Some Aspects Of Tribal Policy

Here is a paper written years ago, that might be useful to planners even today. This is something i had prepared when i was invited to speak at Andhra University, Etcherla campus in 2005. 

Though ministries have changed, and much has happened on the firmament of tribal rights in India since i wrote this paper, i think it might be useful to make it available to more people through this blog. (To my pleasant surprise, i find that the paper also forms the first chapter of a book published in 2006 entitled Human Resources Development In Tribal Areas).

i hope this leads to further debate, discussion and action. (Please note, i wrote and presented this as a political leader and as an expert...this was NOT a round table decision-making kind of event, but one of a series of papers presented to an audience almost a decade ago).

The Need For An Appropriate National Tribal Policy

By V. Shruti Devi

December 2005

INTRODUCTION

The present government, through the Ministry of Tribal Affairs (MoTA), sought comments on the Draft National Policy on Tribals from the public in order to make necessary amendments before finalizing the said document. The draft policy document was prepared by the previous NDA government. Consultations have taken place after the UPA government was formed at the center. Tribal groups and political organizations etc. have made representations to the government articulating the need for rectifying the draft policy.

At present, the Nation awaits the new, improved National Tribal Policy. Significant changes to the existing document are expected.

Other incongruent aspects of government policy also need to be revised to accommodate an appropriate National Tribal Policy.

This paper points out the flaws in the Draft National Policy On Tribals, and makes a few key recommendations.

The Scheduled Tribes (Recognition of Forest Rights) Bill was introduced in the 2005 winter session of Parliament, and has gone to a Joint Select Committee of Parliament. The Bill, if taken forward properly, could bring justice to a number of people. Some of the matters that the draft policy deals with are also the subject matter of the said bill. An appropriate National Tribal Policy, if finalized urgently, would be a useful input for the Joint Parliamentary Committee that will be preparing a report on the Bill.

MAJOR FLAWS IN THE DRAFT NATIONAL POLICY ON TRIBALS

Mainstreaming And Assimilation:

The Draft National Policy On Tribals seeks to bring Scheduled Tribes into the “mainstream of society through a multi-pronged approach for their all-round development without disturbing their distinct culture”.

This implies that an attempt is being made, to impose, through such a policy, a Homogenous Way, on all of Indian society.

Instead of celebrating and encouraging the diversity that makes up our great Nation, the policy attempts to introduce a new phrase, ie, “mainstream of society”. What is this “mainstream of society”? Is it a question of who the religious or linguistic majority is? Of imposing one language, religion, food, song, dance or tradition on the diverse people of India? No honest interpretation of the basic structure of our Constitution would permit such a policy.

Or is it an apparent economic mainstream? Who decides the nature of this “mainstream”? What role is “the mainstream economy” playing in the lives of tribal populations today? And who is reaping the benefits of such a policy?

As diverse natural resources are being razed to the ground by the demands and excesses of capitalism, even tribals who have managed to protect pockets of the earth so far, are being cornered into do-or-die situations where they are forced to abandon their cultural practices, traditional livelihoods and systems of health. Scheduled V areas are opened up to mining by multi-national companies, mass displacement takes place for so-called developmental projects, thousands of livelihoods are lost. In fact, the conditions that tribals have faced in some cases, especially in the state or Orissa, fall short of ensuring the components of the Right to Life that the Constitution guarantees to all citizens.

Our Constitution guarantees us the Fundamental Right to Equality. With this, must come the understanding that each individual’s opinion and experience is as significant as the other’s and can only be judged against the basic structure of our Constitution. The motives of Assimilation and Mainstreaming are offensive, and need to be done away with.

Criticism Of Nehruvian Panchsheel Is Out Of Place:

The draft policy states that the Nehruvian Panchsheel was long on generalities and short on specifics.

The Nehruvian Panchsheel are a set of Principles. Principles, by definition, need to be  “general” in nature. Especially since the policy seeks to take these very principles forward, it is meaningless to comment, in the policy, that the said principles are short on specifics. 

