REDD Realities in India: Will the forests and forest people survive? - UNDRIP & Rights of Forest...

8/7/2019 REDD Realities in India: Will the forests and forest people survive? - UNDRIP & Rights of Forest People in India

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Status of international lawStatus of international law

Article 51 of the Constitution:Article 51 of the Constitution:The State shall endeavor toThe State shall endeavor to

(a) promote international peace and security(a) promote international peace and security

(b) maintain just and(b) maintain just and honourablehonourable relations between nationsrelations between nations

(c) foster respect for international law and treaty(c) foster respect for international law and treaty

obligations in the dealings ofobligations in the dealings oforganisedorganised peoples with onepeoples with one

anotheranother

(d) encourage settlement of international disputes by(d) encourage settlement of international disputes byarbitrationarbitration

Part of Part IV of relating to the Directive Principles of StatePart of Part IV of relating to the Directive Principles of State

Policy; so not enforceable in any court of lawPolicy; so not enforceable in any court of law

But central to the governance of the country, important andBut central to the governance of the country, important and

have considerable persuasive valuehave considerable persuasive value


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Article 253 on legislation for giving effect to internationalArticle 253 on legislation for giving effect to internationalagreements:agreements:Notwithstanding anything in the foregoingNotwithstanding anything in the foregoing

provisions of this Chapter,provisions of this Chapter, Parliament has power to make anyParliament has power to make anylaw for the whole or any part of the territory of India forlaw for the whole or any part of the territory of India forimplementing any treaty, agreement or convention with anyimplementing any treaty, agreement or convention with anyother country or countries or any decision made at anyother country or countries or any decision made at any

international conference, association or other body.international conference, association or other body. The 7The 7thth Schedule vests in Parliament the power to make lawsSchedule vests in Parliament the power to make laws

relating to international treaties etc, as follows:relating to international treaties etc, as follows:Entering intoEntering intotreaties and agreements with foreign countries andtreaties and agreements with foreign countries and

implementing of treaties, agreements and conventions withimplementing of treaties, agreements and conventions withforeign countries.foreign countries.

The Courts of India too have restricted the operation ofThe Courts of India too have restricted the operation ofinternational law at the domestic level.international law at the domestic level.

In 1954, the Calcutta High Court held thatIn 1954, the Calcutta High Court held thatif Indian statutesif Indian statutesare in conflict with any principle of international law, theare in conflict with any principle of international law, theIndian Courts will have to obey the laws enacted by theIndian Courts will have to obey the laws enacted by thelegislature of the country to which they owe their allegiancelegislature of the country to which they owe their allegiance..


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National courts cannot sayNational courts cannot sayyesyesif Parliament has saidif Parliament has saidnonototo

a principle of International Law.a principle of International Law.

International treaties are not binding on Indian Courts or IndiaInternational treaties are not binding on Indian Courts or Indiannnationals unless they have been incorporated into domestic lawnationals unless they have been incorporated into domestic lawthrough legislation.through legislation.

International conventions is taken into account by Courts whenInternational conventions is taken into account by Courts when

there is no inconsistency between international conventionsthere is no inconsistency between international conventionsand domestic law in some recent cases relating to human rightsand domestic law in some recent cases relating to human rightsviolations.violations.


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A number of key human rights articulated in severalA number of key human rights articulated in severalinternational conventions have been incorporated into Indianinternational conventions have been incorporated into Indianlaw in the Constitution of India itself.law in the Constitution of India itself. Ex: UDHR, the ICCPR,Ex: UDHR, the ICCPR,

ICESCR, the right to speedy trial, humane conditions in prison,ICESCR, the right to speedy trial, humane conditions in prison,free legal representation, and monetary compensation in casefree legal representation, and monetary compensation in caseof illegal detention, custodial violence, or custodial death,of illegal detention, custodial violence, or custodial death,means of livelihood, and shelter are few examples.means of livelihood, and shelter are few examples.

Regarding application of international conventions and treatiesRegarding application of international conventions and treatieson the rights ofon the rights of IPsIPs toto STsSTs and Scheduled Areas, the Supremeand Scheduled Areas, the SupremeCourt in theCourt in the SamathaSamathacasecaseread relevant articles of theread relevant articles of the

Convention on the Right to Development to which India is aConvention on the Right to Development to which India is asignatory along with the right to life guaranteed by Article 21signatory along with the right to life guaranteed by Article 21 ofofthe Constitution of Indiathe Constitution of India


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Ratification of UN, ILO and regional instrumentsRatification of UN, ILO and regional instruments

Though supportive of international law and institutions, IndiaThough supportive of international law and institutions, Indiaalways adopted a firm stand against joining any internationalalways adopted a firm stand against joining any internationalarrangement that it sees as infringing on its internal policiesarrangement that it sees as infringing on its internal policiesand institutions, particularly relating to individual rights (thand institutions, particularly relating to individual rights (theeWorld TradeWorld Trade OrganisationOrganisation being a significant exception to thisbeing a significant exception to this

rule)rule) The Government refused to sign the Optional Protocols to theThe Government refused to sign the Optional Protocols to the

ICCPR, the ICESCR, the Rome Statute of the InternationalICCPR, the ICESCR, the Rome Statute of the InternationalCriminal Court.Criminal Court.

This is consistent with the Constitutional position wherebyThis is consistent with the Constitutional position wherebyinternational agreements only apply in India when they haveinternational agreements only apply in India when they havebeen implemented through a domestic legislation.been implemented through a domestic legislation.

Therefore India is reluctant to join most internationalTherefore India is reluctant to join most internationalagreements on rights issues, such as ILO Convention 169, theagreements on rights issues, such as ILO Convention 169, theConvention Against TortureConvention Against Torture

India, a member of the InternationalIndia, a member of the International LabourLabour Organization (ILO)Organization (ILO)since 1919.since 1919.

So far ratified 41 out of 188 conventions of the ILOSo far ratified 41 out of 188 conventions of the ILO


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The government's responses is that its policies are inThe government's responses is that its policies are inaccordance with the provisions of the Convention andaccordance with the provisions of the Convention and

benefit both nonbenefit both non--Adivasis and AdivasisAdivasis and Adivasis

The forced displacement of millions of Adivasis dismissed asThe forced displacement of millions of Adivasis dismissed asgeneral allegationsgeneral allegations

A typical response was thatA typical response was thatthe exploitation of naturalthe exploitation of natural

resources was unavoidable for the economic and industrialresources was unavoidable for the economic and industrial

development of the countrydevelopment of the country; adequate compensation; adequate compensationprovided; no discriminatory policyprovided; no discriminatory policy


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TABLE 1: Status of ratification/accession of important

international instruments

18/02/1994Convention on Biological Diversity

Not ratified.Art 77 of CMW

Not ratified.CMW

Art 22 of CAT

Signed on 08/10/1997 but yet to ratify.CAT

23/07/1960Supplementary Slavery Convention 1956

18/07/1927Slavery Convention 1927

27/08/1959Genocide Convention

16/08/2005Protocol to CRC - Sexual Exploitation

30/11/2005Protocol to CRC- Armed Conflict11/12/1992CRC

Not ratifiedProtocol to CEDAW

09/07/1993CEDAW

Art 14 of CERD

03/12/1968CERD

Not ratifiedOptional Protocol to ICCPR

10/04/1979ICESCR

10/04/1979ICCPR

Date of deposit of ratification/accessionInstrument


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Not ratified.ILO 182 (Worst Forms of Child Labour)

Not ratified.ILO 138 (minimum age)

Not ratified.ILO 169 (Indigenous Peoples)

29/09/1958ILO 107 (indigenous and tribal populations)

03/06/1960ILO 111 (discrimination in employment and occupation)

25/09/1958ILO 100 (equal remuneration)

18/05/2000ILO 105 (Abolition of Forced Labour)

30/11/1954ILO 29 (Forced Labour)

Date of ratificationConvention


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Status of communications and state reportingStatus of communications and state reporting

Ratified ILO C107; ILO C169 yet to be ratifiedRatified ILO C107; ILO C169 yet to be ratified

