International Laws Concerning International Laws Concerning Indigenous and Tribal Peoples in Indigenous and Tribal Peoples in

India India

C.R Bijoy

Status of international law Status of international law

�� Article 51 of the Constitution: Article 51 of the Constitution: ‘‘The State shall endeavor to The State shall endeavor to

(a) promote international peace and security (a) promote international peace and security

(b) maintain just and (b) maintain just and honourablehonourable relations between nations relations between nations

(c) foster respect for international law and treaty (c) foster respect for international law and treaty

obligations in the dealings of obligations in the dealings of organisedorganised peoples with one peoples with one

anotheranother

(d) encourage settlement of international disputes by (d) encourage settlement of international disputes by

arbitrationarbitration’’

�� Part of Part IV of relating to the Directive Principles of StatePart of Part IV of relating to the Directive Principles of State

Policy; so not enforceable in any court of lawPolicy; so not enforceable in any court of law

�� But central to the governance of the country, important and But central to the governance of the country, important and

have considerable persuasive valuehave considerable persuasive value

�� Article 253 on legislation for giving effect to international Article 253 on legislation for giving effect to international agreements: agreements: ‘‘Notwithstanding anything in the foregoing Notwithstanding anything in the foregoing provisions of this Chapter, provisions of this Chapter, Parliament has power to make any Parliament has power to make any law for the whole or any part of the territory of India for law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any implementing any treaty, agreement or convention with any other country or countries or any decision made at any other country or countries or any decision made at any international conference, association or other body.international conference, association or other body.’’

�� The 7The 7thth Schedule vests in Parliament the power to make laws Schedule vests in Parliament the power to make laws relating to international treaties etc, as follows: relating to international treaties etc, as follows: ‘‘Entering into Entering into treaties and agreements with foreign countries and treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with implementing of treaties, agreements and conventions with foreign countries.foreign countries.’’

�� The Courts of India too have restricted the operation of The Courts of India too have restricted the operation of international law at the domestic level. international law at the domestic level.

�� In 1954, the Calcutta High Court held that In 1954, the Calcutta High Court held that ‘‘if Indian statutes if Indian statutes are in conflict with any principle of international law, the are in conflict with any principle of international law, the Indian Courts will have to obey the laws enacted by the Indian Courts will have to obey the laws enacted by the legislature of the country to which they owe their allegiancelegislature of the country to which they owe their allegiance..’’

�� ‘‘National courts cannot say National courts cannot say ‘‘yesyes’’ if Parliament has said if Parliament has said ‘‘nono’’ to to a principle of International Law.a principle of International Law.’’

�� International treaties are not binding on Indian Courts or IndiaInternational treaties are not binding on Indian Courts or Indian n nationals unless they have been incorporated into domestic law nationals unless they have been incorporated into domestic law through legislation. through legislation.

�� International conventions is taken into account by Courts when International conventions is taken into account by Courts when there is no inconsistency between international conventions there is no inconsistency between international conventions and domestic law in some recent cases relating to human rights and domestic law in some recent cases relating to human rights violations.violations.

�� A number of key human rights articulated in several A number of key human rights articulated in several international conventions have been incorporated into Indian international conventions have been incorporated into Indian law in the Constitution of India itself.law in the Constitution of India itself. Ex: UDHR, the ICCPR, Ex: UDHR, the ICCPR, ICESCR, the right to speedy trial, humane conditions in prison, ICESCR, the right to speedy trial, humane conditions in prison, free legal representation, and monetary compensation in case free legal representation, and monetary compensation in case of illegal detention, custodial violence, or custodial death, of illegal detention, custodial violence, or custodial death, means of livelihood, and shelter are few examples.means of livelihood, and shelter are few examples.

�� Regarding application of international conventions and treaties Regarding application of international conventions and treaties on the rights of on the rights of IPsIPs to to STsSTs and Scheduled Areas, the Supreme and Scheduled Areas, the Supreme Court in the Court in the SamathaSamatha casecase read relevant articles of the read relevant articles of the Convention on the Right to Development to which India is a Convention on the Right to Development to which India is a signatory along with the right to life guaranteed by Article 21 signatory along with the right to life guaranteed by Article 21 of of the Constitution of Indiathe Constitution of India

Ratification of UN, ILO and regional instruments Ratification of UN, ILO and regional instruments

�� Though supportive of international law and institutions, India Though supportive of international law and institutions, India always adopted a firm stand against joining any international always adopted a firm stand against joining any international arrangement that it sees as infringing on its internal policies arrangement that it sees as infringing on its internal policies and institutions, particularly relating to individual rights (thand institutions, particularly relating to individual rights (the e World Trade World Trade OrganisationOrganisation being a significant exception to this being a significant exception to this rule)rule)

�� The Government refused to sign the Optional Protocols to the The Government refused to sign the Optional Protocols to the ICCPR, the ICESCR, the Rome Statute of the International ICCPR, the ICESCR, the Rome Statute of the International Criminal Court. Criminal Court.

�� This is consistent with the Constitutional position whereby This is consistent with the Constitutional position whereby international agreements only apply in India when they have international agreements only apply in India when they have been implemented through a domestic legislation. been implemented through a domestic legislation.

�� Therefore India is reluctant to join most international Therefore India is reluctant to join most international agreements on rights issues, such as ILO Convention 169, the agreements on rights issues, such as ILO Convention 169, the Convention Against Torture Convention Against Torture

�� India, a member of the International India, a member of the International LabourLabour Organization (ILO) Organization (ILO) since 1919. since 1919.

�� So far ratified 41 out of 188 conventions of the ILO So far ratified 41 out of 188 conventions of the ILO

�� The government's responses is that its policies are in The government's responses is that its policies are in

accordance with the provisions of the Convention and accordance with the provisions of the Convention and

benefit both nonbenefit both non--Adivasis and Adivasis Adivasis and Adivasis

�� The forced displacement of millions of Adivasis dismissed as The forced displacement of millions of Adivasis dismissed as

‘‘general allegationsgeneral allegations’’

�� A typical response was that A typical response was that ‘‘the exploitation of natural the exploitation of natural

resources was unavoidable for the economic and industrial resources was unavoidable for the economic and industrial

development of the countrydevelopment of the country’’; adequate compensation ; adequate compensation

provided; no discriminatory policyprovided; no discriminatory policy’’

TABLE 1: Status of ratification/accession of important international instruments

18/02/1994Convention on Biological Diversity

Not ratified.Art 77 of CMW

Not ratified.CMW

Art 22 of CAT

Signed on 08/10/1997 but yet to ratify.CAT

23/07/1960Supplementary Slavery Convention 1956

18/07/1927Slavery Convention 1927

27/08/1959Genocide Convention

16/08/2005Protocol to CRC - Sexual Exploitation

30/11/2005Protocol to CRC- Armed Conflict

11/12/1992CRC

Not ratifiedProtocol to CEDAW

09/07/1993CEDAW

Art 14 of CERD

03/12/1968CERD

Not ratifiedOptional Protocol to ICCPR

10/04/1979ICESCR

10/04/1979ICCPR

Date of deposit of ratification/accessionInstrument

Not ratified.ILO 182 (Worst Forms of Child Labour)

Not ratified.ILO 138 (minimum age)

Not ratified.ILO 169 (Indigenous Peoples)

29/09/1958ILO 107 (indigenous and tribal populations)

03/06/1960ILO 111 (discrimination in employment and occupation)

25/09/1958ILO 100 (equal remuneration)

18/05/2000ILO 105 (Abolition of Forced Labour)

30/11/1954ILO 29 (Forced Labour)

Date of ratificationConvention

Status of communications and state reporting Status of communications and state reporting

�� Ratified ILO C107; ILO C169 yet to be ratified Ratified ILO C107; ILO C169 yet to be ratified

