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Indian Journal of Integrated Research in Law Volume III Issue III IISSN: 2583-0538

INDIGENOUS PEOPLES' RIGHTS: AN INCEPTION ON

RIGHTS AND STATUS OF TRIBALS IN INDIA

Sushmita Kujur, Jindal Global Law School, O. P. Jindal Global University

ABSTRACT

In India tribal people are in charge of the forest and its resources. The 2007
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
provides a framework for international efforts to advance indigenous
peoples' rights. The rights, status, relationship to environment, and human
rights abuses committed against Indian tribal people are all examined in this
research. The overreaching idea behind this paper is to focus on
distinctiveness of Indigenous Peoples' rights and other issues considering the
ongoing violations they are suffering where, it tends to reflect on the
narrative of the International Customary Law (ICL) and to how extent it
impacts on Indian laws. It will also provide the overview on the evaluation
of tribals in India under the Constitution and the domestic laws, as well as
the human rights violations rampantly met out against tribal people in India
will be articulated with the support of various sources. In order to defend the
human rights of India's tribal people, it would also asses the existing legal
and constitutional frameworks.

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Indian Journal of Integrated Research in Law Volume III Issue III IISSN: 2583-0538

Introduction

Tribals are the custodians of the forest and its resources. India has its own reservation towards
forest and they have occupied an important position from ancient times. It has second largest
gatherings of tribal population. The tribes in India have been notified under its Constitution as
Schedule Tribe (ST),1 and these are considered as Indian Indigenous People. The constitution
of India also recognizes STs as the communities within tribes as follows to Art. 342.2 There
approximately 705 ethnic groups as STs in India and according to the census of 2011, there
exist 8.6% of total population.3 The Indian Constitution consists of two parts for the Schedule
tribes that are Fifth Schedule, which is for STs plain and Sixth Schedule confers to STs hills
i.e., North-Eastern (seven sisters) part of India. As India consists several legislations and
constitutional provisions to protect and promote the rights of STs (indigenous peoples) but their
execution is not competent enough. 4 The United Nations Declaration on the Rights of
Indigenous Peoples, 2007 (UNDRIP), provides international structure to endeavor the
development of indigenous peoples' rights.5 However, UNDRIP is applicable to India because
the government has voted in its favour during adoption by United Nation General Assembly
(UNGA) in the year 2007.6

Approach towards this paper is to examine the rights and status of the Tribals in India along
with their connection with environment. It will be contemplated how far the government has
achieved to promote and protect the welfare to the Indian tribals. This paper will also reflect
human rights violations against the tribals in India. After examining the whole situation my
main concern will be towards government policy regarding tribals, whether it is just or unjust
and also evaluate the existing laws and constitutional provisions that how far it protects the
human rights of the tribals in India. As this topic is broad, paper tends to be very precise and
not to consider it too vast, my analysis would be reflected on recommendations and conclusion.

1 Art. 366, The Constitution of India, 10 0 th Amendment Act, 2015

2 Art. 342, The constitution of India, 100 th Amendment Act, 2015
3 Statistical Profile of Schedule Tribe in India 2013, Ministry of Tribal Affairs Statistical Division, Government
of India, p.1, available at: https://tribal.nic.in/ST/StatisticalProfileofSTs2013.pdf (Last visited on 28.05.2023)
4 Ibid
5 OHCHR, The United Nations Declaration on the Rights of Indigenous Peoples, A Manual for National Human
Rights Institutions, (APF) 2013,p.iii, available at:
https://www.ohchr.org/documents/issues/ipeoples/undripmanualfomhris.pdf (Last visited on 28.05.2023)
6 The Indigenous World 2016, Copenhagen, p.328, available at:
https://www.iwgia.org/images/publications//0740_THE_INDEGENOUS_ORLD_2016_finaleb.pdf (Last
visited on 02.06.2023)

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Indian Journal of Integrated Research in Law Volume III Issue III IISSN: 2583-0538

International Labor Organization Convention (ILO)

ILO was the first international organization globally in the discourse of indigenous or tribals
affair to promote and protect their rights.7 With regard to indigenous and tribal people, ILO
advanced The Protection and Integration of Indigenous and other Tribal and Semi-Tribal
Population, 1957 (No.107)8 and Indigenous and Tribal Peoples Convention, 1989 (No. 169)9.
Convention No. 169 is core apprehension for non-discriminations, and it initiated a structure
to protect the indigenous peoples within the purview of international law. India has not yet
ratified the Convention No. 169, as per the report on India's National Commission for
Scheduled Tribes of 201210, the government says that the concept of 'indigenous peoples' is
irrelevant to India thus, it violates the ownership of State regarding the land resources. They
don't want any external evaluation due to its fair redressal. 11 Whereas, India has ratified the
Convention No. 107 due to its assimilationist goals and government views this as not violative
of State ownership.

