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Table of Content

S.no. Particulars Page no. 1. Introduction 3 2. Indigenous People and India 5 3. Indian Constitution and Tribal Rights 6 4. Rights of Indigenous People and

International Law 10

5. Where India is lacking behind 15 6. Reference 16

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1. Introduction

Growing public interest in indigenous people and a long process of international negotiations

involving indigenous organizations prompted the international community to proclaim 1993 as

the International Year of the World's Indigenous People, and then the period 1995-2004 as the

International Decade of the World's Indigenous People, to focus on issues of concern to

indigenous people. In addition, 9 August has since 1995 been celebrated as the International Day

of the World's Indigenous People.

Considering the diversity of indigenous peoples, an official definition of “indigenous” has not

been adopted by any UN-system body. Instead the system has developed a modern

understanding of this term based on the following:

Self- identification as indigenous peoples at the individual level and accepted by the

community as their member.

Historical continuity with pre-colonial and/or pre-settler societies

Strong link to territories and surrounding natural resources

Distinct social, economic or political systems

Distinct language, culture and beliefs

Form non-dominant groups of society

Resolve to maintain and reproduce their ancestral environments and systems as

distinctive peoples and communities1.

The term “indigenous” has prevailed as a generic term for many years. In some countries, there

may be preference for other terms including tribes, first peoples/nations, aboriginals, ethnic

groups, adivasi, janajati. Occupational and geographical terms like hunter-gatherers, nomads,

peasants, hill people, etc., also exist and for all practical purposes can be used interchangeably

with indigenous peoples2. Instead of offering a definition, Article 33 of the United Nations

Declaration on the Rights of Indigenous Peoples underlines the importance of self-identification,

that indigenous peoples themselves define their own identity as indigenous. There are

approximately 370 million Indigenous people in the world, belonging to 5,000 different groups,

in 90 countries worldwide. Indigenous people live in every region of the world, but about 70% of

them live in Asia3. Indigenous peoples are those groups specially protected in international or

national legislation as having a set of specific rights based on their historical ties to a particular

territory, and their cultural or historical distinctiveness from other populations.

1 http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf 2 http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf 3 http://indigenouspeoples.nl/indigenous -peoples/definition-indigenous

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S. James Anaya4 says that “indigenous peoples” as those who are indigenous because their

ancestral roots are embedded in the lands in which they live, or would like to live, much more

deeply than the roots of more powerful sectors of society living on the same lands or in close

proximity. They are peoples to the extent they comprise distinct communities with a continuity

of existence and identity that links them to the communities, tribes, or nations of their ancestral

past. Several international conferences followed, raising awareness of indigenous peoples.

The first treaty to single out indigenous peoples as special subjects of human rights concern was

International Labor Organization Convention (ILO) 107 adopted in 19575. Concerned about “the

exploitation” of indigenous workers during the industrial era, the ILO identified the need to

protect “indigenous and other tribal or semi-tribal populations” during the period when they were

integrating into larger national societies6. In the 1950s and 1960s, some indigenous groups

placed great hope in the global decolonization movement, believing that instruments such as the

Declaration on the Granting of Independence to Colonial Countries and Peoples (1960)—with its

provisions condemning colonialism, segregation, and discrimination—would mean freedom for

indigenous peoples as well. But when colonies in Asia, Africa, and Oceania gained

independence, indigenous claims for self-determination and development were merely left to

new national governments that did not typically empower indigenous peoples7. To the extent that

international law addressed minority rights at the time, it was largely without specific attention to

indigenous concerns. The International Covenant on Economic, Social, and Cultural Rights

(ICESCR), adopted in 1966, affirmed that all “peoples” have a right to “freely pursue their

economic, social and cultural development,8” and the International Covenant on Civil and

Political Rights emphasized the rights of minority groups “to enjoy their own culture, to profess

and practice their own religion, [and] to use their own language9. As indigenous peoples

developed a growing global consciousness, shared identity, and common set of goals,

international human rights instruments began to reflect these sentiments. In 1989, in response to

calls by indigenous peoples and others, the ILO began a process to draft and ultimately adopt a

new convention. The resulting instrument, ILO Convention No. 169 “Concerning Indigenous and

