Anil R Nair*
Citation: 2017(LW) December 21 Volume VIII | Issue XII
Abstract
The cultural and religious identity of indigenous people are intertwined with their surrounding flora and fauna. Their very existence is hence rooted to the land they live in. Property rights as recognised by modern civilisation fails to adequately address the rights of the indigenous people over their land and its resources. This is true across the world and in India, too. This paper explores the need to ensure adequate recognition of the rights of the indigenous population within our legal system and argues for a differential recognition of property rights for the same.
Keywords: Indigenous Peoples’ Rights, Indian Framework, Right to Property
Introduction
Countries that have an ancient history of migratory populations, annihilations of populations on account of wars, diseases and other calamities find it difficult to have a consensus over who are its original inhabitants. This is especially so when the classification of a country’s indigenous population is at the root of an exercise by the State to ‘right’ historic wrongs or to confer some benefit to a disadvantaged segment of its population.
The indigenous people or the ‘sons of the soil’ are the natives of the land as distinguishable from the foreign invading, settler, or migrant population in any territory. It is often the case that the invading population displaces the native population through might or deceit and ends up with ownership of all land in a territory thus marginalising the native population. In the process, the enforced laws of the land get rewritten to support the invader’s narrative of what is moral and just and the norms of the vanquished disappears from the mainstream life over a period.
Once stripped of their land resources and marginalised, even in democracies where only numbers matter, the indigenous people lose out on their way of life and their ability to survive gets serious compromised. Survival is ensured only when the indigenous population can adapt to the mainstream, majoritarian, invading population’s, norms, and perspectives. The very process of survival hence implies a loss of their uniqueness as a people and the consequent loss of their cultural and religious identities.
The stability of any legal order is not only dependent on might alone, but is also a question of acceptance of the legal order and its legitimacy found on some higher principles. It can thus be seen that once stability is achieved in any legal order, efforts are made by its population to assimilate and if necessary, recognise the separate existence of other cultures and the otherwise unique identities of people within it. In the process, sometimes several indigenous communities lose their identities in the quest for survival and several others survive on the fringes of the ‘civilised order’ while others slowly vanish.
Recognition of Indigenous Peoples’ Rights
Internationally efforts have been made to identify the chief characteristics to provide recognition for a people to be recognised as the indigenous population of a territory. A distinct claim of identity – both by the members of the group as well as by the others – plays an important part in this recognition. Mainstreaming of populations often results in a destruction of this unique identity and sometime the members of the group themselves would not prefer to showcase their identity on account of a history of abuse and suffering based on it. The fear of abuse as well as the actual dissipation of true identities on account of mainstreaming – a euphemism for identities lost due to subjugation of females for sexual exploitation and consequent loss of pure lineage in the subsequent rootless, lost generations, acts as a barrier to claims for a separate identity. Even within communities, ostracism on account of loss of purity in lineage prevents the community from claiming their rightful identities as an indigenous people with a unique culture.
Nevertheless, recognition of a group as distinct is the first step towards a gamut of rights that can be claimed by a people in the modern civilised world. Towards this end, there are international instruments that recognise specific rights of indigenous people[1] starting first from the concept of self-determination for complete sovereignty, to graded sovereignty as limited political autonomy across natural resources within their territories, and an entire spectrum of religious, linguistic, educational, and cultural rights.
- The United Nations Declaration on Indigenous Peoples
Adopted by the General Assembly in 2007, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) “is the most comprehensive international instrument on the rights of indigenous peoples. It establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of indigenous peoples.”[2] It recognises a comprehensive set of rights of the indigenous population to lead a life with dignity, including the right to self-determination, individual and collective rights to preserve their unique identity and to pursue development on their terms while maintaining and strengthening their own institutions, cultures and traditions.[3]
- The ILO and Indigenous Peoples
Two major Conventions of the International Labour Organisation are dedicated to provide protection to the indigenous populations and they reflect the concerns of the world community in keeping with the demands of the times.
