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3 May 2011 shivani

Can tribes in India go the American way?

tribes in india

Indian gaming has turned out to be extremely popular and profitable in the United States of America, where areas have been demarcated for indigenous tribes and Tribal Councils have been given considerable autonomy over various matters concerning their development. Thus, most tribes in America have chosen to operate grand-size Indian casinos on some part of their sovereign land and the total estimated revenue from these Native American gaming activities (for avoiding confusion, Indian gaming: is hereinafter referred to as Native American gaming) is a mind-boggling figure of over U.S. $ 14 billion.

After looking at the enormous success of these Native American casinos, I was tempted to look at the possibility and feasibility of having such casinos in the areas notified to be Scheduled Areas (i.e. areas where scheduled tribes are given considerable autonomy to manage their affairs).

I will now look into the possibility of legally having such casinos in the Scheduled Areas, the procedure for allowing the same and the feasibility of having such casinos in the tribal areas

Can tribal gaming become a reality?

Legal issues involved

The fifth and the sixth schedules of the Constitution of India deal with the administration of areas with substantial tribal population (the sixth schedule deals with tribal areas in the North-Eastern states and fifth schedule deals with tribal areas elsewhere). These schedules give considerable autonomy to the Tribal Advisory Councils (TACs), for effective functioning of the area in the interest of protecting the tribals from being exploited. Laws may even be created to prevent transfer of land to non-tribals to protect the tribals interests, culture and identity.

There is also considerable powers bestowed to the Governor of States having Scheduled Areas reserved for protecting the autonomy of indigenous tribes. According to Clause 5 (1) of the fifth schedule, the governor of a state having scheduled areas can by merely issuing a notification stating that a particular State or Central government statute would not apply/apply partially to a particular scheduled area.

Clause 5 (1) of the fifth schedule reads as follows:

5. Law applicable to Scheduled Areas:-

(1) Notwithstanding anything in this Constitution, the Governor may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.

This authority of the governor to pass an appropriate notification for the well-being of the tribal areas has being confirmed by the Honble Bombay High Court in Mansing Surajsingh Padvi vs The State Of Maharashtra, (1968) 70 BOMLR 654.

The Governor, however, has been authorised by sub-para. (1) of para. 5 of the Fifth Schedule to direct, not only that an Act shall be subject to certain exceptions or modifications in its application to a Scheduled area, but that it shall not apply at all to such an area. Moreover, the Governor has been expressly empowered to give retrospective effect to any such directions. Now, since the Governor of Maharashtra had the power to issue a notification under sub-para. (1) of para. 5 directing that the Bombay Amending Act 13 of 1956 shall not apply at all to Mehwassi Estates in the West Khandesh District, he had obviously the power to direct that certain important provisions of that amending Act shall not apply to that area. We cannot, therefore, accept Mr. Porus Mehta’s argument that the impugned Notification was issued in excess of the Governor’s powers under sub-para. (1) of para. 5.

Thus it is apparent that the governor can issue any notification to modify/nullify any State/Central Act which he feels is in the interest of the tribals.

Thus, for tribal gaming to become a reality, the governor may just issue a notification making the Sections penalising gaming of the relevant State gaming/ police act, not applicable to the concerned Scheduled area.

Feasibility of tribal gaming in India

As far as feasibility of tribal gaming is concerned, when debates are raging as to the grabbing of tribal land by MNCs for industrialisation and the debate raging as to what kind of industrialisation of backward areas can lead to the welfare of tribals, indigenous gaming might just be the solution to the problem of backwardness of tribals. It might be noticed that the gaming sector cannot develop in isolation. It flourishes only along with other complimentary sectors like tourism and entertainment.

And is there a better way to empower the tribals other than allowing them to showcase their own culture, customs and traditions by developing world-class casino resorts having all state-of-the art entertainment facilities?

It must be noted that though these proposed casino-resorts having all modern entertainment facilities can be developed by leading companies having experience in such projects, the ultimate management and control of any such resorts should be in the hands of the native tribals. (In any case, it would not be possible for large corporations to purchase tribal land without legal complications due to laws preventing transfer of tribal land to non-tribals). And once such casinos are developed, it wont take long to transform the tribal regions to prosperity; as these resorts would obviously be meant for urban upper-middle class Indians, wanting some fun on weekends. Thus along with the resort, there would also be employment of tribals, development of basic infrastructure for the region and influx of funds. And this would happen while the resorts are under the control and direction of the TACs.

Another point which requires consideration is the issue of accessibility. A cursory glance at the list of scheduled areas would indicate that certain Scheduled areas in the districts of Thane, Pune , Nashik and Surat among others, are extremely close to urban areas and can certainly be successful entertainment resorts.

In fact the Thane district is only around 50 kilometres away from Mumbai, the largest city and arguably the largest gaming market in India. Other scheduled areas can also be gradually developed into casino-resorts and made accessible; as most of these areas are close to Tier I and Tier II cities.

The time frame and intricacies of this potentially lucrative and beneficial form of gaming will eventually have to be figured out. Activists, tribal leaders and entrepreneurs must collectively make efforts to develop tribal gaming in India.

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