Submitted reportsSubmitted reports to the ILO on issues related to ILO C107,to the ILO on issues related to ILO C107,and both the Committee of Experts and the Conferenceand both the Committee of Experts and the ConferenceCommittee have made observations on the sameCommittee have made observations on the same

Not submitted reports regularly and has frequently failed toNot submitted reports regularly and has frequently failed to

respond to queriesrespond to queries.. In 1993, 1995 and 2005, the Committee ofIn 1993, 1995 and 2005, the Committee ofExperts observed that no report had been submitted at all,Experts observed that no report had been submitted at all,while in 1991, 2001 and 2004, the government's reports werewhile in 1991, 2001 and 2004, the government's reports wereeither submitted very late or were too brief for the Committeeeither submitted very late or were too brief for the Committeeto considerto consider

The government does not consider the ILO Convention processThe government does not consider the ILO Convention processto be importantto be important

Where reports have been submitted, the Committee of ExpertsWhere reports have been submitted, the Committee of Expertshas made observations only on a few very specific issues as thehas made observations only on a few very specific issues as theSardarSardar SarovarSarovar dam project on thedam project on the NarmadaNarmada river, and theriver, and thedisplacement of tens of thousands of Adivasi familiesdisplacement of tens of thousands of Adivasi families

The Committee of Experts made observations in every sittingThe Committee of Experts made observations in every sittingsince 1990since 1990


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Indigenous peoples in IndiaIndigenous peoples in India

UNDRIP wasUNDRIP was passedpassed on 13 September 2007 by theon 13 September 2007 by theGeneral AssemblyGeneral Assembly

GOI does not consider any specific section of its peoplesGOI does not consider any specific section of its peoplesasasindigenous peoplesindigenous peoples((IPsIPs) but all its peoples as) but all its peoples asindigenous.indigenous.

Operationally Scheduled Tribes (Operationally Scheduled Tribes (STsSTs) considered as) considered as IPsIPs

STsSTs not same asnot same asAdivasiAdivasiorortribaltribalbut include mostbut include most IPsIPs


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SelfSelf--GovernanceGovernance

SelfSelf--governance flows from thegovernance flows from the right to selfright to self--determinationdetermination.. ILO C107 refers to 'indigenous and tribal populations', ILOILO C107 refers to 'indigenous and tribal populations', ILO

C169 modifies this to 'indigenous and tribal peoples'.C169 modifies this to 'indigenous and tribal peoples'.

The concept of 'peoples' implies recognition of the right to selThe concept of 'peoples' implies recognition of the right to selff--

determination of 'all peoples' under Article 1 of the ICCPR anddetermination of 'all peoples' under Article 1 of the ICCPR andICECSRICECSR

The right to selfThe right to self--determination means the rights of all peoplesdetermination means the rights of all peoplesto pursue freely their economic, social and culturalto pursue freely their economic, social and culturaldevelopment without outside interference.development without outside interference.

Article 1(3) of ILO C169:Article 1(3) of ILO C169:The use of the termThe use of the termpeoplespeoplesin thisin thisConvention shall not be construed as having any implications asConvention shall not be construed as having any implications asregards the rights which may attach to the term underregards the rights which may attach to the term underinternational law.international law.

Neither ILO C107 nor 169 refer to right to selfNeither ILO C107 nor 169 refer to right to self--determinationdeterminationper se, but C169 does provide for participation andper se, but C169 does provide for participation andconsultation, self management and the right to decide theirconsultation, self management and the right to decide theirown prioritiesown priorities all of them components of the right to selfall of them components of the right to self--

determinationdetermination


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But UNDRIP identifiesBut UNDRIP identifies IPsIPs as 'peoples' with the right to selfas 'peoples' with the right to self--determination by virtue of which 'they freely determine theirdetermination by virtue of which 'they freely determine their

political status and freely pursue their economic, social andpolitical status and freely pursue their economic, social andcultural development (Article 3) and 'have the right tocultural development (Article 3) and 'have the right toautonomy or selfautonomy or self--government in matters relating to theirgovernment in matters relating to theirinternal and local affairs' (Article 4) without any threat to thinternal and local affairs' (Article 4) without any threat to thee

territorial integrity of sovereign and independent states (Articterritorial integrity of sovereign and independent states (Articlele46).46).


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The principle of selfThe principle of self--determination (Articles 18, 19, 23, 32 anddetermination (Articles 18, 19, 23, 32 and

38 of UN DRIP) may be expressed through:38 of UN DRIP) may be expressed through: Autonomy or selfAutonomy or self--governmentgovernment relating to their internal andrelating to their internal and

local affairs including financing of their autonomouslocal affairs including financing of their autonomousfunctions. In other cases,functions. In other cases, IPsIPs seek the conditions for selfseek the conditions for self--

managementmanagement Respect for the principle ofRespect for the principle offree, prior and informed consentfree, prior and informed consent..

Full and effective participationFull and effective participation ofofIPsIPs at every stageat every stageincluding coincluding co--managementmanagement

ConsultationConsultation with thewith the IPsIPs prior to any action that may affectprior to any action that may affectthemthem

FormalFormal recognition ofrecognition ofIPsIPstraditional institutionstraditional institutions, internal, internal

justice and conflictjustice and conflict--resolution systems, and ways of socioresolution systems, and ways of socio--political organizationpolitical organization

Recognition of the right ofRecognition of the right ofIPsIPs toto freely define and pursuefreely define and pursuetheir economic, social and cultural developmenttheir economic, social and cultural development


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IndiaIndias general frame and provisions provides for thes general frame and provisions provides for the prepre--eminence of the state in all matterseminence of the state in all matters that governs the social,that governs the social,economic and political life of its peopleseconomic and political life of its peoples

Exercised through representative democracy, the laws,Exercised through representative democracy, the laws,administration and judiciaryadministration and judiciary

Various provisions in the Constitution for the ScheduledVarious provisions in the Constitution for the ScheduledAreas, Tribal Areas and Tribal states namely Article 244 (VAreas, Tribal Areas and Tribal states namely Article 244 (VSchedule and VI Schedule), and Articles 371A and 371GSchedule and VI Schedule), and Articles 371A and 371G

which grant special Constitutional protection to the Stateswhich grant special Constitutional protection to the Statesof Nagaland andof Nagaland and MizoramMizoram respectivelyrespectively

But the majority of theBut the majority of the STsSTs falls outside the scope of thefalls outside the scope of theapplication of these constitutional and legal provisionsapplication of these constitutional and legal provisions


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Article 40:Article 40:the State shall take steps tothe State shall take steps to organiseorganise villagevillage

panchayatspanchayats and endow them with such powers and authority asand endow them with such powers and authority asmay be necessary to enable them to function as units of selfmay be necessary to enable them to function as units of self--

governmentgovernment

Only in 1993 through the 73rd and 74th Amendment forOnly in 1993 through the 73rd and 74th Amendment for

decentralized governance rather than local selfdecentralized governance rather than local self--governancegovernance

for rural and urban areasfor rural and urban areas

This did not apply to the Schedule V and VI Areas, States ofThis did not apply to the Schedule V and VI Areas, States of

Nagaland,Nagaland, MeghalayaMeghalaya andand MizoramMizoram, hill areas of the State of, hill areas of the State ofManipur for which District Councils exist, and the District ofManipur for which District Councils exist, and the District of

Darjeeling in the State of West BengalDarjeeling in the State of West Bengal

The Parliament was to enact separate legislations forThe Parliament was to enact separate legislations forSchedule V and VI Areas while the legislatures of the statesSchedule V and VI Areas while the legislatures of the states

of Nagaland,of Nagaland, MeghalayaMeghalaya andand MizoramMizoram could extend thiscould extend this

provisionprovision


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TheThePanchayatsPanchayats(Extension to Scheduled Areas) Act 1996(Extension to Scheduled Areas) Act 1996

Eight of the nine States namely, Andhra Pradesh., Gujarat,Eight of the nine States namely, Andhra Pradesh., Gujarat,

HimachalHimachal Pradesh, Madhya Pradesh, Chhattisgarh,Pradesh, Madhya Pradesh, Chhattisgarh,

MaharashtraMaharashtra,, OdishaOdisha and Rajasthan amended their existingand Rajasthan amended their existing

PanchayatPanchayatActs to incorporate the PESA provisions;Acts to incorporate the PESA provisions;

inconsistent or not adequately harmoniousinconsistent or not adequately harmonious Jharkhand enacted a newJharkhand enacted a new PanchayatPanchayatAct in 2001;Act in 2001;

Elections toElections to PanchayatsPanchayats held in all States except Jharkhand.held in all States except Jharkhand.

