The Role Of The Constitution And The Judiciary In Transformative Justice For Indigenous Communities

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T21:31:27.274798+00:00

Updated: 2026-08-26T17:05:20.045+00:00

THE ROLE OF THE CONSTITUTION AND THE JUDICIARY

IN TRANSFORMATIVE JUSTICE FOR INDIGENOUS

COMMUNITIES

Antara Gupta, National Academy of Legal Studies and Research (NALSAR), Hyderabad

ABSTRACT

Tribal experience in India is diverse and rooted in paradox. Indigenous communities face challenges of displacement, socio-economic exclusion, and environmental degradation-induced loss of habitat, which are further compounded by epistemic injustice. This article focuses on the role of the judiciary and a ‘Living Constitutionalism’ approach to constitutional interpretation in addressing systemic issues. Through the analysis of landmark judgments like the Samata Judgement and the Narmada Bachao Andolan Judgment, the article highlights contrasting judicial approaches to tribal rights.

The article underscores the need for a purposive interpretation of the Constitution by the judiciary to ensure transformative justice and promulgate counter-dominant discourses that are a step towards preserving the socio-economic and cultural identity of the communities and towards advocating inclusivity in policy, academia and public discourse.

Tribal experience in India is rooted in juxtapositions- of preservation and modernization, autonomy and assimilation, resource conservation and exploitation. From the colonial to the post-colonial era, the ground realities of tribal assimilation have been clouded by dominant discourses of development and modernization. Indigenous communities face unique challenges that include but are not limited to displacement, environmental degradation, cultural erosion, and socio-economic exclusion. Tribals and Indigenous communities have often been perceived as not being a part of the larger Indian societies. 1Alternative dominant discourses paint them as “Backward Hindus”. 2 The inclusion-exclusion debate has shaped much of the discourse surrounding communities, even in anthropological studies. Much of the community’s experience finds ground in epistemic injustice, i. e.

, the type of injustice that occurs when individuals are treated unfairly owing to their capacity as knowers. Such epistemic injustice finds its roots in the social and power imbalances that undermine credibility or access to knowledge. The last Census recorded the number of Scheduled Tribes in India as more than 10 crores, which is 8. 6% of the country’s total population. 3 This is a case in point: A significant portion of the country’s population belongs to the Scheduled Tribes category. The Constitution of India plays a critical role as a safeguard for the rights of the Scheduled Tribes through its provisions, provided they are interpreted in a manner conducive to the welfare of Indigenous communities. The Constitution of India ties together the diverse cultural ethos and norms that find a place in the workings of the nation’s legislature, executive, and judiciary systems.

The Indian Constitution is termed a “living Constitution”, often lauded for adaptability, evolution, and ability to accommodate the dynamic aspirations and needs of the Indian Society. 4 The living metaphor often used for the Indian Constitution draws inspiration from American and Canadian jurisprudence. 5 The origin of the metaphor traces back to judicial records of a pre-independence judgment from 1938, concerning the constitutionality of the Central Provinces and Berar Sales 1 Virginius Xaxa, Politics of Language, Religion and Identity: Tribes in India, 40 Econ. & Pol. Wkly. 1363, 1365 (2005).

2 Id. At 1364.

3 Schedule Tribes in India, Jagran Josh (Oct. 28, 2021), https://www.jagranjosh.com/generalknowledge/schedule-tribes-in-india-1448689214-1 4 Living Constitution: Charting a Path from the Past to 2047, Institute for Competitiveness (Aug. 10, 2022), https://www.competitiveness.in/living-Constitution-charting-a-path-from-the-past-to- 2047/#:~:text=On%209%20December%201946%2C%20the,unfolded%20during%20this%20pivotal%20period. 5 Shivangi Gangwar & Aishwarya Pagedar, Examining the Living Metaphor in the Indian Constitution, 13(2) Jindal Global L. Rev. 347, 361 (2022).

of Motor Spirit and Lubricants Taxation Act. 6 The judgment noted that excessive rigidity is ‘one of the vices of written Constitutions in general and of federalism in particular’ because the fixity of some standard then becomes quintessential for the Constitution to retain a definite meaning. 7 Sir Maurice Gwyer CJ stated while expanding upon the canons of interpretation and construction to be used by the court in deciding the matter that the ‘Constitution of government is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat. ’8 The principle of ut res magis valeat quam pereat lays emphasis on the interpretation of laws and legal documents in a manner that upholds its validity and effect, or in other words, a manner that preserves and adheres to the intention behind the creation of the document.