Education:

The draft policy states that formal education is the key to all-round human development.  As is commonly known, formal education has, on occasion, involved  the saffronization of the syllabus. At a conceptual level, it would be more accurate to perceive formal education as a potential tool for progress, and not as the sole, infallible answer to every aspect of human development.

However, formal education and literacy are also two different tools for empowerment. In the draft policy, the discussion on formal education is interspersed with statistics pertaining to literacy. The distinction between these aspects of education should be articulated and dealt with separately in the section on education.

In addition to this, schemes for non-formal education should not be introduced in lieu of formal education for tribals, as that would deny them the immediate benefits of formal education that are imparted to other sections of society.

The draft policy states that the policy will ensure that “education will be linked with supplementary nutrition”. While this is a positive move for trying to ensure that children attend school, it should not distract from, derail, or act as a substitute for the government’s larger responsibility related to providing nutrition which is linked to the agricultural policy, the public distribution system, trade systems, land and water use etc.

Tribal Languages:

The draft policy aims at preserving and documenting tribal languages. In addition to this, the option of education in the mother tongue at the primary level should necessarily be made available to students.

Tribal languages which are not scheduled so far should be converted into official languages in order to empower tribals in many ways, including in the various stages of democratic decision-making. Even languages without a script should be accommodated in this effort to the extent possible.

Officials should be required to acquire a basic knowledge of the local tribal language of the tribal area in which they are posted.

Traditional Wisdom And Intellectual Property Rights:

The draft policy states that the invaluable knowledge of the tribals (pertaining to medicinal plants and a number of other subjects), should be documented, and that such knowledge should be transferred to non-tribal areas.

At present, there exists a Patent Regime that is completely tilted against the interests of tribals and small farmers. The documenting of tribal knowledge under present circumstances will only create easy room for theft, piracy, or abetment of the same.

Open access to knowledge, to benefit all of humanity, are the ideals to reach for, at least in the context of indigenous knowledge related to medicinal plants, and the use, documentation, transfer and ownership of such knowledge and further value that might be added to such knowledge.

Until this is achieved, however, the interests of local communities, including their intellectual property rights, need to be protected.

The draft policy does mention that there is “no legal and/or institutional framework to safeguard their intellectual property rights”, and that the policy will “aim at making legal and institutional arrangements to protect their intellectual property rights and curtailing the rights of corporate and other agencies to access and exploit their resource base.”

Such legal and institutional arrangements will only be meaningful ones if they are prepared after revising policies and existing statutes that deal with these subjects, such as the existing Biological Diversity Act, 2002, and Rules under the said Act which unfortunately seem to create room for biopiracy rather than for protection.

The Biological Diversity Act provides for the establishment of a National Biodiversty Authority (NBA), State Biodiversity Boards, and for local Biodiversity Management Committees in order to 'provide for conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources, knowledge and for matters connected therewith or incidental thereto' by regulating access to biological diversity (biological resources as well as knowledge associated thereto).

It was hoped that over-exploitation of biological resources, especially commercial exploitation by industrial sectors, would be checked by such an Act, and that the survival of tribals, other forest dwellers and small farmers and their symbiotic lifestyles would be ensured.

Far from regulating the obtainment and transfer of biological resources in an equitable fashion, the Act, in its present form, succeeds only in creating a legal channel for the industrial sector, including multi-national concerns, especially the pharmaceutical industry, to amass unfair economic gains from exploiting biological resources that traditional forest dwellers, adivasis and small farmers depend on.

The Act, in its present form, along with a set of Rules, creates a 'license raaj' under the guise of conservation, sustainable use and equitable sharing. It creates situations through which unfair exploitation of resources and traditional intellectual property are likely to continue, except for the fact that such activities will now be legalized.

Health:

The draft policy says that “Although tribal people live usually close to nature, a majority of them need health care on account of malnutrition, lack of safe drinking water, poor hygiene and environmental sanitation and above all poverty”.  Here, it must be noted that malnutrition, unsafe drinking water, and poverty are the results of external influences. It is an incorrect understanding to see these ingredients as inherent negative aspects of life close to nature, and the policy should not introduce such propaganda.