�� Submitted reportsSubmitted reports to the ILO on issues related to ILO C107, to the ILO on issues related to ILO C107, and both the Committee of Experts and the Conference and both the Committee of Experts and the Conference Committee have made observations on the same Committee have made observations on the same

�� Not submitted reports regularly and has frequently failed to Not submitted reports regularly and has frequently failed to respond to queriesrespond to queries. . In 1993, 1995 and 2005, the Committee of In 1993, 1995 and 2005, the Committee of Experts observed that no report had been submitted at all, Experts observed that no report had been submitted at all, while in 1991, 2001 and 2004, the government's reports were while in 1991, 2001 and 2004, the government's reports were either submitted very late or were too brief for the Committee either submitted very late or were too brief for the Committee to consider to consider

�� The government does not consider the ILO Convention process The government does not consider the ILO Convention process to be importantto be important

�� Where reports have been submitted, the Committee of Experts Where reports have been submitted, the Committee of Experts has made observations only on a few very specific issues as the has made observations only on a few very specific issues as the SardarSardar SarovarSarovar dam project on the dam project on the NarmadaNarmada river, and the river, and the displacement of tens of thousands of Adivasi families displacement of tens of thousands of Adivasi families

�� The Committee of Experts made observations in every sitting The Committee of Experts made observations in every sitting since 1990since 1990

Indigenous peoples in India Indigenous peoples in India

�� UNDRIP wasUNDRIP was passedpassed on 13 September 2007 by the on 13 September 2007 by the General Assembly General Assembly

�� GOI does not consider any specific section of its peoples GOI does not consider any specific section of its peoples as as ‘‘indigenous peoplesindigenous peoples’’ ((IPsIPs) but all its peoples as ) but all its peoples as indigenous. indigenous.

�� Operationally Scheduled Tribes (Operationally Scheduled Tribes (STsSTs) considered as ) considered as IPsIPs

�� STsSTs not same as not same as ‘‘AdivasiAdivasi’’ or or ‘‘tribaltribal’’ but include most but include most IPsIPs

SelfSelf--Governance Governance

�� SelfSelf--governance flows from the governance flows from the right to selfright to self--determinationdetermination. .

�� ILO C107 refers to 'indigenous and tribal populations', ILO ILO C107 refers to 'indigenous and tribal populations', ILO C169 modifies this to 'indigenous and tribal peoples'. C169 modifies this to 'indigenous and tribal peoples'.

�� The concept of 'peoples' implies recognition of the right to selThe concept of 'peoples' implies recognition of the right to selff--determination of 'all peoples' under Article 1 of the ICCPR and determination of 'all peoples' under Article 1 of the ICCPR and ICECSR ICECSR

�� The right to selfThe right to self--determination means the rights of all peoples determination means the rights of all peoples to pursue freely their economic, social and cultural to pursue freely their economic, social and cultural development without outside interference.development without outside interference.

�� Article 1(3) of ILO C169: Article 1(3) of ILO C169: ‘‘The use of the term The use of the term ‘‘peoplespeoples’’ in this in this Convention shall not be construed as having any implications as Convention shall not be construed as having any implications as regards the rights which may attach to the term under regards the rights which may attach to the term under international law.international law.’’

�� Neither ILO C107 nor 169 refer to right to selfNeither ILO C107 nor 169 refer to right to self--determination determination per se, but C169 does provide for participation and per se, but C169 does provide for participation and consultation, self management and the right to decide their consultation, self management and the right to decide their own priorities own priorities –– all of them components of the right to selfall of them components of the right to self--determinationdetermination

�� But UNDRIP identifies But UNDRIP identifies IPsIPs as 'peoples' with the right to selfas 'peoples' with the right to self--determination by virtue of which 'they freely determine their determination by virtue of which 'they freely determine their political status and freely pursue their economic, social and political status and freely pursue their economic, social and cultural development (Article 3) and 'have the right to cultural development (Article 3) and 'have the right to autonomy or selfautonomy or self--government in matters relating to their government in matters relating to their internal and local affairs' (Article 4) without any threat to thinternal and local affairs' (Article 4) without any threat to the e territorial integrity of sovereign and independent states (Articterritorial integrity of sovereign and independent states (Article le 46).46).

�� The principle of selfThe principle of self--determination (Articles 18, 19, 23, 32 and determination (Articles 18, 19, 23, 32 and 38 of UN DRIP) may be expressed through:38 of UN DRIP) may be expressed through:

�� Autonomy or selfAutonomy or self--governmentgovernment relating to their internal and relating to their internal and local affairs including financing of their autonomous local affairs including financing of their autonomous functions. In other cases, functions. In other cases, IPsIPs seek the conditions for selfseek the conditions for self--managementmanagement

�� Respect for the principle of Respect for the principle of free, prior and informed consentfree, prior and informed consent. .

�� Full and effective participationFull and effective participation of of IPsIPs at every stage at every stage including coincluding co--managementmanagement

�� ConsultationConsultation with the with the IPsIPs prior to any action that may affect prior to any action that may affect themthem

�� Formal Formal recognition of recognition of IPsIPs’’ traditional institutionstraditional institutions, internal , internal justice and conflictjustice and conflict--resolution systems, and ways of socioresolution systems, and ways of socio--political organizationpolitical organization

�� Recognition of the right of Recognition of the right of IPsIPs to to freely define and pursue freely define and pursue their economic, social and cultural developmenttheir economic, social and cultural development

�� IndiaIndia’’s general frame and provisions provides for the s general frame and provisions provides for the prepre--eminence of the state in all matterseminence of the state in all matters that governs the social, that governs the social, economic and political life of its peopleseconomic and political life of its peoples

�� Exercised through representative democracy, the laws, Exercised through representative democracy, the laws, administration and judiciaryadministration and judiciary

�� Various provisions in the Constitution for the Scheduled Various provisions in the Constitution for the Scheduled Areas, Tribal Areas and Tribal states namely Article 244 (V Areas, Tribal Areas and Tribal states namely Article 244 (V Schedule and VI Schedule), and Articles 371A and 371G Schedule and VI Schedule), and Articles 371A and 371G which grant special Constitutional protection to the States which grant special Constitutional protection to the States of Nagaland and of Nagaland and MizoramMizoram respectivelyrespectively

�� But the majority of the But the majority of the STsSTs falls outside the scope of the falls outside the scope of the application of these constitutional and legal provisionsapplication of these constitutional and legal provisions

�� Article 40: Article 40: ‘‘the State shall take steps to the State shall take steps to organiseorganise village village

panchayatspanchayats and endow them with such powers and authority as and endow them with such powers and authority as

may be necessary to enable them to function as units of selfmay be necessary to enable them to function as units of self--

governmentgovernment’’

�� Only in 1993 through the 73rd and 74th Amendment for Only in 1993 through the 73rd and 74th Amendment for

decentralized governance rather than local selfdecentralized governance rather than local self--governancegovernance

for rural and urban areasfor rural and urban areas

�� This did not apply to the Schedule V and VI Areas, States of This did not apply to the Schedule V and VI Areas, States of

Nagaland, Nagaland, MeghalayaMeghalaya and and MizoramMizoram, hill areas of the State of , hill areas of the State of

Manipur for which District Councils exist, and the District of Manipur for which District Councils exist, and the District of

Darjeeling in the State of West BengalDarjeeling in the State of West Bengal

�� The Parliament was to enact separate legislations for The Parliament was to enact separate legislations for

Schedule V and VI Areas while the legislatures of the states Schedule V and VI Areas while the legislatures of the states

of Nagaland, of Nagaland, MeghalayaMeghalaya and and MizoramMizoram could extend this could extend this

provisionprovision

�� The The PanchayatsPanchayats (Extension to Scheduled Areas) Act 1996(Extension to Scheduled Areas) Act 1996

�� Eight of the nine States namely, Andhra Pradesh., Gujarat, Eight of the nine States namely, Andhra Pradesh., Gujarat,

HimachalHimachal Pradesh, Madhya Pradesh, Chhattisgarh, Pradesh, Madhya Pradesh, Chhattisgarh,

MaharashtraMaharashtra, , OdishaOdisha and Rajasthan amended their existing and Rajasthan amended their existing

PanchayatPanchayat Acts to incorporate the PESA provisions; Acts to incorporate the PESA provisions;

inconsistent or not adequately harmonious inconsistent or not adequately harmonious

�� Jharkhand enacted a new Jharkhand enacted a new PanchayatPanchayat Act in 2001; Act in 2001;

�� Elections to Elections to PanchayatsPanchayats held in all States except Jharkhand.held in all States except Jharkhand.

