Indigenous People - their vulnerabilities and protection extended by law
Feb. 06, 2020 • Samiksha Gupta
Indigenous people have been given varying definitions in context to different national diasporas and differences in demographic compositions around the world. In India, the indigenous people have been defined under the Constitution under the collective term “Schedule Tribes” or “Adivasis” , the literal meaning of the latter being a community of people endemic to a particular region or area, existing there prior to the arrival of foreign settlers or subsequent urbanization that changed the landscape of their abode. They usually follow a distinct language, script, culture , customs, race and often religion as well. In India, they constitute around 8.6% of the total population of the country and are geographically spread over the entire expanse of the sub-continent, mainly concentrated in the tribal states of Jharkhand, Chattisgarh and Northeastern States. Home to more than 700 tribal groups, comprising of about 104 million inhabitants, Indian has the second largest tribal population in the world. As exotic as they may seem, this particular section of our society are very sensitive to foreign contact and therefore, are entitled to receive adequate protection, preservation and privacy under the law. The Constitution provides Social Rights (Articles 23 and 24), Economic Rights (Article 244 and 275) , Educational and Cultural Rights (Article 29, 46 and 350), in addition to the formation of a National Commission for Schedule Tribes to oversee the interest of the indigenous populace.[1] These provisions and schedules have been tasked to provide the necessary opportunities to the indigenous groups and help them acclimate to the dynamically changing national landscape. Be it in the sphere of education, urbanization, access to health facilities or any other advancement, the government too is taking adequate measures to provide the Tribals with a bare minimum level of sustenance on their home soil, with minimal interference or encroachment from the alienated world , be it for any economic , personal, or social welfare interest.[2]
However, it may be seen as a scenario most unfortunate that the native people only have to face the most devastating atrocities as they often cross paths with the proponents of nation building. One of the most searing issues facing tribal displacement is the construction of Mega-Dams and its subsequent ill-effects. As India is aggressively pursuing construction of over 100 mega-dams, particularly in the North-East, there is a serious amount of flak received from the natives as well as various human rights agencies. In the past, we have witnessed how Narmada Bachao Andolan had turned into a nationwide protest, questioning the moral standing of these projects. With thousands of hectres of land inundated, thousands of villages submerged and innumerable livestock ravaged, where do these defenseless people appeal for adequate relief? A ray of hope appeared in 2014 with the Central Water Commission recommended scrapping of 14 out of 41 dam planned along the Siang River in Arunachal Pradesh. These might been as miniscule, but valuable attempts in the direction of providing substantial dialogue to the needs, dissention and opinions of the marginalized communities.
Mining remains a bigger irritant between the subsisting tribal-urban relations. Home to over one-third of country’s mineral reserves, the Eastern states of Chattisgarh, Jharkhand and Odisha also have a sizeable indigenous population (as much as one-quarter).[3] Here, the issue that persist is not only displacement, but the alleged encroachment of these tribals. According to Amensty International, as many as 400 Kawar families have been displaced in Chattisgarh since the coming up of a coal mine.[4] In a similar case, there have been vehement protests by tribals in the North-Eastern states opposing the highly-ambitious, but also highly hazardous projects of the Government to tap the unexplored Oil, natural gas and Uranium potential of the country, Despite all such obstacles, the indigenous inhabitants have, sometimes, achieved victory by exploring the legal angle as well. In Meghalaya, the State Government, in 2016, revoked its earlier decision that granted permission to the Uranium Corporation of India Limited to conduct pre-mining activities in southwest Khasi hills in the state. In 2010, The Supreme Court supported the tribals’ cause that a French Company Lafarge was encroaching upon the inhabited forestland of the tribals in Meghalaya. [5]
Militarization and forced displacement of tribals through human agents – operations of army, insurgents or private militia is and should be regarded as the greatest violations of human rights, regardless of the any threat (if any) the indigenous might seem to pose to the immediate society. To oppose such abuse and violation of internal territory, numerous radical, armed and extremist factions have sprung up the past century that project their militant struggle as “liberation war” from the oppression of the Army and armed groups. Maoist in the Northeastern parts, Naxalites in Central and various splinter faction in the adjoining areas have been branded as “extremist” and almost terrorist organizations[6] by the government agencies, who mainly focus on far-left ideologies and communism-based anti-national operations. Due to this constant rife between the army and armed groups, these are the indigenous groups who get caught in the crossfires. In June 2012, security forces killed 17 Adivasis, including 7 children , in Bijapur District, on pretext of being Maoists.[7]In records mentioned by National Human Rights Commission (NHRC), one can find several cases registered wherein tribals are abused, violated and raped by local authorities.[8] While the government has taken cognizance in serious of human rights violations, much needs to be done in areas where militarization has affected the day-to-day life of the locals. In July 2016 the Supreme Court held that ‘armed forces could not use excessive force even in areas that come under the Armed Forces Special Power Act (AFSPA) , and further ruled that 1,500 cases of alleged “fake encounters” must be investigated in Manipur’[9]
Despair is much for these neglected and discarded people. But the remedy? There’s plenty that can be done in that regard too. A sector that has remained explored for past some time is the incongruency of Indian laws and international conventions pertaining to the rights and entitlements of the indigenous people. The ILO Convention 169 has not been ratified by India as per the recommendation of the 2nd UPR Cycle (2012-2016). The government stood by its argument in 2012 that “The existing laws in the country safeguard the surface resources rights and the owner of the land for the tribals as well as non-tribals. However, the existing laws do not recognize the right of the landholders, whether tribal or non-tribal, over sub-surface resources.”[10]Further, the Ministry of Tribal Affairs asserted that there was ‘no need for another UN body (ILO) to assess their tribal development.’ Furthermore, as the issues of land acquisition from tribals comes up, it is vital that the Ministry of Tribal Affairs formulate some guidelines that confer more autonomy onto the indigenous people while retaining agricultural land, managing forests and other resources, so that they may fall in line with the Conventions of ILO (particularly 108 and 169) , UNDRIP and the Forests Rights Act (FRA),2006.
Bibliography –
References –
“Joint Stakeholders’ submission on The situation of the rights of indigenous peoples in India For 3rd cycle of the Universal Period Review (UPR) of India 27th Session of the Human Rights Council (Apr-May 2017)” (Accessed 28 January,2020)
[2] M.P. Oil Extraction vs. State of M.P. and Others , MANU,1997 (SC 1302)
[3] www.mines.gov.in
[5] Lafarge umaim mining pvt. ltd. vs. Union of India , (2011)7 SCC 338
[6] Under Unlawful Activities (Prevention), Act 1967
[8] https://nhrc.nic.in/childcases#No32
Profile of the Author
My name is Akshit Gupta, and I am a second year law student, pursuing BBA.LLB from Bharti Vidyapeeth, New Law College,Pune.
I am an avid reader and a writer who loves to pen about social and contemporary issues. I am currently pursuing my research on Alternative Dispute Resolution and and it's allied subjects.