For example, the draft policy states that “The poor nutritional status of tribal women directly influences their reproductive performance and their infants’ survival, growth and development.” However, the document neglects mentioning that this is because of the dwindling availability of and access to nutritional elements obtained from biodiverse areas. Post-natal nutritious food for women, made out of a number of ingredients, called pippala saman, and nutritious millets and grains cultivated on hill-slopes are growingly becoming inaccessible to tribal and other forest dwelling women. This must be seen in the light of the fact that the prime cause for dwindling forests is large-scale diversion of biodiverse lands for industrial purposes such as mining etc.

The free and compulsory provision of high quality healthcare through government hospitals should be a prominent aspect of government policy.

The policy should address the issue of allopathic and other medicines becoming out of reach for poor communities including tribals due to the related intellectual property rights and trade regime.

Land:

Some factors that would have an impact on use, control, ownership, and management of land are dealt with in the draft policy in the contexts of Displacement and Resettlement; Forest Villages; Shifting Cultivation; Land Alientation and Scheduled Areas.  However, there are significant problems as well as omissions in these sections of the draft policy.

Scheduled Areas: The draft policy fails to mention that there are a number of pockets which have a significant tribal population, but which have not been declared as Scheduled Areas. For example, a list of additional villages to be declared as Scheduled Areas in Andhra Pradesh was said to have been pending with the central government for clearance for a number of years. It has been learnt that the UPA government has asked for an updated version of the said list. Because of the unusual level of detail that the draft policy has gone into, it would be an omission to not deal with the issue of long- pending scheduled area declarations that need to be expedited in the policy document.

In the context of the evolving economic policy, the protection of scheduled areas needs to be ensured. A number of people, experts and organizations have drawn attention to the negative aspects of the recent opening up of Scheduled Areas to services under the World Trade Organization’s  General Agreement on Trade in Services (GATS). This situation could have been avoided if there had been a policy-level articulation in place in the form of an appropriate National Tribal Policy.

PESA and Scheduled Areas: The 73^rd Amendment to the Indian Constitution was brought about in order to strengthen the Panchayati Raj system. These provisions were extended to Scheduled Areas through the Panchayat (Extention to Scheduled Ares) Act, (PESA), 1996. Under PESA, there is a list of subjects over which village bodies are supposed to have decision-making powers.

However, land under Scheduled Areas is supposed to be protected from being sold or leased out to non-tribal people or entities. While there exists a landmark judgement, Samatha Vs. State of A.P. that upholds this view, there have been judicial decisions as well as government actions, thereafter, which have circumvented the Samatha judgement.

The PESA itself has been misused, to give out Scheduled Area land even to multi-national companies.

The PESA represents welcome first steps towards empowering the gram sabha (village community) by recognizing a list of subjects that fall under the purview of local bodies for decision-making.

However, the provisions of PESA are now being interpreted to mean that resolutions passed by gram sabhas can be used to lease out Scheduled Tribe areas to mining and other industrial concerns etc.  This interpretation of PESA can be viewed as being contrary to the meaning and purpose of Scheduled Areas as per the Constitution. The policy should make an authoritative statement on this issue, and spare the judiciary the task of formulating policy.

Displacement and Resettlement And Land Alientation: As already discussed, the policy fails to tackle the issue of displacement and land alienation that are created when Scheduled Areas are taken over for large industrial projects such as mining. The policy document is a useful forum for the central government to articulate its interpretation of the legislature’s intention as far as the Constitutional provisions of protecting Scheduled Areas against the takeover by government agencies for mining etc. is concerned. At present, provisions in the PESA are being used by some state governments and elements in the bureaucracy, in the name of empowering gram sabhas, to actually divest the tribal people of their land. Here, there is a fine line dividing policy decision and a judicial interpretation of existing law. The political wing of the state must accept and realize its responsibility and opportunity to articulate policy on the matter, and not leave room for misinterpretation of this particular aspect of the law.

