INDIA: Human Rights Council’s intervention sought concerning India’s violations of indigenous peoples’ rights

August 30, 2011

Language(s): English only

Eighteenth session, Agenda Item 3, Interactive Dialogue with the Special Rapporteur on Indigenous Peoples

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

INDIA: Human Rights Council’s intervention sought concerning India’s violations of indigenous peoples’ rights

The Asian Legal Resource Centre (ALRC) wishes to highlight the Government of India’s failure to ensure the rights of indigenous people in the country, particularly in the states of Madhya Pradesh and Orissa, where the indigenous population (also known as Scheduled Tribes or Adivasis) is predominant. India has amongst the largest concentrations of indigenous populations globally, with official records indicating that 664 tribes live in India. 62 tribes recognised as Scheduled Tribes live in Orissa and 46 in Madhya Pradesh.

In January 2011, the Indian Supreme Court acknowledged in a judgment that the descendants of the original inhabitants of India currently live in the states of Jharkhand, Chhattisgarh, Orissa, West Bengal, and in the seven states of the north-eastern region. The Court held that the most “marginalised and vulnerable communities in India [are the indigenous people] characterised by high level of poverty, illiteracy, unemployment, disease and landlessness.” The Court declared that it is now time to undo the historical injustice suffered by these communities. The Court also said that the forefathers of the present generation of these communities were slaughtered in large numbers, and that the survivors and their descendants have been degraded and humiliated, with atrocities having been inflicted upon them for centuries. The Court recognised that the indigenous people are deprived of their lands, and pushed into forests and hills where they eke out a miserable existence living in poverty, illiteracy, and with disease. The Court deplored the efforts made at present to deprive them of even their current forests and lands, and the forest produce on which they survive.

The ALRC is of the opinion that the number of cases of human rights violations reported to have been committed against these indigenous people exposes the fact that the Indian State is a major violator of the rights of indigenous people. Most violations occur as a direct consequence of State policies, involving gross neglect of the right of indigenous people to participate in decision-making, thereby depriving their fundamental rights.

Indigenous women and children in particular, are seriously deprived of their fundamental rights, including the right to food, health, and education, due to government neglect. They are also at threat of rape by the State and State-sponsored private security forces like the Salwa Judum, a private militia now declared illegal by the Supreme Court.

The Bonda tribe for instance, one of the Primitive Tribe Groups (PTGs; officially categorised as one of the most vulnerable tribes in India) live north-west of Machchkund river in Malkangiri district, Orissa. Deforestation and the lack of development of sustainable agro-forestry produce have resulted in food insecurity for the Bonda, who mainly depend on forest produce for survival. The government has thus far not developed a sustainable long-term policy to ensure food security for this tribe. Now the tribe partly has to depend on government food subsidies, but this typically fails to reach them.

The Primary Health Centre (PHC) in Mudulipada village remains mostly closed, and the doctor attached to the PHC is available only for a couple of days each month. Children are often taken to a PHC located some 30 kilometres away from the village. In Kirsanipada village, three-year-old Chaitanya Kirsani, the son of Mongla and Adi Kirsani, suffers from Severe Acute Malnutrition (SAM). Three more children are in a critical condition and most of the children in the village are malnourished.

A lack of safe drinking water in the tribal area is another serious concern. Only one tube well is available for a total of 112 households. In addition, construction of a primary school remains incomplete and has been pending for five years. Midday school meals are only provided 4-5 days each month. Ms. Mangli Sisa, a widow with a son and five daughters, suffers from hunger since she has no resources for food. Government support for poor widows does not reach her. Other widows in the village face a similar situation.

Separately, certain facilities provided by or enabled by the administration have the potential to permanently alter the cultural identity of the tribes. While government-sponsored development programmes deplete natural resources through extensive mining and felling of timber. The government is also distributing gillnets for fishing, which risks ending the culture of environmentally sustainable and indigenous forms of fishing. Once the natural sources are depleted, the community will become completely dependent upon government subsidies for survival. Religious groups are also exploiting the situation, by setting up religious camps and constructing Hindu temples, or engaging in forced and induced conversion to Christianity. Unhealthy competition among religious fundamentalists has also brought religion-based violence into tribal villages. Both Hindu and Christian missionaries preach to tribal communities that their gods are inferior to the superior gods of either the Hindus or Christians. The free supply of alcohol is used as an incentive to lure tribal youths into religion.

