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The Gradation in Tribal Justice Assessment Mechanism: A Comprehensive Analysis

India's population includes nearly one hundred million tribal people. These numbers are matched only by the remarkable diversity of India's tribes. The two central regions of the tribal settlement are the country's north-eastern states bordering China and Burma and the highlands and plains of its central and southern regions. The latter is home to more than 80 per cent of the tribes, which differ from the north-eastern tribes in ethnicity and in having experienced the more significant intrusion of the Indian mainstream and the pan Indian model of the state, society, economy and culture.

There are also differences in how the tribes interact with non-tribal communities. While the northeastern tribes are usually isolated communities, the tribes in peninsular India may coexist with non-tribal people. Despite some regional variation, the tribes share many traits, including living in relative geographical isolation and being relatively more homogenous and self-contained than the non-tribal social groups.

The conventional and broadly accepted solution is to balance the dichotomy between assimilation of tribal peoples and their independent identity and delineate the contours of a national policy that would allow them to preserve their way of life without compromising development.

Local self-government is an ancient concept having a long history in India from the time of Rig Veda (about 1200 BC). The tribes of the eastern Himalayan region have a unique place in this regard and have their indigenous justice delivery system without too much emphasis on modern legal technicalities.

Customary rights were recognised in this region as early as 1822 when the British introduced Regulation X to administer the tribal areas of North East India. Apart from the regular court and judicial system in India, the parallel indigenous justice delivery systems operate in these tribal areas as a part of their tradition and culture.

The tribal law is based on the values, mores and norms of tribes as directed by their customs, traditions and practices. These laws are generally derived from customs, where customs in the current context is long-established statutory and rigid body acquired through joint adoption or acquiescence.

Tribal Justice System Assessment
Indigenous communities share a very close and interdependent relationship with their local environment. Their culture, customs and rituals coevolved with the ecosystem. The knowledge practice-belief complex is reflected in all their activities. The material and the spiritual co-exist in the indigenous community, complementing and enriching their culture and social systems rather than competing and contradicting.

The concept of rules, regulation and grievance redress system developed with the evolution of the community and command social acceptance and observance. A legal custom is an integral part of the indigenous community; it operates as a binding rule of law, independently of any agreement on the part of those subject to it.

Many tribal jurisdictions face increased demand for detention and correctional bed space for adult and juvenile offenders.
Detention and correctional bed space needs are driven by several factors, including:
  1. policies, practices, and resources available to justice system decision makers;
  2. arrest rates for various types of crimes;
  3. level of efficiency of the justice system in moving defendants through the adjudicatory process; and
  4. the extent to which alternatives to incarceration are available and used. A justice system assessment examines each of these areas.

A juvenile or criminal justice system assessment is a collaborative effort between all stakeholders in a tribal jurisdiction and consultants to develop a shared understanding of how an existing system of sanctions works. A system assessment is conducted to understand these factors better and shape a vision of how the system might look or operate in the future.

For this discussion, "justice system" refers to all aspects of juvenile or criminal justice case processing that relate to sanctioning or treating juveniles or adults from the point of arrest through sentencing, placement and aftercare, either in a correctional facility or in the community. "Sanctions" refers to the full range or continuum of pre-dispositional and sentencing options that may be imposed upon an alleged or adjudicated juvenile or adult offender.

A thorough system assessment requires, among other things, a complete analysis and understanding of the full range of sanctions in the tribal justice system. As such, the justice system assessment requires an examination of the diverse perspectives and experiences of the many different stakeholders operating within the tribal justice system. A primary goal of a justice system assessment is to identify and address system inefficiencies and needs to improve the system's functioning to manage bed space utilisation better.

How the justice system is structured, and the policies and decisions of key players in the justice system will critically impact the tribe's correctional and detention bed space needs. Thus it is essential to view the need for detention or correctional beds from a systems perspective. How justice system agencies process cases, or the availability of alternative programs, can impact the number of detention admissions and the length of stay of persons in custody.

Changes in either of these factors can significantly affect the detention and corrections populations' size and characteristics. The system assessment must view detention and correctional facilities as one integral component of a broader justice system comprised of several other parts, including law enforcement, prosecutors, courts, and probation. The decisions of the various justice system officials in their day-to-day processing of persons through the justice system determine how the detention or correctional facility is used. Accordingly, justice system officials need to agree on the purpose and role of detention and incarceration in the system.

The lack of alternatives to detention and incarceration will also affect detention and correctional facility use. Judges often face the dilemma of not having adequate pre-trial supervision or sentencing options. Detention or corrections, by default, becomes the primary option for dealing with the majority of repeat minor offenders. Accepting alternatives may also be a problem; some judges do not make the best use of available options.

Justice system functional inefficiencies may also contribute to the excessive utilisation of detention and corrections bed space. Delays in the case processing of persons in custody directly and severely impact the length of detainment. Delays may be caused for multiple reasons. These include courts meeting infrequently, backlogs of court dockets, excessive use of continuances, untimely completion of pre-sentence reports; inexperienced judges and attorneys; and too few beds in other facilities to which inmates may be sentenced, such as private drug treatment facilities.