PESA not been implemented as required in lawPESA not been implemented as required in law TheThe state legislations not in tune with the PESAstate legislations not in tune with the PESA

Madhya Pradesh, Jharkhand and Chhattisgarh state ActsMadhya Pradesh, Jharkhand and Chhattisgarh state Acts

enabled theenabled the GramGramSabhaSabhaonly toonly to honourhonour the spirit of thethe spirit of thelawlaw

The Orissa law envisagesThe Orissa law envisagesconsistent with the relevantconsistent with the relevant

laws in force and in harmony with basic tenets of thelaws in force and in harmony with basic tenets of the

ConstitutionConstitution


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Dispute resolutionDispute resolution according to customs and tradition of theaccording to customs and tradition of the

communitycommunityignoredignored Power granted to thePower granted to the gramgramsabhasabhain respect ofin respect ofpreventionprevention

of land alienation as also restoration of illegally alienatedof land alienation as also restoration of illegally alienatedlandland. But suitable provisions in the. But suitable provisions in the PanchayatiPanchayati RajRajActs orActs or

the relevant Land Regulations have not been made with thethe relevant Land Regulations have not been made with theexception of Madhya Pradesh including the new State ofexception of Madhya Pradesh including the new State ofChhattisgarh empowering theChhattisgarh empowering the GramGramSabhaSabhato restoreto restoreunlawfully alienated lands to ST landowners; theunlawfully alienated lands to ST landowners; the GramGram

SabhaSabhahas the power to direct the Subhas the power to direct the Sub--Divisional Officer toDivisional Officer torestore possession within 3 months.restore possession within 3 months.

The provision of Section 4(m)(i) of PESA regardingThe provision of Section 4(m)(i) of PESA regarding exciseexcise(taxes on local goods, especially alcohol) vesting full powers(taxes on local goods, especially alcohol) vesting full powers

in this regard in thein this regard in the GramGramSabhaSabhadisregarded at all levels.disregarded at all levels.Even the Madhya Pradesh amendment to its Excise Act hasEven the Madhya Pradesh amendment to its Excise Act hasno rules tono rules to operationalizeoperationalize this.this.


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Section 4(d) and 4(m)(ii) makeSection 4(d) and 4(m)(ii) make STsSTs the owners ofthe owners ofMinor ForestMinor Forest

ProduceProduce But no State has yet taken necessary steps to make thisBut no State has yet taken necessary steps to make this

premise fully operationalpremise fully operational

Consultation withConsultation with GramGramSabhaSabhaoror PanchayatsPanchayats at appropriateat appropriate

level is mandatory in the case oflevel is mandatory in the case ofland acquisition andland acquisition and

rehabilitationrehabilitation of project affected people under Section 4(i) ofof project affected people under Section 4(i) of

PESA, and in respect ofPESA, and in respect ofgrant of licensegrant of license etc of minor mineralsetc of minor minerals

under Sections 4 (k) and 4 (l) of PESAunder Sections 4 (k) and 4 (l) of PESA The State laws ignoresThe State laws ignores GramGramSabhaSabha.. PanchayatsPanchayats too aretoo are

often ignored or dissenting decision overturned by the stateoften ignored or dissenting decision overturned by the state

government or is coerced into granting approvalsgovernment or is coerced into granting approvals

The Ministry of Rural Development guidelines of 11The Ministry of Rural Development guidelines of 11

November 1998 about consultation with theNovember 1998 about consultation with the GramGramSabhaSabha

prescribed a procedure with the Collector having the centralprescribed a procedure with the Collector having the central

role, effectively nullifying the rolerole, effectively nullifying the role GramGramSabhaSabha


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The Ministry of Mines issued guidelines on 28The Ministry of Mines issued guidelines on 28

December 1997 about consultation with theDecember 1997 about consultation with the GramGram

SabhaSabhain respect of grant of lease etc of minorin respect of grant of lease etc of minor

minerals, making the recommendation of theminerals, making the recommendation of the GramGramSabhaSabhabinding in cases of grant of leases of minorbinding in cases of grant of leases of minor

minerals and grant of concessions etc. Theseminerals and grant of concessions etc. These

directives have also been overlooked.directives have also been overlooked.

Madhya Pradesh (including Chhattisgarh), madeMadhya Pradesh (including Chhattisgarh), made

elaborate rules in 2000 about consultation withelaborate rules in 2000 about consultation with

concernedconcerned GramGramSabhasSabhasbefore acquisition of landbefore acquisition of land

but has not been adequately followed.but has not been adequately followed.


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The main reasons for the nonThe main reasons for the non--implementation of PESA in theimplementation of PESA in the

concerned States are:concerned States are: Lack of appreciation about V Schedule read with PESA inLack of appreciation about V Schedule read with PESA in

tribal affairs and confusion about its legal statustribal affairs and confusion about its legal status

The formal responsibility of (a) implementation of PESA thatThe formal responsibility of (a) implementation of PESA thatstands for total transformation of the paradigm ofstands for total transformation of the paradigm ofgovernance in the Scheduled Areas and (b) dealing withgovernance in the Scheduled Areas and (b) dealing withtribal affairs in general is vested with two different Ministrietribal affairs in general is vested with two different Ministriessin the Union Government, namely, the Ministry ofin the Union Government, namely, the Ministry ofPanchayatiPanchayati

RajRaj (earlier the Ministry of Rural Development) and the(earlier the Ministry of Rural Development) and theMinistry of Tribal Affairs, respectively that are virtuallyMinistry of Tribal Affairs, respectively that are virtuallyfunctioning in isolationfunctioning in isolation

Lack of information and understanding about PESA inLack of information and understanding about PESA ingeneral and its radical character in particular amongst thegeneral and its radical character in particular amongst thepolitical executive and even concerned administrators; andpolitical executive and even concerned administrators; and

Virtually no effort to convey and disseminate the message ofVirtually no effort to convey and disseminate the message of

PESA amongst the concerned peoplePESA amongst the concerned people


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74th Amendment on Municipalities for urban areas of74th Amendment on Municipalities for urban areas ofScheduled Areas very similar to the amendment onScheduled Areas very similar to the amendment on PanchayatsPanchayats..

However, the extension of this chapter to municipalities inHowever, the extension of this chapter to municipalities in

Scheduled Areas (under V Schedule) and tribal areas (under VIScheduled Areas (under V Schedule) and tribal areas (under VISchedule) is to be through a special law enacted by Parliament.Schedule) is to be through a special law enacted by Parliament.

16 years later, no such law has been enacted, even though a16 years later, no such law has been enacted, even though a

Municipalities (Extension to the Scheduled Areas) BillMunicipalities (Extension to the Scheduled Areas) Billis pendingis pending

before Parliament since 2001before Parliament since 2001 Existing municipal laws are unconstitutionally applied to theExisting municipal laws are unconstitutionally applied to the

urban areas in Scheduled Areasurban areas in Scheduled Areas


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Constitutional Provisions Relating to the NortheastConstitutional Provisions Relating to the Northeast

Schedule VI for the Tribal Areas at the district and regionalSchedule VI for the Tribal Areas at the district and regionallevels through autonomous councils and Articles 371A andlevels through autonomous councils and Articles 371A and

371G for the States of Nagaland and371G for the States of Nagaland and MizoramMizoram

Declaration of areas asDeclaration of areas asdisturbed areasdisturbed areas, the deployment of, the deployment ofthe armed forces and their operations with impunity underthe armed forces and their operations with impunity under

AFSPA has severely curtailed democratic spaceAFSPA has severely curtailed democratic space

Armed forces are also entrusted with development functionsArmed forces are also entrusted with development functions

such assuch asto influence every aspect of the lives of the peopleto influence every aspect of the lives of the peopleof the region, be it education, health, constructional activity,of the region, be it education, health, constructional activity,

agricultural assistance, veterinary assistance, or assistanceagricultural assistance, veterinary assistance, or assistance

during natural calamitiesduring natural calamities

. This is an infringement into the. This is an infringement into the

responsibilities of the communities as well as of the state.responsibilities of the communities as well as of the state.