Tribal Peoples,” provided that “indigenous and tribal peoples shall enjoy the full measure of

human rights and fundamental freedoms without hindrance of discrimination.”10 While ILO 169

failed to meet certain aspirations in terms of both process and content, it was still a relatively

progressive instrument for its time. ILO 169 recognized indigenous group identity and

4 JAMES ANAYA (he is a former UN special Rapporteur on the Rights of Indigenous people), INDIGENOUS PEOPLES

IN INTERNATIONAL LAW 3 (2d ed. 2004) 5 JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 3 (2d ed. 2004) 6 Rebecca Tsosie, Reconceptualizing Tribal Rights: Can Self-Determination Be Actual ized Within the U.S. Constitutional Structure?, 15 LEWIS &CLARK L. REV. 923, 926 (2011) 7 Russel Lawrence Barsh, Indigenous Peoples: An Emerging Object of International Law,(1986) 8 International Covenant on Economic, Social and Cultural Rights, Article 1 9 International Covenant on Civil and Politica l Rights, Article 27 10 International Labour Organisation Convention (No. 169) Concerning Indigenous and Tribal Peoples in

Independent Countries, Article 3

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community, and called for “special measures” to implement its provisions. Moreover, as a

binding covenant of international law, ILO 169 remains vitally important to indigenous

advocacy, especially in Latin America and the Caribbean where fifteen of the twenty states to

ratify the Convention are located11. In 1985, the UNWGIP formally embarked on the project of

drafting a declaration focused specifically on the rights of indigenous peoples. The UNWGIP

provided opportunities for indigenous peoples to participate in the process, including by

commenting on draft principles and working papers.12 In 2007, the General Assembly

overwhelmingly adopted the Declaration (UNDRIP). Within several years, the four nations in

opposition—the United States, Canada, New Zealand, and Australia—all reversed their

positions. The UNDRIP acknowledges rights common to humanity—such as nondiscrimination,

equality, and property—and contexts for the enjoyment of those rights that may appear more

particular to indigenous peoples, such as spiritual attachment to traditional lands and a focus on

community rights.13

2. Indigenous People and India

The Constitution of India, it may be noted, does not define the term “Scheduled Tribes”. Instead,

Article 366(25) refers to Scheduled Tribes as those communities who are scheduled in

accordance with Article 342 of the Constitution. According to Article 342 of the Constitution,

the Scheduled Tribes are the tribes or tribal communities or; part of or groups within these tribes

and tribal communities that have been declared as such by the President of India through a public

notification14.

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. With an estimated population of 84.3

million, they comprise 8.2% of the total population15. 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. 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 Bengal16.

India has several laws and constitutional provisions, such as the Fifth Schedule for mainland

India and the Sixth Schedule for certain areas of northeast India, which recognize indigenous

11 Article 38 of the Statute of the International Court of Justice confirms international treaties, custom, general principles, and judicial decisions as sources of international law 12 JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 3 (2d ed. 2004) 13 CHARMAINE WHITE FACE & ZUMILA WOBAGA, INDIGENOUS NATIONS’ RIGHTS IN THE BALANCE: AN ANALYSIS

OF THE DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLE 14 Ministry of Tribal Affairs, Government of India http://tribal.nic.in/index1.html 15 Census 2001 16 C.R Bijoy, India and the rights of indigenous people : Constitutional, legislative and administrative provisions

concerning indigenous and tribal people (2010)

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peoples’ rights to land and self-governance. The laws aimed at protecting indigenous peoples

have numerous shortcomings and their implementation is far from satisfactory. India has a long

history of indigenous peoples’ movements aimed at asserting their rights. The Indian government

voted in favour of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in the UN

General Assembly. However, it does not consider the concept of “indigenous peoples”, and thus

the UNDRIP, applicable to India. The 5th Schedule and 6th Schedule to the Constitution of India

provide stringent protection of the land belonging to the tribal peoples. In addition, at the state

level, there is a plethora of laws prohibiting the sale or transfer of tribal lands to non-tribals and

the restoration of alienated tribal lands to them. However, the laws are either not properly

implemented or they are manipulated to facilitate the transfer of tribal lands to non-tribals. On 12

November 2010, the Minister of State in the Ministry of Tribal Affairs informed the Lok Sabha

that, as of July 2010, a total of 477,000 cases of tribal land alienation had been registered,

covering 810,000 acres of land, of which 378,000 cases covering 786,000 acres had been decided

by the Court. Of these, 209,000 cases had been decided in favour of tribal, covering a total area

of 406,000 acres17. This means that 169,000 cases had been decided against the tribal.

