UNHRC’s examination of India’s periodic report after 28 years: Part 2
Government of India on Indigenous populations and their rights and the reality
RAVI NAIR·JUNE 19, 2024
This article, the second in the series related to the fourth periodic report submitted by India under Article 40 of the International Covenant on Civil and Political Rights, pertains to the rights of indigenous peoples as contained in Article 27 of the covenant.
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THE flagship of the United Nations treaty body system will be examining India’s fourth periodic report in all probability on July 15 and 16, 2024. The Human Rights Committee (HRC) is the treaty body tasked to monitor compliance with the International Covenant on Civil and Political Rights (ICCPR).
Article 27 of the International Covenant on Civil and Political Rights states: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.”
India has also not signed the International Labour Organisation’s Indigenous and Tribal Peoples Convention, 1989.
In Paragraph 154 of the government of India report, the long-debunked Hindu supremacist theory is once again rolled out. A simple search of serious internationally peer-reviewed journals on genetics would give the lie to the government of India’s formulation that all Indians are indigenous to India.
India has not signed the International Labour Organisation’s Indigenous and Tribal Peoples Convention, 1989.
A further reading of any basic legal commentary would be educative for the authors of the government of India report.
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In the second half of the paragraph, when the government of India refers to the National Commission for Scheduled Tribes (NCST), it forgets to mention that as of May 13, 2024, four posts in the five-member commission remain vacant.
The chairperson of the commission resigned in June 2023, eight months before the end of his tenure. The post has been lying vacant for about a year now.
Illusion and reality
In Paragraph 156 of the government of India report, a reference is made to the role of the governors and the Tribes Advisory Council. The Constitution of India requires the governors to exclude or direct variable application of any law made by the Parliament or state legislature advised by the Tribes Advisory Council in the “Scheduled Areas”.
However, the reality is that governors fail to use their powers. The constitution of the Tribal Advisory Council is often not as prescribed in the Constitution; states such as Chhattisgarh and Jharkhand brought the council under the control of the chief minister rather than in the aid of the governor.
Even though the Attorney General of India had clarified in April 2010 that the governor has discretionary powers with regard to the Scheduled Areas, the power has been attempted to be nullified by stating that the governors have non-discretionary powers and, therefore, are bound by the advice by the council of ministers of the state which in effect, makes the Fifth Schedule redundant.
An official committee entrusted to make recommendations on the salient features of the law for extending provisions of the Constitution (73rd) Amendment Act, 1992 to Scheduled Areas found that: “The governors, on their part, remained oblivious about the state of the tribal people. Even the mandatory annual reports by the governors to the President regarding the administration of Scheduled Areas under Paragraph 3 of the Fifth Schedule are irregular. They comprise a largely stale narrative of departmental programmes without even an allusion to the crucial issues in administration, the main thrust of the Fifth Schedule.”
Majority of Scheduled Tribes are not covered by special provisions in the Constitution
The majority of the Scheduled Tribes (STs) population in the country— 58.96 percent— is not covered by any of the special provisions for STs in the Constitution.
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The Fifth Schedule area under Article 244(1) covers only 35.2 percent of the ST population of the country. Along with 4.2 percent ST population in the Sixth Schedule areas under Article 244(2) and another 1.64 percent ST population in Nagaland with special provisions under Article 371A, only 41.04 percent of the total ST population in the country has been covered under the protective provisions of the Constitution.
Most parts of Mizoram are under the Sixth Schedule. In addition, the state also enjoys special provisions under Article 371G similar to those enjoyed by Nagaland.
Ensuring notification of the remaining habitations where the ST population constitutes the major social group, despite recommendations of official committees and strident demands from the ST communities themselves, remains neglected.
For instance, the Kerala government’s 2015 proposal for notifying 2,133 habitations, five gram panchayats and two wards as Scheduled Areas is still pending with the Union government.
A further reading of any basic legal commentary would be educative for the authors of the government of India report.
To further democratise self-governance in Scheduled Areas, the Parliament enacted the Panchayats (Extension to the Scheduled Areas) Act, 1996 (PESA).
The prescribed legal requirement in PESA for self-governance is “to ensure that panchayats at the higher level do not assume the powers and authority of any panchayat at the lower level or of the gram sabha” [Section 4 (n)] and “to follow the pattern of the Sixth Schedule to the Constitution at district levels in the Scheduled Areas” [Section 4 (o)].
Presently, 10 States viz., Andhra Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Maharashtra, Odisha, Rajasthan and Telangana, have Fifth Schedule Areas within their territory.
The laws enacted by the 10 states in compliance with the PESA have failed to incorporate the two provisions mentioned above. Instead, the state PESA provisions have been effectively incorporated into the general panchayat institutions, which itself function as an appendage or extension of the state government’s bureaucratic departments rather than governing institutions.
