Judiciary and the indigenous people in India

ROLE OF JUDICIARY OVER DEVELOPMENT AND THE RIGHT OF THE INDIGENOUS/TRIBAL (ADIVASI) PEOPLE IN INDIA

Dr. Ghulam Yazdani1.

INTRODUCTION

Asia is a land full of natural and cultural wonders. But the region faces critical challenges, including poverty, water shortages and climate change. IUCN2works with states and civil society in the region to build solutions together. India i.e., Bharat is one of the unique country where multi-religious, multi- lingual and multi-cultural communities are living with harmony. Unity in diversity is basic feature of this country. Being a diverse nation,  it has multiplicity of tribal population throughout its territory. The tribal people  are known as “Adivasi” are considered as the  children of the Mother Nature and their existence highly depends on their surrounding atmosphere.

By the Indian Constitution  among the population of 104.3 million, the indigenous/tribal peoples are recognized as ‘Scheduled Tribes’. Out of 5,652 distinct communities in India, about 700 of them are considered to be ‘Scheduled Tribes’ notified under Article 342 of the Constitution of India. The Constitution of India, addresses Indigenous peoples or Scheduled Tribes in  as  many  as  209  Articles  and  2  special  Schedules  –  these articles  and special schedules are protective and ameliorative in nature. Article 341 and 342 provide for classification of Scheduled Tribes, while Article 330, 332 and 334 provide for reservation of seats in Parliament and State Assemblies. Indigenous peoples/ Schedule tribes3are the original inhabitants and the first settlers in specific geographical habitations of the region which became India in 1947. They live on about 15 percent of the country’s land in various natural/ecological habitats, ranging from plains and forest to hills and inaccessible difficult areas. They are considered as objects of various categorization processes from the perspective of the ‘other’. Although as before, they identify themselves as indigenous peoples. ‘Scheduled Tribe’ is a politico administrative term used for the purpose of administering certain specific constitutional privileges, protection and benefits from the state as thought of at the time of making of the Constitution.

The Tribals/Adivasis existence is deep rooted in conservation and subsistence of their  ecology in a natural way. In other words, the conventional livelihood of the tribal’s is based on customary and extended rights of the tribal communities over the surrounding land and woods in the forests. Tribal’s work in harmony with their surrounded ecology forms a “common pool” on natural resources. The practice of forming a “common pool” is based on common conception that whatsoever is taken from the nature will be restored back to it. The “common pooling” on Natural resources is supported by traditional rights of the tribals, this prevents intensive production from and utilization of the natural resources and is done in interest of preserving, conserving  and sustaining the continuing productivity of natural resources. The tribals extensive interaction with their ecology can also considered as their leading adversity.  These indigenous people reside in areas which are exceedingly rich in natural resources that the public and private companies require for the “Development” of the country.

The traditional rights of tribal people over the natural resources and their geographical sovereignty have after sometime come into divergence with the forces of ‘Modernization’and ‘Globalization’, which have been considered as necessary practices to reach developmental goals. The impact of globalization on the Indigenous communities is manifold, and often they are ones most negatively affected. Under globalization, it is the tribal Indigenous areas that have had to face the attacks of massive developmental projects4. The argument by the develop-mentors (people who advocate for development) is that these indigenous people are under-utilizing, wasting and making inefficient use of the natural resources which are extremely productive in nature. On the other hand, the conservationists are of the opinion that development, preservation of the environment and the right of the Tribals must work in harmony with each other.

The problem that India faces is its unlimited development aspirations and its limited natural resources. This has given rise to a conflict between the State committed to development in the name of “the greater common good” with catastrophic effects on the rural population mainly the marginalized, poor, women, tribes and peasants. The current ecology movements have emerged as the people’s response to this new threat to their survival and as a demand for the ecological conservation of their vital life-support systems. The life-support systems in addition to clean air are common property resources of water, forests and land on which the majority of the people of India depend for survival. The human activists oppose the development projects involving huge and long-term exploitation as activities which most benefit the educated minority. The elite is the main beneficiary while the large rural and forest populations surviving on nature feel neglected. Thus, the diversion of resources from sustenance needs to the demands of the market generate conflicts between commercial interest and people’s survival. Conflicts on natural resources are therefore conflicts over rights5.

Development with growth of international-trade-community indirectly allows global market domination. Such development creates needs for international aid and foreign debt which provide capital for such development. When such large projects funded by international organizations and based on utilization of natural resources are undertaken, the local resources go out of control of local communities and go into the hands of governments and the international financial institutions. The conditions for the loan determine the mode of utilization of natural resources. The cost involved in such large-scale projects is so great that sometimes it becomes imperative to utilize the benefits of projects like dams for cash crop cultivation, maybe sometimes for generation of electricity. In the process many times there is wastage of water and land gets water logged. It becomes an arid desert. When people living on the natural resources protest against such projects, they are perceived as obstructionists and anti-progress, although such people’s movements are committed to halt the process that results in “progress for a few and hardships for many”. These conflicts between development plans of the State requiring exploitation of nature and the people dependent for their survival on nature, have given rise to demands for protecting nature and the need to strengthen people’s collective rights to common natural resources. A life-support system can be shared; it cannot be owned as private property or exploited for private profit.