3. Indian Constitution and Tribal Rights (Rights of Indigenous people)

Indian Constitution has accepted the ideas of equality and justice both in the Social and Political

fields. Accordingly it abolishes any discrimination to any class of persons on the ground of

religion, race or place of birth. The Indian Constitution specifically provided certain Articles in

the Constitution for the upliftment of tribals and also to protect them from the oppressions

caused by the other people in the society. The protective rights granted by the Indian

Constitution, 1950 to the tribal people can be classified under the following heads.

1. Educational and Cultural Rights (Articles 15(4), 29, 30(1), 46 and 350.)

2. Social Rights (Articles 17, 23 and 24)

3. Economic Rights (Articles 46, 244 and 275)

4. Political Rights (Articles 164(1), 243D, 332, 330, 334 and 371A.)

5. Employment Rights (Articles 15(4), 16(4) (4A), 335)

In addition to these rights Article 33A, 371A, 350A & B and the Fifth and Sixth Schedule of the

Indian Constitution completely deals with the welfare of the tribal people.

(i) To Protect Educational and Cultural Rights of Tribals :

Article 15(4): It states that reservations should be provided to the socially and educationally

backward classes (including Scheduled Tribes). It also empowers state to make special laws for

relaxation of minimum qualifying marks for admission for scheduled castes and scheduled tribes.

17 Lok Sabha Unstarred Question No. 831

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Article 29: It guarantees to any section of the citizens residing in any part of India having

distinct language, script or culture of its own, the right to conserve the same i.e. language, script

or culture. A minority community can preserve its language, script or culture by and through

educational institutions (Including Scheduled Tribe’s).

Article 46: It enjoins the State to promote with special care education and economic interest of

the weaker sections of the people, and in particular of the scheduled castes and scheduled tribes,

and to protect them from social injustice and of all forms of exploitation.

Article 350: The Constitution also gives right to every person to submit a representation for the

redress of grievance to any officer or authority of the Union or a State in any of the languages

used in the Union or in the States as the case may be.

(ii) To Protect Social Rights of Tribals:-

Article 23: It prohibits the system of bonded labour because it is a form of force labour within

the meaning of this article.

Article 24: It prohibits employment of children below the age of 14 years in factories and

hazardous employment.

(iii) To Protect Economic Rights of Tribals:

Article 244: It deals with the administration of Scheduled Areas and Tribal Areas.

Article 275: It empowers parliament to make special grants given to the States which undertakes

schemes of development for the purpose of promoting the welfare of the scheduled tribes or

raising the level of administration of the scheduled areas.

(iv) To Protect Political Rights of Tribals:

Article 164(1): It empowers the State to establish special Ministry for Scheduled Tribes in the

States like Chattisgarh, Madhya Pradesh, Orissa, etc.

Article 243, 330 and 334: It deals with the reservation of seats for scheduled caste’s and

Scheduled Tribe’s in the House of the people and the panchayats.

Article 371: It deals with the special provisions with respect to the states of Sikkim, North-

eastern states.

(v) To Protect the Employment Rights of Tribals:-

Article 15(4): It provides reservations to scheduled tribes in the educational institutions.

Article 16(4) and 16(4A): It provides reservations to scheduled tribes in the employment and

promotions.

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Article 244-A empowers parliament to form an autonomous State comprising certain Tribal

areas in Assam and create local legislature or Council of Ministers for such States. The

Administration of the Tribal Areas in the State of Assam is carries on according to the provisions

of the sixth Schedule. It provides for autonomous districts and autonomous regions

Fifth and Sixth Schedules of the Constitution: The provisions relating to the administration

and Control of the Scheduled Areas and scheduled Tribes in any state, other than Assam,

Meghalaya, Tripura and Mizoram are contained in the Fifth Schedule to the Constitution.

Constitution of Commissions: The Constitution of India does not define as to who are the

persons who belong to Scheduled caste’s and scheduled Tribe’s. However, Article 341 and 342

empowers the President to draw up a list of these castes and tribes. Under Article 341 the

President after consultation with the Governor with respect to the State, specify the Castes, races

or tribes or of groups within castes, races or tribes for the purpose of their constitution.