These, in effect, deny the right to selfThese, in effect, deny the right to self--governancegovernance


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Compliance with LawCompliance with Law

The implementation of PESA and V Schedule grosslyThe implementation of PESA and V Schedule grosslyinadequateinadequate..

The Schedule VI provisionsThe Schedule VI provisions

not harmonizednot harmonized

with the traditionswith the traditions

and customs at the village and community level and are inand customs at the village and community level and are indirect conflict with the powers of the concerned state.direct conflict with the powers of the concerned state.

Domain of economy and development decision making keptDomain of economy and development decision making kept

outside the wide autonomy provided in Article 371A and 371Goutside the wide autonomy provided in Article 371A and 371G The Forest Rights Act 2006 that provides control overThe Forest Rights Act 2006 that provides control over

community forest resourcescommunity forest resourcesby theby the GramGramSabhaSabhais beingis beingimplemented in gross violations of the law various statesimplemented in gross violations of the law various states


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Participation and consultationParticipation and consultation

Participation and consultation are integral to selfParticipation and consultation are integral to self--determinationdetermination ILO C107 only requires the government to 'ILO C107 only requires the government to 'seekseekthethe

collaboration';collaboration'; 'provide opportunities'provide opportunities for full development' andfor full development' andstimulate...the development among these populations of civilstimulate...the development among these populations of civil

liberties and the establishment of participation in electiveliberties and the establishment of participation in electiveinstitutions' (Article 5)institutions' (Article 5)

ILO C169 requires the governments toILO C169 requires the governments to ensureensure participation ofparticipation ofthe peoples concerned on an equal footing with the rest of thethe peoples concerned on an equal footing with the rest of the

population for promoting the fullpopulation for promoting the full realisationrealisation of the social,of the social,economic and cultural rights to attain equality with the rest ofeconomic and cultural rights to attain equality with the rest ofthe national society (Article 2)the national society (Article 2)

Article 6 and 7 are the key provisions on consultation andArticle 6 and 7 are the key provisions on consultation andparticipationparticipation 'at all levels of decision'at all levels of decision--makingmaking in political,in political,legislative and administrative bodies and processes whichlegislative and administrative bodies and processes whichaffect them directly'affect them directly'


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The governmentsThe governments to holdto hold appropriate consultations usingappropriate consultations using

mechanisms which ensure the free participation throughmechanisms which ensure the free participation through

peoples' own institutions and initiatives (Article 6), wherebypeoples' own institutions and initiatives (Article 6), wherebyIPsIPs have the right to make their own decisions on theirhave the right to make their own decisions on their

economic, social and cultural development (Article 7.1)economic, social and cultural development (Article 7.1)

The obligation of governments to consultThe obligation of governments to consult IPsIPs is furtheris furtheremphasisedemphasised in legislative or administrative measures, beforein legislative or administrative measures, before

extraction of subextraction of sub--surface resources, land acquisitions,surface resources, land acquisitions,

relocations, special vocationalrelocations, special vocational programmesprogrammes and education ofand education of

childrenchildren Other terms indicating participation include obligation toOther terms indicating participation include obligation to

cooperatecooperatewithwith IPsIPs (Articles 7, 20, 22, 25, 27, 33),(Articles 7, 20, 22, 25, 27, 33),

obligation not to take measures contrary to the freelyobligation not to take measures contrary to the freely--expressed wishes ofexpressed wishes ofIPsIPs (Article 4), obligation to seek(Article 4), obligation to seekfreefree

and informed consentand informed consentfromfrom IPsIPs (Article 16) and right to be(Article 16) and right to be

consulted throughconsulted throughrepresentative institutionsrepresentative institutions(Article 16)(Article 16)


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UNDRIP recognizes thatUNDRIP recognizes that IPsIPs have ahave a

Right toRight to maintain their distinct political, legal, economic,maintain their distinct political, legal, economic,

social and cultural institutionssocial and cultural institutions while retaining their rightwhile retaining their right

toto participateparticipate fully in the political, economic, social andfully in the political, economic, social and

cultural life of the state (Article 5)cultural life of the state (Article 5) Right to participate in decisionRight to participate in decision--making in mattersmaking in matters

affecting their rights (Article 18)affecting their rights (Article 18)

Right toRight to determinedetermine and develop priorities and strategiesand develop priorities and strategiesfor their development (Article 23 and 32)for their development (Article 23 and 32)

The states are toThe states are to consult and cooperateconsult and cooperate withwith IPsIPs (Article(Article

19). Free, prior and informed consent of19). Free, prior and informed consent ofIPsIPs is fundamentalis fundamental

before adopting and implementing legislative orbefore adopting and implementing legislative oradministrative measures that may affect themadministrative measures that may affect them


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FreeFreeshould imply no coercion, intimidation or manipulationshould imply no coercion, intimidation or manipulation

PriorPriorshould imply consent has been sought sufficiently inshould imply consent has been sought sufficiently inadvance of any authorization or commencement of activitiesadvance of any authorization or commencement of activitiesand respect time requirements of indigenous consultation/and respect time requirements of indigenous consultation/consensus processesconsensus processes

InformedInformed should imply that information is provided thatshould imply that information is provided thatcovers (at least) the following aspects:covers (at least) the following aspects:

a. The nature, size, pace, reversibility and scope of anya. The nature, size, pace, reversibility and scope of anyproposed project or activityproposed project or activity

b. The purpose of the project and/or activityb. The purpose of the project and/or activityc. The duration of the abovec. The duration of the above

d. The locality of areas that will be affectedd. The locality of areas that will be affected

e. A preliminary assessment of the likely economic, social,e. A preliminary assessment of the likely economic, social,cultural and environmental impact, including potential risks,cultural and environmental impact, including potential risks,and fair and equitable benefit sharing in a context that respectand fair and equitable benefit sharing in a context that respectssthe precautionary principlethe precautionary principle


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f. Personnel likely to be involved in the execution of thef. Personnel likely to be involved in the execution of theproposed project (includingproposed project (including IPsIPs, private sector staff, research, private sector staff, research

institutions, government employees and others)institutions, government employees and others)

g. Procedures that the project may entailg. Procedures that the project may entail ConsentConsent--Consultation and participation are crucial componentsConsultation and participation are crucial components

of a consent process. This process may include the option ofof a consent process. This process may include the option of

withholding consent. Consent to any agreement should bewithholding consent. Consent to any agreement should beinterpreted asinterpreted as IPsIPs have reasonably understood it.have reasonably understood it.