ILO Convention No.107
Adopted by the General Conference of the ILO in 1957 this Convention concerns the protection and integration of indigenous, tribal, and semi-tribal population in independent States. It framed general international standards for targeted government actions to protect and promote integration /mainstreaming of the identified people into the national communities.
ILO Convention No. 169
Mainstreaming of tribals became a politically unacceptable proposition by the 1980s and the ILO adopted a revised Convention in 1989. This reflected the increased recognition and acceptance of the idea that the human rights of the indigenous people included a claim to retain their unique identities and to be decision makers vis-à-vis developmental activities using natural resources from their habitats.
Though many a country is a party to these efforts, their implementation on the ground remains jinxed due to competing claims and a lack of political will which is only determined by the factum of numbers in a democracy.
Scrutiny of the Indian Law
Though the term Adivasi[4] is the most appropriate word to denote[5] indigenous people, the Indian Constitutional and statutory framework recognises indigenous people as almost synonymous with the idea of backward castes, tribes[6], and forest dwellers. But for very few tribes, no Indian group can strictly claim to be an original inhabitant of this sub-continent as compared to others occupying the same land since ages have passed after large scale migrations, if at all did occur. Hence the identification of the castes, tribes, and forest dwellers as the true inheritors of the claim to be the indigenous population is based mainly on their othering from the mainstream of the society. The idea is that it is this class of the population who have not been assimilated into the mainstream/dominant Indian society representing the political class in power. While the rights as envisaged in the UN Declaration or the ILO Conventions may strictly not be relevant in the true Indian context, the existing Constitutional safeguards offer similar recognition to whoever is considered to be a member of the Scheduled Tribes in India. The indigenous people get special protection in the form of a Constitutional schedule to identify them for the purpose of protective and compensatory measures to elevate them to compete on an equal footing with others.[7] Special rights to inhabitants of forests are granted through statute to allow recognition of their symbiotic relationship with the forests. Property rights over these forests were taken away from the indigenous people historically through legislations right from colonial times.[8]
Special Constitutional provisions include reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People[9], in the Legislative Assemblies of the States[10], provision for considering claims of Scheduled Castes and Scheduled Tribes to services and posts in connection with the affairs of the Union or of States[11], provision for National Commissions for Scheduled Castes[12] and Scheduled Tribes[13], providing for control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes[14], provision for the appointment of a Commission to investigate the conditions of backward classes[15], and provision for identifying through Presidential notification the castes, races or tribes or parts of or groups within castes, races or tribes which constitute Scheduled Castes[16] and those tribes or tribal communities or parts of or groups within tribes or tribal communities which constitute Scheduled Tribes[17] for the purpose of the Constitution. Further, Part X of the Constitution provides for the Scheduled Areas and Tribal Areas[18] and deals with their administration and control and formation of an autonomous State comprising certain tribal areas in Assam and creation of local Legislature or Council of Ministers, etc.[19]
While the Constitution recognises the need for addressing the legitimate concerns of identity politics of the indigenous population, real change on the ground is dependent on how empowered a community is in the first place to use the Constitutional provisions to gain advantage to all its members. While sharing of political power is certainly the first step towards changing the material fortunes of a community, often empowerment fails at the altar of short term individual political gains. Politicians fail to rise as statesmen and benefits are cornered by a few powerful individuals even within marginalised communities perpetuating a feudal system of privileged existence. Worse, it creates vested interests and supports a system that can only feed itself from the continued backwardness of the community.
The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA) tries to ensure self-governance through Gram Sabhas in the Scheduled Areas. But as envisaged above, the better empowered within the tribal communities often ends up cornering political power and consequent privileges. Even while women reservation is a tool used in the Indian context to empower future generations, it gets sabotaged by the male family members of elected women representatives who get to wield the actual political power by reducing the elected members to be mere rubber stamps.