�� PESA not been implemented as required in lawPESA not been implemented as required in law

�� The The state legislations not in tune with the PESAstate legislations not in tune with the PESA

�� Madhya Pradesh, Jharkhand and Chhattisgarh state Acts Madhya Pradesh, Jharkhand and Chhattisgarh state Acts

enabled the enabled the Gram Gram SabhaSabha only to only to honourhonour the spirit of the the spirit of the

lawlaw

�� The Orissa law envisages The Orissa law envisages ‘‘consistent with the relevant consistent with the relevant

laws in force and in harmony with basic tenets of the laws in force and in harmony with basic tenets of the

ConstitutionConstitution’’

�� Dispute resolutionDispute resolution according to customs and tradition of the according to customs and tradition of the communitycommunity’’ ignoredignored

�� Power granted to the Power granted to the gram gram sabhasabha in respect of in respect of ‘‘prevention prevention of land alienation as also restoration of illegally alienated of land alienation as also restoration of illegally alienated landland’’. But suitable provisions in the . But suitable provisions in the PanchayatiPanchayati RajRaj Acts or Acts or the relevant Land Regulations have not been made with the the relevant Land Regulations have not been made with the exception of Madhya Pradesh including the new State of exception of Madhya Pradesh including the new State of Chhattisgarh empowering the Chhattisgarh empowering the Gram Gram SabhaSabha to restore to restore unlawfully alienated lands to ST landowners; the unlawfully alienated lands to ST landowners; the Gram Gram SabhaSabha has the power to direct the Subhas the power to direct the Sub--Divisional Officer to Divisional Officer to restore possession within 3 months. restore possession within 3 months.

�� The provision of Section 4(m)(i) of PESA regarding The provision of Section 4(m)(i) of PESA regarding exciseexcise(taxes on local goods, especially alcohol) vesting full powers (taxes on local goods, especially alcohol) vesting full powers in this regard in the in this regard in the Gram Gram SabhaSabha disregarded at all levels. disregarded at all levels. Even the Madhya Pradesh amendment to its Excise Act has Even the Madhya Pradesh amendment to its Excise Act has no rules to no rules to operationalizeoperationalize this.this.

�� Section 4(d) and 4(m)(ii) make Section 4(d) and 4(m)(ii) make STsSTs the owners of the owners of Minor Forest Minor Forest

Produce Produce

�� But no State has yet taken necessary steps to make this But no State has yet taken necessary steps to make this

premise fully operational premise fully operational

�� Consultation with Consultation with Gram Gram SabhaSabha or or PanchayatsPanchayats at appropriate at appropriate

level is mandatory in the case of level is mandatory in the case of land acquisition and land acquisition and

rehabilitationrehabilitation of project affected people under Section 4(i) of of project affected people under Section 4(i) of

PESA, and in respect of PESA, and in respect of grant of licensegrant of license etc of minor minerals etc of minor minerals

under Sections 4 (k) and 4 (l) of PESA under Sections 4 (k) and 4 (l) of PESA

�� The State laws ignores The State laws ignores Gram Gram SabhaSabha. . PanchayatsPanchayats too are too are

often ignored or dissenting decision overturned by the state often ignored or dissenting decision overturned by the state

government or is coerced into granting approvals government or is coerced into granting approvals

�� The Ministry of Rural Development guidelines of 11 The Ministry of Rural Development guidelines of 11

November 1998 about consultation with the November 1998 about consultation with the Gram Gram SabhaSabhaprescribed a procedure with the Collector having the central prescribed a procedure with the Collector having the central

role, effectively nullifying the role role, effectively nullifying the role Gram Gram SabhaSabha

�� The Ministry of Mines issued guidelines on 28 The Ministry of Mines issued guidelines on 28

December 1997 about consultation with the December 1997 about consultation with the Gram Gram SabhaSabha in respect of grant of lease etc of minor in respect of grant of lease etc of minor

minerals, making the recommendation of the minerals, making the recommendation of the Gram Gram SabhaSabha binding in cases of grant of leases of minor binding in cases of grant of leases of minor

minerals and grant of concessions etc. These minerals and grant of concessions etc. These

directives have also been overlooked. directives have also been overlooked.

�� Madhya Pradesh (including Chhattisgarh), made Madhya Pradesh (including Chhattisgarh), made

elaborate rules in 2000 about consultation with elaborate rules in 2000 about consultation with

concerned concerned Gram Gram SabhasSabhas before acquisition of land before acquisition of land

but has not been adequately followed.but has not been adequately followed.’’

�� The main reasons for the nonThe main reasons for the non--implementation of PESA in the implementation of PESA in the concerned States are:concerned States are:

�� Lack of appreciation about V Schedule read with PESA in Lack of appreciation about V Schedule read with PESA in tribal affairs and confusion about its legal status tribal affairs and confusion about its legal status

�� The formal responsibility of (a) implementation of PESA that The formal responsibility of (a) implementation of PESA that stands for total transformation of the paradigm of stands for total transformation of the paradigm of governance in the Scheduled Areas and (b) dealing with governance in the Scheduled Areas and (b) dealing with tribal affairs in general is vested with two different Ministrietribal affairs in general is vested with two different Ministries s in the Union Government, namely, the Ministry of in the Union Government, namely, the Ministry of PanchayatiPanchayatiRajRaj (earlier the Ministry of Rural Development) and the (earlier the Ministry of Rural Development) and the Ministry of Tribal Affairs, respectively that are virtually Ministry of Tribal Affairs, respectively that are virtually functioning in isolationfunctioning in isolation

�� Lack of information and understanding about PESA in Lack of information and understanding about PESA in general and its radical character in particular amongst the general and its radical character in particular amongst the political executive and even concerned administrators; andpolitical executive and even concerned administrators; and

�� Virtually no effort to convey and disseminate the message of Virtually no effort to convey and disseminate the message of PESA amongst the concerned peoplePESA amongst the concerned people’’

�� 74th Amendment on Municipalities for urban areas of 74th Amendment on Municipalities for urban areas of

Scheduled Areas very similar to the amendment on Scheduled Areas very similar to the amendment on PanchayatsPanchayats. .

However, the extension of this chapter to municipalities in However, the extension of this chapter to municipalities in

Scheduled Areas (under V Schedule) and tribal areas (under VI Scheduled Areas (under V Schedule) and tribal areas (under VI

Schedule) is to be through a special law enacted by Parliament. Schedule) is to be through a special law enacted by Parliament.

