Nature’s Custodians - Indigenous Struggles For Land And Legacy In India
Author: LawSphereX
Category: Property & Real Estate
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NATURE’S CUSTODIANS: INDIGENOUS STRUGGLES FOR
LAND AND LEGACY IN INDIA
Rishab Baghmar D, BBA LLB, Christ Academy Institute of Law “The earth does not belong to man; man belongs to the earth”
ABSTRACT
How can we ensure justice for the Indigenous people while fostering environmental sustainability in a rapidly expanding nation? This article focuses on providing a discussion of indigenous rights and the environment in the Indian context, a country with ancient roots for its cultures and continuously growing economy. Indigenous people face significant legal challenges to protect their constitutional and internationally recognized rights, particularly their ancestral land, forests, and other resources. In pushing forward economic development, they are often paid for the loss of area and resource depletion.
Despite the recorded conflicts in Indigenous rights, this article seeks to present the specific Indian laws, international instruments, and case studies showing these conflicting issues and make recommendations for preserving Indigenous rights in the course of achieving sustainable development. Keywords: Native peoples’ justice, environmentalism, legal challenges, constitutionalism, environmentalism, sustainable development.
INTRODUCTION
India has a large population of natives who have not intermingled with the outside world for a long time, known as “Adivasis” living in forest regions. These communities are now known as India's Aboriginal or Indigenous populations, which have depended on the forests, land, and other natural resources. However, the development processes of the present world economy sharply threaten the rights of indigenous people and the environment. Mining or infrastructural developments put pressure on indigenous people and their traditional resources-harvesting practices disrupt habitats and displace indigenous people.
INDIGENOUS RIGHTS & ENVIRONMENTAL PROTECTION: CONSTITUTIONAL
& LEGAL PERSPECTIVE
India continues to be ranked technically high owing to its legal systems that afford considerable indigenous people and environmental protection. However, the laws are hardly applied and implemented at their best, especially where the economic policies and gains dominate the indigenous groups.1
1. Constitutional Provisions for Indigenous Communities
The Constitution of India provides for the protection of Indigenous rights through various provisions: ▪ Article 244: Concerning the administration of Scheduled Areas and Tribal Areas provides that the government can establish special laws and administration to protect the primitive tribes. ▪ Article 21: Ensures the Indigenous people’s right to life and associatively protects the environment right simultaneously. ▪ Fifth and Sixth Schedules: The former bestows Local Management of natural resources on the indigenes of some states while the latter grants indigenous populations of some states 1 S. Acharya, Rights of the Indigenous in India: Issues & Challenges, 11 Int’l J. Creative Res. Thoughts d101, d101–03 (2023), https://ijcrt.org/papers/IJCRT2308331.pdf
the authority to govern themselves. ▪ Apart from the above, there are other constitutional provisions including Article 14, 16(4),16(4A),21,25to30,46,243D,243T,243M(4)(b),243ZC(3),275(1),330,332,335,338,33 9,340,371ABCFGH deals with their progress and benefits,
2. The Forest Rights Act, 2006
The Recognition of Forest Rights, Act 2006 passed by the Parliament of India is an enacted law to Protect the rights of dwellers over forest land and resources. Specifically, the FRA aims to eradicate past injustices from history by affording legal, and therefore, commensurate recognition and protection to the community and individual rights of indigenous people.
3. The Environmental Protection Act of the Year 1986
Environmental Protection Act, of 1986 authorizes the government to protect people, animals, plants, and property against dangerous effects on the environment. It is not very explicit on the rights of Indigenous people but without it, there is no way of protecting the natural environment.
4. International Commitments & role of India
India has joined or ratified many international conventions for Indigenous peoples and on environmental issues including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and the Convention on Biological Diversity (CBD). These commitments simply imply that India has to accord Indigenous peoples rights in that they must be able to exercise jurisdiction over the ownership of land, natural resources, and culture for their use and welfare as well as to defend the environment.
INDIGENOUS RIGHTS
● Ownership, utilization, and management of land and resources, which form a core part and parcel of their existence. ● The right to preserve and reclaim their cultures, linguistic practices, and the indigenous
sciences and logic of knowledge. ● Autonomy on political participation status, development, and resource utilization, including the right to withhold their consent on projects affecting their territories. ● These rights are important to open up development while recognizing Indigenous culture and history.2
CHALLENGES FACED BY INDIGENOUS COMMUNITIES
a) Conflicts Between Development and Indigenous Rights: Lands inhabited by indigenous people, particularly for large-scale infrastructural development activities therefore suffer from displacement and destruction of habitat and resources. One such conflict that has been represented is the Narmada Bachao Andolan – an organisation, fighting against displacement for the construction of Sardar Sarovar Dam. b) Weak Enforcement of Laws: However, there is low implementation of these laws in that most of the indigenous groups remain ignorant of their rights as provided for in the Forest Rights Act. c) Dilution of Environmental Laws: Change in environmental laws which includes EIA Notification 2020 has recently been alleged to favour industrial growth.