Under such a system, tokensim in the form of nominal representation of individuals representing the indigenous and marginalised population at the highest levels of visible political power will be presented as the success of the system, while the ground reality will be the perpetuation of power asymmetry against the indigenous population.
The Indian legal system specifically recognises and confers certain rights to the traditional dwellers of its forests with the objective of undoing historical injustice meted out to them which had resulted in loss of their rights, to ensure their food security, and address concerns in respect of their livelihood and land ownership[20] and to ensure forest conservation, bio-diversity and ecological balance through participation of these vital stakeholders.[21] Meant primarily to protect the Adivasis who find themselves marginalised and in occupation of the fringe areas like the forests and their buffer zones where their territorial rights have been usurped by the State[22] in its quest for revenue or its new found zeal for environment, the recognition of these rights are nevertheless an important step in the direction of indigenous rights protection. The Forests Rights Act recognises the symbiotic relationship of the Scheduled Tribes and include them with political rights in forest management to advantageously use their traditional knowledge in these matters.[23] It also provide them facilities for basic development[24] and limited rights to access and sustainably use the forest resources related to their socio-cultural, livelihood and habitat needs.[25]
The Judicial Attitude Towards Indigenous Peoples’ Rights
The judiciary is a reactionary institution at best since systemically it can only respond to the cause presented before it through litigation. Any order issued by the judiciary is at best based on the lis before it and while it, like in India, may show an activist profile, it is severely restricted in its ability to be effective given that it can only interpret the laws and cannot claim to author it. Neither is the judiciary able to dictate legislative policy nor does it have the popular mandate or necessary expertise to lay down effective redressal mechanisms to benefit the claims of the indigenous population.
Nevertheless, there has been judicial pronouncements that has paved the way for recognition of specific injustices within the legal framework like discovering the absence of legislative mandate for effective remedial action and has consequently triggered positive legislative changes to address such identified issues.
Even when such judicial interventions comes, the collective identity of the indigenous population takes a bad hit when the interventions are based on new thoughts on individual liberty, gender identity, Constitutional morals/norms, etc., which are alien to the indigenous people’s philosophy, culture and faith thus eroding their unique identities. Judicial intervention has been a mixed bag vis-à-vis its ability to provide succour to the indigenous populations.
Adverse Effect on the Indigenous Peoples
A major concern in a democracy is that the will of the majority is supreme and the nation must resist fissiparous tendencies which are a foregone conclusion when communities strive to retain their original identities and refuse to join the mainstream nationalist identity. This creates a dilemma very evident in the resistance to the idea of self-determination by all political States including India. While a State in the post-colonial era may approve of claims for self-determination and the consequent quest for political independence by groups in other States, they steadfastly and ruthlessly crush any attempt at self-determination within their own borders.
Hence, the claim of the indigenous people for conserving their unique identity is always met with some amount of hostility even in democracies. The retention of such uniqueness without it being subsumed into the larger umbrella of political nationalism of the State concerned is always a threat to the very existence of the political State. This has been very visibly demonstrated by the Balkanisation that has happened in various States post the Second World War.
Within the Indian context, with the coming of the Constitution of India with its grand ideals for individual liberty which is only guaranteed within the new political framework of the existing modern Indian State, the ability of indigenous population to retain their original uniqueness is suspect. In fact, a lot of the uniqueness in relation to individual and personal rights as practiced within the group itself, may per se be illegal being violative of the concept of fundamental rights guaranteed under the Constitution and the current politically correct world view on issues of child rights, gender identities, equality, and justice. In addition, The Directive Principles of State Policy as envisaged under the Indian Constitution may through its mandate for a Uniform Civil Code pave the way for creating a unique political Indian identity subsuming and replacing the various indigenous and tribal social identities. This is inevitable since while political identities derives power from the State, through social engineering using law as the tool, individual identities can be brought out of the shackles of the social norms that indigenous communities as a cohesive social unit wants to preserve. Once primacy is legitimately and legally recognised in favour of individual rights in a uniform manner, the ability of any social unit to be the shepherd of its individual members is lost. Once adherence to the social norms of an indigenous community becomes an act of volition with absolutely no tool for compulsion on the part of the group, it just becomes a matter of time before the community withers away and a national political identity replaces it.
