Safeguarding Tribal Identity: A Critical Constitutional and Policy Analysis of Indigenous Cultural Protection in India

Abstract

The paper provides a critical policy and constitutional review of the manner in which India protects the cultural identity of the tribal people (semi-nomadic Adivasis) who are officially recognised as Scheduled Tribes. It initially traces the system of doctrinal framework of the basic and cultural rights, special protections of the Fifth and Sixth Schedules, institutional mechanisms (the National Commission for Scheduled Tribes). It goes on to question defining laws, such as, the Panchayats (Extension to the Scheduled Areas) Act, the Forest Rights Act and the Prevention of Atrocities Act, as well as leading judgments such as the Samatha, Niyamgiri and the Narmada Bachao Andolan. Using official committee reports and socio-legal scholarship, the paper illustrates how the displacement as a result of development, the under-realisation of PESA and FRA, institutional inefficiencies, and non-recognition of indigeneity create an abysmal disconnection between the constitutional promise and reality. It proposes a change in welfare-based protection to a rights-based regime based on self-determination, free, prior and informed consent, and augmented autonomy regimes to accomplish Viksit Bharat 2047.