This is synonymous with the Purposive rule of interpretation that takes into consideration, the underlying purpose and intent behind the law. It focuses on the spirit of the law looking beyond the literal meaning. The Purposive rule aligns with the doctrine of Living Constitutionalism. The approach builds on the recognition of the dynamic nature of the Constitution. It focuses on the principles and purpose underpinning the constitutional text rather than a rigid adherence to the words as understood and interpreted by the Constituent Assembly while drafting the Constitution.

In the context of the minority Tribal and Indigenous communities, the Living Constitutionalism approach to the interpretation of the Constitution is a testament to the claim that calls for the evolution of constitutional principles to address the systemic exclusion, historical injustices, and unique challenges faced by the Indigenous communities. There are numerous key provisions enlisted in the Constitution of India for the welfare of the Indigenous communities. Article 342 grants the President power to designate tribes or tribal communities as Scheduled Tribes in a State or Union Territory following consultation with the Governor. Article 342 (2) empowers the Parliament to modify the list through procedures established by law, however, there are safeguards against altering pre-existing notifications by subsequent ones.

Article 15(4) gives the state the authority to make special provisions for the advancement of Scheduled

6 Id.

7Wyness, Legislative and Executive Powers in Australia 14–15, cited in The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, [1938] F.C.R. 18, [1939] (F.H.C.) ¶ 11.. 8 The Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act [1938] FCR 18, [1939] (FHC).

Tribes (STs) as notified in Article 342 of the Constitution to ensure affirmative action to address historical disadvantages. This subclause allows for positive affirmative action to further the aims of Article 15 which prohibits discrimination based on religion, race, caste, gender, or place of birth. Article 244 addresses the governance of tribal areas outlining the administration of Scheduled Areas and Tribal Areas through the Fifth and Sixth Schedules that grant autonomy and special safeguards to areas enlisted under it. Article 275 makes provisions for grants-in-aid from the Union Government to the States for Tribal development towards the introduction and implementation of targeted programs aiming for the upliftment of tribal communities.

This essay aims to explore, through prominent cases, how constitutional interpretation has helped the judiciary to address contemporary challenges, such as tribal displacement or cultural preservation. In addition, the essay also seeks to explore legal and policy lacunae that inhibit the actualization of the goal of bringing transformative justice for the Indigenous people. The broader question that the essay also seeks to address is how the discourse on Indigenous communities shapes their access to the legal system. The involvement of courts in matters relating to Indigenous and tribal rights can be broadly classified into five categories- Rights to Land and Livelihood, Right to Consent and Self Governance, Cultural Preservation and Constitutional Morality, Balancing Development and Tribal Rights, and Environmental Justice and Indigenous Livelihoods.

Ironically, the resource-rich areas of the country are often inhabited by the poor and the deprived. Despite the policies and reservations introduced for the recognized Scheduled Tribes, non-implementation of the provisions has laid down the base for inequalities leading to poverty and deprivation. As capitalism sets in the economic framework of the country, the tribal regions have witnessed a sudden heightened incursion that feeds on the rich natural resources that have been their habitat thus far. Ravi Rebbapragada, the Executive Director of the Samata organization, which has played a crucial role in the advancement of the rights of people residing in the tribal belts of Andhra Pradesh calls the 1997 Samata vs. State of Andhra Pradesh Judgement ‘a weapon of the weak and the marginalized’ in his work on the importance of the judgment.

The Samatha judgment is based on the concept of sustainable development. Home to several tribal communities like Bagata, Khond, Kondadora, Kutia, Parjah, Valmiki, and others, the

agency tracts of Vishakhapatnam district of Andhra Pradesh are rich in mineral resources. 9 The development discourse of the 1960s followed by the liberalization policies of the 1990s led to the government leasing out mining tracts to non-tribal individuals, small companies, and corporate giants like Birla Periclase. Samata organization filed a writ petition on behalf of the affected Adivasi communities facing the looming threat of displacement in the High Court of Andhra Pradesh in 1993. It took a sustained four-year-long legal battle on the grounds that since the government was also considered a ‘person’ in the legal context it did not have the authority to grant leases in a Scheduled Area to non-tribals. The verdict delivered by the Supreme Court in 1997 has stood out as a landmark judgment.