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TheThe PanchayatPanchayat RajRajAct for the general population applies to theAct for the general population applies to themajority of themajority of the STsSTs

Decentralizes the developmental and welfare functions ofDecentralizes the developmental and welfare functions of

the State to elected bodies (the State to elected bodies (panchayatspanchayats) at the district,) at the district,intermediate andintermediate and panchayatpanchayat levelslevels

The community at the village levelThe community at the village level GramGramSabhaSabha isis

nominal, acting more as an appendage to the structurenominal, acting more as an appendage to the structure

aboveabove

The State is, by and large, the major decisionThe State is, by and large, the major decision--making powermaking power

In effect, consultation and participation, especially inIn effect, consultation and participation, especially in

matters related to land and resources, is virtually absentmatters related to land and resources, is virtually absent


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ST representation in the political structure of the state isST representation in the political structure of the state is

Largely proportional to their population; Where ST isLargely proportional to their population; Where ST isminority, their representation is insignificantminority, their representation is insignificant

Ensured through reservation forEnsured through reservation for STsSTs in the electoralin the electoral

bodiesbodies The ST representatives invariably belong to one or otherThe ST representatives invariably belong to one or other

political party, bound by the decision of the concernedpolitical party, bound by the decision of the concerned

partyparty

With weak participatory structures at the grassroots orWith weak participatory structures at the grassroots or

where lower structures are in conflict or competition withwhere lower structures are in conflict or competition with

the traditional structures, the ST representatives becomethe traditional structures, the ST representatives become

part of the dominant structures, effectively weakeningpart of the dominant structures, effectively weakeningtheir representative charactertheir representative character


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TheThe PanchayatsPanchayats(Extension to Scheduled Areas) Act, 1996(Extension to Scheduled Areas) Act, 1996

Confers substantial powers to the community at the villageConfers substantial powers to the community at the village

levellevel to theto the GramGramSabhaSabha particularly over land and aparticularly over land and a

substantial portion of resourcessubstantial portion of resources

TheThe GramGramSabhaSabhais to approveis to approvethe plans,the plans, programmesprogrammes andand

projects for social and economic developmentprojects for social and economic development Consultation mandated for acquisition of lands, resettlementConsultation mandated for acquisition of lands, resettlement

or rehabilitation and for prospecting licenses or miningor rehabilitation and for prospecting licenses or mining

leases for minor mineralsleases for minor minerals Goes beyond consultation and participation, requiring selfGoes beyond consultation and participation, requiring self--

governancegovernance

Schedule VI provisions in the Tribal Areas in the northSchedule VI provisions in the Tribal Areas in the north--easteast

Have the potential to act with a high degree of autonomyHave the potential to act with a high degree of autonomy

But rendered ineffective with a multiplicity of competing andBut rendered ineffective with a multiplicity of competing and

conflicting state structuresconflicting state structures

Fail toFail to harmoniseharmonise with the traditional structureswith the traditional structures


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Nagaland has partly elected village level institutionsNagaland has partly elected village level institutions

Brought community participation in the delivery of servicesBrought community participation in the delivery of servicesthrough a highly successfulthrough a highly successfulNagalandNagaland CommunitisationCommunitisation ofof

Public Institutions and Services Act 2002Public Institutions and Services Act 2002

MizoramMizoram abolished the hereditary villageabolished the hereditary villagechieftainschieftainsandandreplaced them with elected Village Councils.replaced them with elected Village Councils.

The Forest Rights ActThe Forest Rights Act

Confers theConfers the GramGramSabhaSabhathe right to determine the forestthe right to determine the forest

rightsrights

RequiresRequiresfree, informed consentfree, informed consentin case of resettlement andin case of resettlement and

also requires consent for any handover of forest land by thealso requires consent for any handover of forest land by the

governmentgovernment However, these important components are often notHowever, these important components are often not

adhered to in the implementation of this Actadhered to in the implementation of this Act


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Land, natural resources and environmentLand, natural resources and environment

ILO C107 in Article 11ILO C107 in Article 11

Right ofRight ofownership, collective or individualownership, collective or individual, of the members, of the members

of the populations concerned over the lands which theseof the populations concerned over the lands which these

populations traditionally occupy shall bepopulations traditionally occupy shall be recognisedrecognised.. Right ofRight ofIPsIPs not to be removednot to be removed from these lands withoutfrom these lands without

their free consent except as an exceptional measure intheir free consent except as an exceptional measure in

accordance with law,accordance with law,for reasons relating to nationalfor reasons relating to national

security, or in the interest of national economic developmentsecurity, or in the interest of national economic development

or of the health of the said populationsor of the health of the said populations

Right toRight to compensationcompensation with alternative lands of at leastwith alternative lands of at least

equal quality (Article 12)equal quality (Article 12)


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TheThe customscustoms of the indigenous populations with respect toof the indigenous populations with respect to

transmission of rights and use of land shall be respected,transmission of rights and use of land shall be respected,and places a burden on the state to prevent persons who doand places a burden on the state to prevent persons who do

not belong to such communities from taking advantage ofnot belong to such communities from taking advantage of

such customs to procure land belonging tosuch customs to procure land belonging to IPsIPs (Article 13).(Article 13).

Recommendation 104 amplifies these commitmentsRecommendation 104 amplifies these commitmentsconsiderably.considerably.

ILO C 169ILO C 169

Article 7 statesArticle 7 statesGovernments shall take measures, in coGovernments shall take measures, in co--operation with the peoples concerned, to protect andoperation with the peoples concerned, to protect and

preserve the environment of the territories they inhabitpreserve the environment of the territories they inhabit..

Various other provisions are contained in Part II on Land,Various other provisions are contained in Part II on Land,which reinforce thewhich reinforce the notion of traditional homelandnotion of traditional homeland whichwhich

indigenous communities have customarily occupied and/orindigenous communities have customarily occupied and/or

used for their subsistence and traditional activities (Articlesused for their subsistence and traditional activities (Articles

13, 14).13, 14).


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Participation in decisionParticipation in decision--makingmaking on the use, managementon the use, management

and conservation of the resources these lands represent, isand conservation of the resources these lands represent, is

specificallyspecifically recognisedrecognised; particular mention is made of the; particular mention is made of the

right to be consulted with regard to mining operationsright to be consulted with regard to mining operations

(Article 15)(Article 15) WhileWhile removal from these lands is prohibitedremoval from these lands is prohibited, relocation for, relocation for

the purpose of developmental activities in exceptionalthe purpose of developmental activities in exceptional

circumstances is permissible, and then only with freecircumstances is permissible, and then only with free

informed consent and compensation, and the right to returninformed consent and compensation, and the right to return(Article 16)(Article 16)

Protection of lands from alienationProtection of lands from alienation to nonto non--indigenousindigenous

persons is a further duty placed on the state (Article 17)persons is a further duty placed on the state (Article 17)


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The UNDRIPThe UNDRIP

It preambleIt preamble recognisesrecognises the historical fact thatthe historical fact that IPsIPs havehavesuffered injustices as a result ofsuffered injustices as a result ofcolonisationcolonisation of their lands,of their lands,

territories and resources, and therefore the need to enableterritories and resources, and therefore the need to enable

them to exercise their right to development in accordancethem to exercise their right to development in accordance

with their needs and interestswith their needs and interests

Article 26Article 26 recognisesrecognises the right ofthe right ofIPsIPs to the lands, territoriesto the lands, territories

and resources they have traditionally owned/ occupied, orand resources they have traditionally owned/ occupied, or

which they possess by reason of traditional ownership, andwhich they possess by reason of traditional ownership, andfurther places a burden on the state to provide legalfurther places a burden on the state to provide legal

recognition to these rightsrecognition to these rights

The state is duty bound to establish a fair, independent andThe state is duty bound to establish a fair, independent andtransparent process in consonance with custom, totransparent process in consonance with custom, to

recogniserecognise and adjudicate the rights of IP to their landsand adjudicate the rights of IP to their lands

(Article 27)(Article 27)


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Where lands have been unjustly taken away or damage, theWhere lands have been unjustly taken away or damage, the

IPsIPs havehave right to restitutionright to restitution (Article 28)(Article 28)

They also have theThey also have the right to conserve and protectright to conserve and protect thethe

environment and the productive capacity of their lands,environment and the productive capacity of their lands,

territories and resources (Article 29)territories and resources (Article 29) Military activities are prohibited inMilitary activities are prohibited in IPsIPslands, unlesslands, unless

specifically agreed to (Article 30)specifically agreed to (Article 30)

The state is under an obligation toThe state is under an obligation to consultconsult the communitiesthe communitiesconcerned before undertaking any project affecting theseconcerned before undertaking any project affecting these

lands, and obtain their free and informed consent (Articlelands, and obtain their free and informed consent (Article

31)31)


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Constitution of IndiaConstitution of India

The Preamble to the Constitution of India makes aThe Preamble to the Constitution of India makes acommitment tocommitment toJustice social, economic, and politicalJustice social, economic, and political..