Political Integration: Political integration can be considered as a statist approach6. The basic principle of integration is defined in the panchsheel as a foreward by Jawaharlal Nehru in the ‘Philosophy of NEFA’, (1957) by Verrier Elwin. It is written as:

  1. a) People should be allowed to develop on the lines of their own genius and nothing should be imposed upon them;
  2. b) Tribal rights in land and forest should be respected;
  3. c) Induction of too many outsiders into tribal areas should be avoided;
  4. d) There should be no over-administration of tribal areas and as far as possible work should be done through their own social and cultural institutions; and
  5. e) The results should be judged not by the amount of money spent but by the quality of human character that is evolved.

The nation-state as a larger political territory accommodates diversity; multi culture and linguistics. Roy Burman is of the opinion that integration should be a ‘means and not an end7.’

INTERNATIONAL PERSPECTIVES

On 16th June, 1972, the Declaration of the United Nations Conference on the Human Environment adopted at Stockholm is the first formal international recognition of the need for protection of the environment between persons of the same generation and between persons of present and future generations. It was for the first time that the declaration recognises that development should be conditioned with due regard to the environment and the international interest both. The Stockholm declaration of formulates 26 principles and the first principle gives the substance of the other principles: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of equality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.”Other principles like Nos. 5 and 9 imbibe the principles of social justice. They say that “the non-renewable resources of the earth must be employed in such a way as to guard against the danger of future exhaustion and to ensure that benefits from such employment are shared by all mankind”. Principle No. 9 states that “environmental deficiencies generated by the conditions of under-development and natural disasters pose grave problems and can best be remedied by accelerated development through the transfer of substantial quantities of financial and technological assistance as a supplement to the domestic efforts of the developing countries and such timely assistance as may be required.”

Based on Stockholm Declaration, a number of international Conventions and Treaties were entered into by the nations. The most significant among them is the Rio Declaration of 1992. In that declaration emphasis is on the concept of “sustainable development” and “inter-generational equities”. The first principle is: “Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature”. Principle No. 3 declares: “The right to development must be fulfilled as to equitably meet development and environmental needs of present and future generations”.

INDIAN SCENARIO

Under legal system of the country, the tribe is categorised as scheduled tribe, a political administrative term with embedded natural rights. The prerogative or choice of scheduling Tribe or scheduling areas lies with the state. It has been found many a times depending upon political necessity/will or otherwise. The tribal culture and economy encompasses around the forest ecology and surrounding ecosystems, which largely dictates the way to life in that area.  India is also characterized by having second largest tribal (Adivasis) population in the world8. It is ironical to note that the poorest people in India are inhabitants of areas of richest natural resources. Historically, tribals have been pushed to corners owing to economic interests of various dominant groups.

In contemporary India, the need for land for development is still forcing them, even though this time to integrate with mainstream as well. According the 2011census, tribals constitute 8.2%of the total population of the country. In India, 461 ethnic groups are recognized as Scheduled Tribes, and these are considered to be India’s indigenous peoples. In mainland India, the Scheduled Tribes are usually referred to as Adivasis, which literally means indigenous peoples. There are, however, many more ethnic groups that would qualify for Scheduled Tribe status but which are not officially recognized. Estimates of the total number of tribal groups are as high as 635. According to the Anthropological Survey a total of 4,635 communities are now to be found in India. Out of this total number, 732 are the  ‘tribal’ or Indigenous communities.. The largest concentrations of indigenous peoples are found in the seven states of north-east India, and the so-called “central tribal belt” stretching from Rajasthan to West Bengal. More than half the Scheduled Tribes population is concentrated in the States of Madhya Pradesh, Chhattisgarh, Maharashtra, Odisha, Jharkhand and Gujarat. There are over 700 Scheduled Tribes notified under Article 342 of the Constitution of India, spread over different States and Union Territories of the country. Many tribes are present in more than one state. The largest numbers of scheduled tribes are in the states of Orissa (i.e. 62). The synonyms of these 700 or so tribes are also vary many a times and are listed in the Schedule.