Article 330 deals with the reservation of seats to scheduled tribes in the autonomous districts of

Assam. Art.332 provides for the reservation of seats of scheduled Castes and Scheduled Tribes in

the legislative Assembly of every State (Except Assam). The Constitution (89th Amendment),

2003 has amended Article 338 and added a new Article 338-A which provides for the

establishment of National Commission for the Scheduled Tribes.

National Commission for Scheduled Tribes: The Commission consists of a Chairman, Vice-

Chairman and three other members. They shall be appointed by the president of India.

Duties of Commission: It shall be the duty of the Commission

to investigate and monitor all matters relating to the safeguards of Scheduled Tribe’s

under the Constitution and any other law or any order of the Government and to evaluate

the working of such safeguards.

to inquire into specific complaints with respect to the deprivation of rights and

safeguards of Scheduled Tribe’s.

to participate and advice on planning process of socio-economic developments of

scheduled tribe’s and to evaluate the progress of their development under the Union and

any State.

to present to the President reports upon the working of all those safeguards annually and

at such other times as the commission deems fit.

to make recommendations as to measures that should be taken by the centre and states

for the effective implementation of those safeguards and other measures for the

protection, welfare and socio-economic development of Scheduled Tribe’s.

to discharge such other functions for protection, welfare, development and advancement

of Scheduled Tribe’s as the president may, subject to the provisions of any law made by

parliament, by rule specify.

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Article 339(1) states that the President may at any time and shall at the expiration of ten years

from the commencement of the Constitution appoint a commission to report on the

administration of Scheduled areas and the Scheduled Tribes in the State.

Relevant Laws Enacted by Various States for the Protection of Tribals : Depending upon the

changing circumstances and human tendencies the various State Governments and the Union

Government enacted several laws for the protection of the Scheduled Tribes. Those laws are as

follows:

Acts Made by the Union Government:

(i) The Untouchability (offences) Act, 1995: This Act prescribed punishment for the

practice of untouchability and for the enforcement of any disability arising there

form. (However, on the recommendation of a committee appointed by the Union

Govt. for this purpose, a Bill to amend the Act was introduced in 1972 and was

passed in 1976, which renamed the Act as the ‘Protection of Civil Rights Act, 1955’.)

(ii) The Scheduled Caste’s and Scheduled Tribe’s (Prevention of Atrocities) Act, 1985

and 1995: The purpose of the Act is to protect the tribal people from discrimination in

their social Status and also to vanish inhuman tortures against them.

(iii) The Scheduled Tribe’s Bonded Labour Abolition Act, 1976: The main objective of

the Act is to protect tribals from the bonded labour in the hands of the land lords who

provide little wage for huge work.

(iv) The Child Labour Abolition Act, 1986: This Act prohibits the employment of the

children of tribals below the age of 14 years in Industries and hazardous workshops.

(v) The Forest Conservation Act, 1980: This Act provides that the use of forest land for

the non-forest purpose is prohibitory. As most of the tribal people live in forests,

protection of forests is an important aspect in their lives.

(vi) The Panchayat Raj Act, 1996: This is an amendment for Panchayat Raj Act for the

implementation of the Act in Scheduled Areas to protect the tribals by aiding them

grants from the government by constituting it as small bodies.

(vii) The Minimum Wages Act, 1948: It provides that minimum wage must be paid to the

workers in the organized sector but most of the tribals work in unorganized sector.

State Laws for the Protection of Lands of Tribals : In general most of the States do not permit

to transfer land of Scheduled Areas to non-tribals. Also alienation of land of Scheduled Area by

the tribal to a non-tribal is void. If a tribal needs to alienate a land then the alienation must be

made to a tribal or government.

Some examples of the State laws for the protection of tribal lands are:-

(i) The Andhra Pradesh Scheduled Areas Land Transfer Regulation Act, 1959.

(ii) The Scheduled Tribes in Other Traditional Forest Dwellers (Recognition of Forest

Rights) Act, 2006. (Union Government Act.)

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(iii) The Andhra Pradesh Scheduled Commodities Order, 1973.

(iv) The Karnataka Scheduled Castes and Scheduled Tribes Act, 1978.

(v) The Tamilnadu Acquisition of Land for Harizan Welfare Schemes Act, 1978 and etc.