TheThe Right to lifeRight to life under Article 21 of the Constitution hasunder Article 21 of the Constitution hasbeen interpreted to include the right to a life of dignity,been interpreted to include the right to a life of dignity,which includes therefore a host of other rights which arewhich includes therefore a host of other rights which arenecessary and important to ensure that this life is holisticnecessary and important to ensure that this life is holisticand complete. Therefore theand complete. Therefore the right to livelihood, the right toright to livelihood, the right toshelter, the right to a clean environment, the right to watershelter, the right to a clean environment, the right to water,,and numerous other rights which are of a socioand numerous other rights which are of a socio--economiceconomicnature, have been held by judicial precedent to be part ofnature, have been held by judicial precedent to be part ofthe fundamental right under Article 21.the fundamental right under Article 21.


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The Directive Principles of State Policy include numerousThe Directive Principles of State Policy include numerous

commitments to a polity and an economic structure whichcommitments to a polity and an economic structure whichrespects equality and distributive justice. Therefore, Articlerespects equality and distributive justice. Therefore, Article

38 places an obligation on the state to promote the welfare38 places an obligation on the state to promote the welfare

of the people byof the people bysecuring and protecting, as effectively as itsecuring and protecting, as effectively as it

may, a social order in which justice, social, economic andmay, a social order in which justice, social, economic andpolitical, shall inform all the institutional of the national lipolitical, shall inform all the institutional of the national lifefe..

It is theIt is the duty of the state to reduce inequalitiesduty of the state to reduce inequalities in income asin income as

well as in status, facilities and opportunities.well as in status, facilities and opportunities. Article 39 requires the State to ensure that its policiesArticle 39 requires the State to ensure that its policies

provide adequate means of livelihood, and also that theprovide adequate means of livelihood, and also that the

ownership and control of material resourcesownership and control of material resources of theof the

community are so distributed as best to serve the commoncommunity are so distributed as best to serve the commongood. The state is also obliged to ensure that its economicgood. The state is also obliged to ensure that its economic

policiespolicies do not result in the concentration of wealth anddo not result in the concentration of wealth and

means of production.means of production.


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Scheduled Areas and Tribal AreasScheduled Areas and Tribal Areas

Article 244 of the Constitution, therefore, provides thatArticle 244 of the Constitution, therefore, provides thatadministration and control of Scheduled Areas andadministration and control of Scheduled Areas and STsSTs inin

any State other than Assam,any State other than Assam, MeghalayaMeghalaya,, TripuraTripura andandMizoramMizoram, shall be governed by the V Schedule, and that, shall be governed by the V Schedule, and thattribal areas in Assam,tribal areas in Assam, MeghalayaMeghalaya,, TripuraTripura andand MizoramMizoram (all(allin North East India) shall be governed by the VI Schedulein North East India) shall be governed by the VI Schedule

Article 244Article 244--A relates to the creation of an autonomousA relates to the creation of an autonomousregion within the State of Assam comprising certain tribalregion within the State of Assam comprising certain tribalareas, and the creation of a separate Legislature for itareas, and the creation of a separate Legislature for it


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Special dispensation for the States of Nagaland (Article 371Special dispensation for the States of Nagaland (Article 371--A),A), SikkimSikkim (371(371--F),F), MizoramMizoram (371(371--G), andG), andArunachalArunachal PradeshPradesh(371(371--H).H).

TheThe PanchayatsPanchayats(Extension to Scheduled Areas) Act, 1996(Extension to Scheduled Areas) Act, 1996contains several key provisions which give statutorycontains several key provisions which give statutoryrecognition to some of the key rights elucidated in therecognition to some of the key rights elucidated in theinternational conventions, as well as the Constitution ofinternational conventions, as well as the Constitution of

India, with regard to rights ofIndia, with regard to rights ofIPsIPs to their traditionalto their traditionalhomelands and resources, and to decisionhomelands and resources, and to decision--making processesmaking processesregarding developmental activities.regarding developmental activities.

d l dL d Ali i d A i i i


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Land Alienation and AcquisitionLand Alienation and Acquisition

Loss of land remains the single biggest cause of deprivation ofLoss of land remains the single biggest cause of deprivation ofthe livelihoods, lives and homelands ofthe livelihoods, lives and homelands ofSTsSTs

The mechanisms for such expropriation of land vary, butThe mechanisms for such expropriation of land vary, but

includeinclude

The forest laws including JFMThe forest laws including JFM

Major development projectsMajor development projects

The power of the Indian state to forcibly acquire privateThe power of the Indian state to forcibly acquire private

property (and to divert common property to any use it seesproperty (and to divert common property to any use it seesas appropriate) used with particular ferocity against Adivasias appropriate) used with particular ferocity against Adivasi

communities, who have suffered disproportionatecommunities, who have suffered disproportionate

displacement and loss of livelihoods as a result of repeateddisplacement and loss of livelihoods as a result of repeated

seizure of their resources in this mannerseizure of their resources in this manner

Indian law providesIndian law provides very few institutional or statutoryvery few institutional or statutory

protections for common resources and homelandsprotections for common resources and homelands

Right to property removed from the Constitution in 1951 fromRight to property removed from the Constitution in 1951 from


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Right to property removed from the Constitution in 1951 fromRight to property removed from the Constitution in 1951 fromthe list of fundamental rights in order to ease land reform.the list of fundamental rights in order to ease land reform.

Ironically, this is now being used by the state to ease takeoverIronically, this is now being used by the state to ease takeoverssof lands of marginal communities.of lands of marginal communities.

Eleventh Five Year Plan states:Eleventh Five Year Plan states:Ancestral land, villages,Ancestral land, villages,

habitations and environs belonging to the tribal people havehabitations and environs belonging to the tribal people havebeen made available for various development projects as tribalbeen made available for various development projects as tribalareas possess 60areas possess 6070% of the natural resources of the country.70% of the natural resources of the country.In such cases, though primary displacement appears small dueIn such cases, though primary displacement appears small dueto low population density, secondary displacement has beento low population density, secondary displacement has beenextensive, encompassing common property resources thatextensive, encompassing common property resources thatprovided supplemental livelihoods, particularly to those withprovided supplemental livelihoods, particularly to those withlow or no dependence on farming. Estimates oflow or no dependence on farming. Estimates ofSTsSTs displaceddisplacedon account of acquisition over the past six decades varyon account of acquisition over the past six decades vary

between 8.5 and 10 million (roughly about 40% of allbetween 8.5 and 10 million (roughly about 40% of all ousteesoustees))from 1951 to 1990. Of them, only 21.20from 1951 to 1990. Of them, only 21.20 lakhlakh ST persons haveST persons havebeen rehabilitated during the period. The widespread secondarybeen rehabilitated during the period. The widespread secondarydisplacement in the zone of influence has neither beendisplacement in the zone of influence has neither beenmeasured nor was provided formeasured nor was provided for..

TheThe courts largely failed to provide any reliefcourts largely failed to provide any relief in this regardin this regard


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TheThe courts largely failed to provide any reliefcourts largely failed to provide any reliefin this regardin this regard

Courts used Article 16 of ILO C 169 to conclude thatCourts used Article 16 of ILO C 169 to conclude that

displacement of tribals for the purpose ofdisplacement of tribals for the purpose ofdevelopmentdevelopmentisis

unavoidableunavoidable and therefore cannot be held to be in violationand therefore cannot be held to be in violation

of the obligations of the Indian State under the saidof the obligations of the Indian State under the said

Convention.Convention. The process ofThe process ofrecognition of traditional rights ofrecognition of traditional rights ofSTsSTs to land isto land is

significantly uneven and incompletesignificantly uneven and incomplete (the process of recording(the process of recording

their rights in the forest areas has just commenced).their rights in the forest areas has just commenced).