Indigenous communities have faced the onslaught of religious conversion in earlier and present times which replaces their original tribal and primal identities with mostly the ideals of Abrahamic religions. While this fits nicely into the political claims for Constitutional protection of minority rights played out vociferously by various minority religious groups, the fact remains that the original, unique identities of the indigenous population gets replaced in the process. The idea of a Hindu personal law codification rightly kept away from the codification of personal laws of various tribal groups since it was mainly targeted at the Vaishnavites, the Shaivites and the followers of Shakti who constituted most of the followers of Sanatana Dharma. To identify all people in India other than those following the Abrahamic faiths, or those who follow Sikhism, Jainism or Buddhism as Hindu for uniform treatment vis-à-vis their religious identity is problematic since Hinduism is a socio-cultural philosophy of the land and a ‘way of life’ as compared to Sanatana Dharma which is the religious philosophy. Given the fact of numerous people (jan jathis) in India who enjoy their own unique socio-cultural-religious consciousness it becomes impossible for the political State of India to create statutes that will allow the retention of such unique identities at the cost of freedom of thought guaranteed to individuals which preserve their belief whether political or otherwise.
This practical political reality is hence the single biggest impediment to the preservation of the unique identities of any group whether indigenous or not. The effect of using law as a social engineering tool hence subsumes under the politically correct ideals of individual liberty of the current times, all claims of unique identities of all people. It being an evolutionary process, the weaker a community is, the lesser will be its ability to withstand the might of this integrative process. It is also possible that unique identities will get preserved in ghettos unaffected by the mainstream social movements. Like all ghettos, it will remain only a fashion allowed to survive on the fringes by the mainstream political thought, to be an item on a display case, to serve the eyes of the curious, not intended for everyday use.
Conclusions
While there exist no evidence based conclusion for any particular segment of the Indian population to claim indigenous status as compared to other members of its population, the legal protection afforded to the Scheduled Tribes and other backward communities are akin to the protection envisioned by the international community to be received by the indigenous population. While democracy envisages rule by the political majority, what is seen is that there is no pan Indian political identity, but elections see many different groups of people with unique identities and cultural/religious affiliations coming together in marriages of convenience to capture political power. In such a scenario, collective identity politics indeed plays an important part in electoral politics. Nevertheless, how effective it is to secure the rights of the tribal populations is suspect given the numerous groups that have been identified within the Scheduled Tribes and the constant clamour from those who are left out for inclusion in these lists. Hence, the so-called indigenous identity is itself a contributor towards unhealthy rivalry between different tribal groups claiming control over the very same natural resources. The lack of numerical strength makes political clout weak unless there is an alignment with numerically stronger communities. Such alignments for political control prove detrimental for tribal groups in the long run.
An example of how ineffective a claim of unique identity is in the face of majoritarian ideals is evident from the implementation of statutory rights of the forest dwellers. Though labelled as a right, its effectiveness is circumscribed by the very limited number of claimants who are recognised under its provisions and the highly rigid restrictions on the enjoyment of those rights.[26] Hence, what is evident is that the indigenous people are really playing a game whose rules are written by others not necessarily for the benefit of the indigenous people. So long as complete political power is not available to the indigenous communities, the ability to protect and preserve their unique identities will remain seriously compromised.