Legal Notions and Principles: Changing Dimensions
Constitutional Aspects:
The Constitution of India establishes a detailed federal structure in which legislative authority is divided between the Indian Parliament and the central government (the Union) and the state legislatures and governments on the other. Local government, that is to say ... local authorities for local self-government or village administration are subject to state legislation.
The Fifth and Sixth Schedules of the Constitution mentions the term Scheduled Areas which denotes the tribal regions to which either the Fifth Schedule or the Sixth Schedule applies.

The two Schedules have very different mechanisms for governing their jurisdictional areas. The Schedule permitted the states to extend their executive power to the Scheduled Areas and granted the Governor of each state the authority to make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area. The Governor was thus the sole legislature for the Scheduled Areas and the Scheduled Tribes, competent to make laws on all subjects enumerated in the Constitution's Union, State, and Concurrent Lists.

Gubernatorial authority was "of a vast nature" and subject to only two restrictions: (i) that the Governor would consult a Tribes Advisory Council "before making any regulation"; and (ii) that all regulations would receive Presidential assent before taking effect. In contrast, the Sixth Schedule has always given the tribes considerable autonomy. This Schedule divides the tribal areas in India's north-eastern states into "autonomous" regions, each allocated to a particular tribe.

The elected councils in the Sixth Schedule areas are vested with administrative authority, make laws concerning various subjects, and even exercise judicial authority through traditional legal systems embedded with certain features of federal law. The councils are also financially independent and do not labour under the executive officer of the states.

Though the Sixth Schedule's scheme renders all executive and legislative authority exercise by the councils subject to the provincial government's approval, the superior courts have interpreted the Governor's power to be considerably restricted.

The Indian Supreme Court's decision in Pu Myllai Hlychho clarified that even though the Sixth Schedule is not a self-contained code or a Constitution within the Constitution, the courts must nevertheless defer to the legislative, administrative and judicial independence Schedule grants District and Regional Councils.

The Panchayat (Extension to Scheduled Areas) Act 1996
In 1996, however, Parliament exercised its reserved legislative authority to extend the Constitution's Part IX provisions exclusively to the Fifth Schedule areas.49 As a result, any habitation or hamlet comprising a community and managing its affairs by traditions and customs 50 could now exercise limited self-government.

After PESA was enacted, communities in the Fifth Schedule areas (the majority of whom were tribal) were directed to follow democratic elections, conform to the hierarchical Panchayat system stipulated in Part IX, and exercise the necessary power to enable them to function as institutions of self-government. Tribal, local governments, are often ignored in development plans. The benefits of any actual development "rarely percolate down to the local tribes," which are "subordinated to outsiders, both economically and culturally."

PESA and the Fifth Schedule have also not prevented large corporations from gaining "control over the natural resources which constituted the life-support systems of the tribal communities;" neither have they made the tribes prosperous from the mineral-rich land on which they live. The tribes have "gradually lost control over community resources such as forests" to both settlers and the State, and one author would go so far as to equate non-tribal acquisitions with tribal displacement.

The Anathema of State Legislative Incompetence
To begin with, PESA only marginally altered the power balance between state governments and the tribes because of ineffectual participation by the former and the "general tendency at the state level to monopolise power rather than share power with people at large." This apathetic attitude has manifested itself in two forms.

First, the majority of the states with tribal populations procrastinated in their decentralisation programs. Although all states with Scheduled Areas have now enforced PESA, their past dilatory performance has led to the risk of delays in future amendments necessary to reflect changed circumstances.

Second, when they did legislate, the states either ignored tribal "customary law, social and religious practices and traditional management practices of community resources" or enacted incomplete laws. Samal gives one such example: though PESA stipulates a community as the basic unit of governance, the Orissa Gram Panchayat (Amendment) Act of 1997 conferred authority on the larger Gram Sabha comprising all communities in a demarcated territory. As a result, the Orissa legislation disregarded the "distinct socio-cultural practices and different interests" of the individual communities within that territory.

India's Forest Rights Act of 2006
After acrimonious public debate for more than a year since tabling in the parliament on 13 December 2005, the Scheduled Tribes (Recognition of Forest Rights) Bill, 2005 which was re-christened as "The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006" was passed in the parliament, the lower house of Indian parliament, on 13 December 2006.

President of India assented to the Bill on 29 December 2006, and the Act came into force. However, the debate from the tabling of the initial bill in December 2005 to the passage of the Act in the Lok Sabha has brought the age-old prejudices against the tribal peoples to the fore and further eroded their rights.

The Draft Scheduled Tribes (Recognition of Forest Rights) Bill, 2005, faced stiff opposition from two quarters. First, a few environmentalists advocated the management of forest, wildlife and other bio-diversity with complete exclusion of tribal people, local communities or forest dwellers contrary to the Rio Declaration, decisions of the Conference of Parties of the Convention on Biological Diversity recommendations of the United Nations Forum on Forest.