16 years later, no such law has been enacted, even though a 16 years later, no such law has been enacted, even though a

Municipalities (Extension to the Scheduled Areas) BillMunicipalities (Extension to the Scheduled Areas) Bill is pending is pending

before Parliament since 2001 before Parliament since 2001

�� Existing municipal laws are unconstitutionally applied to the Existing municipal laws are unconstitutionally applied to the

urban areas in Scheduled Areas urban areas in Scheduled Areas

�� Constitutional Provisions Relating to the NortheastConstitutional Provisions Relating to the Northeast

�� Schedule VI for the Tribal Areas at the district and regional Schedule VI for the Tribal Areas at the district and regional

levels through autonomous councils and Articles 371A and levels through autonomous councils and Articles 371A and

371G for the States of Nagaland and 371G for the States of Nagaland and MizoramMizoram

�� Declaration of areas as Declaration of areas as ‘‘disturbed areasdisturbed areas’’, the deployment of , the deployment of

the armed forces and their operations with impunity under the armed forces and their operations with impunity under

AFSPA has severely curtailed democratic space AFSPA has severely curtailed democratic space

�� Armed forces are also entrusted with development functions Armed forces are also entrusted with development functions

such as such as ‘‘to influence every aspect of the lives of the people to influence every aspect of the lives of the people

of the region, be it education, health, constructional activity,of the region, be it education, health, constructional activity,

agricultural assistance, veterinary assistance, or assistance agricultural assistance, veterinary assistance, or assistance

during natural calamitiesduring natural calamities’’. This is an infringement into the . This is an infringement into the

responsibilities of the communities as well as of the state. responsibilities of the communities as well as of the state.

�� These, in effect, deny the right to selfThese, in effect, deny the right to self--governancegovernance

Compliance with LawCompliance with Law

�� The implementation of PESA and V Schedule grossly The implementation of PESA and V Schedule grossly inadequateinadequate. .

�� The Schedule VI provisions The Schedule VI provisions not harmonizednot harmonized with the traditions with the traditions and customs at the village and community level and are in and customs at the village and community level and are in direct conflict with the powers of the concerned state. direct conflict with the powers of the concerned state.

�� Domain of economy and development decision making kept Domain of economy and development decision making kept outside the wide autonomy provided in Article 371A and 371Goutside the wide autonomy provided in Article 371A and 371G

�� The Forest Rights Act 2006 that provides control over The Forest Rights Act 2006 that provides control over ‘‘community forest resourcescommunity forest resources’’ by the by the Gram Gram SabhaSabha is being is being implemented in gross violations of the law various states implemented in gross violations of the law various states

Participation and consultation Participation and consultation �� Participation and consultation are integral to selfParticipation and consultation are integral to self--determinationdetermination

�� ILO C107 only requires the government to 'ILO C107 only requires the government to 'seekseek the the collaboration'; collaboration'; 'provide opportunities'provide opportunities for full development' and for full development' and ‘‘stimulate...the development among these populations of civil stimulate...the development among these populations of civil liberties and the establishment of participation in elective liberties and the establishment of participation in elective institutions' (Article 5)institutions' (Article 5)

�� ILO C169 requires the governments to ILO C169 requires the governments to ensureensure participation of participation of the peoples concerned on an equal footing with the rest of the the peoples concerned on an equal footing with the rest of the population for promoting the full population for promoting the full realisationrealisation of the social, of the social, economic and cultural rights to attain equality with the rest ofeconomic and cultural rights to attain equality with the rest ofthe national society (Article 2) the national society (Article 2)

�� Article 6 and 7 are the key provisions on consultation and Article 6 and 7 are the key provisions on consultation and participation participation 'at all levels of decision'at all levels of decision--makingmaking in political, in political, legislative and administrative bodies and processes which legislative and administrative bodies and processes which affect them directly' affect them directly'

�� The governments The governments to hold to hold appropriate consultations using appropriate consultations using

mechanisms which ensure the free participation through mechanisms which ensure the free participation through

peoples' own institutions and initiatives (Article 6), whereby peoples' own institutions and initiatives (Article 6), whereby

IPsIPs have the right to make their own decisions on their have the right to make their own decisions on their

economic, social and cultural development (Article 7.1) economic, social and cultural development (Article 7.1)

�� The obligation of governments to consult The obligation of governments to consult IPsIPs is further is further

emphasisedemphasised in legislative or administrative measures, before in legislative or administrative measures, before

extraction of subextraction of sub--surface resources, land acquisitions, surface resources, land acquisitions,

relocations, special vocational relocations, special vocational programmesprogrammes and education of and education of

children children

�� Other terms indicating participation include obligation to Other terms indicating participation include obligation to

‘‘cooperatecooperate’’ with with IPsIPs (Articles 7, 20, 22, 25, 27, 33), (Articles 7, 20, 22, 25, 27, 33),

obligation not to take measures contrary to the freelyobligation not to take measures contrary to the freely--

expressed wishes of expressed wishes of IPsIPs (Article 4), obligation to seek (Article 4), obligation to seek ‘‘free free

and informed consentand informed consent’’ from from IPsIPs (Article 16) and right to be (Article 16) and right to be

consulted through consulted through ‘‘representative institutionsrepresentative institutions’’ (Article 16)(Article 16)

�� UNDRIP recognizes that UNDRIP recognizes that IPsIPs have a have a

�� Right to Right to maintain their distinct political, legal, economic, maintain their distinct political, legal, economic,

social and cultural institutionssocial and cultural institutions while retaining their right while retaining their right

to to participateparticipate fully in the political, economic, social and fully in the political, economic, social and

cultural life of the state (Article 5)cultural life of the state (Article 5)

�� Right to participate in decisionRight to participate in decision--making in matters making in matters

affecting their rights (Article 18)affecting their rights (Article 18)

�� Right to Right to determine determine and develop priorities and strategies and develop priorities and strategies

for their development (Article 23 and 32)for their development (Article 23 and 32)

�� The states are to The states are to consult and cooperateconsult and cooperate with with IPsIPs (Article (Article

19). Free, prior and informed consent of 19). Free, prior and informed consent of IPsIPs is fundamental is fundamental

before adopting and implementing legislative or before adopting and implementing legislative or

administrative measures that may affect them administrative measures that may affect them

�� FreeFree should imply no coercion, intimidation or manipulationshould imply no coercion, intimidation or manipulation

�� Prior Prior should imply consent has been sought sufficiently in should imply consent has been sought sufficiently in advance of any authorization or commencement of activities advance of any authorization or commencement of activities and respect time requirements of indigenous consultation/ and respect time requirements of indigenous consultation/ consensus processesconsensus processes

�� Informed Informed –– should imply that information is provided that should imply that information is provided that covers (at least) the following aspects:covers (at least) the following aspects:

a. The nature, size, pace, reversibility and scope of any a. The nature, size, pace, reversibility and scope of any proposed project or activityproposed project or activity

b. The purpose of the project and/or activityb. The purpose of the project and/or activity

c. The duration of the abovec. The duration of the above

d. The locality of areas that will be affectedd. The locality of areas that will be affected

e. A preliminary assessment of the likely economic, social, e. A preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks, cultural and environmental impact, including potential risks, and fair and equitable benefit sharing in a context that respectand fair and equitable benefit sharing in a context that respects s the precautionary principlethe precautionary principle

f. Personnel likely to be involved in the execution of thef. Personnel likely to be involved in the execution of the

proposed project (including proposed project (including IPsIPs, private sector staff, research, private sector staff, research

institutions, government employees and others)institutions, government employees and others)

g. Procedures that the project may entailg. Procedures that the project may entail

�� ConsentConsent -- Consultation and participation are crucial components Consultation and participation are crucial components

of a consent process. This process may include the option of of a consent process. This process may include the option of

withholding consent. Consent to any agreement should be withholding consent. Consent to any agreement should be

interpreted as interpreted as IPsIPs have reasonably understood it.have reasonably understood it.