Furthermore, under the central Environment (Protection) Act 1986, it is essential for a public hearing to be held when specified kinds of industries are proposed for an area as a part of the Environment Impact Assessment (EIA) process. This applies to tribal as well as non-tribal areas, and is supposed to take into account, the impact on lives of local people.

However, there have been a number of dilutions to the EIA requirements starting from 1994 when the EIA notification was made. This has led to further alienation of people from their land. The draft policy does not take this factor into account. A document prepared by the NGO Kalpavriksh, entitled “Eleven years of The Environment Impact Assessment Notification, 1994: How Effective Has It Been?”  contains a detailed analysis and recommendations in connection with the EIA process.

 In addition to this, the draft policy fails to take a stand regarding the accrual of benefits that arise due to unavoidable displacement.

The draft policy also fails to clarify that the land and forest rights of tribals traditionally residing in areas which have been declared as protected wildlife areas such as National Parks and Sanctuaries, and whose rights have not been settled so far, have to be settled.

Joint Forest Management (JFM): In view of the controversial nature of various aspects of the JFM and Community Forest management (CFM) programmes, especially the issue of land and boundary disputes that need to be resolved, it is undesireable and unnecessary to articulate support for JFM in the draft policy on tribals as has been done in the section on Forest Villages.

Shifting Cultivation:The language, tone and premise of the section on shifting cultivation in the draft policy is highly objectionable and needs to be revised drastically.

Participatory Approach:

The draft policy talks about the introduction of schools and hospitals in tribals areas. However, it does not talk about government schools and hospitals. Instead, a ‘participatory approach’ is mentioned, wherein NGOs are accorded a key position.

While NGOs should play a role, it is important to note that the gram sabhas should deal with and make decisions on government funds that come into a particular area. To ensure true “participation”, there is an urgent need for further reforms in the Panchayati Raj set-up.

Scheduled Tribes And Primitive Tribal Groups:

An appropriate National Tribal Policy should articulate the criteria, meaning and purpose, based on which Scheduled Tribes and Primitive Tribal Groups are declared in India today, and alter any aspects which seem to be too steeped in colonial biases.

 Also, as of now, legislation and policy does not distinguish between members of the same tribe in the same area who display varying levels of ‘development indicators’. Economic criteria do not disqualify a person from being a member of a tribe, and being a descendant of the traditional chief or ruler of a tribe also does not disqualify a person from being a member of the tribe. This is the law as it stands today.

While it is obviously not logical to de-recognize a person’s tribal identity for the reasons mentioned above, a criteria for varying degrees or kinds of benefits/entitlements coould be formulated. This needs to be debated upon and discussed widely, and reflected in the policy.

For example, it can be effectively argued that the benefit and entitlement of standing for elections from reserved ST category seats should be available to all declared tribes. However, for other entitlements such as tribal quotas linked to employment, financial assistance from the government through schemes etc., it might turn out to be equitable to make a distinction for entitlement within tribes.

The draft policy has not touched upon this and this needs to be corrected in the National Tribal Policy that is finally prepared by the present government.

RECOMMENDATIONS

1. Due to the many flaws pointed out above, the Draft National Policy On Tribals should be replaced as soon as possible, by an appropriate National Tribal Policy.

2. While preparing an appropriate National Policy Tribal Policy based on consultations that have taken place, the following documents should be consulted: A Draft Paper entitled “Tribal Welfare and Development”, prepared by a member of the National Advisory Council (NAC), which is on the website of the NAC; The report of the Working Group for Empowering the Scheduled Tribes during Tenth Plan of the Ministry of Tribal Affairs; The Memorandum of the All India Democratic Womens’ Association (AIDWA) to the Prime Minister in November 2004, which was reproduced in the People’s  Democracy weekly in November 2004; The Report of the Tiger Task Force (TTF), 2005; The Final technical Report of the National Biodiversity Strategy and Action Plan (NBSAP).

3. In order to create a situation where such an appropriate National Tribal Policy is meaningful and adhered to, policies of other departments and ministries such as some aspects of the Economic Policy would necessarily need to be revised.