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T-Space at The University of Toronto Libraries >
Indigenous Law Journal >
Fall 2008, Volume 7, No. 1 >

Please use this identifier to cite or link to this item: http://hdl.handle.net/1807/17375

Title: Tribal Law in India: How Decentralized Administration Is Extinguishing Tribal Rights and Why Autonomous Tribal Governments Are Better
Authors: Kurup, Apoorv
Issue Date: 1-Oct-2008
Publisher: Indigenous Law Journal
Abstract: India's population includes almost one hundred million “tribal people.” The two main regions of tribal settlement are the country's northeastern states bordering China and Burma, and the highlands and plains of peninsular India. In this paper, I focus on the latter. An overwhelming majority of India’s tribal people inhabit this region and were only recently introduced to self-government when the Indian Parliament legislated the Panchayat (Extension to Scheduled Areas) Act, 1996 (PESA). PESA mandated the states in peninsular India to devolve certain political, administrative and fiscal powers to local governments elected by the tribal communities in their jurisdiction. The Act was hailed as one of the most progressive laws passed since independence, granting tribal communities 'radical' powers to preserve their traditions and entrusting them with the authority to manage their community resources. But, after a decade, it is apparent that PESA is clearly not achieving those objectives. Blatant violation of tribal interests and the reluctance (in some cases, sheer procrastination) of the state administrations to cede authority have compelled the tribes to reassert their identity and rights. Tribal unrest has spawned violent movements across these regions, and renegade groups known as the “Naxals” have become a significant threat to India's national security. Despite the surge in tribal violence, there has never been a serious debate about alternative schemes for governing the tribal regions in peninsular India. Almost everybody presumes that the fault lies not with the substantive content of the law, but with its implementation. However, as I show, a major cause for the failure of governance in the tribal areas is the topdown approach of decentralization adopted in the Indian Constitution and. I therefore advocate a range of constitutional and statutory reforms that would institutionalize “tribal autonomy” (the term that I employ to refer to a bottom-up approach) and permit the tribes to maintain their individual identity while participating in national development.
URI: http://hdl.handle.net/1807/17375
ISSN: 1703-4566
Rights: Indigenous Law Journal
Appears in Collections:Fall 2008, Volume 7, No. 1

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