Promotion and Protection of Rights of Scheduled Tribes

According to ILO Convention No. 169, "tribalpeople in independent countries who are
descendantsofpopulationthat inhabitsthe geographicalregion at the time of establishmentof
current state in order to retain their own social, economic, cultural andpolitical institution
are consideredas indigenous"1 2
.

Rights of Indigenous people are interlinked with the rights of minority in order to promote and
protect their welfare. Although, indigenous people need remedy in numerous problems and

7Supra note 4, p. 3
8Office of the United Nation High Commissioner for Human Rights, Indigenous Peoples and the United
Nations Human Rights System, Fact Sheet No. 9 (rev.2), p.9, available at:
http://www.ohchr.org/Documents/Publications/fs9Rev.2.pdf (Last Visited on 03.06.2023)
9 Ibid
1 The Situation of the Rights of Indigenous Peoples in India,
3 rd cycle of the Universal Period Review (UPR),
India, 27 th Session of the Human Rights Council, 2017, para. 4, p. 1, available at:
https://www.upr-info.org/sites/default/files/document/india/session_2017/js46_upr27_indemain.pdf (Last
Visited on 03.06.2023)
" National Commission for Scheduled Tribes, Special Report on Good Governance for Tribal Development and
Administration (2012), pp.8-13, available at:
https://tribal.nic.in/DivisionsFiles/NCST/18SpINCSTReport(mainReport).pdf (Last visited on 05.06.2023)
12 Art. 1 (1) (b), Indigenous and Tribal People Convention, 1989 (No. 169), Adopted by the General Conference

of the International Labour Organisation,27 June 1989, Entered into forces on 5 September 1991, available at:
http://www.ohchr.org/EN/ProfessionalInterest/Pages/Indigenous.aspx (Last visited on 05.06.2023)

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Indian Journal of Integrated Research in Law Volume III Issue III IISSN: 2583-0538

their claims are specifically based on colonization and alienation of their tradition.13 As India
voted for ILO Convention No. 107, it ensures that the provisions of the developing framework
promotes and protects the rights of vulnerable and Schedule tribes. Under which it has
implemented reservations systems in the field of educations and employments. They are
conferred with the right to fair compensation and transparency in Land Acquisition,
Rehabilitation and Resettlement (LARR) Act, 2018.14 Government cannot acquire the tribal
land for its own purpose but if in case it is in use for public welfare, the tribals have rights to
avail the compensation. They are conferred with the right to self-determination, cultural rights
under which they can practice their own choice of customary practice in religion, own
community language and land rights. The government has passed laws for the rights of the
Schedule Tribes inconsistent with constitutional safeguard even though there are some lacunas
which exist.

Interlink between tribal and the forest

Tribals are people who live in forest and that is the basic reason they are so closely related to
them. They not only consider the forest as one of the most important part of their life but the
whole environment per se' 5 . Tribals are the people who lives on the basic elements provided
by the natural phenomena. If we emphasis at current position of very interior tribal area they
are still dependent on sunlight as their basic source in terms of light and energy and other light
they know is the light from firewood.16 Their lives are centered within nature itself, surrounded
by the forests, rivers, hills, and mountains. The amount of importance they put forth towards
the environment is likely to God and they worship the sun, air, river, trees, and land.17 Likewise,
by these activities they protect the environment. According to my confrontation with an old
man well known as Padma Shree Simon Oraon of Jharkhand (waterman) 18, who belongs to
tribal community and contributed on the sustainability of environmental conservation by
saving the forest of Bero1 9 district by constructing water resources like well, pond and dams
due to which that district is not going to face any water scarcity in future. His contribution

13 Rhona K.M. Smith, 2013, "Indigenous People and their Rights" in Texts and Materials on
International
Human Rights, 3 rd Edition (London and New York: Routledge), p. 430.
14 Supra note 10, para
11, p. 2
15 Verma, Mahendra Mohan, Tribal Development in India: Programmes and Perspective, Mittal Publication 1 St
ed, 1996.
16 Ibid
17 Ibid 16
18 Confrontation with Padma Shree Simon Oraon (Tribal) 2022, Jharkhand, India
19
District in Jharkhand

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Indian Journal of Integrated Research in Law Volume III Issue III I ISSN: 2583-0538

made his district as an agricultural hub from where the larger amount of 25,000 metric tonnes20
of vegetables are being supplied to various districts of Jharkhand.

