It is a well-known fact that the tribal communities in India are in a constant struggle to safeguard their rights against non-tribals as well as the government authorities since inception. Government, although has been initiating honey-coated measures in paper for past many years. Government came up with several policy initiatives that demonstrated debacles rather than assisting the tribal population and thus making the condition even more worse gradually. Among several quandaries for tribal population, one of the challenges that were faced was of the livelihood. The tribals eternally face acute insecurity on habitat and livelihood that tend to exclude them by default. India’s population includes nearly one hundred million tribal people and these counts are matched by the remarkable diversity of India’s tribes. There is always a difference to an extent in which these tribes interact with non-tribal groups and this language of the tribals is a language of “myth”, unknown to the modern nation-State as it is opposed to the script of modernity — the predominant language of the contemporary times. However, tribal communities have been pushed off from their land in the name of development and industrialisation and their attempts to protect their lands are brutally suppressed. When adivasi rights are juxtaposed with development concerns, adivasi rights are often limited or redefined. Typically, the adivasi rights to their land are denied and redefined in terms of rights to resettlement and rehabilitation. The propensity to violate tribal norms is not only the product of subnational apathy, but also the outcome of a statutory scheme that compels the tribes to adopt non-tribal concepts.
Advancement of every society is measured in terms of development of human and natural resources, and infrastructural development including establishment of various projects to use the natural resources for the benefit of mankind. Major projects in industrial, irrigation and power sectors are always being established in the areas outside the urban settings these areas are generally tribal areas largely inhabited by tribal. Each time a major project is undertaken, a part of tribal area is acquired for the same. It must be noted human welfare cannot be completely ignored in the name of development of the society. Development must reconcile the eco-balance least in such a manner that it may not have an adverse impact on the life of natives and the existence of ecosystem.
In the name of development, the lands belonging to tribals are snatched, the environment, local farms and the agriculture system is being destroyed, their holy river is polluted, place of worship is being taken over and subsequently destroyed. The development paradigm pursued since independence has aggravated the prevailing discontent among the marginalised sections of the society. The development paradigm as conceived by policymakers has always imposed on these communities thereby causing irreparable damage to these sections. The benefits of this paradigm have been disproportionately cornered by the dominant sections at the expense of the poor, who have borne most of the costs. Development which is insensitive to the needs of these communities has inevitably caused displacement and reduced them to a sub-human existence. In the case of tribes, in particular, it has ended up in destroying their social organisation, cultural identity and resource base which cumulatively makes them vulnerable to exploitation. The same fate was witnessed by the Dongria Kondh, a primitive tribe in the Niyamgiri Hills, Orissa.
The article contains the analysis of popularly known as the Niyamgiri case where the mythical vocabulary of indigenous people came in direct contradiction with the logics and reasons of the modern State. Further, this article examines the different frameworks for the protection of tribal rights from the eye of transformational constitutionalism.
Tribal and Indigenous Rights in Modern Era
Tribes and its inhabitants are also the citizen of India and thereby empowered to exercise all rights that anyone else have, however, due to their vulnerable condition, that is the “poor State response” to their demands have put them in the shelter house that needs more protection than any other social order of classification. The powers of Indian tribes are, in general, inherent powers of a limited sovereignty which never extinguishes.
The Constitution of India has also canvassed the pre-existing rights of tribal people. It has classified tribal concentrated areas into three categories (a) tribal area; (b) scheduled area; and (c) areas not falling within these two.
Under Part 10 of the Constitution of India in which Article 244(1) states that the scheduled area’s and Scheduled Tribe’s administration shall be in accordance with the provisions of the Fifth Schedule and States of Assam, Meghalaya, Tripura and Mizoram will be under the governance of Sixth Schedule. Further, the Governor of the State has been empowered to include, exclude or create autonomous regions and areas for Scheduled Tribes. Special regulations apply to the tribal areas and general laws may also apply in modified form to the scheduled areas.
Manifestly, the aim to preserve tribal autonomy, their cultures and economic empowerment to ensure social, economic and political justice for the protection of peace and good governance in the scheduled area is the focus of the Fifth Schedule and the regulations made thereunder. Further, it totally prohibits the transfer of tribal land to non-tribals to maintain their original character. Even the Government has to transfer, it has to transfer or assign to tribal people or a cooperative society consisting of the Scheduled Tribes only. It cannot be transferred to a non-tribal. However, the Government may transfer to a non-tribal for the public purpose.
Moving on, the Constitution (89th Amendment) Act, 2003 brought in Article 338-A which provides for the establishment of the National Commission for Scheduled Castes and Scheduled Tribes to be appointed by the President of India. The Union of India and State is obligated to consult the Commission on all major policy matters affecting Scheduled Tribes.