The state and nonThe state and non--tribals have deprived them their access oftribals have deprived them their access of

their lands by appropriation of these landstheir lands by appropriation of these lands

Of the recorded land rights, despite the constitutional andOf the recorded land rights, despite the constitutional and

legislative safeguards at the central and state level, landlegislative safeguards at the central and state level, landalienation has been widespreadalienation has been widespread


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In compliance of Paragraph 5(2)(a) of the V Schedule, mostIn compliance of Paragraph 5(2)(a) of the V Schedule, mostStates have enacted legislations restricting/prohibiting theStates have enacted legislations restricting/prohibiting thetransfer of land from tribals to nontransfer of land from tribals to non--tribals. Thetribals. Therestrictions/prohibitions are intensified in their application trestrictions/prohibitions are intensified in their application tooScheduled Areas.Scheduled Areas. Compliance to these laws has been poorCompliance to these laws has been poor..

Most violations do not reach the courts. Inaccessibility, nonMost violations do not reach the courts. Inaccessibility, non--affordability and enormous delays in litigation are factors.affordability and enormous delays in litigation are factors.Procedural rules such as that of limitation and locusProcedural rules such as that of limitation and locus standistandi,,has been detrimental. The actual restoration and physicalhas been detrimental. The actual restoration and physical

possession, even in the cases in favor ofpossession, even in the cases in favor ofSTsSTs, is yet another, is yet anotherproblem simply because of the superior socioproblem simply because of the superior socio--economiceconomicstatus of the person in possession.status of the person in possession. The Courts are not alsoThe Courts are not alsoable to ensure possession.able to ensure possession.

ForestsForests


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ForestsForests

The largest expropriation of Adivasi resources that has takenThe largest expropriation of Adivasi resources that has takenplace in India after independence has occurred in forest areasplace in India after independence has occurred in forest areas

classified asclassified asforest landsforest lands

Indian Forest Act of 1927, a colonial legal architectureIndian Forest Act of 1927, a colonial legal architecture

UUnhinderednhindered exploitationexploitation

The Forest Act empowered the government to take overThe Forest Act empowered the government to take over

lands as a reserved or protected forest, following which alands as a reserved or protected forest, following which a

Forest Settlement OfficerForest Settlement Officersupposedly would enquire intosupposedly would enquire intoclaims of rights (to land, forest produce, pasture, etc.), aclaims of rights (to land, forest produce, pasture, etc.), a

process destined to failprocess destined to fail


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Surveys were often incomplete or not doneSurveys were often incomplete or not done (82.9% of(82.9% of

MadhyaMadhya PradeshPradeshss forest blocks had not been surveyed as onforest blocks had not been surveyed as on2003, while in Orissa more than 40% of state forests are2003, while in Orissa more than 40% of state forests are

deemeddeemedreserved forests where no settlement of rights tookreserved forests where no settlement of rights took

place).place).

Where the claims process did occur, the rights of sociallyWhere the claims process did occur, the rights of socially

weaker communitiesweaker communities particularly Adivasisparticularly Adivasis werewere rarelyrarely

recordedrecorded. These communities were unable to access the. These communities were unable to access the

settlement process in many cases.settlement process in many cases. The problem became worse after Independence, when theThe problem became worse after Independence, when the

lands declaredlands declaredforestsforestsby the Princely States,by the Princely States, zamindarszamindars

and private owners were transferred to the Forestand private owners were transferred to the Forest

Department through blanket notificationsDepartment through blanket notifications without thewithout thesettlement process.settlement process.

Ministry of Environment and Forests in an affidavit filed beforeMinistry of Environment and Forests in an affidavit filed before


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the Supreme Court in July 2004 states:the Supreme Court in July 2004 states:

For most areas in India, especially the tribal areas, recordFor most areas in India, especially the tribal areas, recordof rights did not exist due to which rights of the tribals couldof rights did not exist due to which rights of the tribals could

not be settled during the process of consolidation of forestsnot be settled during the process of consolidation of forests

in the country. Therefore, the rural people, especially tribalsin the country. Therefore, the rural people, especially tribals

who have been living in the forests since time immemorial,who have been living in the forests since time immemorial,were deprived of their traditional rights and livelihood andwere deprived of their traditional rights and livelihood and

consequently, these tribals have become encroachers in theconsequently, these tribals have become encroachers in the

eyes of law.eyes of law. State of forestsState of forests

RecordedRecordedforestsforestsoften include large areas of land that areoften include large areas of land that are

not and never were forest at allnot and never were forest at all

TThe total recorded forest cover was only 23.57% of landhe total recorded forest cover was only 23.57% of land

area (Forest Survey of India, 2003)area (Forest Survey of India, 2003)

At least 12.4% of recorded forest has no actual forest coverAt least 12.4% of recorded forest has no actual forest cover

Those areas that are in fact forest include Adivasi homelandsThose areas that are in fact forest include Adivasi homelands


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Overnight all those who live in these lands becameOvernight all those who live in these lands became

encroachersencroachersin their own homesin their own homes, while all those who depend, while all those who depend

on these lands for their livelihood were deemed to be illegalon these lands for their livelihood were deemed to be illegal

trespasserstrespassers Community rights and livelihood activities not built onCommunity rights and livelihood activities not built on

private property relationsprivate property relations shifting cultivation, minor forestshifting cultivation, minor forest

produce collection and community forest protectionproduce collection and community forest protection werewerenot given any legal recognition at allnot given any legal recognition at all


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The Wildlife (Protection) Act 1972 provided for the creation ofThe Wildlife (Protection) Act 1972 provided for the creation ofnational parks, sanctuaries and other forms of protected areasnational parks, sanctuaries and other forms of protected areas

for wildlife protection. The process was similar to the Forestfor wildlife protection. The process was similar to the Forest

Act.Act.

The result was similar expropriation and denial of rightsThe result was similar expropriation and denial of rights

60% of sanctuaries and 62% of national parks did complete60% of sanctuaries and 62% of national parks did complete

the required process of rights settlement, though many werethe required process of rights settlement, though many were

declared more than two decades earlier (data submitted todeclared more than two decades earlier (data submitted tothe Supreme Court in 2005)the Supreme Court in 2005)

The Tiger Task Force of the GOI declared thatThe Tiger Task Force of the GOI declared thatin the namein the name

of conservation, what has been carried out is aof conservation, what has been carried out is a completelycompletely

illegal and unconstitutional land acquisition programmeillegal and unconstitutional land acquisition programme

Th Ch t f d t l d ti i A ti l 51Th Ch t f d t l d ti i A ti l 51 A ( ) lA ( ) l


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The Chapter on fundamental duties in Article 51The Chapter on fundamental duties in Article 51--A (g) places aA (g) places a

duty on the citizens toduty on the citizens toProtect and improve the naturalProtect and improve the naturalenvironment including forests, lakes, rivers and wildlife, and tenvironment including forests, lakes, rivers and wildlife, and too

have compassion for living creatureshave compassion for living creatures..

The power to make legislation on the subject of forests andThe power to make legislation on the subject of forests and

wildlife was vested in the State Legislative Assemblies videwildlife was vested in the State Legislative Assemblies vide

the then Entry 19 and 20 respectively of List IIthe then Entry 19 and 20 respectively of List II-- State List ofState List of

the Seventh Schedulethe Seventh Schedule

The Constitution (42nd Amendment) Act 1976 added:The Constitution (42nd Amendment) Act 1976 added:Article 48Article 48--A in Part IV (DPSP) which provides for theA in Part IV (DPSP) which provides for the

protection and improvement of the environment andprotection and improvement of the environment and

safeguarding of the forests and wildlife of the countrysafeguarding of the forests and wildlife of the country

Th l i l ti t k l l ti t f t dTh l i l ti t k l l ti t f t d


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The legislative power to make laws relating to forests andThe legislative power to make laws relating to forests and

wildlife was removed from the State list, and added to Listwildlife was removed from the State list, and added to ListIIIIII-- Concurrent List, thereby vesting power in both theConcurrent List, thereby vesting power in both the

Central and the State LegislaturesCentral and the State Legislatures

The Forest (Conservation) Act 1980 required permission fromThe Forest (Conservation) Act 1980 required permission from

the Central Government for the diversion of forest land by Statethe Central Government for the diversion of forest land by Stategovernments. Supreme Court confirmed the validity of thegovernments. Supreme Court confirmed the validity of the

power of the Centre over land use of forests.power of the Centre over land use of forests.