Ministry of Tribal Affairs: The Ministry was set up in 1999 after the bifurcation of Ministry of

Social Justice and Empowerment with the objective of providing more focused approach on the

integrated socio-economic development of the Scheduled Tribes (STs), the most underprivileged

of the Indian Society, in a coordinated and planned manner. The Ministry of Tribal Affairs is the

nodal Ministry for overall policy, planning and coordination of programmes for development of

ST’s. To this end, Ministry of Tribal Affairs has undertaken activities that follow from the

subjects allocated under the Government of India (Allocation of Business) Rules, 1961. The

Ministry of Tribal Affairs is the nodal Ministry for overall policy, planning and coordination of

programmes of development for the Scheduled Tribes18.

4. Supreme Court and the Rights of Tribals (Indigenous people)

Supreme Court of India gave many decisions regarding the rights of indigenous people (tribals).

Here is the few of the land mark cases:

(i) In Madhu Kishwar Vs. State of Bihar [(1996) 5 SCC 175], the supreme court refused

to interfere with the tribal customary law, which gave preference to man over women

in case of intestate succession.

(ii) In State of Madras Vs. Champakam Dorairajan [AIR 1951 SC 226], the supreme

court struck down the govt. order of the Madras govt., which with the object of

helping the backward classes, had fixed the proportion of students of each community

that could be admitted into the state medical and engineering colleges.

(Clause 4 was added to Article 15 by the Constitution first Amendment Act of 1951

by the Parliament, to enables the states to make special provisions for the

advancement of socially and educationally backward classes of citizens or for the SCs

and STs.)

(iii) In M.C Valsala Vs. State of Kerala [AIR 2006 ker 1], the High Court of Kerala held

that Children born to inter caste marriage of which either father or mother belongs to

SC/ST category can claim reservation benefits only on proof that he/she is subjected

to some handicap and disadvantage having been born as member of SC/ST.

(iv) In Meera Kanwaria Vs. Sunita [AIR 2006 SC 597], the supreme court held that a

person by reason of marriage alone cannot ipso facto become a member of SC or ST

category.

(v) In P.A Inamdar Vs. State of Maharashtra [(2005) 6 SCC 537], the supreme court held

that neither the policy of reservation can be enforced by the state nor any quota or

18 http://tribal.nic.in/Content/Abouttheministry.aspx

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percentage of admissions can be carved out to be appropriated by the state in an

unaided educational institutions.

(Clause 5 to Article 15 was added by the 93rd Constitutional Amendment Act of 2006

to overrule this decision of the Supreme Court.)

(vi) In Devdasan Vs. Union of India, where the court was called upon to pronounce upon

the constitutionality of the ‘carry forward rule’ framed by the Central Govt. to

regulate appointment of persons belonging to the backward classes in public service.

The Court by a majority of 4 to 1 invalidated this rule. However, this decision was

overruled in the Mandal Commission case [Indra Sawhey Vs. Union of India] and the

court held that the carry forward rule is valid so long as the actual reservation in a

particular year does not exceed 50% of the vacancies.

(vii) In M. Nagaraj Vs. Union of India [(2006) 8 SCC 212], a 5 judge bench of the

supreme court unanimously upheld the validity of the amendments introducing clause

4A & 4B in Article 16 of the Indian Constitution.

5. Rights of Indigenous People and International Law

Indigenous peoples’ rights have assumed an important place in international human rights law

and a discrete body of law confirming and protecting the individual and collective rights of

indigenous peoples has emerged and concretized in the past 20 years. International bodies

mandated with protection of human rights have paid particular attention to indigenous rights in

recent years. These bodies have contributed to progressive development of indigenous rights by

interpreting human rights instruments of general application to account for and protect the

collective rights of indigenous peoples19.