The Supreme Court highlighted the ineffectiveness in the enforcement of the legislative intervention for tribal welfare while noting in several paragraphs of the judgment, the colonial and post-colonial struggles of the indigenous communities. The court referred to several sociological and anthropological studies to understand and establish the ground realities of the Indigenous communities inhabiting the track. 10 Through its verdict, the Court created new avenues for judicial intervention, thus ensuring that communities have access to social justice and can continue to enjoy rights and protections as assured by the Constitution. The Court's decision in the case was based on the Living Constitutionalism approach that assessed the ground realities of the Indigenous communities and laid emphasis on ‘social democracy’.

A broad reading of Article 21 of the Constitution is quintessential for the realization of social democracy that calls for equality, fraternity, and liberty. The judgment propels the idea forward by recognizing the need for preserving Scheduled Areas to advance the socio-economic development of the Tribal communities. 11 The Chebrolu Leela Prasad vs. State of Andhra Pradesh judgment is a testament to the operation of a complex labyrinth of interpretational quandary in matters relating to Indigenous community rights and constitutionalism. The Governor of Andhra Pradesh introduced the Governor’s Office Memorandum Order (referred to as G. O. M hereon) 275 on the 5th of November 1986.

This notification directed the positions of teachers in educational institutions located in Scheduled Tribe areas to be exclusively reserved for the only for individuals 9 Ravi Rebbapragada, The Importance of the Samatha Judgement: A Weapon of the Weak and the Marginalised, [2017] 26(3) Common Cause 15.

10 Samatha v. Union of India, AIR 1997 SC 3297, ¶¶ 12–15.

11 Samatha v. Union of India, AIR 1997 SC 3297.

belonging to the Scheduled Tribes community. 12 The Andhra Pradesh Administrative Tribunal subsequently revoked the order. A notification issued in 1987 amended G. O. M 275 and permitted non-tribals to be appointed as teachers in the schools of the Scheduled Areas ‘till such time the qualified local tribals were not made available. ’13 Following the 1987 notification a writ petition was filed in the High Court of Andhra Pradesh by the non-scheduled tribe teachers against the termination of their services. The Court had held the order violative of Article 14 of the Indian Constitution. In 2000, a fresh notification providing 100% reservation to the Scheduled Tribes for the teacher’s post in Scheduled Areas was issued by the Governor of Andhra Pradesh.

An appeal was filed in the High Court following the quashing of the order by the Andhra Pradesh Administrative Tribunal where a three-judge bench upheld the order. The bench opined that the office memorandum was in the constitutional spirit as the Constitution provides for special treatment to Scheduled Areas. It can be said that the bench reached this verdict on a broader reading of Articles 15(4) and 16(4) of the Constitution. In Chebrolu Leela Prasad, the Supreme Court was faced with a fundamental question as to whether Article 16 (4) was an exception to or a positive affirmative action toward the fulfillment of Article 16 (1). The Court relied on the verdicts laid down in R. Chitralekha vs. State of Mysore, AIIMS Students v. A. I. I. M. S. , and Lingappa Pochanna Appelwar and Ors. v. State of Maharashtra and Ors14.

However, the analysis of these judgments as made by the court was contradicted by their own stance. The court held that ‘Constitutional duty has to be discharged from a constitutional perspective and not in violation thereof. ’15 The court opined that Article 16(4) could not be viewed as an affirmation of Article 16 (1). In its verdict, the court stated that reservation provided to Scheduled Tribes under Article 16(4) of the Constitution is exhaustive in nature. For the same reason, additional classifications or preferences for the community cannot be made. It would be considered exclusionary towards other eligible candidates from the General, Scheduled Caste, Other Backward Classes, Scheduled Tribes (who do not belong to the district since Article 371D of the Constitution restricts appointment of teachers only to the district or post-1950 settlers) categories.

It was also seen as violative of the principle of fairness in public employment. Another reason cited

12 Shivam Singh & Harpreet Singh Gupta, Chebrolu Leela Prasad: Making Apparent the Existing Gaps in

Reservations Jurisprudence, [2020] 32(2) Nat’l L. Sch. India Rev. 213, 214. 13 Chebrolu Leela Prasad Rao & Ors. v. State of Andhra Pradesh & Ors., Civil Appeal Nos. 3609 & 7040 of

2002 (SC 2020).