Despite of many years of self rule in India, Tribals are among the most deprived and oppressed sections of India. It is very often that the  gender bias and gender oppression has meant to the  Adivasi women  as perpetual in nature and are worst affected. Half of the adivasi people do not have land. Even when they own some land, in most cases they may be only marginal holdings. In recent times the large scale industrialization, privatization and globalization for sake of “development” has emerged as the biggest threat to tribal’s survival – ironically, the so called “modern civilized society” has become a predator of their age-old eco-friendly, peaceful and harmonious lifestyle. The tribals, their lands, and other resources are now exposed to the exploitative market forces, mostly due to the State and Multi National Companies (MNCs) sponsored developmental projects to exploit minerals and other natural resources. Land alienation of the tribals by the powerful entities has become common phenomena. It is most regrettable that ‘the freedom to live in their own traditional ways’as  guaranteed by the  Indian Constitution is flouted by those who understand the Constitution better. The state ownership of the tribal community land, called common property resources (CPR) land, (which the government owns and involves no compensation when taken over) provides a convenient entry point to Corporates giants/ project managers. In order to reduce the project cost, they deliberately choose the administratively neglected backward areas with high CPR component and where legal compensation for the private owned land is low. Bureaucrats are of course ever willing to serve the cause of the rich and powerful. These so called ‘developmental’ activities, which do not confer any direct benefit to the tribals, merely leave them homeless and  landless and without means for survival. Monetary benefits do not really count when the lifestyle for generations is changed irreparably.

CONSTITUTIONAL APPARATUS

At the time of making of the Constitution, we find no mention of the environment, neither in Part III relating to “Fundamental Rights” nor in Part IV relating to “Directive Principles of State Policy”. The environmental topics for legislation were divided between State and the Union within the federal structure the country. It is only in the year 1976 that Article 48-A was introduced as a new environmental provision in Directive Principles of State Policy which says that “the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.” Directive Principles are not directly enforceable and do not create any independent procedural rights. Article 37 provides that although the directive principles “shall not be enforceable by any Court, they are nevertheless fundamental in the governance of the country”, and it shall be the duty of the State to apply these principles in making laws. A new provision on “Fundamental Duties” was introduced by Article 51-A which says in clause (g) that “it shall be the duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures”. There is, however, no mention of their enforcement by writ or other legal provisions. Nevertheless the two articles, 48-A as a Directive Principle of State Policy and Article 51-A (g) as a fundamental duty of a citizen, have played an important role in the emergence of environmental law in India. By adoption of new strategies like Public Interest litigation along with activist Judges in the courts in India have developed environmental law which finds mention and appreciation in international forums as models to be followed  by other nations9.

TRIBAL RIGHT AND THE CONFLICT WITH DEVELOPMENT

So far declared area as forest in India, there are no trees as such but whatever the case may be forests in India are in a state of devastation the major reason for this is that all sectors of the economy demand certain portion of the forest resources. Large portion of the forest land is being sacrificed for massive development projects, obtaining raw material and exporting timber to generate revenue. The process of commercial logging and industrial mining are being carried out on forest land which in expansively destroying the integrity of the forest ecosystem upon which the tribal people depends.

States are under the obligation to consult with indigenous peoples and guarantee their participation in decisions regarding any measure that affects their territory10, taking into consideration the special relationship between indigenous and tribal peoples and land and natural resources. This is a concrete manifestation of the general rule according to which the State must guarantee that “indigenous peoples be consulted on any matters that might affect them11,”taking into account that “the purpose of such consultations should be to obtain their free and informed consent,” as provided in Convention of  International Labour Organisation No. 16912and in the UN Declaration on the Rights of Indigenous Peoples. Consultation and consent are not limited to matters affecting indigenous property rights, but are also applicable to other state administrative or legislative activity that has an impact on the rights or interests of indigenous peoples13.

Indigenous peoples’ right to be consulted about decisions that may affect them is directly related to the right to cultural identity, insofar as culture may be affected by such decisions14. The State must respect, protect and promote indigenous and tribal peoples’ traditions and customs, because they are an intrinsic component of the cultural identity of the persons who form part of said peoples. The State duty to develop consultation procedures in relation to decisions that affect their territory , is thus directly linked to the State obligation to adopt special measures to protect the right to cultural identity, based on a way of life intrinsically linked to territory. Development is integral but the same must not be at cost on infringement of someone else’s right.

Legislation for Forest Conservation:

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, recognizes the rights of forest-dwelling Scheduled Tribes and other traditional forest dwellers over the forest areas inhabited by them and provides a framework for according the same.

The Forest Conservation Act, 1980, was enacted to help conserve the country’s forests. It strictly restricts and regulates the de-reservation of forests or use of forest land for non-forest purposes without the prior approval of Central Government. To this end the Act lays down the pre-requisites for the diversion of forest land for non-forest purposes.

The Indian Forest Act, 1927, consolidates the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce.