Land remains the asset class that can ensure preservation of the unique lifestyles and culture of indigenous communities. So long as the right to land and its resources do not get recognised in favour of the indigenous communities there will be no realisation of establishing and sustainably defending and enriching their identities.[27] The Forests Rights Act has been improved in this respect to include protection of rights of not just the Scheduled Tribes but all who can claim a certain indigenous identity linked to the forests.[28] The problem is that development induced displacement has taken the tribal out of his natural environments and placed him scattered in the urban concrete jungles. Hence, as uprooted individuals, the concept of land rights linked to their original landholdings no longer hold the same validity vis-à-vis empowerment for preserving their unique culture and identity. The compensatory regime envisaged for compulsory acquisition of land does not consider loss of culture associated with such lands as a resource to be compensated at all though it is an irreparable loss for the indigenous community concerned.
Suggestions
To make the human rights of the indigenous population in India meaningful, we need to empower the people in a more effective manner. A revisit on the property rights jurisprudence to recognise the tribal concepts of property as distinct from an individual proprietary based understanding of property is a necessity. A say in the utilisation of the common resources for the benefit of the society can only be the outcome of a politically empowering legal system. Like the Constitutional provisions that allows for the indigenous people’s representation in the North Eastern part of India with distinct identification of Scheduled Areas, we need mechanisms in the remaining parts of India with a demarcation of probably smaller territorial units which have significant importance for the local Adivasi population in terms of resources and socio-cultural and religious identities. It is easier said than done given the negligent voting power of the indigenous communities. But it is not impossible given a political will for the same.
* Associate Professor, National University of Advanced Legal Studies, Kochi, Kerala.
[1] Virginius Xaxa, Tribes as Indigenous People of India, Economic and Political Weekly, Vol. 34, No. 51 (Dec. 18-24, 1999), pp. 3589-3595 at 3590. “…the indigenous are invariably seen as victims of conquest and colonisation from outside the region; hence the outsiders are easily identifiable.”
[2] https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html.
[3] https://www.un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf. “The Declaration addresses both individual and collective rights, cultural rights and identity, rights to education, health, employment, language, and others. The text says indigenous peoples have the right to fully enjoy as a collective or as individuals, all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and the rest of international human rights law. Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity. Indigenous peoples have the right to self-determination. By that right they can freely determine their political status and pursue their economic, social and cultural development. They have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they choose to, in the political, economic, social and cultural life of the state.”
[4] Virginius Xaxa, Tribes as Indigenous People of India, Economic and Political Weekly, Vol. 34, No. 51 (Dec. 18-24, 1999), pp. 3589-3595 at 3589. On the use of the term ‘Adivasi’, Virginius Xaxa observes that “Not only has it become an important mark of social differentiation and identity assertion but also an important tool of articulation for empowerment.”
[5] Bhangya Bhukya, The Mapping of the Adivasi Social: Colonial Anthropology and Adivasis, Economic and Political Weekly, Vol. 43, No. 39 (Sep. 27-Oct.3, 2008), pp. 103, 105-109 at 109. “The post-colonial debate on the position of the adivasi in modern India has strong roots in the period immediately preceding decolonization and failed to provide any alternative understanding of the adivasi society.”
[6] Virginius Xaxa, Tribes as Indigenous People of India, Economic and Political Weekly, Vol. 34, No. 51 (Dec. 18-24, 1999), pp. 3589-3595 at 3589. “The Anthropological Survey of India under the ‘People of India Project’ identifies 461 tribal communities in India. They are enumerated at 67.583,800 persons constituting 8.08 per cent of the total population as per the 1991 census. The share of the scheduled tribe population to the total population in 1971 and 1981 was 6.94 and 7.85 per cent respectively.”
[7] This has resulted in increasing numbers of tribes getting listed in the category of Scheduled Tribes thus showing an uptick in the population of the tribals in India after each decennial census.
[8] For e.g., See Ata Mallick, Encroachment on the Rights of the Adivasis: Colonial Forest Policy in 19th Century Chota Nagpur and Santal Parganas, Proceedings of the Indian History Congress, Indian History Congress, Vol. 73 (2012), pp. 747-755.
[9] Article 330, Constitution of India.
[10] Article 332, Constitution of India.