New rules that have been adopted allow for the clearance to be sought post-implementation of the project making a mockery of assessment procedures meant to safeguard indigenous territories. d) Land Acquisition and Displacement: In the process of land acquisition, the communities that are affected should be compensated depending on the provisions of the Right to Fair Compensation and Transparency in Land 2 A. Brahma, Safeguarding the Rights of Indigenous Peoples in India, 24 IOSR J. Hum. & Soc. Sci. 1, 1–26 (2019), https://doi. org/10. 9790/0837-2406040126
Acquisition Act of 2013 although this law has been watered down where it exists.
RECOMMENDATIONS
FOR
STRENGTHENING
INDIGENOUS
AND
ENVIRONMENTAL RIGHTS
a) Ensure the authorities fully implement the Forest Rights Act and the constitutional provisions enacted for the tribal people. b) The laws should be revised to correct legal gaps regarding owners of which pieces of land and how these can be used for mining and other activities. c) Establish structures for the Indigenous people to participate fully in any decisions concerning their land and resources, consistent with the UN Declaration on the rights of Indigenous peoples d) provide training and awareness programs to Indigenous peoples about their rights and legal processes e) Strengthen EIA regulation to guarantee massive and sensitive social and environmental impact on Indigenous communities
CASE LAWS ON INDIGENOUS RIGHTS & ENVIRONMENTAL PROTECTION
1. Narmada Bachao Andolan v. Union of India (2000)3
The court while allowing construction of the Sardar Sarovar Dam on the Narmada has stressed that ethical rehabilitation and resettlement of any Tribal or Rural populace before displacement is mandatory.
2. Orissa Mining Corporation v. Report of the Ministry of Environment and Forests (2013)4
The Supreme Court granted the Dongria Kondh tribe in Odisha the right to decide the changes in the mining activities in the Niyamgiri hills based on the PESA Act of 1996. 3 Narmada Bachao Andolan v. Union of India, CPR India, https://treads.cprindia.org/supreme-courtcases/narmada-bachao-andolan-v-union-of-india/
4 Orissa Mining Corp. v. Ministry of Env’t & Forests, (2013) 6 S.C.R. 400, 400–25,
https://main.sci.gov.in/pdf/SupremeCourtReport/2013_v6_piv.pdf
3. Samatha v. State of Andhra Pradesh as in the year 19975
The Supreme Court of India that the tribal lands cannot be leased out for Industrial or mining purposes to any person who is not a tribal. It supports the rights of the tribal people to defend the fifth schedule of the Indian Constitution and has been instrumental in halting the invasion of tribal land by large companies.
CASE
STUDIES:
INDIGENOUS
COMMUNITIES
AS
ENVIRONMENTAL
STEWARDS
1. Koya Tribe and the Polavaram Project of Andhra Pradesh-Telangana
The construction of the Polavaram Dam has led to the displacement of thousands of Koya tribal families in Telangana and Andhra Pradesh. This example demonstrates the continuing conflict of large-project development over native peoples’ rights and, in this case, their ownership of the land and other resources
2. Santhal Tribe and Jharkhand’s Pathalgadi Movement
The Pathalgadi movement in Jharkhand wanted to regain tribal dominance by building stone pillars that marked their territories and stated their freedom. However, the government thought of this movement as a rebellion and therefore confronted the security forces and hence detained several community members. This conflict is a perfect illustration of a fight between governmental interference which certain tribal nations consider an infringement on their sovereignty and indigenous individuals’ constitutional powers.6
3. Muthanga Incident and Wayanad’s Adivasi Land Struggle (Kerala)
The Adivasis of Kerala especially, the Paniya, Kuruma, and Adiya tribes have always 5 Samatha v. State of Andhra Pradesh, Civ. App. Nos. 4601–02 of 1997, https://onlinelegaladvisor.in/famouscase-laws/famous-case-law-samatha-v-state-of-andhra-pradesh-ors-1997 6 Jal, Jangal aur Jameen: The Pathalgadi Movement and Adivasi Rights, Econ. & Pol. Wkly. (Oct. 14, 2019), https://www.epw.in/engage/article/pathalgadi-movement-nation-autonomy-rights-adivasi-jharkhand
fought for their rights on the land.7
CONCLUSION: A PATHWAY TO A HARMONIOUS COEXISTENCE
These respectively tied struggles signify fundamental aggression in native societies across the globe for tenures and rights for both land and spaces basic to existence and a global apt pull and pushes over development and environmental preservation. Yet, today’s India being an emerging economy Indigenous people’s rights are still overshadowed. It is therefore important not merely because of moral obligation but because without these rights, the ecosystems that have been sustained over generations through their labor, are at risk. India especially has the chance to redesign its laws as well as encourage the involvement of Indigenous Peoples, and include traditional ecological knowledge in the governmental policies and practices, to lay the foundation for a more comprehensive approach to development.
The Indigenous people are not just our caretakers and protectors of our environment but very key assets to our tomorrow. 7 Muthanga Agitation: 16 Years On, Wayanad Tribals Continue to Fight for Promised Land, The News Minute (Feb. 18, 2019), https://www. thenewsminute. com/kerala/muthanga-agitation-16-yrs-wayanad-tribals-continuefight-promised-land-97021