International Labour Organization Convention

The ILO also adopted the first international instrument to exclusively address indigenous

peoples’ rights in 1957 – The Indigenous and Tribal Populations Convention (ILO 107). The

stated aim of ILO 107 was and remains the integration and assimilation of indigenous peoples

into the states in which they live. It attempts to balance its integrationist emphasis with certain

protective measures. In 1989, after a two-year revision process, ILO Convention No. 169,

Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169) was adopted by

the International Labour Conference in Geneva. The primary purpose of ILO 169, as stated

during the revision process, is to ‘recognize the principle of respect for the identity and wishes of

the (indigenous peoples) concerned and to provide for the increased consultation with, and

participation by, these populations in decisions affecting them’. Thus, there is an emphasis on the

participation of, and consultation with, indigenous peoples, particularly concerning development-

19 Instruments of general application refer to those human rights instruments applying to all persons rather than

instruments focused exclusively on the rights of indigenous peoples

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related activities. However, the consent of the indigenous people(s) concerned is not required,

rather the goal of consultations is simply to attempt to achieve a good faith agreement between

the parties. Important Articles of the Convention are as follows:

Article 5: In applying the provisions of this convention:

(a) the social, cultural, religious and spiritual values and practices of these peoples shall be

recognized and protected, and due account shall be taken of the nature of the problems

which face them both as groups and as individuals;

(b) the integrity of the values, practices and institutions of these peoples shall be respected;

(c) policies aimed at mitigating the difficulties experienced by these peoples in facing new

conditions of life and work shall be adopted, with the participation and cooperation of the

peoples affected.

Article 6(1): In applying the provisions of this Convention, governments shall:-

(a) consult the peoples concerned, through appropriate procedures and in particular through

their representative institutions, whenever consideration is being given to legislative or

administrative measures which may affect them directly;

(b) establish means by which these peoples can freely participate, to at least the same extent

as other sectors of the population, at all levels of decision-making in elective institutions

and administrative and other bodies responsible for policies and programmes which

concern them;

(c) establish means for the full development of these peoples’ own institutions and

initiatives, and in appropriate cases provide the resources necessary for this purpose.

(2) The consultations carried out in application of this Convention shall be undertaken, in

good faith and in a form appropriate to the circumstances, with the objective of achieving

agreement or consent to the proposed measures.

Article 7(1): The people concerned shall have the right to decide their own priorities for the

process of development as it affects their lives, beliefs, institutions and spiritual well-being

and the lands they occupy or otherwise use, and to exercise control, to the extent possible,

over their own economic, social and cultural development.

Article 8(1): In applying national laws and regulations to the peoples concerned, due regard

shall be had to their customs or customary law.

(2) These peoples shall have the right to retain their own customs and institutions, where

these are not incompatible with fundamental rights defined by the national legal system and

internationally recognized human rights.

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Article 13(1): In applying the provisions of this Part of the Convention [PART II. LAND]

governments shall respect the special importance for the cultures and spiritual values of the

peoples concerned of their relationships with the lands or territories, or both as applicable,

which they occupy or otherwise use, and in particular the collective aspects of this

relationship.

Article 33(1): The governmental authority responsible for the matters covered in this

Convention shall ensure that agencies or other appropriate mechanisms exist to administer

the programmes affecting the peoples concerned, and shall ensure that they have the means

necessary for the proper fulfillment of the functions assigned to them.

(2) These programmes shall include:

(a) the planning, co-ordination, execution and evaluation, in co-operation with the peoples

concerned, of the measures provided for in this Convention.

(b) the proposing of legislative and other measures to the competent authorities and

supervision of the application of the measures taken, in co-operation with the peoples

concerned.

United Nations Declaration on the Rights of Indigenous Peoples

On 13th September 2007, the General Assembly of UN, has adopted the Resolution no. 61/295

i.e., United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The declaration

has 46 Articles which talks about the Rights of Indigenous people. The Declaration sets out the

individual and collective rights of indigenous peoples, as well as their rights to culture, identity,

language, employment, health, education and other issues. It also emphasizes the rights of

indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and

to pursue their development in keeping with their own needs and aspirations20.

Major Principles: The following outlines some of the central principles contained in the

Declaration concerning:

(a) Non-discrimination and fundamental rights: Article 1 provides that Indigenous

peoples and individuals are entitled to the full enjoyment of all the human rights and

fundamental freedoms recognised in international law, and also to the right to be free

from discrimination in the exercise of them (Article 2). Some articles mention specific

rights that are to be enjoyed by Indigenous individuals without discrimination, including:

the right to life, liberty and security (Article 7(1)); the possession of a nationality (Article

6); fundamental labor rights (Article 17); and the right to physical and mental health

(Article 24).

20 United Nations Permanent Forum on Indigenous Issues :

http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf

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(b) Self-determination: One of the key principles in the Declaration, for which Indigenous

peoples consistently fought, is Article 3 on the collective right to self-determination.