The tribal peoples are attached with the land traditionally whether in terms of habitation or
cultivation. They resisted invasions on their territory and if we look back in history, a series of
struggles waged by tribals against the British as well as Indian land exploiters for their survival.
They follow their own traditional law, legal systems and customary practice in any issues
within the village.

Lacunae on provision for protection of tribals and their displacement

There are lacunae on provisions with regard to protection of tribals which leads to their
displacement. Even though, there are several legislations along with Constitutional provisions,
it is not properly implemented or even if it does then denied by the government. According to
an author G.S. Ghurye, who has explained in his book about the intentions of the farmers, that
how they were originally associated with their land and forest. He has also brought forth that
the Forest Act was to safeguard the imperial and feudal interest. 2 1 If we talk about the
constitutional provision regarding protection and development to the Scheduled Tribes, there
has been in consideration that for development of the Scheduled Tribe must be first essentially
protected their interest. The provisions under Fifth and Sixth Schedule are Arts. 164, 275 (1),
330, 332, 334, 335 and 338-A, 339(1), 339 (2), 372-A, 371-B, 371-C. 22 There are certain
exceptions related to the fundamental rights of equality and freedom guaranteed under the Part-
III of the constitution i.e., Arts. 15(4), 16(4) and 19(5).23 As per the provisions empowers the
Union Executives to issue directives to the states to essentialized for welfare of the Schedule
Tribes, notwithstanding the state government has been failure in order to issue the directives
by not utilizing the provisions. Under Art. 243 A Gram Sabha has right to exercise its powers
at village levels if any disputes arises. 24 Though they are empowered, but they are abided by
the power of state government to exercise its power and their resources are alienated. In India
there are still many states which do not allows the Gram Sabha to function in their villages
even regarding the major issues like land acquisition, resettlement, and rehabilitations.2 5

20 Supra note 19
21 G.S. Ghueye, The Schedule Tribes (Popular Prakash & Bombay,
3 rd Edition), 1995
22 Supra note at 2
23 Ibid
24
Ibid at 2
25 Ministry of Tribal Affairs, Annual Report 2017-18, Government of India, p.9, available at:
https://www.tribal.nic.in/writeraddata/AnnualReport/AR2017-18.pdf (Last visited on 06.06.2023)

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Indian Journal of Integrated Research in Law Volume III Issue III IISSN: 2583-0538

Though they are conferred with the power they are not allowed to exercise even to restore their
alienated land. There are limping in the provision and must be taken into account by the
government for proper implementation.

Human rights violations against Schedule Tribes

Atrocities against tribal people have increased substantially from past years in terms of racism,
rape, homicide, and unlawful detention. To prevent such atrocities the Parliament of India
enacted ST and SC Prevention of Atrocities Act, 1989, under which issue will consider if
atrocities committed by the non-tribal and it is not applicable to the security forces even if they
violate the Human Rights. In consideration to the State of Chhattisgarh, the police forces
forcibly raped teen girls and arrested males members of the villages in distrust of being
Naxalites. These unethical activities by police forces are gross violations of human rights
against the vulnerable indigenous. As per day-to-day experience, the North-Eastern tribals face
racism which hurts the sentiment of an individual. 26 In tribal prohibited areas police intervenes
without the prior permission from the Panchayat head or Gram Sabha and randomly arrest
youths in false accusations of being part of the Naxalites 27 . Due to illiteracy in many villages
tribals are still unaware of their rights, and it has been observed in many states for example
Jharkhand: to hold and election is unconstitutional in the tribal prohibited region despite that
government has full power to violate the human rights as well as constitutional rights against
the tribal people. In spite to provide proper education or to conduct an awareness program to
vulnerable tribal people, the government even abides the people who are interested to promote
the awareness in tribal prohibited regions. For example, 'Pathalgari movement' 28 in India
which was very effective in the state of Chhattisgarh and Jharkhand, where Chhattisgarh
government did not intervene in this movement, whereas the Jharkhand government intervened
and this intervention turned into the gross violation of human rights against the Scheduled
Tribes. 29 If one individual from tribal community acquires a higher education and tries to
spread awareness among his/her village, though the government has no authority to intervene
on, still they arrest the person in accusation of 'anti-national' and detained unlawfully with no