14 Supra note 13 ¶¶ 116–118.

15 Supra note 13 ¶¶ 118.

in the judgment declaring the reservation as unconstitutional, unfair, and arbitrary was the Court’s invocation of the 50% limits on reservations as laid down in the Indira Sawhney Judgement. 16 The verdict in this case is a stark contrast from the Samata Judgement. The former drew from societal realities as put forth by anthropological and sociological studies. In the Chebrolu Leela Prasad Case, the Court showed proclivity towards the Originalism approach of constitutional interpretation. The welfare intent of the provisions was overlooked in the Court’s approach with regard to the interface of Article 16 (4) and Article 16 (1). If Article 16(4) was viewed as a facet of or an affirmation of Article 16(1), the approach to substantive equality would be transformed since the state in such a scenario not only has the power but also has the duty to remedy inequalities.

17 The Supreme Court also held that the legislative powers as provided under Section 5 of the Fifth Schedule could not override fundamental rights. The Supreme Court while upholding the rights of the non-tribals, displayed a narrow interpretation of ‘equality’. Such interpretation undermines the intent of the Constitution to be accommodative of the nation’s diversity. It cannot be denied that the appointment of Scheduled Tribes teachers in the Scheduled Areas could prove beneficial to the students and would be in their best interests. The appointment of ‘local’ teachers could construct a meaningful learning environment conducive for the students. It has the potential to make school a culturally and linguistically relevant space to address the dropout- issue. The concern of teacher absenteeism could also be dealt with effectively.

18 This would effectively increase the involvement of the Indigenous communities in the educational sphere. The Government Order was also aimed at addressing these broad issues. The court order was unfortunately unmindful of the ground realities of the Indigenous communities. Post-colonial emphasis on planning, development, and self-reliant economy has been a doubleedged sword. Development for one section of the society could mean destruction and displacement for another. Dam constructions were initiated as a part of the developmental process. The Sardar Sarovar Project can be considered a textbook example of this juxtaposition

16 Shivam Singh & Harpreet Singh Gupta, Chebrolu Leela Prasad: Making Apparent the Existing Gaps in

Reservations Jurisprudence, [2020] 32(2) Nat’l L. Sch. India Rev 215.

17 Id.,216.

18 Chimirala et al., Discourses and Counter-Discourses on Learning Poverty Through NEP-2020 and Indian Judiciary for the Indigenous/Tribal/Minority Child, (2024) J. Educ. Pol’y 1, 11.

between development and displacement. The people affected by the massive “developmental” project spread across the course of the Narmada River basin that flows through the Western and Central Indian states of Gujarat, Madhya Pradesh, and Maharashtra, were neither consulted nor given any information except the offer for rehabilitation. 19 The Narmada Valley is home to several tribal groups like Bhils, Bhilalas, Pavras, Rathvas, Tadvis, and Vasavas. The famous Narmada Bachao Andolan associated with famous environmentalist Medha Patekar served as a channel for these groups to voice their resistance. It is useful to look at the judicial timeline of the Sardar Sarovar Project to develop an understanding of how the constitutional provisions were interpreted in the matter. In 1991, in the case of B. D Sharma v. Union of India and Ors.

, the Supreme Court acknowledged the unsatisfactory progress of the project despite the financing received from the World Bank. It also emphasized on methodical rehabilitation of the people while ordering an expedition of the dam construction process. 20 In 1994, the Gujarat High Court ordered a stay on the dam construction owing to non-compliance with rehabilitation guidelines as previously given by the court. Subsequently, the Supreme Court also suspended the dam construction citing inadequate rehabilitation efforts in 1995. 21 In October 2000, the Supreme Court dismissed the writ petition filed against the project while asserting that displacement did not violate the Fundamental Rights of the Indigenous people. The Court in this order viewed rehabilitation in the better interests of the tribals in the context of amenities and societal assimilation. 22 The

2005 order of the Supreme Court restricted the height of the dam to 110 meters unless the

rehabilitation process of the displaced was completed.23 However, following the Narmada Control Authority’s 2006 approval to further increase the height of the dam by 21.92 meters, no stay was issued by the Court.24 The increase in the height of the dam has led to displacement of the local tribal population, a consequence the participants of Narmada Bachao Andolan had predicted and resisted.25 In a verdict that failed to duly subscribe to the principles laid down by the Samata judgment, the Apex court in 2017 legitimized monetary compensation for the

19 William Fisher, Towards Sustainable Development?: Struggling Over India’s Narmada River 159 (M.E.

Sharpe 1995).