The Constitution of India does not stop here; it has incorporated Article 164(1) which takes special care of the tribals by the appointment of Minister for Tribal Welfare in various States to take after the welfare of tribals. Further, under Article 339(2) the Union Government can issue directives to the States to draw up and execute schemes specified in such directives as are essential for the welfare of Scheduled Tribes in the State. Additional support was drawn from the protection provided in various enactments to the indigenous people including the Forest Act, 1927 and the Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA Act). The Forest Act recognises community resources, individual rights and cultural and religious rights. The Forest Act protects a wide range of rights of forest dwellers including the use of forest land as a community resource and not merely restricted to property rights and PESA Act empowers the Gram Sabha to have sole authority in deciding the acquisition of land.
Further, the rights of indigenous people are also encompassed in international conventions. It harmonises local legislation with constitutional and international obligations in order to secure the rights that are implicit within the right to land.
Starting with, the Earth Summit, 1992 proclaimed in Principle 22 that the “indigenous people and their community, as well as local communities”, have a vital role in environmental management and development because of their knowledge and traditional practices. It imposes a positive obligation on State to recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.
Similarly, the Convention on Biological Diversity, 1992 (CBD) recognised the customary use of biological resources according to traditional cultural practices. It vehemently declared that traditional practices are relevant to the conservation of biological diversity and therefore the national legislation should be passed empowered to “respect, preserve the knowledge and practices local community”.
Further, the International Labour Organisation Resolution, 1989, Resolution No. 169 has declared that the distinctive cultural traditions of indigenous and tribal peoples must be protected by the national laws and place them on an equal footing in terms of their contribution to the making of the world’s culture. It further declared various rights of tribal people, such as — (a) right of ownership and possession over the lands which they have traditionally occupied; (b) recognition and protection of their social, cultural religious and spiritual values and practice; and (c) obligation of the Government to consult with tribal people on all legislative or administrative measures affecting them.
The United Nations Development Programme (UNDP) has also, in 2001, adopted a policy of engagement relating to indigenous people. The policy of UNDP seeks the participation of tribals in decision-making process particularly those that may affect their human development and environment. It has also recognised their right of self-determination.
Indiscriminate industrialisation, unbridled and unprecedented exploitation of the natural resources and exponential population growth, construction of big dams and relentless deforestation has not only caused devastation of the vegetation cover but also played havoc with the forest dwellers or the indigenous people, “best friends of nature”. Such activities have stripped of the forest dwellers of their inherent and sovereign rights to live in forests and to own, develop and manage their land and forest.
One of the most basic rights that ensured to the community is the right in the commons. Therefore, property rights have become a natural right point for modern tribal people’s movement around the world. It has become the duty of nations to recognise “people’s proprietorship” of the land they occupy and to which they have a sense of belongingness since time immemorial as a principle of human justice. Land is the most important asset from which tribals derive their sustenance, social status, economic and social equality.
Yet these tribes are devoid of their property rights as there is not a single piece of legislation that restricts the acquisitions of land by the State in the name of development or for the public interests as the acquisition has been sanctioned by the Land Acquisition Act, 1894. Laws such as the Land Acquisition Act are used against tribal communities, taking their resources while throwing them on the streets. Lands are forcibly taken away from them and handed over to private corporations for their benefit. From the perspective of authorities, the potential of the legislation is to ensure participatory land acquisition in which people (specifically affected families) become partners in development and thus secure “improvement in the social and economic status” but the affected families have viewed acquisition as a paradigm shift from “vikas to vinash”.
A classic story of human rights violation and injustice is being witnessed by the Dongria Kondhs with Vedanta. Vedanta Alumina, a subsidiary of Sterlite Industries, signed an agreement with the Orissa Government in October 2004 to mine bauxite in the Niyamgiri Hills. This project trampled on the rights of the forest dwellers in the region as well as threatening them with arrest. It provides a good example of the linkages between the environment and human rights in the conflict between multinational corporations and communities across the country from Madhya Pradesh to Chhattisgarh, from Bihar to Jharkhand, and from Andhra Pradesh to Karnataka. The acts of Vedanta in the Niyamgiri Hills is a prime illustration of “development aggression”.