26 Hindustan Times, Let's talk about racism, Don't call us 'chinky,' 2017, available at:
https://www.hindustantimes.com/...racismnortheastern.../story-SJckp4InptNV6Te29... (Last visited on
06.06.2023)
27 Confrontation with 'Pahaan' Kishore of (Dantewada District) Chattisgarh,
2022
28 Vincent Ekka, 'Pathalgadi':Tribal Assertion for Self-Rule, 2018,
available at:
https://www.academia.edu/38505169/Pathalgadi_pdf (06.06.2023)
29 The Telegraph, Pathalgadi Leader Nabbed from Delhi, India, 19 March 2018, available at:
https://www.telegraphindia.com>state>Jharkhand. (Last visited on 06.06.2023)

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Indian Journal of Integrated Research in Law Volume III Issue III IISSN: 2583-0538

proper grounds. This is a huge question on the part of government that it manipulates the rights
and interests of the tribals and this is gross violation of human rights. There are many innocent
vulnerable tribal males are killed during illegal encounter by the police force for being
suspected as Naxalites. But when the concept of nasalism has been emerged, has anyone
emphasized that who are actual naxlies and who combated them. It is just unfair policy of the
government leading the individuals towards the path of joining the naxals. It is also inefficient
because it does not address the underlying problem which gives rise to the insurgency.

Recommendation and Suggestion

Indian government should take immediate initiative towards the ratification of the ILO
convention No. 169, which will bring fair compensation and more transparency in land
acquisition issues.

Gram Sabha must be constituted in every tribals village under the provision of Indian
Constitution, which will deal the issues among tribal communities and police cannot intervene.

Unjust policies should scrutinize, and fair policy must be implemented regarding tribal women
under the recommendations of Convention on Elimination of All Forms of Discrimination
Against Women (CEDAW) convention, in order to bring equality and promote and protect the
rights of the Tribals.

As tribals are the real conservator of the forest and real citizens of the country, so we must
cooperate them in conserving the forest in order to achieve the environment sustainability.

Pathalgari movement in tribal prohibited areas must not be intervened by government, at they
are trying to preserve their customs.

Violation of human rights against tribals should be considered in positive manner and unlawful
detention should not be done.

Conclusion

If we look the map of India, the minerals, forest and the tribals all stacked up on top of each
other. It has been into account the economic, social and cultural injustice which has been done
to the tribals. We can see the enormous resources unprecedent land grabs and mineral resources

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Indian Journal of Integrated Research in Law Volume III Issue III IISSN: 2583-0538

in tribal areas. The struggle for survival for tribals for their livelihood existences as people
have today intensified and spread never before in Indian history. In their survival for struggle
against the social and international mining exploitations have been reflected in its inception. In
reality, larger part of India tribal people are making control over land, resources and society
through struggles. My question here is what is life? Most importantly a long-term struggle
projecting a different type of living. In order to sustainable development, peoples' friendly
education, growing emancipation of women, a halt to domination of exploiters, a new culture
that rebuilds tribal traditions as a new instead of mocking them. There are loopholes in the part
of government policies and in their implementations. It seems clear in the present situation of
tribals in India that they are fighting for their rights with the government in regard to proper
implementation. Government must stop this unjust means against them and instead respect
their aspirations and attend their demands under the Constitutional provision. I would conclude
by open statement, that the government policies are unjust and unfair in order to promote and
protect the rights of the Tribals in India. Even in case of atrocities committed by any forces
would not be penalized, these are violative of human rights of the Scheduled Tribes. Therefore,
there is need to specify their rights and implement a proper policy to support the tribals to
secure their rights. The reason to securing their rights are just not limited to them but it also
comes to the protection of the forest and land.

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Indian Journal of Integrated Research in Law Volume III Issue III IISSN: 2583-0538

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nd emain.pdf

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Indian Journal of Integrated Research in Law Volume III Issue III IISSN: 2583-0538

9. National Commission for Scheduled Tribes, Special Report on Good Governance for
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http://www.ohchr.org/EN/ProfessionalInterest/Pages/Indigenous. aspx

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