But illegal mining, timber smuggling, and rampantBut illegal mining, timber smuggling, and rampantdestruction of the forests, which constitute the homelands ofdestruction of the forests, which constitute the homelands of

the tribals, continuethe tribals, continue

The Forest CaseThe Forest Case centralisedcentralised forest governance furtherforest governance further

While various issues relating to the diversion of forest landWhile various issues relating to the diversion of forest land


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While various issues relating to the diversion of forest landWhile various issues relating to the diversion of forest land

for all manner of nonfor all manner of non--forest activity, such as mining,forest activity, such as mining,industries, large dams and so on are taken up, the voices ofindustries, large dams and so on are taken up, the voices of

the local tribals ignoredthe local tribals ignored

Rarely have communities affected by these ordersRarely have communities affected by these orders

approached the Forest Bench, and when they have, theyapproached the Forest Bench, and when they have, theyhave either found themselves ignored or have not beenhave either found themselves ignored or have not been

permitted to address arguments at allpermitted to address arguments at all

Information regarding orders passed, which often has lifeInformation regarding orders passed, which often has lifeand death implications, rarely reach themand death implications, rarely reach them

The primary result of the case has been to place controlThe primary result of the case has been to place control

over national forest management policies in the hands ofover national forest management policies in the hands of

the court and its appointed committees, which are out ofthe court and its appointed committees, which are out ofthe reach of Adivasi communitiesthe reach of Adivasi communities

In 2006, following intenseIn 2006, following intense mobilisationmobilisation after a national evictionafter a national eviction


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In 2006, following intenseIn 2006, following intense mobilisationmobilisation after a national evictionafter a national evictiondrive targeting Adivasis, Parliament passed India's first law ondrive targeting Adivasis, Parliament passed India's first law on

forest rightsforest rights the Scheduled Tribes and Other Traditionalthe Scheduled Tribes and Other TraditionalForest Dwellers (Recognition of Forest Rights) Act. The keyForest Dwellers (Recognition of Forest Rights) Act. The keyelements of this law are:elements of this law are:

AAcomprehensive list of forest rightscomprehensive list of forest rights, including rights to land, including rights to land

under occupation, minor forest produce, grazing rights,under occupation, minor forest produce, grazing rights,water bodies, habitat for prewater bodies, habitat for pre--agricultural communities, etc.agricultural communities, etc.

Laying down who isLaying down who is eligible for status as aeligible for status as aforest dwellerforest dwellerentitled to these rights, namelyentitled to these rights, namely STsSTs and 'other traditionaland 'other traditionalforest dwellers' (those living in and dependent on forests forforest dwellers' (those living in and dependent on forests for75 years)75 years)

Creating the foundations ofCreating the foundations ofa democratic frameworka democratic frameworkfor,for,firstly,firstly, recognisingrecognising rights; secondly, deciding on inviolaterights; secondly, deciding on inviolateareas for wildlife conservation; and, most importantly, forareas for wildlife conservation; and, most importantly, for

conservation and forest / wildlife protectionconservation and forest / wildlife protection


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The most politically significant part of the law is theThe most politically significant part of the law is the

authority of theauthority of the gramgramsabhasabhain determining rights and thein determining rights and thepower to issue directions for forest, wildlife and biodiversitypower to issue directions for forest, wildlife and biodiversity

protectionprotection

However State authorities have reduced the law to theHowever State authorities have reduced the law to therecognition of individual land titles alone, ignoring therecognition of individual land titles alone, ignoring the

community rightscommunity rights recognisedrecognised under the Act while alsounder the Act while also

consistently undermining the powers of the gramconsistently undermining the powers of the gram sabhasabha

The struggle between communities and the State over theirThe struggle between communities and the State over theirlegal rights continueslegal rights continues


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DeforestationDeforestation Between 1980 and 2005, around 1.3 million hectares ofBetween 1980 and 2005, around 1.3 million hectares of

forest was diverted for various projects;forest was diverted for various projects;

Between 2002 and 2008, roughly 78,000 hectares of forestBetween 2002 and 2008, roughly 78,000 hectares of forest

was diverted annually.was diverted annually.

Between 1998 and 2005, an average of 216 mining projectsBetween 1998 and 2005, an average of 216 mining projects

was granted forest clearance every year.was granted forest clearance every year.

Policy Spaces for Resource ControlPolicy Spaces for Resource Control


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Policy Spaces for Resource ControlPolicy Spaces for Resource Control

LawsLaws thethe PanchayatsPanchayats (Extension to Scheduled Areas) Act(Extension to Scheduled Areas) Act1996 and the Scheduled Tribes and Other Traditional Forest1996 and the Scheduled Tribes and Other Traditional ForestDwellers (Recognition of Forest Rights) Act 2006Dwellers (Recognition of Forest Rights) Act 2006

FRA has recently become a significant weapon in struggles toFRA has recently become a significant weapon in struggles tostop the seizure of forest land for industrial projects.stop the seizure of forest land for industrial projects.

In 1994, the Central government issued a notification under theIn 1994, the Central government issued a notification under theEnvironment Protection Act that required public hearings beforeEnvironment Protection Act that required public hearings beforeenvironmental clearance is granted to large projects.environmental clearance is granted to large projects.

CourtsCourts -- PIL useful at times for Adivasis to assert their resourcePIL useful at times for Adivasis to assert their resourcerights. Ex: therights. Ex: the SamathaSamathajudgment. But in recent years injudgment. But in recent years inparticular, such rulings have become rarer.particular, such rulings have become rarer.

Legal interpretation running counter to the rights of tribalsLegal interpretation running counter to the rights of tribals


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Legal interpretation running counter to the rights of tribalsLegal interpretation running counter to the rights of tribals

The Supreme Court in a judgment relating to theThe Supreme Court in a judgment relating to the SardarSardarSarovarSarovar Project read right to life under Art. 21 of theProject read right to life under Art. 21 of the

Constitution with Article 12 of ILO C107 dismissing theConstitution with Article 12 of ILO C107 dismissing the

contention of the petitioners regarding specific violationcontention of the petitioners regarding specific violation

of Article 12 as follows:of Article 12 as follows:

removal of the tribal population is necessary as anremoval of the tribal population is necessary as an

exceptional measureexceptional measure.. rehabilitation package containedrehabilitation package contained

in the award of the Tribunal as improved further by thein the award of the Tribunal as improved further by theState of Gujarat and the other States prima facie showsState of Gujarat and the other States prima facie shows

thatthatthe land required to be allotted to the tribals is likelythe land required to be allotted to the tribals is likely

to be equal, if not better than what they had ownedto be equal, if not better than what they had owned..

The Supreme Court, in a judgment in a litigation arising outThe Supreme Court, in a judgment in a litigation arising out


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The Supreme Court, in a judgment in a litigation arising outThe Supreme Court, in a judgment in a litigation arising out

of the failure of the State of Kerala to implement its ownof the failure of the State of Kerala to implement its owncommitments to restore lands to tribals which had beencommitments to restore lands to tribals which had beenalienated through sale to nonalienated through sale to non--tribals, examined Article 21 oftribals, examined Article 21 ofthe Constitution, the ILO conventions 107 and 169 and thethe Constitution, the ILO conventions 107 and 169 and theUNDRIP, and arrived at the following finding:UNDRIP, and arrived at the following finding:

It is now accepted that theIt is now accepted that thePanchsheelPanchsheeldoctrine whichdoctrine whichprovided that the tribes could flourish only if the Stateprovided that the tribes could flourish only if the Stateinterfered minimally and functioned chiefly as a supportinterfered minimally and functioned chiefly as a support

system in view of passage of time issystem in view of passage of time isno longer validno longer valid. Even. Eventhe notion ofthe notion ofautonomy contained in the 1989 conventionautonomy contained in the 1989 conventionhas been rejected by Indiahas been rejected by India..

The process of usurpation of the rights contained in theThe process of usurpation of the rights contained in theConstitution and the various protective

REDD Realities in India: Will the forests and forest people survive? - UNDRIP & Rights of Forest...

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