Indigenous peoples are recognized and identified as distinct peoples in India through the constitution. Further, the indigenous tribal council is constitutionally recognized in India and there are specific state institutions established to deal with their rights and development. India is among the few countries where constitutional or statutory laws recognize indigenous peoples’ rights to land, territories and natural resources.
A recent report ‘The indigenous world 2017’ edited by Katrine Broch Hansen, Käthe Jepsen and Pamela Leiva Jacquelin states that the legal framework does not “necessarily result in respect for the equal dignity and rights of indigenous peoples as prescribed by the international human rights instruments.”
It cites the Fifth Schedule of the Indian Constitution that deals with the administration and control of Scheduled Areas and Scheduled Tribes and restricts the entry and ownership of land and resources in adivasi areas on the part of non-adivasis and outsiders. The different facets of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) are expressed in Indian legislations through the Forest Rights Act, which requires consent for the use of forests for development projects,” as per the report.
The laws aimed at protecting indigenous peoples have numerous shortcomings and their implementation is far from satisfactory. However, the report notes interesting examples of courts/tribunals upholding local communities’ rights to reject the implementation of a project. The Supreme Court of India’s precedent-setting 2013 decision is quoted by the report: “it cited the Forest Rights Act in upholding the rights of the Dongria Kondh indigenous community to reject mining plans in their traditional territory. It had been more than a decade since adivasi groups began their struggle to save the Niyamgiri hills from Vedanta’s mining project. In April 2013, the Supreme Court ruled that Vedanta Resources could only mine bauxite from Orissa’s Niyamgiri hills with the consent of all adult members of the project-affected villages. All 12 villages voted against bauxite mining in the Niyamgiri Hills, effectively vetoing the multi-billion dollar project”.
Another example quoted by the report is of March 2016, when “five Adivasi villages in Raigarh, Chhattisgarh, unanimously vetoed the plans of South Eastern Coalfields Limited, a subsidiary of India’s public sector coal mining giant, Coal India Limited, to mine their forests. These villages were Pelma, Jarridih, Sakta, Urba and Maduadumar. On 23 March 2016, the Kamanda gram sabha of Kalta G.P in Koida Tehsil of Sundargarh district in Odisha unanimously decided not to give its land over to Rungta Mines, as proposed by the Industrial Infrastructure Development Corporation of Odisha Limited.”
Human rights violations against indigenous peoples continue as per the report. The 5th and 6th Schedule to the Constitution of India provide stringent provisions for the protection of land belonging to the tribal peoples. At the state level, there is furthermore a plethora of laws prohibiting the sale or transfer of tribal lands to non-tribals and restoration of alienated lands to the tribal landowners. However, these laws remain ineffective as none have been invoked and attempts are made to weaken these laws.
As regards the conditions of the internally displaced tribal peoples, there were no reports of displacement caused by conflict during 2016. However, tribals who had been displaced over the years due to conflicts were yet to be rehabilitated at the end of 2016. “Land has been acquired for mining, industrialization and non-agricultural purposes, to make way for development projects in tribal areas. Tribals who lost their lands due to such projects were denied proper compensation, rehabilitation and other facilities, and those who opposed land acquisition or demanded proper rehabilitation were met with force,” the report says.
Citing the repression under forest laws, the report discusses how a large number of forest-dwelling tribals continue to be denied their rights. “The recognition and verification procedure for settlement of forest rights is cumbersome and tribals continue to face eviction in the name of forest conservation or are being threatened for opposing evictions or relocations,” the report states.
The report can be downloaded here