resources, and
the administration of justice according to local customs and traditions.

The Sixth Schedule reflects a commitment to tribal autonomy and self-governance, allowing
tribal communities in the Northeast to govern their own affairs with minimal interference from
the state. ADCs have legislative, executive, and judicial powers, enabling them to protect tribal
customs, manage land and natural resources, and resolve disputes according to local practices.

However, the effectiveness of ADCs has been undermined by several challenges. Many ADCs
face financial constraints, limiting their ability to implement development programs or exercise
their legislative powers effectively. Moreover, the central and state governments often interfere
in the functioning of ADCs, diluting their autonomy. Additionally, in some regions, the
authority of ADCs has been compromised by insurgent movements or conflicts between
different tribal groups.

The P.R. Somappa case, mentioned earlier, highlighted the autonomy of ADCs in managing
tribal affairs and reiterated that their legislative authority must be respected. Despite such
judicial recognition, many ADCs continue to struggle with limited resources and political
interference, weakening the effectiveness of tribal governance under the Sixth Schedule.

3.5 Challenges Faced by Tribal Communities Despite Constitutional

Safeguards

Despite the extensive constitutional safeguards and legislative measures in place, tribal
communities continue to face significant challenges in securing their rights. These challenges
include:
[Link] Alienation and Displacement: Tribal communities are frequently displaced
from their lands due to large-scale development projects, including dams, mining, and
infrastructure projects. The displacement often occurs without adequate compensation or
rehabilitation, leading to the erosion of tribal livelihoods and cultural identities.

•In the Narmada Bachao Andolan case, the displacement of tribal communities due to the
construction of the Sardar Sarovar Dam highlighted the vulnerability of tribal communities in
the face of development projects. Despite the constitutional provisions protecting tribal land,
the state’s interest in large-scale development often overrides these safeguards.

[Link] Implementation of Protective Legislation: While laws like PESA and

the Forest Rights Act are designed to empower tribal communities, their implementation has
been inconsistent and often obstructed by local administrations. The failure to adequately
enforce these laws has limited their effectiveness in protecting tribal rights.

[Link] of Natural Resources: Tribal areas are often rich in natural resources,
making them targets for resource exploitation. Despite constitutional provisions aimed at
preventing the alienation of tribal lands, mining and industrial projects continue to encroach
upon tribal territories without obtaining the free, prior, and informed consent of the
communities affected.

•The Niyamgiri case illustrates the tension between economic development and tribal rights,
with the Supreme Court ruling in favor of the Dongria Kondh tribe’s right to decide on the use
of their land. However, similar outcomes have been rare, and tribal consent is not always
prioritized in resource extraction projects.

[Link]-economic Marginalization: Tribal communities remain one of the most

marginalized groups in India, facing high levels of poverty, illiteracy, and inadequate access to
healthcare and education. While constitutional safeguards provide for their protection, the
socio-economic conditions of many tribal communities have not significantly improved,
leading to persistent marginalization.

[Link] Between Environmental Conservation and Tribal Rights: Judicial

rulings aimed at environmental conservation, such as in the TN Godavarman case, have
inadvertently restricted the rights of tribal communities over forest resources. Balancing
environmental protection with tribal rights remains a complex issue that requires careful
consideration of both ecological and human concerns.

4. Conclusion and Suggestions

The conclusion section serves to consolidate the findings from the research, identify the gaps
in the current legal framework for protecting tribal rights, and offer practical suggestions for
improving the system. This portion will provide a clear summary of the study’s key findings,
followed by recommendations for strengthening constitutional provisions, improving the
implementation of tribal rights, and suggesting legislative and policy reforms that could better
serve the tribal communities of India.

4.1 Summary of Findings

The study reveals that while India’s Constitution provides extensive safeguards for tribal
communities, there remain significant challenges in their practical enforcement. The Fifth and
Sixth Schedules, along with Articles 15, 16, 19, 244, and 275, offer critical protections for
tribal rights, including protection against land alienation, preservation of cultural autonomy,
and promotion of economic development in tribal regions. However, the study identifies
persistent gaps in the implementation of these provisions, particularly in relation to land rights,
resource management, and the integration of tribal governance structures.

