India is home to over 705 officially recognised tribes, accounting for roughly 8.6% of the country’s population. While the United Nations uses World Indigenous Day to advocate for global tribal sovereignty, India navigates this relationship through a unique constitutional and legal matrix that replaces the word, ‘indigenous’, with specific statutory protections for its traditional communities.
Customary laws have long been the focus of legal and anthropological studies. In recent times, they have assumed particular significance in indigenous societies brought under a legally pluralist regime owing to their continued relevance.
British rulers acknowledged the customary rights of communities and recognised that Adivasis should be allowed to govern themselves by their laws in matters of family, marriage and inheritance. In 1872, through Section 13 of the Indian Evidence Act, the relevance of facts to prove the existence of custom was delineated. Sections 12 to 16 of the Indian Forest Act of 1927 deal with the process to be followed regarding admittance or rejection of customary claims to rights of pasture and forest produce in reserved forests, thus acknowledging such customary rights.
Post-Independence, customs and customary rights were further endowed with legal authority. Article 372 of the Constitution provides legal validity to customs by providing that unless altered or repealed or subject to amendment, all laws which were in force prior to the Constitution shall continue to remain so. In the popular case of A.K. Gopalan vs State of Madras, the Madras High Court, while interpreting Article 372, stated that through this provision there is continuance of the complete body of those laws which existed prior to the commencement of the Constitution. Article 13
of the Constitution provides an inclusive definition of law extending also to customs and usages which have the force of law, only subject to the condition that such law should not be in violation of any of the fundamental rights conferred by the Constitution.
The Constitution has numerous other enabling provisions that recognise a community’s rights to govern itself and accord legitimacy to traditional or village-level institutions. Here, Part IX of the Constitution pertaining to panchayats is important as it vests considerable powers and functions to village-level institutions akin to the law-making organ of the State. The Fifth and the Sixth Schedules of the Constitution include traditional institutions and customary laws. The power of the village council or court to try criminal cases is limited to offences that are not punishable by death, transportation or imprisonment for five years or more. Customary law is further endorsed by the Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996 through which the provisions in the Constitution pertaining to panchayats have been stretched to the Scheduled Areas. The Forest Rights Act, 2006 is another path breaking legislation.
The main challenges faced by such legal systems are the occasional conflicts between customary law and rights of indigenous women concerning familial and inheritance rights, difficulties faced by indigenous courts in enforcement of decisions given the absence of adequate support from executive agencies of the State, difference in opinion on whether or how to codify customary laws, erosion of tribal land and resource rights and so on.
India voted in favour of the United Nations Declaration on the Rights of Indigenous Peoples in 2007. But it did so with a caveat: post-Independence, all Indians are considered indigenous. As a result, the Centre officially refuses to direct the international legal term, ‘indigenous’, towards any one community or scheduled tribe group even though the terminology has crept into the State’s official records. Legal scholars have also used the occasion of World Indigenous Day to highlight implementation gaps, such as forced displacement from infrastructure projects or amendments to conservation laws that bypass tribal consent.
Shalini Saboo is Junior Fellow, Centre for Contemporary Studies, Prime Ministers Museum and Library, New Delhi