[11] Article 335, Constitution of India.
[12] Article 338, Constitution of India.
[13] Article 338A, Constitution of India.
[14] Article 339, Constitution of India.
[15] Article 340, Constitution of India.
[16] Article 341, Constitution of India.
[17] Article 342, Constitution of India.
[18] Around ten States in India with significant tribal population is covered under the concept of Scheduled Areas.
[19] Article 244(1) read with the Fifth Schedule, and Articles 244(2), 244A, and 275(1) read with the Sixth Schedule, Constitution of India.
[20] https://tribal.nic.in/FRA.aspx. “In conjunction with the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Settlement Act, 2013 FRA protects the tribal population from eviction without rehabilitation and settlement.”
[21] The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
[22] See C. R. Bijoy and K. Ravi Raman, Muthanga: The Real Story: Adivasi Movement to Recover Land, Economic and Political Weekly, Vol. 38, No. 20 (May 17-23, 2003), pp. 1975-1977+1979-1982. The struggle for land as against the might of the State is an ongoing issue with efforts taken at steps to dilute the claims of the indigenous populations.
[23] https://tribal.nic.in/FRA.aspx. “The Act further enjoins upon the Gram Sabha and rights holders the responsibility of conservation and protection of bio-diversity, wildlife, forests, adjoining catchment areas, water sources and other ecologically sensitive areas as well as to stop any destructive practices affecting these resources or cultural and natural heritage of the tribals. The Gram Sabha is also a highly empowered body under the Act, enabling the tribal population to have a decisive say in the determination of local policies and schemes impacting them.”
[24] https://tribal.nic.in/FRA.aspx. “…basic development facilities for the community of forest dwellers to access facilities of education, health, nutrition, infrastructure, etc.”
[25] https://tribal.nic.in/FRA.aspx. “The Act encompasses Rights of Self-cultivation and Habitation which are usually regarded as Individual rights; and Community Rights as Grazing, Fishing and access to Water bodies in forests, Habitat Rights for PVTGs, Traditional Seasonal Resource access of Nomadic and Pastoral community, access to biodiversity, community right to intellectual property and traditional knowledge, recognition of traditional customary rights and right to protect, regenerate or conserve or manage any community forest resource for sustainable use. It also provides rights to allocation of forest land for developmental purposes to fulfil basic infrastructural needs of the community.”
[26] See Kalpana Kannabiran, Sam Gundimeda, Pallavi Gupta and Lakshmi Vivek, Economic and Political Weekly, Vol. 47, No. 10 (March 10, 2012), pp. 21-24 at 22. “Joseph Bara pointed to the frequency with which enabling legislations like Panchayats Extension to Scheduled Areas (PESA) are watered down through counterproductive rules or non-implementation; and the efforts by communities to protect, regenerate and conserve forest resources, often in conflict with forest mafias, have led to their being labelled as encroachers in their homelands. The right to land and forest therefore was one that could only be asserted with the greatest difficulty, but as an indispensable first step to building legal strategies.”
[27] See Sunil and Smitha, Fishing in the Tawa Reservoir: Adivasis Struggle for Livelihood, Economic and Political Weekly, Vol. 31, No. 14 (Apr. 6, 1996), pp. 870-872. The article explains how displaced Adivasi villagers who were never rehabilitated ended up on the banks of the very irrigation reservoir made on the land from where they were evicted and their struggle to establish and assert a right to livelihood based on fishing in the reservoir.”
[28] See Manasi Karthik and Ajit Menon, Blurred Boundaries: Identity and Rights in the Forested Landscapes of Gudalur, Tamil Nadu, Economic and Political Weekly, Vol. 51, No. 10 (MARCH 5, 2016), pp. 43-50. The paper provides a perspective on “the limits of seeing Adivasis as the only authentic traditional forest-dwellers by highlighting the blurred boundaries between various categories—Adivasi and non-Adivasi, forest and non-forest, legality and illegality.”