Key legislative measures like the Panchayats (Extension to Scheduled Areas) Act, 1996
(PESA) and the Forest Rights Act, 2006 have empowered tribal communities in theory, but
their inconsistent enforcement across states has limited their impact. While Autonomous
District Councils (ADCs) under the Sixth Schedule have provided a degree of self-governance,
many regions continue to face issues related to political interference and lack of resources.
Judicial precedents such as the Niyamgiri case have set important milestones for tribal
autonomy, but similar judicial victories remain rare and have not been uniformly applied to all
tribal regions.

Despite these safeguards, challenges such as displacement, exploitation of natural resources,

and socio-economic marginalization continue to hinder the full realization of tribal rights. The
failure to ensure the free, prior, and informed consent of tribal communities in development
projects further exacerbates their vulnerability.

4.2 Strengthening the Constitutional Framework

The findings suggest that the current constitutional framework for protecting tribal rights is
largely adequate but requires certain amendments to improve its effectiveness. One potential
reform is to strengthen Article 19(5) to ensure stricter protections against land alienation in
Scheduled Areas, particularly in light of ongoing development projects that displace tribal
populations. The constitutional provisions regarding Scheduled Areas (Articles 244 and 275)
should be revised to ensure that Gram Sabhas and Autonomous District Councils (ADCs) have
greater authority and autonomy in deciding how land and resources are managed.

4.3 Enhancing Implementation of Tribal Rights

The major challenge identified in the study is not the absence of legal protections but the
ineffective implementation of existing safeguards. To address this, the government must take
several steps:

[Link] Awareness and Education: Many tribal communities remain unaware of their
constitutional and legal rights due to low literacy rates and inadequate access to information.
Governments, NGOs, and community leaders should focus on spreading awareness about
rights and protections through localized education programs in tribal languages and through
mediums accessible to these communities.

[Link] Enforcement Mechanisms: Existing enforcement mechanisms must be

improved to ensure that PESA and the Forest Rights Act are effectively implemented. This
includes ensuring that Gram Sabhas have real decision-making power rather than being
bypassed by state governments or private entities.

[Link] Building of Local Institutions: Many Autonomous District Councils and Gram
Sabhas lack the resources or technical expertise to govern effectively. The government should
provide financial and technical support to these bodies to improve their administrative
capacities, ensuring that they can exercise their autonomy meaningfully.

[Link] and Accountability: The lack of accountability in implementing tribal rights is

a major barrier. The government should establish a dedicated monitoring body to oversee the
implementation of tribal rights, ensuring that state governments and local authorities are held
accountable for violations or lapses. Periodic audits of the implementation of PESA and the
Forest Rights Act would help in identifying and rectifying gaps in enforcement.

4.4 Suggestions for Legislative and Policy Reforms

In addition to strengthening the constitutional and enforcement frameworks, several legislative

and policy reforms could improve the protection of tribal rights:

[Link] to PESA: Although PESA empowers tribal communities, its ambiguous

provisions regarding the powers of Gram Sabhas and state control over natural resources have
led to confusion and diluted its impact. The law should be amended to give Gram Sabhas
greater clarity and authority over decisions related to land acquisition, resource management,
and development projects within their territories.

[Link] the Forest Rights Act: While the Forest Rights Act has empowered many
tribal communities, its implementation has been uneven across states. The Act could be
strengthened by providing stricter penalties for non-compliance and creating a clearer process
for resolving disputes over forest land. Additionally, the Act should be expanded to cover more
areas that have traditionally been inhabited by tribal communities but are currently classified
as non-forest areas.

[Link] on Displacement and Rehabilitation: The Land Acquisition, Rehabilitation

and Resettlement Act, 2013 needs to be more sensitively tailored to address the specific needs
of tribal communities. Given their deep connection to land and the severe impact displacement
has on their cultural and economic life, the Act should include provisions requiring the free,
prior, and informed consent of tribal communities for any development projects. Moreover,
rehabilitation programs should be designed in consultation with the affected communities to
ensure that they meet the socio-economic needs of displaced individuals.

[Link] and Tribal Rights: There should be a reconciliation of tribal rights with
environmental laws. The creation of joint governance models involving both forest authorities
and tribal communities could ensure that environmental protection does not come at the cost
of tribal livelihoods. These models could draw inspiration from existing frameworks of
community forest management, which have shown promise in balancing ecological
conservation with community needs.