13 laws in the Fourth Schedule of the Constitution remain mainly unimplemented
The Union laws (13 laws in the Fourth Schedule to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; Mines and Minerals (Development and Regulation) Act, 1957; the Indian Forest Act, 1927; the Forest (Conservation) Act, 1980; Compensatory Afforestation Fund Act, 2016; and the Indian Registration Act, 1908; and national policies such as the National Water Policy, 2002; National Minerals Policy, 2003; National Forest Policy, 1988; and Wildlife Conservation Strategy, 2002) and numerous state laws have not been amended to comply with the PESA.
So too have these laws not been amended to comply with the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 which extends the self-governance model to the customary and traditional boundary of the habitation of forest dwellers, primarily ST communities, which too remains mainly unimplemented despite 18 years of its existence!
The 74th Amendment to the constitution in 1992 required that the Parliament specifically enact legislation for its application to the municipal areas in Scheduled Areas as the amendment exempted its application to the Scheduled Areas.
Accordingly, the Provisions of the Municipalities (Extension to the Scheduled Areas) Bill, introduced in the Rajya Sabha in 2001 and referred to the Parliamentary Standing Committee on Urban and Rural Development, submitted their report in 2003 and last enlisted for discussion in the monsoon session in 2010 but has since lapsed.
This has not only resulted in a legal vacuum in the municipal areas of Scheduled Areas but ironically about 181–200 municipalities function unconstitutionally in Scheduled Areas by applying the general municipal laws to such municipalities, which is prohibited by the Constitution.
In the second half of the paragraph, when the government of India refers to the NCST, it forgets to mention that as of May 13, 2024, four posts in the five-member commission remain vacant.
Panchayat areas in Scheduled Areas are being upgraded to municipal areas taking them out of the purview of the protection under the PESA and undermining self-governance by tribal village communities.
Diversion of Forest lands for Mining Barons
Paragraph 157 of the government of India report is economical with the truth. About 23.58 percent of India’s land area is recorded as forest area, mostly inhabited by Scheduled Tribes.
In their report to the Food and Agriculture Organisation (FAO) in 2009, the Ministry of Environment, Forests and Climate Change stated that the Scheduled Tribes and Other Traditional Forest Dwellers Act (Recognition of Forest Rights Act) 2006 (FRA) “assigned rights to protect around 40 million hectares of community forest resources to village-level democratic institutions. The fine-tuning of other forest-related legislation is needed with respect to the said Act.”
Both these tasks are yet to be performed. On the contrary, the FRA has been systematically undermined. About 5 to 6 million hectares have so far been titled under the FRA, a mere 13–15 percent of the minimum potential in over 16 years.
Over 60 percent of the 2,206,011 people (2011 Census) in 4,526 forest villages within notified forests are denied the most basic facilities. Despite an environment ministry’s Order to convert them into revenue villages in 1990, and a similar provision in the Forest Rights Act, 2006, most of these villages have still not been converted to revenue villages. There are many more unrecorded forest habitations.
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There were 2,808 villages (2018) in ‘critical tiger habitats’ (CTHs) in tiger reserves which are to be kept “inviolate”, which is wrongly interpreted as free of its human inhabitants even though the law mentions co-existence as the primary task.
As of July 12, 2019, there were 57,386 families in these CTHs, of which 42,398 remained inside 50 tiger reserves. Notifications of tiger reserves and relocations, tagged “voluntary”, continue unabated and unmindful of the applicable laws.
About 5,928.57 sq km of forests were diverted under the Forest Conservation Act, 1980 (FCA) between 1980 and 2007. The FRA became operational in 2008. The Environment Ministry issued an Order in 2009 requiring gram sabha certification for completion of recognition of all forest rights under the FRA and consent for the forest diversion as prerequisites for the admissibility of proposals under Forest Conservation Act.
The Supreme Court in 2013, in a landmark judgment in Orissa Mining Corporation versus Ministry of Environment & Forest & Others, affirming the FRA and the statutory requirement of consent of gram sabhas, asked gram sabhas of Dongaria and Kutia Kondh Adivasis to consider the diversion of 660.749 hectare of forests under the FCA for bauxite mining. The gram sabhas refused to consent; the project was dropped.
The FRA compliance and gram sabha consent for the forest diversion got progressively downgraded to being required only for final approval (Stage II) by 2022.
Around 305,945.38 hectares of forest land have been approved for non-forest use under the FCA from 2008–09 to 2022–23 without complying fully with the FRA. This includes forest diversion for mines under the Mines and Minerals (Development and Regulation) Act, 1957. Further, the 2023 amendment to the FCA has now made the consent of gram sabha a farce by making it a post-final approval step.