20 B.D. Sharma v. Union of India & Ors., Writ Petition (Civil) No. 1201 of 1990, SC, Aug. 9, 1991.

21 Narmada Bachao Andolan v. Union of India & Ors., Writ Petition (Civil) No. 319 of 1994, SC, May 5, 1995. 22 Narmada Bachao Andolan v. Union of India & Ors., Writ Petition (Civil) No. 319 of 1994, SC, Oct. 18, 2000. 23 Narmada Bachao Andolan v. Union of India & Ors., Writ Petition (Civil) No. 319 of 1994, SC, Mar. 15, 2005. 24 Narmada Bachao Andolan v. Union of India & Ors., Writ Petition (Civil) No. 319 of 1994, SC, Apr. 17, 2006. 25 Jagannath Ambagudia, Judiciary and Tribal Rights in India: Shifting Terrains of Judicial Pronouncements in Antje Linkenbach & Vidhu Verma (eds.), State, Law and Adivasi: Shifting Terrains of Exclusion (Sage 2022).

displaced rather than providing for land compensation. 26 The ideas of identity, emotions, and livelihood attached to the land were overlooked. The Court even ordered the eviction of displaced families and authorized forced eviction in case of necessity. It is interesting to note that the judiciary alternated between halting and permitting the construction of the dam in the initial phases of the construction based on the status of rehabilitation. The judicial intervention in the early stages was more inclined towards a balancing act. Displacement was justified on the grounds of progress and assimilation, a prominent discourse on Indigenous communities that has often resulted in epistemic injustice. It is often non-tribal groups that make decisions in the “best interests” of the Indigenous communities.

The discourse is often ‘on’ and ‘about’ them but very rarely includes consultation ‘with’ the communities in question. From a constitutional viewpoint, the lacunas as seen in the various phases of the judgment could be remedied by a broader interpretation that is more purposive in nature. A dynamic interpretation of the Fifth Schedule’s purpose by the Court would have enabled the imposition of stricter procedural safeguards prior to large-scale project approvals. By recognizing the evolving nature of Article 21 that ensures the Right to Life the Court could have ensured that displacement caused in the course of the project would not erode tribal identity and culture. The idea dignified life should encompass identity and cultural aspects as well.

A broadened interpretation of Article 14 could recognize the need for enhanced protection from structural disadvantages for the displaced tribals. Under Article 142 of the Constitution, the Supreme Court is empowered to ensure comprehensive remedies for the ends of complete justice. This provision could have been utilized to enforce rehabilitation reforms for the affected communities. The missed opportunities that could have created new pathways are endless. The broader approach should be to view the effects of such judicial interventions on the socio-economic and cultural spheres of the Indigenous communities. From a sociological viewpoint, negating the effects of epistemic injustice and negative othering is a quintessential starting point in the journey of bringing about transformative justice for Indigenous communities.

Epistemic injustice undermines the values of democracy and justice. The diverse voices of the traditionally excluded need to be valued. It is important to imbibe critical thinking that 26Narmada Bachao Andolan v. Union of India & Ors. , Writ Petition (Civil) No. 319 of 1994, SC, Feb 8, 2006.

questions dominant discourses and unpacks systemic biases. Inclusion and not just token representation of marginalized communities are required in academia, policy-making, and public discourse. This socio-cultural setting plays the role of a backdrop against which judicial and constitutional discourse develops further. Living Constitutionalism plays a key role in bringing about transformative justice for the tribal and Indigenous communities. Relying on rigid frameworks often fails to address systemic inequalities and safeguard cultural and existential rights. Embracing the transformative vision of the Constitution enables a dynamic and purposive interpretation of constitutional provisions. It helps in bridging the gap between the original ideas of the founding members of our Constitution and the forthcoming ground realities, challenges, and opportunities of the evolving society.