Article 3 of the Covenants provides that “all peoples have the right of self-determination.

By virtue of that right they freely determine their political status and freely pursue their

economic, social and cultural development”.

(c) Competing principles: The central amendment made to the Declaration as a result of the

African Group’s objections concerns state sovereignty. Article 46(1) now provides that

nothing in the Declaration may be: Construed as authorizing or encouraging any action

which would dismember or impair, totally or in part, the territorial integrity or political

unity of sovereign and independent States.

(d) Autonomy and participation rights: Article 4 states that Indigenous peoples have “the

right to autonomy or self-government in matters relating to their internal and local affairs,

as well as ways and means for financing their autonomous functions. While Indigenous

peoples “have the right to maintain and strengthen their distinct political, legal,

economic, social and cultural institutions” they retain “their right to participate fully, if

they so choose, in the political, economic, social and cultural life of the State.”

(e) Cultural integrity: Indigenous peoples have the collective right to live in peace, free

from acts of genocide and other forms of violence (Article 7). Indigenous peoples,

individually and collectively, have the right to be free from forced assimilation or

destruction of their culture (Article 8), and states must prevent against and provide

redress for acts that damage their cultural integrity (such as forced transfer, dispossession

of lands, territories and resources and discriminatory propaganda).

(f) Lands, territories and resources: Indigenous peoples have consistently articulated the

centrality of control over their lands, territories and natural resources as crucial to self-

determination and cultural integrity, and this has been recognized by various international

bodies. Relevantly, the African Group’s initial attempts to amend the lands and resources

provisions in the Draft Declaration were subsequently dropped.

(g) Rights of ownership and control: The key provision in the Declaration on this topic is

Article 26. It provides that “Indigenous peoples have the right to the lands, territories and

resources which they have traditionally owned, occupied or otherwise used or acquired”,

and are entitled to “own, use, develop and control” such lands, territories and resources.

States must give legal recognition and protection to these lands, territories and resources,

with “due respect to the customs, traditions and land tenure systems of the indigenous

peoples concerned”. Indigenous peoples may not be forcibly removed from their lands or

territories (Article 10). Relocation requires the free, prior and informed consent of the

affected peoples, “after agreement on just and fair compensation”, and “where possible,

with the option of return”. Where their lands or territories have been “confiscated, taken,

occupied, used or damaged” without such free, prior and informed consent, Indigenous

peoples are entitled to redress (Article 28).

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(h) Socio-economic well-being: Article 21 states that Indigenous peoples have the right to

the improvement of their social and economic conditions and provides that states take

effective measures “and, where appropriate, special measures” to ensure continuing

improvement. Particular attention is to be given to the needs of Indigenous elders,

women, youth, children and persons with disabilities. States are enjoined to take special

care to protect Indigenous women and children from violence and discrimination (Article

22(2)).

(i) Human rights considerations: Building on the specific qualification that the right to

cultural integrity must be exercised with respect for other principles of international

human rights law (discussed above), Article 46 expands this qualification to cover all the

rights contained in the Declaration. It provides that the Declaration must be read in

accordance with principles of justice, democracy, respect for human rights, equality and

non-discrimination, as well as the principles contained in the UN Charter.

(j) State responsibilities: States are required, in consultation with Indigenous peoples, to

take appropriate measures (including national legislation) to achieve the goals of the

Declaration, and to provide Indigenous peoples with access to financial and technical

assistance for the enjoyment of the rights contained in it (Articles 38-39). The

international community more broadly, through the UN and its agencies, is also expected

to contribute (Articles 41-42).

Indigenous peoples are entitled to access to adequate grievance and dispute resolution

mechanisms, as well as to “effective remedies for all infringements of their collective and

individual rights” (Article 40). Such mechanisms must give “due consideration” both to the laws

and customs of the Indigenous peoples concerned and to international human rights norms.