The National Forest Policy, 1988, (NFP) is primarily concerned with the sustainable use and conservation of forests, and further strengthens the Forest Conservation Act (1980). It marked a significant departure from earlier forest policies, which gave primacy to meeting government interests and industrial requirements for forest products at the expense of local subsistence requirements. The NFP prioritizes the maintenance of ecological balance through the conservation of biological diversity, soil and water management, increase of tree cover, efficient use of forest produce, substitution of wood, and ensuring peoples’ involvement in achieving these objectives. It also includes meeting the natural resource requirements of rural communities as a major objective. The NFP legitimizes the customary rights and concessions of communities living in and around forests, stating that the domestic requirements of the rural poor should take precedence over industrial and commercial demands for forest products.

The Biological Diversity Act, 2002: India is a party to the United Nations Convention on Biological Diversity. The provisions of the Biological Diversity Act are in addition to and not in derogation of the provisions in any other law relating to forests or wildlife.

The Environment (Protection) Act, 1986: The Environment Protection Act is an important legislation that provides for coordination of activities of the various regulatory agencies, creation of authorities with adequate powers for environmental protection, regulation of the discharge of environmental pollutants, handling of hazardous substances, etc. The Act provided an opportunity to extend legal protection to non-forest habitats (‘Ecologically Sensitive Areas’) such as grasslands, wetlands and coastal zones.

Conclusion

The prerogative of scheduling tribe or scheduling areas lies with the state. Despite government initiatives and developmental projects the existing socio-economic profile of the tribal communities is extremely low as  compared to the mainstream population. All forms of social exclusion and a high degree of deprivation are the major problems faced by the tribal community.As the Constitution of India makes special provisions for socio-economic development of the tribal groups. It is also a fact that pre-independent and post independent governments in our state could not and did not do much for the upliftment of the marginalized groups. The Supreme Court of India has tried to resolve the debate between development, conservation of the natural resources and rights of the tribal people. The court itself has given contradicting judgments on this issue. It is without doubt true that despite the activist role of the judiciary, a better mechanism needs to be developed for solving environmental conflicts and issues as they are so precious to human life. The judiciary is playing its humble role. Apex Court is final but not infallible. In a democratic society, people’s awareness of environmental interests and their participation in the event of environmental conflicts in a systematic and non-violent manner is the need of the hour. There are few solutions available to the problems of the environment but many more are required to be evolved for their implementation in a systematic and efficient manner.

  1. Assistant Professor, Faculty of Law, Jamia Millia Islamia,New Delhi []
  2. The International Union for Conservation of Nature (IUCN) is a Membership Union uniquely composed of both government and civil society organisations. It provides public, private and non-governmental organisations with the knowledge and tools that enable human progress, economic development and nature conservation to take place together. India became a State Member of IUCN in 1969, through the Ministry of Environment, Forest and Climate Change (MoEFCC).The IUCN India Country Office was established in 2007 in New Delhi. []
  3. See, Ghulam Yazdani,Definition of the term ‘Hindu’: A Law Student’s Viewpoint, Religion and Law Review,Vollume III,1994 p.97 New Delhi,(ISSN 0971-3212). []
  4. N.R.Nithya,Globalization And The Plight Of Tribals: The Case Of Kerala, India,The Dawn Journal,Vol. 3, No. 1, January – June 2014 []
  5. Available at http://data.iucn.org/asia/india/countries/india []
  6. See, Verrier Elwin, Philosophy of NEFA’, (1957) a foreword written by Pt. Jawaharlal Nehru. []
  7. See, Roy Burman in Chacko, 1995: 83-84; www.ticijournals.org/JTICI/Paper/Alex%20Akhup.pdf []
  8. Nithya N.R, Land Question And The Tribals of Kerala, International Journal of Scientific & Technology Research Volume 2, Issue 9, September 2013 []
  9. Justice D. M. Dharmadhikari, Judge, Supreme Court of India, Development and implementation of environmental law in India, Accessed on 05/07/2014 []
  10. IACHR, Democracy and Human Rights in Venezuela. Doc. OEA/Ser.L/V/II. Doc. 54, 30 December 2009, par. 1058 []
  11. IACHR, Follow-up Report – Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia. Doc. OEA/Ser/L/V/II.135, Doc. 40, August 7, 2009, par. 157; Available at: http://www.cidh.org/ annualrep/2008sp. []
  12. ILO Convention No. 169 binds states to consult with indigenous peoples, in good faith and with the objective of reaching an agreement or obtaining their consent, on matters that affect them in different contexts; In the words of a tripartite committee of the ILO Governing Body, “the spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based” [Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Confederation Ecuatoriana de Organizaciones Sindicales Libres (CEOSL), Cited in: UN – Human Rights Council – Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya. UN Doc. A/HRC/12/34, 15 July 2009, par. 39] []
  13. Banwasi Seva Ashram vs State Of U.P. And Ors, 1992 SCR (1) 857 []
  14. Ibid. []