�� The The PanchayatPanchayat RajRaj Act for the general population applies to the Act for the general population applies to the

majority of the majority of the STsSTs

�� Decentralizes the developmental and welfare functions of Decentralizes the developmental and welfare functions of

the State to elected bodies (the State to elected bodies (panchayatspanchayats) at the district, ) at the district,

intermediate and intermediate and panchayatpanchayat levelslevels

�� The community at the village level The community at the village level –– Gram Gram SabhaSabha –– is is nominal, acting more as an appendage to the structure nominal, acting more as an appendage to the structure

aboveabove

�� The State is, by and large, the major decisionThe State is, by and large, the major decision--making power making power

�� In effect, consultation and participation, especially in In effect, consultation and participation, especially in

matters related to land and resources, is virtually absent matters related to land and resources, is virtually absent

�� ST representation in the political structure of the state is ST representation in the political structure of the state is

�� Largely proportional to their population; Where ST is Largely proportional to their population; Where ST is

minority, their representation is insignificantminority, their representation is insignificant

�� Ensured through reservation for Ensured through reservation for STsSTs in the electoral in the electoral

bodies bodies

�� The ST representatives invariably belong to one or other The ST representatives invariably belong to one or other

political party, bound by the decision of the concerned political party, bound by the decision of the concerned

partyparty

�� With weak participatory structures at the grassroots or With weak participatory structures at the grassroots or

where lower structures are in conflict or competition with where lower structures are in conflict or competition with

the traditional structures, the ST representatives become the traditional structures, the ST representatives become

part of the dominant structures, effectively weakening part of the dominant structures, effectively weakening

their representative character their representative character

The The PanchayatsPanchayats (Extension to Scheduled Areas) Act, 1996(Extension to Scheduled Areas) Act, 1996

�� Confers substantial powers to the community at the village Confers substantial powers to the community at the village

level level –– to the to the Gram Gram SabhaSabha –– particularly over land and a particularly over land and a

substantial portion of resources substantial portion of resources

�� The The Gram Gram SabhaSabha is to approve is to approve ‘‘the plans, the plans, programmesprogrammes and and

projects for social and economic developmentprojects for social and economic development’’

�� Consultation mandated for acquisition of lands, resettlement Consultation mandated for acquisition of lands, resettlement

or rehabilitation and for prospecting licenses or mining or rehabilitation and for prospecting licenses or mining

leases for minor minerals leases for minor minerals

�� Goes beyond consultation and participation, requiring selfGoes beyond consultation and participation, requiring self--

governance governance

�� Schedule VI provisions in the Tribal Areas in the northSchedule VI provisions in the Tribal Areas in the north--east east

�� Have the potential to act with a high degree of autonomyHave the potential to act with a high degree of autonomy

�� But rendered ineffective with a multiplicity of competing and But rendered ineffective with a multiplicity of competing and

conflicting state structuresconflicting state structures

�� Fail to Fail to harmoniseharmonise with the traditional structures with the traditional structures

�� Nagaland has partly elected village level institutions Nagaland has partly elected village level institutions

�� Brought community participation in the delivery of services Brought community participation in the delivery of services

through a highly successful through a highly successful ‘‘Nagaland Nagaland CommunitisationCommunitisation of of

Public Institutions and Services Act 2002Public Institutions and Services Act 2002’’

�� MizoramMizoram abolished the hereditary village abolished the hereditary village ‘‘chieftainschieftains’’ and and

replaced them with elected Village Councils. replaced them with elected Village Councils.

�� The Forest Rights Act The Forest Rights Act

�� Confers the Confers the Gram Gram SabhaSabha the right to determine the forest the right to determine the forest

rights rights

�� Requires Requires ‘‘free, informed consentfree, informed consent’’ in case of resettlement and in case of resettlement and

also requires consent for any handover of forest land by the also requires consent for any handover of forest land by the

government government

�� However, these important components are often not However, these important components are often not

adhered to in the implementation of this Act adhered to in the implementation of this Act

Land, natural resources and environment Land, natural resources and environment

�� ILO C107 in Article 11 ILO C107 in Article 11

�� Right of Right of ownership, collective or individualownership, collective or individual, of the members , of the members

of the populations concerned over the lands which these of the populations concerned over the lands which these

populations traditionally occupy shall be populations traditionally occupy shall be recognisedrecognised. .

�� Right of Right of IPsIPs not to be removednot to be removed from these lands without from these lands without

their free consent except as an exceptional measure in their free consent except as an exceptional measure in

accordance with law, accordance with law, ‘‘for reasons relating to national for reasons relating to national

security, or in the interest of national economic development security, or in the interest of national economic development

or of the health of the said populationsor of the health of the said populations’’

�� Right to Right to compensationcompensation with alternative lands of at least with alternative lands of at least

equal quality (Article 12)equal quality (Article 12)

�� The The customscustoms of the indigenous populations with respect to of the indigenous populations with respect to

transmission of rights and use of land shall be respected, transmission of rights and use of land shall be respected,

and places a burden on the state to prevent persons who do and places a burden on the state to prevent persons who do

not belong to such communities from taking advantage of not belong to such communities from taking advantage of

such customs to procure land belonging to such customs to procure land belonging to IPsIPs (Article 13). (Article 13).

�� Recommendation 104 amplifies these commitments Recommendation 104 amplifies these commitments

considerably.considerably.

�� ILO C 169 ILO C 169

�� Article 7 states Article 7 states ‘‘Governments shall take measures, in coGovernments shall take measures, in co--

operation with the peoples concerned, to protect and operation with the peoples concerned, to protect and

preserve the environment of the territories they inhabitpreserve the environment of the territories they inhabit’’. .

�� Various other provisions are contained in Part II on Land, Various other provisions are contained in Part II on Land,

which reinforce the which reinforce the notion of traditional homelandnotion of traditional homeland which which

indigenous communities have customarily occupied and/or indigenous communities have customarily occupied and/or

used for their subsistence and traditional activities (Articles used for their subsistence and traditional activities (Articles

13, 14). 13, 14).

�� Participation in decisionParticipation in decision--makingmaking on the use, management on the use, management

and conservation of the resources these lands represent, is and conservation of the resources these lands represent, is

specifically specifically recognisedrecognised; particular mention is made of the ; particular mention is made of the

right to be consulted with regard to mining operations right to be consulted with regard to mining operations

(Article 15) (Article 15)

�� While While removal from these lands is prohibitedremoval from these lands is prohibited, relocation for , relocation for

the purpose of developmental activities in exceptional the purpose of developmental activities in exceptional

circumstances is permissible, and then only with free circumstances is permissible, and then only with free

informed consent and compensation, and the right to return informed consent and compensation, and the right to return

(Article 16) (Article 16)

�� Protection of lands from alienationProtection of lands from alienation to nonto non--indigenous indigenous

persons is a further duty placed on the state (Article 17) persons is a further duty placed on the state (Article 17)

�� The UNDRIP The UNDRIP

�� It preamble It preamble recognisesrecognises the historical fact that the historical fact that IPsIPs have have

suffered injustices as a result of suffered injustices as a result of colonisationcolonisation of their lands, of their lands,

territories and resources, and therefore the need to enable territories and resources, and therefore the need to enable

them to exercise their right to development in accordance them to exercise their right to development in accordance

with their needs and interests with their needs and interests

�� Article 26 Article 26 recognisesrecognises the right of the right of IPsIPs to the lands, territories to the lands, territories

and resources they have traditionally owned/ occupied, or and resources they have traditionally owned/ occupied, or

which they possess by reason of traditional ownership, and which they possess by reason of traditional ownership, and

further places a burden on the state to provide legal further places a burden on the state to provide legal

recognition to these rights recognition to these rights

�� The state is duty bound to establish a fair, independent and The state is duty bound to establish a fair, independent and

transparent process in consonance with custom, to transparent process in consonance with custom, to

recogniserecognise and adjudicate the rights of IP to their lands and adjudicate the rights of IP to their lands

(Article 27) (Article 27)

�� Where lands have been unjustly taken away or damage, the Where lands have been unjustly taken away or damage, the

IPsIPs have have right to restitutionright to restitution (Article 28)(Article 28)

�� They also have the They also have the right to conserve and protectright to conserve and protect the the

environment and the productive capacity of their lands, environment and the productive capacity of their lands,

territories and resources (Article 29) territories and resources (Article 29)

�� Military activities are prohibited in Military activities are prohibited in IPsIPs’’ lands, unless lands, unless

specifically agreed to (Article 30) specifically agreed to (Article 30)

�� The state is under an obligation to The state is under an obligation to consult consult the communities the communities

concerned before undertaking any project affecting these concerned before undertaking any project affecting these

lands, and obtain their free and informed consent (Article lands, and obtain their free and informed consent (Article

31)31)

Constitution of IndiaConstitution of India

�� The Preamble to the Constitution of India makes a The Preamble to the Constitution of India makes a commitment to commitment to ‘‘Justice social, economic, and politicalJustice social, economic, and political’’. .