In welcome moves, in October 2010, the Ministry of Environment and Forests withdrew permission for the controversial Vedanta project, and in July 2011, the High Court rejected the expansion of the Vedanta Aluminium Refinery Project in Lanjigarh. However, the Ministry approved the proposal of a Korean Pohang Steel Company (POSCO) project on January 31, 2011, despite two government-sponsored committees raising concerns about the adverse impact the project would have on the lives and rights of indigenous people as well as the environment. The POSCO project, the largest Foreign Direct Investment (FDI) in India, at US$ 12 billion, will involve the acquisition of some 4,000 acres of land, out of which 2,000 acres are forestland. The government has acquired 2,000 acres for the POSCO project and is felling an estimated 300,000 trees. The government committees confirmed that there are 22 tribes residing in the project area and the Minister of Tribal Affairs recently expressed his opposition to the project. The state government, on the other hand, denies this. The police forcibly entered the villages to acquire the land in June 2011, while villagers protested peacefully. At no point did the government consult with the members or representatives of the indigenous communities before the project was cleared for implementation.

In Madhya Pradesh, the government and the Nuclear Power Corporation of India Limited have been planning to construct a nuclear power plant affecting 27 villages, including Schedule V area in Mandla and Seoni districts, ignoring the right to participate in decision-making of the affected indigenous people. Recently, the government allegedly delivered the regulations to the company.

The indigenous peoples displaced by the Sardar Sarovar Dam project currently face acute food insecurity and hunger. The case exposes the failure by the government to ensure adequate rehabilitation and compensation in accordance with the domestic laws and in line with international human rights norms. A study conducted in May 2011 by the State Advisor to the Supreme Court Commissioners in Madhya Pradesh discovered that the government has only provided cash compensation for the loss of houses, excluding the natural resources and land that the indigenous peoples depended on for their food. Indigenous people who were forced to move after submergence in the project catchment’s area do not have proper transportation or boats to access other places and have been deprived of all public services as they were not provided any rehabilitation and compensation. Children and women in this community are particularly exposed to food and health insecurity. Those who have little land cannot support their families, since the land is not fertile. Earlier, these indigenous people could cultivate five to six varieties of crops each year and maintained their own irrigation system, which was destroyed by the project. Now they have to depend on government food and nutrition subsidies. Contrary to this reality, the government claims that it has provided rehabilitation and compensation to everyone affected by the project.

The government’s failure in ensuring basic living resources is one of the root causes of vulnerability of indigenous people. For instance, in practice, access to forests or ancestral lands is not adequately guaranteed in accordance with the domestic law, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Although the law came into force on December 31, 2007, the state forest departments of Orissa and Madhya Pradesh deny the benefits of the law to the indigenous communities by imposing technical obstacles, such as the need to provide documents to prove possession of forestland.

In October 2010, forest officials, destroyed the houses and other property of the Khanda tribe living in Kalahandi district of Orissa, without any form of due process. In Simlipal Sanctuary, Mayurbhunj district, which is a Scheduled V area, applications for the right to land were not considered. The government excluded the claims of the villagers from Jaladiha village, Sundergarh district, since the land is not classed as a forest area but as revenue land, to and approved it for a mining project. Less than 20% of claims concerning community forest rights have been allowed in Orissa. According to the report of the Ministry of Tribal Affairs, about 20% of total claims were accepted in the states of Madhya Pradesh (26.7%), Jharkhand (20%), Assam (26%), and about half of total claims were accepted in Orissa (44%) and Chhattisgarh (57%). No claims were accepted in Bihar State.

Deprivation of land results in lack of access to food and to hunger in Madhya Pradesh. The Mawasi tribe in Satna district, Sahariya tribe in Shivpuri district, Bhil tribe in Jhabua district, Baiga and Gond tribes in Sidhi, and Kol tribe in Rewa district, have been facing hunger, child malnutrition, and lack of basic facilities concerning public health, safe drinking water and education. Most of the tribes have no title to their land.

The security forces and police repeatedly commit human rights violations in indigenous peoples’ areas, but deny involvement. For example, on April 19, 2011, a 14 year-old tribal girl was raped by members of the security forces in Narayanpatna, Koraput district, in Orissa. No effective investigation has taken place into this serious human rights violation, as is typically the case concerning violations against indigenous people in India.

The Asian Legal Resource Centre calls upon the Human Rights Council to:

a. Call on the Government of India to ensure that all violations of the rights of indigenous people are halted and all allegations of such violations are promptly and effectively investigated and prosecuted, in line with domestic legislation and international standards;

b. Urge that the Government of India, and its state governments, in particular that of Orissa and Madhya Pradesh, to verifiably guarantee indigenous peoples’ right to participate in the decision-making process concerning all development projects;

c. Encourage dialogue between experts and the Government of India, to ensure that the rights of indigenous people and their communities to access natural resources are not only a part of guarantees concerning their food security, but are also a question of cultural identity based on traditional ways of life;

d. Encourage the Government of India to issue a standing invitation to the UN Special Rapporteur on the rights of indigenous people

About ALRC

The Asian Legal Resource Centre (ALRC) works towards the radical rethinking & fundamental redesigning of justice institutions in Asia, to ensure relief and redress for victims of human rights violations, as per Common Article 2 of the International Conventions. Sister organisation to the Asian Human Rights Commission, the ALRC is based in Hong Kong & holds general consultative status with the Economic & Social Council of the United Nations.

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