6. Where India is lacking behind?

Indigenous people face severe problems in India related to health, education and other basic

services and often live in fragile eco-systems that are threatened by increasing commercialization

and over-exploitation. Different terms are often used to identify them, including “indigenous

peoples”, “ethnic minorities”, “tribes”, “tribal groups”, “hill tribes”, Adivasis, Janajatis,

Scheduled Tribes etc. Some of these terms are used in a derogatory manner, including describing

indigenous peoples as “backward”. Challenges remain in ensuring indigenous peoples in India

recognized and included as full partners in national development polices and outcomes with the

right to define their own parameters and priorities for development, according to their needs and

realities. In India, both union and state governments made many laws for protecting the interest

of the tribal people but most of them are in effective in practical manner. It covers a range of

critical issues, including the right to self-determination, land and resource rights, political

participation, economic empowerment. A strong framework is required to address these in a

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comprehensive manner. There is a serious issue related to land acquisition law, which empowers

the administrative authorities to take way the land from the tribals. Some way the issue of self-

determinations is neither recognized nor talked about. Some group of tribal People in some north

eastern part and in some part of Jharkhand, Chattishgarh, West Bengal and Odisa claim for self-

determination. Poverty, education and basic amenities are some other issues where India is

lacking in full filling the aspect of the international documents of Indigenous people’s right. But,

the Indian Constitution well recognize and protect the fundamental rights granted under the

constitution. There is no discrimination against them. But government needs to take more steps

to bring the Indian laws at par with the international level.

India has been successfully experimenting with federalism during the last half a century. And it

should be said to the credit of the system that India has succeeded in affording protection of

human rights of its citizens including the members of the tribal communities.

It is notable that apart from administrative authorities including government wings of

Department of Tribunal Welfare both at central and state levels and interstate council, India has

several independent bodies such as National Human Rights Commission, State Human Rights

Commission, Minorities Commissions, Scheduled Caste and Scheduled Tribes Commission,

National Commission for Women etc. to safeguard the human rights of peoples who claim to be

treated as indigenous peoples. International efforts for their protection have their roots in the

concern for the protection of their rights. Its history shows that all started as part of anti-racialism

within the human rights discourse. If so, treatment as separate entities may not be necessary.

Administrative efforts incorporating and employing affirmative action under the watchful eyes of

vigilant independent judicial and quasi-judicial bodies may ensure the protection and promotion

of rights of people who claim to be treated specially from others.

India has the largest concentration of tribal people anywhere in the world except perhaps in

Africa. The prominent tribal areas constitute approximately about 15 per cent of the total

geographical area of the country. The main concentration of tribal people is the central tribal belt

in the middle part of the India and in the north-eastern states. However, they have their presence

in all states and union territories. There are nearly 533 tribes (with many overlapping types in

more than one State) as per notified Schedule under Article 342 of the Constitution of India in

different States and Union Territories of the country with the largest number of 62 being in the

State of Orissa21. No doubt, India has sufficient constitutional safeguards for the tribals but but is

actually missing is the spirit of implementing them on the ground level. Another point is that

Indian Constitution does not permit for self-determination for tribal people. This final view from

my side is that although India is lacking in many ways in protecting the tribal people and bring

them to the main stream of the country and giving them the forest rights or the ownership of

property, the Indian laws are far better and workable than of some of the African Countries.

21 Ministry of Tribal Affairs, Government of India http://tribal.nic.in/index1.html

16

Reference

JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 3 (2d ed.

2004)

CHARMAINE WHITE FACE & ZUMILA WOBAGA, INDIGENOUS NATIONS’

RIGHTS IN THE BALANCE: AN ANALYSIS OF THE DECLARATION ON THE

RIGHTS OF INDIGENOUS PEOPLE

C.R Bijoy, India and the rights of indigenous people : Constitutional, legislative and

administrative provisions concerning indigenous and tribal people (2010)

Rebecca Tsosie, Reconceptualizing Tribal Rights: Can Self-Determination Be Actualized

Within the U.S. Constitutional Structure? (2011)

Russel Lawrence Barsh, Indigenous Peoples: An Emerging Object of International

Law,(1986)

International Covenant on Economic, Social and Cultural Rights

International Covenant on Civil and Political Rights

International Labour Organisation Convention (No. 169) Concerning Indigenous and

Tribal Peoples in Independent Countries

Christian Erni, The Concept of Indigenous Peoples in Asia (2008)

A Guide to Indigenous Peoples’ Rights in the International Labour Organization

Web sources:

http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf

http://indigenouspeoples.nl/indigenous-peoples/definition- indigenous

http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf

http://tribal.nic.in/Content/Abouttheministry.aspx