�� The The Right to lifeRight to life under Article 21 of the Constitution has under Article 21 of the Constitution has been interpreted to include the right to a life of dignity, been interpreted to include the right to a life of dignity, which includes therefore a host of other rights which are which includes therefore a host of other rights which are necessary and important to ensure that this life is holistic necessary and important to ensure that this life is holistic and complete. Therefore the and complete. Therefore the right to livelihood, the right to right to livelihood, the right to shelter, the right to a clean environment, the right to watershelter, the right to a clean environment, the right to water, , and numerous other rights which are of a socioand numerous other rights which are of a socio--economic economic nature, have been held by judicial precedent to be part of nature, have been held by judicial precedent to be part of the fundamental right under Article 21.the fundamental right under Article 21.

�� The Directive Principles of State Policy include numerous The Directive Principles of State Policy include numerous

commitments to a polity and an economic structure which commitments to a polity and an economic structure which

respects equality and distributive justice. Therefore, Article respects equality and distributive justice. Therefore, Article

38 places an obligation on the state to promote the welfare 38 places an obligation on the state to promote the welfare

of the people by of the people by ‘‘securing and protecting, as effectively as it securing and protecting, as effectively as it

may, a social order in which justice, social, economic and may, a social order in which justice, social, economic and

political, shall inform all the institutional of the national lipolitical, shall inform all the institutional of the national lifefe’’. .

It is the It is the duty of the state to reduce inequalitiesduty of the state to reduce inequalities in income as in income as

well as in status, facilities and opportunities. well as in status, facilities and opportunities.

�� Article 39 requires the State to ensure that its policies Article 39 requires the State to ensure that its policies

provide adequate means of livelihood, and also that the provide adequate means of livelihood, and also that the

ownership and control of material resourcesownership and control of material resources of the of the

community are so distributed as best to serve the common community are so distributed as best to serve the common

good. The state is also obliged to ensure that its economic good. The state is also obliged to ensure that its economic

policies policies do not result in the concentration of wealth and do not result in the concentration of wealth and

means of production.means of production.

Scheduled Areas and Tribal AreasScheduled Areas and Tribal Areas

�� Article 244 of the Constitution, therefore, provides that Article 244 of the Constitution, therefore, provides that administration and control of Scheduled Areas and administration and control of Scheduled Areas and STsSTs in in any State other than Assam, any State other than Assam, MeghalayaMeghalaya, , TripuraTripura and and MizoramMizoram, shall be governed by the V Schedule, and that , shall be governed by the V Schedule, and that tribal areas in Assam, tribal areas in Assam, MeghalayaMeghalaya, , TripuraTripura and and MizoramMizoram (all (all in North East India) shall be governed by the VI Schedule in North East India) shall be governed by the VI Schedule

�� Article 244Article 244--A relates to the creation of an autonomous A relates to the creation of an autonomous region within the State of Assam comprising certain tribal region within the State of Assam comprising certain tribal areas, and the creation of a separate Legislature for it areas, and the creation of a separate Legislature for it

�� Special dispensation for the States of Nagaland (Article 371Special dispensation for the States of Nagaland (Article 371--A), A), SikkimSikkim (371(371--F), F), MizoramMizoram (371(371--G), and G), and ArunachalArunachal Pradesh Pradesh (371(371--H). H).

�� The The PanchayatsPanchayats (Extension to Scheduled Areas) Act, 1996(Extension to Scheduled Areas) Act, 1996contains several key provisions which give statutory contains several key provisions which give statutory recognition to some of the key rights elucidated in the recognition to some of the key rights elucidated in the international conventions, as well as the Constitution of international conventions, as well as the Constitution of India, with regard to rights of India, with regard to rights of IPsIPs to their traditional to their traditional homelands and resources, and to decisionhomelands and resources, and to decision--making processes making processes regarding developmental activities. regarding developmental activities.

Land Alienation and AcquisitionLand Alienation and Acquisition

�� Loss of land remains the single biggest cause of deprivation of Loss of land remains the single biggest cause of deprivation of

the livelihoods, lives and homelands of the livelihoods, lives and homelands of STsSTs

�� The mechanisms for such expropriation of land vary, but The mechanisms for such expropriation of land vary, but

include include

�� The forest laws including JFMThe forest laws including JFM

�� Major development projectsMajor development projects

�� The power of the Indian state to forcibly acquire private The power of the Indian state to forcibly acquire private

property (and to divert common property to any use it sees property (and to divert common property to any use it sees

as appropriate) used with particular ferocity against Adivasi as appropriate) used with particular ferocity against Adivasi

communities, who have suffered disproportionate communities, who have suffered disproportionate

displacement and loss of livelihoods as a result of repeated displacement and loss of livelihoods as a result of repeated

seizure of their resources in this manner seizure of their resources in this manner

�� Indian law provides Indian law provides very few institutional or statutory very few institutional or statutory

protections for common resources and homelandsprotections for common resources and homelands

�� Right to property removed from the Constitution in 1951 from Right to property removed from the Constitution in 1951 from the list of fundamental rights in order to ease land reform. the list of fundamental rights in order to ease land reform. Ironically, this is now being used by the state to ease takeoverIronically, this is now being used by the state to ease takeovers s of lands of marginal communities. of lands of marginal communities.

�� Eleventh Five Year Plan states: Eleventh Five Year Plan states: ‘‘Ancestral land, villages, Ancestral land, villages, habitations and environs belonging to the tribal people have habitations and environs belonging to the tribal people have been made available for various development projects as tribal been made available for various development projects as tribal areas possess 60areas possess 60––70% of the natural resources of the country. 70% of the natural resources of the country. In such cases, though primary displacement appears small due In such cases, though primary displacement appears small due to low population density, secondary displacement has been to low population density, secondary displacement has been extensive, encompassing common property resources that extensive, encompassing common property resources that provided supplemental livelihoods, particularly to those with provided supplemental livelihoods, particularly to those with low or no dependence on farming. Estimates of low or no dependence on farming. Estimates of STsSTs displaced displaced on account of acquisition over the past six decades vary on account of acquisition over the past six decades vary between 8.5 and 10 million (roughly about 40% of all between 8.5 and 10 million (roughly about 40% of all ousteesoustees) ) from 1951 to 1990. Of them, only 21.20 from 1951 to 1990. Of them, only 21.20 lakhlakh ST persons have ST persons have been rehabilitated during the period. The widespread secondary been rehabilitated during the period. The widespread secondary displacement in the zone of influence has neither been displacement in the zone of influence has neither been measured nor was provided formeasured nor was provided for’’. .

�� The The courts largely failed to provide any reliefcourts largely failed to provide any relief in this regard in this regard

�� Courts used Article 16 of ILO C 169 to conclude that Courts used Article 16 of ILO C 169 to conclude that

displacement of tribals for the purpose of displacement of tribals for the purpose of ‘‘developmentdevelopment’’ is is

unavoidableunavoidable and therefore cannot be held to be in violation and therefore cannot be held to be in violation

of the obligations of the Indian State under the said of the obligations of the Indian State under the said

Convention.Convention.

�� The process of The process of recognition of traditional rights of recognition of traditional rights of STsSTs to land is to land is

significantly uneven and incompletesignificantly uneven and incomplete (the process of recording (the process of recording

their rights in the forest areas has just commenced). their rights in the forest areas has just commenced).