The Dongrias of Niyamgiri Hills are the original and indigenous landowners which are supposed to be expropriated by the bauxite giant. The lands are being enveloped by the dense forest and river valleys which provided the Dongrias a favourable landscape for practising sustainable agriculture, fishing, hunting, etc. This tribal community mythically believed that the Niyamgiri Hills and surrounding area belongs to “Niyam Raja Penu”, a male deity worshipped during the festivals of Dussehra and traditional Jura Parab. For the natives it was a direct affront of the modern State on their sacred lives. Such an instrumentalist conception of land was not merely interfering with their lifestyle but was also an unacceptable trespass into the sacred abode of Niyam King. It is claimed that they are the decedents of Niyam Raja. In fact, the name of their community is being derived from the term “Dongar” which means agriculture land on hill slopes. In order to be a part of the Dongria Kondh, one must reside in the Niyamgiri Hills and possess land of his own and the same has to be forwarded to the future generations. The proposed Vedanta mining project threatens to undermine the traditional land rights and religious beliefs of the Dongria Kondh. It also poses serious risks to their rights to water, food, work and an adequate standard of living and their cultural rights.
Adding furthermore, the Niyamgiri Hills, both culturally and ecologically are extremely rich and significant. The region has some of the most pristine forests and provides shelter to a large number of vulnerable wildlife species including tiger, leopard, bear, giant squirrel, etc. It also provides a passage for the migration of elephants. Ecologically, it has been declared as a game sanctuary and has also been proposed as a wildlife sanctuary. Continuous movements are afoot to hand over forests and other community lands which are being declared as government land by fiat to private companies in the name of infrastructural development actually results in the destruction of their native forests and denial of tribal rights in those forests.
Without paying heed to the above importance of socio-cultural as well as the environmental aspects of Niyamgiri Hills, Orissa Government has made all its attempts to allow the exploitation of natural resources by bringing resource-intensive mode of development which in all probability would create ecological instability and thereby violate the fundamental rights of thousands of people.
Pursuant to the examination of the historical, customary and community rights and renegotiating the terms of integration of the indigenous people, transformational constitutionalism has a resonance in India as well with the Indian Constitution being termed as a social document intended to bring about a social revolution. Transformational constitutionalism has been defined as a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions.
The application of the concept of transformative constitutionalism has been anchored in the decision in Orissa Mining Corpn. Ltd. v. Ministry of Environment and Forests, wherein the Court for the first time invokes international conventions and emphasises on the need to preserve social, political and cultural rights of the indigenous people. It harmonises local legislation with constitutional and international obligations in order to secure rights implicit within the right to land and forest. The harmonious reading of Article 21 with Articles 25 and 26 establish various rights that are implicit in the right to land for tribal people is unique in Indian jurisprudence. In contrast to the earlier decisions wherein displacement of the tribals from their land in accordance with the national laws and regulations and in the interest of national economic development which reiterated the Indian Government’s stand against the terminology of indigenous people. This decision invoked the cultural and religious rights as against rights in minerals which are vested in the State. The pronouncement in this particular case promotes the participation of indigenous people and the recognition of customary or traditional land of indigenous people. It also aimed to ensure that indigenous people should not suffer from the adverse consequences of the development process. The court also takes the recourse of the Fifth Schedule of the Indian Constitution, the Bhuria Committee Report, the deliberations around the PESA Act and concluded that the Gram Sabha shall have the authority to initiate the process for determining the extent of individual and community claims. Further, the judgment moves into a novel paradigm of invoking the cultural rights component within the International Labour Organisation (ILO) Convention No. 107 along with the CBD. The Biodiversity Convention involves the local communities in the conservation of biodiversity. The conceptual basis for the judgment is the need to analyse the indigenous rights vis-à-vis human rights that are likely to provide a more understanding of indigenous rights in the future. It is also pertinent to note that there is a need to look at other rights including accommodating tribal autonomy and sovereignty by taking a fresh look at the constitutional framework with regard to the V and VI Schedule areas. The decision of the present case is a small step towards the same.
It is concluded that in addition to India’s rise as an economic power today there is a need to show that it is also conscious of plight of its marginalised people. This is apparently important for India’s image abroad, particularly in its relations with other countries in order to convince that they are dealing with a modern country that also values human rights. Combining tribal rights and an environmental agenda, the Government has even recognised that the Scheduled Tribes and other traditional forest dwellers have a primary role in the sustainability of our ecosystem.
However, despite the Forest Act or other government policies and the Constitution, it is a foregone conclusion that none of these development projects are going to be reconsidered, even if they affect the livelihoods of tribal people or may destroy forever fragile cultures. The struggle of the Dongria Kondh tribes has drawn the attention of entire civil society groups operating across the country as well as the urban intellectuals. Further, it emphasised that there is an urgent need for safeguarding the sociocultural and environmental rights of tribal communities. This supposition demand urges strong support from all sections of society to protect the tribal communities against anti-human development plans that has a potential threat to destroy the natural environment for corporate profits.
† 4th year student of National University of Study and Research in Law, Ranchi.
†† 4th year student of National University of Study and Research in Law, Ranchi.
