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Introduction :-
The crucial link between the two components of tribal rights and their realization is participation. Political acceptance of rights and their legal creation is of little value if they cannot be exercised by the individuals of the group concerned, in this case the STs. This is the rationale behind the brief focus on institutions of local governance in Jharkhand.
Jharkhand has had a long tradition of customary institutions of local governance, the legitimacy of which was recognized by various enactments in the pre-independence era such as, amongst others, the Chota Nagpur Tenency Act (1908) and the Santhal Pargana Tenancy Act (1949).
Analysis :-
The introduction of the provisions of the Panchayatis (Extension to the Scheduled Areas) Act (1996), commonly known as the PESA, was an attempt to extend modern democratic institutions of local governance among the tribal population in scheduled areas, while not totally replacing the traditional institutions. PESA aimed at “facilitating participatory democracy in tribal areas by empowering the Gram Sabha to manage and control its own resources.” For this, the ‘Gram Sabhas were given special functions and responsibilities to ensure effective participation of tribal communities in their own development in harmony with their culture so as to preserve/ conserve their traditional rights over natural resources. The Act restored primary control over natural resources including land, water, forest and minerals and bestowed rights over minor forest produces to the Gram Sabha.” The Act provides that “within the boundaries of the Gram Panchayat, it can use customary mode to plan and manage natural resources that include land, water and forests in conformity with PESA.” The most glaring omission is that there is no mention of ownership rights over MFPs, unlike the PESA. Instead, it provides only for “the collection, storage, processing and marketing of MFPs is to be arranged or organised by the Gram Panchayat in all areas including Scheduled Areas” and for the management and supervision of MFPs by the Zilla Panchayats.
The introduction of PESA created a sharp divide between traditional systems premised on customary tribal headmen and the statutory Panchayats who are elected democratically. The tribal groups under the banners of Jharkhand Pradesh Parha Raja, Manjhi Parganait Manki Munda, Doklo Sohor Maha Samiti, Samiti are opposed to elections in tribal areas despite the fact that the “very idea of a special panchayat law for scheduled areas … was to enable a form of government which built upon local traditions of participatory democracy”. On the other hand, the supporters of the PESA under the banners of Chatra Yuva Sangharsh Samiti and Jharkhand Pradesh Panchayati Raj Adhikar Manch have been demanding immediate elections for the Panchayats. An intense public debate between these two extreme.
positions as well as all shades in between was noticed during the field study. To make matters more complex, the constitutional validity of Jharkhand’s enabling act, the Jharkhand Panchayati Raj Act (2001) has been challenged before the courts. In the case of Jharkhand, the Jharkhand Panchayati Raj Act (2001) was enacted and rules framed under it for conduct of elections but owing to the fact that the elections are yet to be held, there has been no operationalization of the PESA provisions in Jharkhand. While the issue of the “manner in which traditional structures and processes interact with modern structures of participation” continues, what is lost in this debate is participation by the tribals in realizing their socio-economic rights, as well as their socio-cultural rights.
Conclusions: Challenges and Opportunities:- The forgoing analysis of tribal rights in Jharkhand throws up a mixed picture with respect to the status of tribal rights in Jharkhand. As far as the question of autonomy and recognition of the tribal identity is concerned, the creation of the State of Jharkhand is a positive step. The principle of tribal political autonomy has been accepted, and along with Constitutional provisions concerning socio-cultural rights, there is little formal threat to tribal rights.
However, the exercise of these rights by the tribal population is another story. The issues of land, water, forests and local resources, which are central to the tribals for both, preserving their livelihood as well as socio-cultural identity, are under constant threat from various quarters. Formal rights are of little use in the absence of structural conditions for their enjoyment by the tribal population. It is here that the socioeconomic rights enter the discussion. As has emerged in the earlier discussion, there are significant threats to the realization of the tribal’s socio-economic rights. Not only are the tribals the weakest section of the population as far as their socio-economic development and participation in economic activity is concerned, they seem to have a low priority on the State’s public policy agenda.
This emerges from the fact that areas largely populated by the STs in Jharkhand have seen the slowest creation of infrastructure which would enable the STs to participate more fully in the economic activities. Further, in terms of some select human development indicators as well, the STs are amongst the weakest. In such a situation, the possibly of the tribal population exercising their rights appears bleak. However, what is positive is the intense and vigorous public debate that has emerged on various aspects of tribal rights. This indicates a degree of democratic contestation, which can only strengthen tribal rights in Jharkhand.
The announcement by the Planning Commission that provision is being created for allocation of 25 percent of all plan funds to the development of SC/ST population73 is a step in the direction of securing tribal rights. Two examples of this new environment of public debate are the Scheduled Tribes (Recognition of Forest Rights) Bill (2005) and a Draft National Policy on Tribals. While both these documents have been severely criticized for what they fail to address, the debate and battle for the realization of tribal rights has been engaged. While the Union Ministry of Tribal Affairs will make its opinions known on these recommendations, bearing in mind the public nature of these recommendations and the intense debate around it, the ‘rolling back’ of these recommendation will not be easy.
Future Directions and Policy Suggestions :- The goal of realization of tribal rights is contingent on the ability of the state and public discourse to enforce transparency and accountability of duty-bearers and participation of tribals in the governance of their affairs. To ensure this, some of the policies towards the tribal population need to be re-examined to restructure them in accordance with the framework of tribal rights, instead of a paternalistic tribal administration. Besides, many of the existing Constitutional provisions need to be operationalized. The development model adopted would also have be to re-examined to ensure that the benefits of development can be secured for the tribals. For instance, megaprojects for irrigation, electricity, and industrialisation may need to be re-examined to bring them in consonance with the requirements of the tribal population and simultaneously, reduce the environmental and social costs of development.
For these goals to be achieved and tribal rights to be secured, the chief mechanism is to ensure that effective structures and policies of participation of tribal population in the decision-making apparatus. While the creation of the Jharkhand State has certainly brought decision-making closer to the tribals, effective decentralisation mechanisms with due space for traditional social structures need to be created to ensure that tribal rights over land, forests and local resources are guaranteed.
While the role of the state is central in realization of these rights, rights are inherently political and they can only be realized by the avenue of contestation by the tribals themselves. The most crucial missing link in this story is the abysmal levels of information and awareness amongst the tribal population of Jharkhand. It is here that the non-governmental organizations can play a central role. The recently implemented Right to Information Act holds great promise in this endeavour. Unless steps are taken to address these issues, there is no hope of the tribal population benefiting from an equitable participation in the development process. And unless this happens, the formal and institutional rights guaranteed will hold little or no content and double jeopardy of tribal rights will be the end result.
By: Shashank Shekhar ProfileResourcesReport error
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