�� The state and nonThe state and non--tribals have deprived them their access of tribals have deprived them their access of

their lands by appropriation of these lands their lands by appropriation of these lands

�� Of the recorded land rights, despite the constitutional and Of the recorded land rights, despite the constitutional and

legislative safeguards at the central and state level, land legislative safeguards at the central and state level, land

alienation has been widespread alienation has been widespread

�� In compliance of Paragraph 5(2)(a) of the V Schedule, most In compliance of Paragraph 5(2)(a) of the V Schedule, most States have enacted legislations restricting/prohibiting the States have enacted legislations restricting/prohibiting the transfer of land from tribals to nontransfer of land from tribals to non--tribals. The tribals. The restrictions/prohibitions are intensified in their application trestrictions/prohibitions are intensified in their application to o Scheduled Areas. Scheduled Areas. Compliance to these laws has been poorCompliance to these laws has been poor. . Most violations do not reach the courts. Inaccessibility, nonMost violations do not reach the courts. Inaccessibility, non--affordability and enormous delays in litigation are factors. affordability and enormous delays in litigation are factors. Procedural rules such as that of limitation and locus Procedural rules such as that of limitation and locus standistandi, , has been detrimental. The actual restoration and physical has been detrimental. The actual restoration and physical possession, even in the cases in favor of possession, even in the cases in favor of STsSTs, is yet another , is yet another problem simply because of the superior socioproblem simply because of the superior socio--economic economic status of the person in possession. status of the person in possession. The Courts are not also The Courts are not also able to ensure possession. able to ensure possession.

ForestsForests

�� The largest expropriation of Adivasi resources that has taken The largest expropriation of Adivasi resources that has taken

place in India after independence has occurred in forest areas place in India after independence has occurred in forest areas

classified as classified as ‘‘forest landsforest lands’’

�� Indian Forest Act of 1927, a colonial legal architectureIndian Forest Act of 1927, a colonial legal architecture

�� UUnhinderednhindered exploitation exploitation

�� The Forest Act empowered the government to take over The Forest Act empowered the government to take over

lands as a reserved or protected forest, following which a lands as a reserved or protected forest, following which a

‘‘Forest Settlement OfficerForest Settlement Officer’’ supposedly would enquire into supposedly would enquire into

claims of rights (to land, forest produce, pasture, etc.), a claims of rights (to land, forest produce, pasture, etc.), a

process destined to fail process destined to fail

�� Surveys were often incomplete or not doneSurveys were often incomplete or not done (82.9% of (82.9% of

Madhya Madhya PradeshPradesh’’ss forest blocks had not been surveyed as on forest blocks had not been surveyed as on

2003, while in Orissa more than 40% of state forests are 2003, while in Orissa more than 40% of state forests are

‘‘deemeddeemed’’ reserved forests where no settlement of rights took reserved forests where no settlement of rights took

place). place).

�� Where the claims process did occur, the rights of socially Where the claims process did occur, the rights of socially

weaker communities weaker communities –– particularly Adivasis particularly Adivasis –– were were rarely rarely

recordedrecorded. These communities were unable to access the . These communities were unable to access the

settlement process in many cases. settlement process in many cases.

�� The problem became worse after Independence, when the The problem became worse after Independence, when the

lands declared lands declared ‘‘forestsforests’’ by the Princely States, by the Princely States, zamindarszamindars

and private owners were transferred to the Forest and private owners were transferred to the Forest

Department through blanket notifications Department through blanket notifications without the without the

settlement process. settlement process.

�� Ministry of Environment and Forests in an affidavit filed beforeMinistry of Environment and Forests in an affidavit filed before

the Supreme Court in July 2004 states: the Supreme Court in July 2004 states:

�� ‘‘For most areas in India, especially the tribal areas, record For most areas in India, especially the tribal areas, record of rights did not exist due to which rights of the tribals couldof rights did not exist due to which rights of the tribals couldnot be settled during the process of consolidation of forests not be settled during the process of consolidation of forests in the country. Therefore, the rural people, especially tribals in the country. Therefore, the rural people, especially tribals who have been living in the forests since time immemorial, who have been living in the forests since time immemorial, were deprived of their traditional rights and livelihood and were deprived of their traditional rights and livelihood and consequently, these tribals have become encroachers in the consequently, these tribals have become encroachers in the eyes of law.eyes of law.’’

�� State of forests State of forests

�� Recorded Recorded ‘‘forestsforests’’ often include large areas of land that are often include large areas of land that are

not and never were forest at all not and never were forest at all

�� TThe total recorded forest cover was only 23.57% of land he total recorded forest cover was only 23.57% of land

area (Forest Survey of India, 2003) area (Forest Survey of India, 2003)

�� At least 12.4% of recorded forest has no actual forest cover At least 12.4% of recorded forest has no actual forest cover

�� Those areas that are in fact forest include Adivasi homelands Those areas that are in fact forest include Adivasi homelands

�� Overnight all those who live in these lands became Overnight all those who live in these lands became

‘‘encroachersencroachers’’ in their own homesin their own homes, while all those who depend , while all those who depend

on these lands for their livelihood were deemed to be illegal on these lands for their livelihood were deemed to be illegal

trespassers trespassers

�� Community rights and livelihood activities not built on Community rights and livelihood activities not built on

private property relations private property relations –– shifting cultivation, minor forest shifting cultivation, minor forest

produce collection and community forest protection produce collection and community forest protection –– were were

not given any legal recognition at allnot given any legal recognition at all

�� The Wildlife (Protection) Act 1972 provided for the creation of The Wildlife (Protection) Act 1972 provided for the creation of

national parks, sanctuaries and other forms of protected areas national parks, sanctuaries and other forms of protected areas

for wildlife protection. The process was similar to the Forest for wildlife protection. The process was similar to the Forest

Act. Act.

�� The result was similar expropriation and denial of rights The result was similar expropriation and denial of rights

�� 60% of sanctuaries and 62% of national parks did complete 60% of sanctuaries and 62% of national parks did complete

the required process of rights settlement, though many were the required process of rights settlement, though many were

declared more than two decades earlier (data submitted to declared more than two decades earlier (data submitted to

the Supreme Court in 2005) the Supreme Court in 2005)

�� The Tiger Task Force of the GOI declared that The Tiger Task Force of the GOI declared that ‘‘in the name in the name

of conservation, what has been carried out is a of conservation, what has been carried out is a completely completely

illegal and unconstitutional land acquisition programmeillegal and unconstitutional land acquisition programme’’

�� The Chapter on fundamental duties in Article 51The Chapter on fundamental duties in Article 51--A (g) places a A (g) places a

duty on the citizens to duty on the citizens to ‘‘Protect and improve the natural Protect and improve the natural

environment including forests, lakes, rivers and wildlife, and tenvironment including forests, lakes, rivers and wildlife, and to o

have compassion for living creatureshave compassion for living creatures’’. .

�� The power to make legislation on the subject of forests and The power to make legislation on the subject of forests and

wildlife was vested in the State Legislative Assemblies vide wildlife was vested in the State Legislative Assemblies vide

the then Entry 19 and 20 respectively of List IIthe then Entry 19 and 20 respectively of List II-- State List of State List of

the Seventh Schedulethe Seventh Schedule

�� The Constitution (42nd Amendment) Act 1976 added: The Constitution (42nd Amendment) Act 1976 added:

�� Article 48Article 48--A in Part IV (DPSP) which provides for the A in Part IV (DPSP) which provides for the

protection and improvement of the environment and protection and improvement of the environment and

safeguarding of the forests and wildlife of the country safeguarding of the forests and wildlife of the country

�� The legislative power to make laws relating to forests and The legislative power to make laws relating to forests and

wildlife was removed from the State list, and added to List wildlife was removed from the State list, and added to List

IIIIII-- Concurrent List, thereby vesting power in both the Concurrent List, thereby vesting power in both the

Central and the State Legislatures Central and the State Legislatures

�� The Forest (Conservation) Act 1980 required permission from The Forest (Conservation) Act 1980 required permission from

the Central Government for the diversion of forest land by Statethe Central Government for the diversion of forest land by State

governments. Supreme Court confirmed the validity of the governments. Supreme Court confirmed the validity of the

power of the Centre over land use of forests. power of the Centre over land use of forests.