 Armin Rosencranz and Sharachchandra Lele, Supreme Court and India’s Forests, 43 Economic and Political Weekly 5, 11-14 (2008).
 W.V. Grigson, The Aboriginal in the Future India, (1994) 74 J. Royal Anthropological Institute of Great Britain and Ireland 33.
 Leo Strauss, The Three Waves of Modernity, Political Philosophy 81-98 (1975).
 In Chhattisgarh, the Government has organised armed militias in the name of the salwa judum campaign, who burn villages, kill people, rape women and engage in extreme brutality in the name of fighting the maoists. People are being driven from their homes and lands to make it easier to hand them over to mining corporations. More than one lakh people have been displaced in the last two years because of this inhuman violence, thousands of women have been raped, and hundreds of people killed ruthlessly.
 Ajit Menon, Engaging with the Law on Adivasi Rights, 42 Economic and Political Weekly, 2239-2242 (16-6-2007).
 A. Damodaran, Result of Skewed Development? The Hindu (27-4-2003), online: The Hindu <http://www.hinduonnet.com/thehindu/mag/2003/04/27/stories/2003042700280400.htm>.
 Development Challenges in Extremist Affected Areas, Report of an Expert Group of Planning Commission, Government of India, 2008, cited in Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547: AIR 2011 SC 2839, para 8.
 Financial Express, Mining in Tribal Niyamgiri: SC Rejects Petition against Local Refusal Consensus <http://www.financialexpress.com/economy/niyamgiri-sc-rejects-petition-against-local-refusal-consensus/250110/> (last accessed 8-5-2019).
 Sch. V Para 5(2).— The Governor may make regulation for the peace and good governance … (a) to prohibit or restrict the transfer of land by or amongst members of the Scheduled Tribes; and (b) regulate the allotment of land to members of Scheduled Tribes in such area.
 As per Arts. 244(1) and 275(1), they are being governed as per Sch. VI of the Constitution.
 Signed at Rio de Janeiro vide NA 92-7807 dated June 1992 and came into force on 29-12-1993, <https://treaties.un.org/doc/Publication/MTDSG/Volume%20II/Chapter%20XXVII/XX VII-8.en.pdf>.
 Non-binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests, 1992 [Principle 12(d)], <https://www.un.org/documents/ga/conf151/aconf15126-3annex3.htm>.
 Adopted by General Assembly Resolution No. 61/295 on 13-9-2007. It is not a legally binding instrument under the international law.
 Kumkum Dasgupta, Vedanta’s India Mining Scheme Thwarted by Local Objections, The Guardian (21-4-2019), <https://www.theguardian.com/global-development/poverty-matters/2013.aug/21.india-dongria-kondh-vedanta-resources-mining> (last accessed 7-5-2019).
 Tiplut Nongbri, Timber Ban in North-East India: Effects on Livelihood and Gender, 36 Economic and Political Weekly 21, 1893, 1893-1900 (2001).
 Walter Fernandes, Land Acquisition (Amendment) Bill, 1998: Rights of Project-Affected People Ignored, 1998, 33 Economic and Political Weekly 2703.
 Preamble to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013.
 Upendra Baxi, Human Rights in a Posthuman World, 86 (2007).
 Geetanjoy Sahu, 2008, Mining in the Niyamgiri Hills and Tribal Rights, 43(15) Economic and Political Weekly 19-21.
 P.S. Das Pattnaik, Ownership Pattern, Land Survey and Settlement and its Impact on the Dongria Kondhs of Orissa published in Adivasi journal in January 1984, Vol. X.
 Kumkum Dasgupta, Vedanta’s India Mining Scheme Thwarted by Local Objections, The Guardian (21-8-2013), <https://www.theguardian.com/global-development/poverty-matters/2013.aug/21.india-dongria-kondh-vedanta-resources-mining>.
 Biswajit Mohanty of Wildlife Society of Orissa, Prafulla Samantara and Academy of Mountain Environics have filed Application Nos. 564, 571 and 579, respectively before the CEC against the establishment of the project.
 See Kanchi Kohli (2006), Mine? What Mine? Ah, Yes, the Mine, <www.indiatogether.org>. Also, see the report of the Central Empowered Committee submitted to the Supreme Court of India in September 2005.
 See Comment by Nostromo Research titled Norwegian Government Indicts Vedanta as “Grossly Unethical”, London, 12-11-2007, available at <http://www.minesandcommunities.org/article.php?a=8260>.
 Klare, Karl and Davis, Dennis M., Transformative Constitutionalism and the Common and Customary Law, 46, School of Law Faculty Publications (2010), <https://repository.library.northeastern.edu/files/neu:332935/fulltext.pdf>.
 Id., at para 50.
Picture Courtesy: Bikash Khemka\Survival