Paragraph 158 of the government of India report is about the families affected by the Sardar Sarovar dam. It is disingenuous to say the least.
The majority of the Scheduled Tribes (STs) population in the country— 58.96 percent— is not covered by any of the special provisions for STs in the Constitution.
Sardar Sarovar, one of the 30 large dams, is an inter-state gigantic project on the Narmada, a 1,312 km long river in Western India. The project has caused huge social and environmental impacts in three states; Madhya Pradesh, Maharashtra and Gujarat over the last four decades on agriculture, forest and the river itself.
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Submergence has led to displacement and deprivation of Adivasis (indigenous people), farmers and labourers, fisher folk, shopkeepers, artisans and cattle grazers too.
However, it was through the more than 38 years-long, peaceful struggle by the people and generations-old communities in the Narmada Valley, that the rehabilitation of more than 40,000 families could be achieved.
About 20,000 families received the right to alternative land as against those displaced by other large and medium dams in the Narmada valley. A few thousand families are yet to be rehabilitated with the struggle continuing in order to attain full and fair compliance with laws, policies and judgments of the Supreme Court.
Meanwhile, in the monsoon of 2023, more than 15,000 families who were excluded from submergence and thereby rehabilitation, faced massive devastation, which was without full rehabilitation and hence illegal.
It happened not only due to heavy rainfall, but lack of regulation and monitoring of water flows through the cascade of dams. It was also because 17 meters high gates of Sardar Sarovar were kept closed, for celebrating the birthday of the Prime Minister, on September 17, 2023.
This led to the submergence and destruction of thousands of houses and loss of grain, fodder and belongings; the death of 1,200 cattle; and the sad demise of six persons who drowned!
This exposed the illegal and unscientific revision of the backwater levels of the dam in 2008 and the exclusion of 15,946 families from the list of entitled families and, relatedly, rehabilitation benefits. The struggle continues for justice.
Sardar Sarovar’s cost has risen from ₹4,200 crore, presumed for cost-benefit analysis, to ₹90,000 crore, including expenses on the ‘Statue of Unity’ and tourism projects around it.
The Adivasi communities downstream have challenged the Statue of Unity Act, having snatched their right to development planning. The fishermen communities, downstream— up to the estuary— have also challenged impacts on their livelihood due to sea ingress caused by the Sardar Sarovar dam, salinising the Narmada; as also the massive loss of houses, agriculture, temples and shops caused with huge, one-time, late discharge of 18 lakh cusecs flood waters on September 17, 2023.
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The farmers of Kutch, a drought-prone region, are left deprived of water for drinking and irrigation, along with many other communities in Saurashtra and resettlement sites in Gujarat, while industries and big cities have been the main beneficiaries.
To further democratise self-governance in Scheduled Areas, the Parliament enacted the Panchayats (Extension to the Scheduled Areas) Act, 1996.
No power benefits, nor the full target of irrigation as per plans declared, are achieved, leading to dispute and arbitration among the states. There is a need to retain the Sardar Sarovar reservoir water level at 122 meters (the crest level, which is dam wall height) and keep the gates open till rehabilitation is complete and also review the project as a whole.
Paragraph 159 of the government of India report claims that land transfer to non-tribals is being addressed
The Fifth Schedule refers to the prohibition or restriction of the transfer of land by or among members of the Scheduled Tribes in such an area.
Land is a state subject in India; and state legislations do not outrightly prohibit land transfer between tribals and non-tribals but permits land transfer with prior permission from the district collector or commissioner.
Recognising that by far these laws have not prevented land alienation making this the foremost cause of marginalisation. Landlessness is higher amongst ST households than any other social group. About 9 percent of them are landless as compared to 7 percent amongst other social groups.
To counter this, the power to prevent alienation of land in the Scheduled Areas and to take appropriate action to restore any unlawfully alienated land of a Scheduled Tribe has now been vested in panchayats at the appropriate level and the gram sabha under Section 4(m)(iii) of the Provisions of the Panchayats (Extension to the Scheduled Areas) Act, 1996.
Rules to operationalise this flagship law began only in 2011 and two of the ten states are yet to notify the Rules. Further, none of the ten states with Scheduled Areas have complied with this provision in law and practice despite the passage of over two and a half decades.
Sardar Sarovar’s cost has risen from ₹4,200 crore, presumed for cost-benefit analysis, to ₹90,000 crore, including expenses on the ‘Statue of Unity’ and tourism projects around it.
The Fifth Schedule areas cover only 35.2 percent of the total ST population of the country while the Sixth Schedule areas cover 4.2 percent of the total ST population. Over 60 percent of the ST population is not covered by these constitutional provisions.
Ravi Nair
The writer is the executive director, South Asia Human Rights Documentation Centre.