�� But illegal mining, timber smuggling, and rampant But illegal mining, timber smuggling, and rampant

destruction of the forests, which constitute the homelands of destruction of the forests, which constitute the homelands of

the tribals, continuethe tribals, continue

�� The Forest Case The Forest Case centralisedcentralised forest governance furtherforest governance further

�� While various issues relating to the diversion of forest land While various issues relating to the diversion of forest land

for all manner of nonfor all manner of non--forest activity, such as mining, forest activity, such as mining,

industries, large dams and so on are taken up, the voices of industries, large dams and so on are taken up, the voices of

the local tribals ignored the local tribals ignored

�� Rarely have communities affected by these orders Rarely have communities affected by these orders

approached the Forest Bench, and when they have, they approached the Forest Bench, and when they have, they

have either found themselves ignored or have not been have either found themselves ignored or have not been

permitted to address arguments at all permitted to address arguments at all

�� Information regarding orders passed, which often has life Information regarding orders passed, which often has life

and death implications, rarely reach them and death implications, rarely reach them

�� The primary result of the case has been to place control The primary result of the case has been to place control

over national forest management policies in the hands of over national forest management policies in the hands of

the court and its appointed committees, which are out of the court and its appointed committees, which are out of

the reach of Adivasi communitiesthe reach of Adivasi communities

�� In 2006, following intense In 2006, following intense mobilisationmobilisation after a national eviction after a national eviction drive targeting Adivasis, Parliament passed India's first law ondrive targeting Adivasis, Parliament passed India's first law onforest rights forest rights –– the Scheduled Tribes and Other Traditional the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act. The key Forest Dwellers (Recognition of Forest Rights) Act. The key elements of this law are:elements of this law are:

�� A A comprehensive list of forest rightscomprehensive list of forest rights, including rights to land , including rights to land under occupation, minor forest produce, grazing rights, under occupation, minor forest produce, grazing rights, water bodies, habitat for prewater bodies, habitat for pre--agricultural communities, etc. agricultural communities, etc.

�� Laying down who is Laying down who is eligible for status as a eligible for status as a ‘‘forest dwellerforest dweller’’entitled to these rights, namely entitled to these rights, namely STsSTs and 'other traditional and 'other traditional forest dwellers' (those living in and dependent on forests for forest dwellers' (those living in and dependent on forests for 75 years)75 years)

�� Creating the foundations of Creating the foundations of a democratic frameworka democratic framework for, for, firstly, firstly, recognisingrecognising rights; secondly, deciding on inviolate rights; secondly, deciding on inviolate areas for wildlife conservation; and, most importantly, for areas for wildlife conservation; and, most importantly, for conservation and forest / wildlife protectionconservation and forest / wildlife protection

�� The most politically significant part of the law is the The most politically significant part of the law is the

authority of the authority of the gram gram sabhasabha in determining rights and the in determining rights and the

power to issue directions for forest, wildlife and biodiversity power to issue directions for forest, wildlife and biodiversity

protection protection

�� However State authorities have reduced the law to the However State authorities have reduced the law to the

recognition of individual land titles alone, ignoring the recognition of individual land titles alone, ignoring the

community rights community rights recognisedrecognised under the Act while also under the Act while also

consistently undermining the powers of the gram consistently undermining the powers of the gram sabhasabha

�� The struggle between communities and the State over their The struggle between communities and the State over their

legal rights continues legal rights continues

�� DeforestationDeforestation

�� Between 1980 and 2005, around 1.3 million hectares of Between 1980 and 2005, around 1.3 million hectares of

forest was diverted for various projects; forest was diverted for various projects;

�� Between 2002 and 2008, roughly 78,000 hectares of forest Between 2002 and 2008, roughly 78,000 hectares of forest

was diverted annually. was diverted annually.

�� Between 1998 and 2005, an average of 216 mining projects Between 1998 and 2005, an average of 216 mining projects

was granted forest clearance every year. was granted forest clearance every year.

Policy Spaces for Resource ControlPolicy Spaces for Resource Control�� Laws Laws –– the the PanchayatsPanchayats (Extension to Scheduled Areas) Act (Extension to Scheduled Areas) Act 1996 and the Scheduled Tribes and Other Traditional Forest 1996 and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006Dwellers (Recognition of Forest Rights) Act 2006

�� FRA has recently become a significant weapon in struggles to FRA has recently become a significant weapon in struggles to stop the seizure of forest land for industrial projects. stop the seizure of forest land for industrial projects.

�� In 1994, the Central government issued a notification under the In 1994, the Central government issued a notification under the Environment Protection Act that required public hearings before Environment Protection Act that required public hearings before environmental clearance is granted to large projects.environmental clearance is granted to large projects.

�� Courts Courts -- PIL useful at times for Adivasis to assert their resource PIL useful at times for Adivasis to assert their resource rights. Ex: the rights. Ex: the SamathaSamatha judgment. But in recent years in judgment. But in recent years in particular, such rulings have become rarer.particular, such rulings have become rarer.

�� Legal interpretation running counter to the rights of tribalsLegal interpretation running counter to the rights of tribals

�� The Supreme Court in a judgment relating to the The Supreme Court in a judgment relating to the SardarSardar

SarovarSarovar Project read right to life under Art. 21 of the Project read right to life under Art. 21 of the

Constitution with Article 12 of ILO C107 dismissing the Constitution with Article 12 of ILO C107 dismissing the

contention of the petitioners regarding specific violation contention of the petitioners regarding specific violation

of Article 12 as follows: of Article 12 as follows:

‘…‘…removal of the tribal population is necessary as an removal of the tribal population is necessary as an exceptional measureexceptional measure…….. rehabilitation package contained rehabilitation package contained in the award of the Tribunal as improved further by the in the award of the Tribunal as improved further by the State of Gujarat and the other States prima facie shows State of Gujarat and the other States prima facie shows that that the land required to be allotted to the tribals is likely the land required to be allotted to the tribals is likely to be equal, if not better than what they had ownedto be equal, if not better than what they had owned’’..

�� The Supreme Court, in a judgment in a litigation arising out The Supreme Court, in a judgment in a litigation arising out of the failure of the State of Kerala to implement its own of the failure of the State of Kerala to implement its own commitments to restore lands to tribals which had been commitments to restore lands to tribals which had been alienated through sale to nonalienated through sale to non--tribals, examined Article 21 of tribals, examined Article 21 of the Constitution, the ILO conventions 107 and 169 and the the Constitution, the ILO conventions 107 and 169 and the UNDRIP, and arrived at the following finding:UNDRIP, and arrived at the following finding:

‘‘It is now accepted that the It is now accepted that the PanchsheelPanchsheel doctrine which doctrine which provided that the tribes could flourish only if the State provided that the tribes could flourish only if the State interfered minimally and functioned chiefly as a support interfered minimally and functioned chiefly as a support system in view of passage of time is system in view of passage of time is no longer validno longer valid. Even . Even the notion of the notion of autonomy contained in the 1989 convention autonomy contained in the 1989 convention has been rejected by Indiahas been rejected by India..’’

�� The process of usurpation of the rights contained in the The process of usurpation of the rights contained in the Constitution and the various protective legislations enacted by Constitution and the various protective legislations enacted by the state, has gained momentum over the last few years.the state, has gained momentum over the last few years.