Article 338A of the Constitution obligates the State to consult the NCST on matters that affect tribals’ interests- Failure to do so should be reported to the Parliament
To
Smt. Droupadi Murmu
The President of India
Respected Rashtrapati Ji,
The National Commission for the Scheduled Tribes (NCST) is a Constitutional authority set up in pursuance of Article 338A. In all matters that will have a likely impact on the interests of the tribals, the NCST needs to be mandatorily consulted by the government, as required under Article 338A(9) [“The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes”].
In addition, under Article 338A, the NCST has also the authority “to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under [the] Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards; to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes; to participate and advise on the planning process of socio-economic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State”
In recent years, on many important projects and policies adopted, which could adversely impact the interests of the tribals, most Central Ministries and almost all State governments, have not been consulting the NCST, as they ought to.
For example, the Ministry of Environment, Forests & Climate Change (MEFCC), unilaterally proposed to amend the Forest (Conservation) Act, without providing adequate safeguards to protect the interests of the tribal communities resident in areas notified under the Fifth Schedule to the Constitution, as required under the PESA Act of 1996. The amendment Bill did not also provide adequate safeguards to protect the rights of tribals dependent on forests, wherever they are located, as provided in the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (otherwise known as Forest Rights Act or FRA). I understand that the Chairman of the NCST (in F.No. NCST-04/0mon/4/22-RMDC dated 26-9-2022) addressed the MEFCC formally, expressing his objections to the government going ahead with the Bill and advising the Ministry to keep it on hold, in view of its likely implications for the tribals. MEFCC apparently ignored NCST’s considered views. As a result, the Bill is presently before the Parliament in its final stages. In this connection, I had placed my concerns in an earlier letter addressed to your office (readily accessible at https://countercurrents.org/2022/12/bill-to-amend-the-forest-conservation-rules-ncsts-views-should-be-placed-before-the-parliament/) seeking appropriate intervention from your office.
In my view, the well-argued letter of the Chairman of the NCST addressed to MEFCC ought to be placed before the Parliament for consideration before the Bill is finally enacted, as there are serious Constitutional issues that arise.
On another matter concerning a mega infrastructure project taken up by the government in Greater Nicobar Island, which is likely to affect the interests of the local tribal communities, namely, the Shompens (a Particularly Vulnerable Tribal Group) and Nicobarese, the concerned Ministries did not consult the NCST, as required under Article 338A. The clearances given for the project run counter to Regulation 11 of the Andaman and Nicobar Islands (Protection of Aboriginal Tribes) Regulation, 1956 promulgated under Article 240 of the Constitution (“The provisions of this Regulation and of any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law, or in any usage or agreement, or in any decree or order of any court or other authority“)
In a letter dated 14-4-2023 (https://countercurrents.org/2023/04/mega-infrastructure-project-in-great-nicobar-island-need-to-consult-the-shompens-and-nicobarese/), I had placed the matter before your office for possible intervention. At the instance of your office, the NCST has taken up an inquiry into the issues I have raised. Had the government held a prior consultation with the NCST, the latter would have advised the government appropriately in a manner consistent with the interests of the Nicobar tribal communities. It appears that the Tribal Council of the island has expressed its objections to the project.
In principle, failure on the part of the Central Ministries and the States/Union Territories to take the NCST into confidence prior to implementing policies and projects in tribal areas violates the requirement of the Constitution, which needs to be addressed with the seriousness it calls for. Whenever any Central Ministry or a State authority either fails to elicit the advice of the NCST as required under Article 338A(9) or chooses to differ from the advice given by the NCST, information on the same should perhaps be placed before the Parliament for a discussion and such other action as may be necessary, either as a part of an annual report or at the specific instance of the NCST as the case may be, so that the Parliament may be kept fully in the picture. The Parliament should be informed of instances of violation committed by the executive of the provisions of Article 338A.
One feels distressed at the abrupt exit of Shri Harsh Chauhan, who headed the NCST till recently, leaving the Commission’s work to be handled by a single member. There are reports that he had submitted his resignation under Rule 8(1) of the NCST Chairperson, Vice-Chairperson and Members (Conditions of Service and Tenure) Rules of 2004 issued in pursuance of the Constitution (Eighty Ninth Amendment) Act of 2003, in view of his disagreement with the way the government had pushed through the Bill to amend the Forest (Conservation) Act, despite the NCST’s objections (https://theprint.in/india/harsh-chouhan-resigns-as-ncst-chairman-8-months-before-end-of-term-congress-alleges-forced-exit/1654238/). While one is never sure about the contents of the news reports, the fact remains that the authority conferred by the Constitution on the NCST needs to be fully respected and protected so that the larger interests of the tribals in the country may not suffer.
In conclusion, may I reiterate the need to institutionalise reporting of violations committed by the executive of the provisions of Article 338A to the Parliament, as such a mechanism would generate the much-needed discussion and debate in the Parliament on the important role that the NCST plays to safeguard the interests of the tribals and the instances in which the executive has chosen to infringe the Constitutional requirements.
Respectfully,
E A S Sarma
Former Secretary to the Government of India & Former Commissioner (Tribal Welfare), erstwhile Government of AP, Visakhapatnam