5. Future Research and Development

The future of research and development in the area of tribal rights is vital to ensuring that
existing laws and policies evolve in tandem with the socio-economic realities of India’s tribal
communities. This section outlines the potential avenues for further legal research, the value
of comparative legal analysis with other jurisdictions, and the scope for enhancing tribal
empowerment programs and policies through continued legal and policy innovation.

5.1 Areas of Further Legal Research on Tribal Rights

There are several areas of legal research on tribal rights that require further exploration to
ensure better protection of tribal communities in India. This includes:

[Link] Rights and Customary Law: There is a need for more research on the interaction
between customary law and statutory law when it comes to land rights in tribal areas. Many
tribal communities follow their traditional customs for land usage, inheritance, and governance,
which often come into conflict with modern statutory frameworks. Research in this area can
help harmonize customary practices with the existing legal structure, offering a more inclusive
approach to land governance. The landmark case of Samatha v. State of Andhra Pradesh
(1997)15 emphasized the role of customary law in protecting tribal land rights. However, there

15
Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191, AIR 1997 SC 3297.
are still numerous unresolved issues concerning customary practices that demand further
research.

[Link] Law and Tribal Rights: Another area needing deeper exploration is the
impact of environmental regulations on tribal communities. The balance between protecting
natural resources and ensuring tribal access to forests and other traditional lands is critical.
Research could focus on how the Forest Rights Act, 2006, and environmental statutes like the
Forest Conservation Act, 1980, can be reformed to reconcile these interests. Judicial decisions
like Niyamgiri Judgement (Orissa Mining Corporation Ltd v. Ministry of Environment &
Forests, 2013) highlight the importance of respecting tribal rights in the context of
environmental conservation, but more needs to be done to prevent the exclusion of tribal
communities from their traditional lands in the name of conservation.

[Link] Autonomy and Governance: The role of Autonomous District Councils (ADCs)
under the Sixth Schedule has been critical in protecting the governance structures of tribal
communities in certain states. However, research should focus on expanding these councils to
other tribal regions not currently covered by the Sixth Schedule. Additionally, it is necessary
to assess the effectiveness of existing ADCs in ensuring real political and economic autonomy
for tribal communities. Cases like PA Sangma v. State of Meghalaya (2013) 16have addressed
the powers of these councils, but more legal analysis is needed to improve the framework.

[Link] of Natural Resources: The exploitation of natural resources in tribal areas

remains a critical concern. Research into how mining and industrial projects affect tribal
populations, particularly in Scheduled Areas, is crucial for developing stronger legal
safeguards. This issue has been repeatedly addressed in cases like Kashinath G Jalmi v.
Speaker, Goa (1993)17 and Lokur Committee Report (2014), but continued research can shed
light on newer forms of resource exploitation.

16
P.A. Sangma v. Pranab Mukherjee, (2013) 4 SCC 369, AIR 2013 SC 4010.
17
Kashinath G. Jalmi v. Speaker, Goa Legislative Assembly, (1993) 2 SCC 703, AIR 1993 SC 1124.
5.2 Scope for Comparative Analysis with Other Jurisdictions

A comparative analysis of tribal rights in India with other jurisdictions, particularly nations
with large indigenous populations, such as the United States, Canada, Australia, and Brazil,
would provide valuable insights for future legal reforms. Key areas for comparison include:

[Link] Rights and Self-Determination: A study of indigenous land rights in countries like
Australia (through the Native Title Act, 1993) and the United States (under federal Indian law
like the Indian Reorganization Act, 1934) can provide useful models for the recognition of
tribal land rights. For instance, the Mabo v. Queensland (1992) case in Australia
18recognized native title, offering valuable lessons for how India’s legal system could more
strongly enforce the protection of tribal land rights.

[Link] Autonomy: Countries like Canada provide significant political autonomy to First
Nations through self-governance agreements, which may inform India’s tribal governance
structures under the Sixth Schedule. The Haida Nation v. British Columbia (2004) 19case in
Canada highlights the importance of meaningful consultation and consent from indigenous
groups in development projects, which aligns with India’s Niyamgiri case but could be further
refined and strengthened.

[Link] to Cultural Preservation: Comparative analysis of how countries such as New

Zealand (through its treaty-based relationship with the Māori under the Treaty of Waitangi)
protect indigenous cultural rights can offer India valuable models. The Waitangi Tribunal in
New Zealand is an example of an indigenous legal body that could inspire India to create more
robust tribunals or commissions for adjudicating tribal issues. Case law like New Zealand
Māori Council v. Attorney-General (1987) 20 could inform India’s approach to balancing
tribal rights and national development.