The poaching of the tigers in the Sariska sanctuary provided a much-needed excuse. Second, the Ministry of Environment and Forest had opposed the Bill on the ground that implementation of the bill will result in the depletion of the country's forest cover by 16 per cent. This reflects the culture of the tribal peoples to conserve the forest.

Administration of Tribal Justice System
Administrative arrangements for various justice system functions in Indian Country are complex. Justice system operations may include a mix of tribal, federal, state, and county agencies and employees. In many tribal jurisdictions, the Bureau of Indian Affairs provides most of the justice system functions. Law enforcement and detention services in these jurisdictions are provided by BIA police, supervised by the BIA Office of Law Enforcement Services.

The BIA also operates Courts of Indian Offenses in some of these jurisdictions. At the grassroots, the tribal community should be empowered to constitute a local government that, for reasons given elsewhere, is based on traditional systems of government. The revised Fifth Schedule should also prescribe the method of determining the hierarchically superior levels of tribal administration, which may in many cases lie entirely within a homogeneous tribe settled over a vast area.

For example, central India's Biar and Bhinjhal tribes split their traditional governing bodies into two tiers, one at the village level and the other at the regional level. It is also essential that the Fifth Schedule allow sufficient flexibility to accommodate traditional governments that may not closely follow the conventional division of authority between the legislative, executive and judicial branches.

Critical Parties in the Tribal Justice System:
The tribal justice system is comprised of several vital decision-makers whose policies and actions influence the functioning of the system and, ultimately, the use of detention beds.

The key parties and their roles within the system are outlined below:
  • Tribal Police Chief:
    Establishes policies governing arrest, use of citations, diversion; sets enforcement priorities; makes staff deployment decisions; influences case investigation time.
  • Tribal Court Judges:
    shows pre-trial release criteria and bond schedules; shows court dockets; guides case progression; influences use of detention and alternatives to incarceration; impacts number and categories of inmates and detainees and length of stay.
  • Tribal Prosecutor:
    decides what cases to prosecute and level of charges; makes pre-trial release and sentencing recommendations; negotiates plea bargains; may administer pre-trial diversion programs.
  • Public Defender or Advocate:
    can influence case progression; negotiates plea bargains; makes pre-trial release and sentencing recommendations.
  • Probation Officer:
    conducts pre-sentence investigations, supervises offenders on probation; may supervise accused offenders on pre-trial release; my broker and coordinate services for offenders; initiates revocation process for probation violators; may make sentencing recommendations.
  • Detention Administrator: maintains detention facility;
    securely detains committed offenders pre-trial or as a sentence; may provide work or education release opportunities; coordinates services for offenders in custody
  • Indian Health Service:
    offers physical and mental health care services, including substance abuse treatment, for alleged and convicted offenders in custody; coordinates planning for development and delivery of health care services for the community; conduct safety and sanitation inspections of detention facilities.
  • Workforce Development Administrator:
    provides job training and placement services for juvenile and adult offenders
  • Tribal Council Member (Law and Order Committee Chair):
    establishes law and order code and children's code that govern the operation of the justice system; approves budget requests of justice agencies; supervises justice agencies on behalf of the tribe under 638 contracts.
  • Tribal Finance Director:
    manages budget process; makes budget recommendations to Tribal Council; may assist in contract development and administration; may assist in grant writing.
  • Tribal Planner:
    assists with strategic planning, data collection and analysis; may help with grant writing and system coordination efforts.

The tribe in the context of modern Indian society signifies a group of primitive people living in the hills and forests and having their language and culture. There is a wide variation in the social organisation, customs and intuition of the tribes from the general people of India. The tribal societies in India mainly remained till the attainment of independence comparatively isolated from the mainstream of national life.

The introduction of PESA in 1996 definitively signalled the Indian Parliament's intention to abandon command-and-control for "new governance" in the tribal areas. However, by choosing decentralisation, the lawmakers made the mistake of matching the right idea with the wrong solution. Although decentralisation-including its many subtypes: devolution, deconcentration, delegation and divestment-has proven indispensable whenever national or provincial governments have desired local solutions for local problems, the system is demonstrably inapposite for tribal governance.

Instead, the correct answer is some form of autonomous tribal government grounded in the Indian Constitution and supported by the conventional administration and civil society. Autonomy is preferable to decentralisation because "The state may replace the decisions of the decentralised organs; the decisions of autonomous organs may be annulled but not definitively replaced."

In other words, what I have proposed is "freedom within the law" for almost one hundred million tribal people. This is achievable, and the legal change would be "a highly effective way of transforming ideology to create a sense of entitlement amongst the tribes."

Significantly, this paper examined the constitutional and statutory law governing tribal territories in India rather than reforms in civil administration by state departments and development programs. As part of the Constitution, the Fifth Schedule applies to pockets of tribal areas scattered within the peninsular regions of a vast country. Encompassing these issues in a single work runs the risk of trivialising the particular problems faced by the tribes.

Keeping in view the socio-economic backwardness of tribes, the framers of the Indian constitution provided special privileges for their development in independent India. According to the call of the situation, many laws have been passed gradually. A separate administrative system has been created to bring the tribes into the mainstream of our ideal democratic system.

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