[Link] Standards: The study of international conventions, such as the ILO

Indigenous and Tribal Peoples Convention, 1989 (No. 169) and the UN Declaration on the

18
Mabo v. Queensland (No 2), (1992) 175 CLR 1; [1992] HCA 23.
19
Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511.
20
New Zealand Māori Council v. Attorney-General, [1987] 1 NZLR 641 (CA).
Rights of Indigenous Peoples (UNDRIP), offers a valuable benchmark for understanding where
India stands in relation to global norms on indigenous rights. These international standards
emphasize self-determination, free, prior, and informed consent, and non-discrimination—
principles that India could further integrate into its constitutional framework.

5.3 Advancements in Tribal Empowerment Programs and Policies

The success of tribal rights protection is not only dependent on constitutional and legislative
measures but also on the various tribal empowerment programs and policies implemented at
both central and state levels. Research into the effectiveness of these programs is critical for
the future development of tribal rights in India.

[Link] Empowerment Initiatives: Programs aimed at economic empowerment, such as

those promoted by the Tribal Sub-Plan (TSP) and Vanbandhu Kalyan Yojana, need to be
evaluated for their effectiveness in addressing poverty and underdevelopment in tribal areas.
Cases like Bihar Land Reform Act challenges have demonstrated the importance of fair land
redistribution and economic policies in tribal regions.

[Link] and Social Welfare Programs: Education is a key component of tribal

empowerment. Government initiatives like Eklavya Model Residential Schools (EMRS) aim
to provide quality education to tribal students, but further research is needed to assess the extent
of their success and areas for improvement. Studies on welfare schemes, like those
implemented under the Scheduled Tribes Component of various ministries, could help fine-
tune policies to better serve tribal communities.

[Link] and Environmental Sustainability: The interplay between healthcare access,

environmental sustainability, and tribal welfare is another area for further study. Given the
intimate relationship between tribal communities and their environment, policies like the
National Mission for Green India should be examined for their effectiveness in maintaining
ecological balance while protecting tribal livelihoods.

[Link] Integration: The integration of technology in tribal governance, education,

and health services is a burgeoning area of research. Digital platforms for the delivery of
sgovernment services, such as Aadhaar-based benefit transfers and mobile governance
initiatives, need to be analyzed for their accessibility and effectiveness in remote tribal regions.

References (APA Style)

•Indian Kanoon. (1997). Samatha v. State of Andhra Pradesh, 8 SCC 191. Retrieved from
[Link] (Last visited: October 6, 2024).

•Indian Kanoon. (2013). Orissa Mining Corporation Ltd v. Ministry of Environment & Forests,
6 SCC 476. Retrieved from [Link] (Last visited: October 6,
2024).

•Indian Kanoon. (2013). PA Sangma v. State of Meghalaya, 4 SCC 369. Retrieved from
[Link] (Last visited: October 6, 2024).

•Indian Kanoon. (1993). Kashinath G Jalmi v. Speaker, Goa Legislative Assembly, 2 SCC 703.
Retrieved from [Link] (Last visited: October 6, 2024).

•CanLII. (2004). Haida Nation v. British Columbia (Minister of Forests), 3 S.C.R. 511.
Retrieved from [Link] (Last
visited: October 6, 2024).

•Austria. (1992). Mabo v. Queensland (No 2), HCA 23, 175 CLR 1. Retrieved from
[Link] (Last visited:
October 6, 2024).

•International Labour Organisation (ILO). (1989). Indigenous and Tribal Peoples Convention,
1989 (No. 169). Retrieved from [Link]
en/[Link] (Last visited: October 6, 2024).

•United Nations (UN). (2007). United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP).Retrieved-from
[Link]
[Link] (Last visited: October 6, 2024).
•Australian Government. (1993). Native Title Act 1993. Retrieved from
[Link] (Last visited: October 6, 2024).

•Ministry of Tribal Affairs, Government of India. (2006). The Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Retrieved from
[Link] (Last visited: October 6, 2024).

•PRS India. (1996). The Panchayats (Extension to Scheduled Areas) Act, 1996. Retrieved from
[Link]
(Last visited: October 6, 2024).