India and the Rights of Indigenous Peoples Constitutional, Legislative and Administrative Provisions Concerning Indigenous and Tribal Peoples in India and their Relation to International Law on Indigenous Peoples. C.R Bijoy, Shankar Gopalakrishnan and Shomona Khanna INDIA AND THE RIGHTS OF INDIGENOUS PEOPLES Constitutional, Legislative and Administrative Provisions Concerning Indigenous and Tribal Peoples in India and their Relation to International Law on Indigenous Peoples. Copyright @ Asia Indigenous Peoples Pact (AIPP) Foundation, 2010 All rights reserved. No part of this book may be reproduced in any form without the written permission of the copyright holder. Editor: Ms. Luchie Maranan Design and layout: Nabwong Chuaychuwong ([email protected]) Cover Images: Inside Photo: Asia Indigenous Peoples Pact (AIPP) Foundation 108 Moo 5, Soi 6, Tambon Sanpranate Amphur Sansai, Chiang Mai 50210, Thailand Tel: +66 053 380 168 Fax: +66 53 380 752 Web: www.aippnet.org ISBN: Printed in Thailand or the name of the Printer This publication has been produced with the support of PRO 169 of The International Labour Organisation (ILO), Geneva and financed by the European Commission’s, European Initiative for Democracy and Human Rights (EIDHR) and the Danish Ministry of Foreign Affairs (Danida). Disclaimer: The views expressed in this publication are those of the authors and does not necessarily reflect the position of AIPP. ILO Cataloguing in Publication Data The designations employed in ILO publications, which are in conformity with United Nations practice, and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the International Labour Office concerning the legal status of any country, area or territory or of its authorities, or concerning the delimitation of its frontiers. The responsibility for opinions expressed in signed articles, studies and other contributions rests solely with their authors, and publication does not constitute an endorsement by the International Labour Office of the opinions expressed in them. Reference to names of firms and commercial products and processes does not imply their endorsement by the International Labour Office, and any failure to mention a particular firm, commercial product or process is not a sign of disapproval. ILO publications and electronic products can be obtained through major booksellers or ILO local offices in many countries, or direct from ILO Publications, International Labour Office, CH-1211 Geneva 22, Switzerland. Catalogues or lists of new publications are available free of charge from the above address, or by email: [email protected] Visit our website: www.ilo.org/publns Contents ACKNOWLEDGEMENTS 7 Abbreviations Glossary 8 Foreword 9 Executive Summary 10 I: Introduction to India’s indigenous peoples, and its legal system 1. Indigenous peoples in India 13 1.1 Basic Situational overview 13 1.1.1 The Category of Scheduled Tribes 14 2. Brief History 16 2.1 Pre-colonial and Colonial history 16 BOX 1: Some important revolts during the colonial period 17 2.2 Post-colonial history 18 3. Status of Scheduled Tribes 20 3.1 Current Status 20 TABLE 1: Percentage of Scheduled Tribe population in districts, villages, and Urban Areas / Towns 21 TABLE 2: Status of Scheduled Tribes with respect to the general population: Some indicators 24 3.2 Main human rights concerns 25 3.3 Role of media and civil society 28 4.Legal and Policy Frameworks: 30 4.1 Introduction to legal / legislative system and its basic principles 30 4.1.1 Sources of law 30 4.1.2 The Court Structure 30 4.1.3 Nyaya Panchayats 31 4.1.4 Human Rights Courts 31 4.1.5 Customary dispute settlement mechanisms 32 4.2 Constitutional Safeguards 33 TABLE: 3 Constitutional provisions relevant to Scheduled Tribes 33 4.3 Legislative Safeguards 34 TABLE 4: Legislative safeguards for Scheduled Tribes 34 4.4 Key Institutional Structures Relating to Scheduled Tribes 36 4.4.1 Central Government 36 4.4.2 State Governments 39 4.5 National human rights institutions 39 4.6 Scheduled Areas, Tribal Areas and Tribal States 43 4.6.1. Constitutional Arrangements for Scheduled Areas 43 4.6.2. The ortheasternN States 45 TABLE 5: Administrative Structure of Northeastern States 47 4.6.3 Andaman and Nicobar Islands 49 4.7 Status of international law 49 4.7.1 Ratification of UN, ILO and regional instruments 52 TABLE 6: Status of ratification/accession of important international instruments 52 4.7.2 Status of communications and state reporting 53 II: Legal protection of indigenous peoples in India 1. Recognition and identification 57 2. Non-discrimination 62 3. Self-management 67 3.1 Participation and consultation 73 4. Access to justice 76 5. Culture and language rights 80 TABLE: 7 Distribution of ST population by Religion 83 6. Education 85 7. Land, natural resources and environment 88 8. Socio-economic rights 103 9. Gender equality 105 10. Indigenous children 108 11. Indigenous peoples in border areas 112 III: Conclusion and recommendations CASE STUDIES I: The Indian Constitution, Law and the Nagas: A case study of Nagaland 1. Background 121 1.1 Historical 121 1.1.1 Under British Colonial Subjugation 122 1.1.2 Indian independence and after: In Search of Justice 124 1.2 Traditional council system 125 1.3 Creation of Nagaland State 126 1.3.1 Implication of Article 371A 128 1.3 The state 129 TABLE 1: District and tribes in Nagaland 130 2. Legal Status 130 2.1 Recognition and identification 130 2.2 Non-discrimination 131 2.3. Self-management, Participation and consultation 132 2.3.1 Nagaland Village and Area Council Act, 1978 132 2.3.2 Village Development Model Rules 1980 132 2.3.3 Nagaland Communitisation of Public Institutions and Services Act 2002 133 TABLE 2: Exracts from VEC Speaks 134 2.3.4 Consultation on Biological Diversity Rule 134 2.4. Access to justice 134 2.4.1 District Customary Court 135 2.4.2 Human rights 135 2.5. Culture and language rights 137 2.5.1 Youth Centre: the house of learning 137 2.6. Education 138 2.6.1 Community ownership of schools 138 2.6.2 Medium of Instruction 138 2.7. Land, natural resources and environment 139 2.7.1 Land Ownership System 140 2.7.2 Laws and Regulations 140 1.1.1 Status of Nagaland Forest as of 31 January 2001 142 TABLE 3: Statistics of Forest 143 TABLE 4: Reserved Forests 143 TABLE 5: Wildlife Sanctuaries and National Park 143 TABLE 6: Protected Forest 143 2.8. Socio-economic rights 144 2.9. Gender equality 145 2.9.1 Governance and women 146 2.9.2 Violence against women 147 2.9.3 Health 147 2.9.4 Land rights 147 2.10 Indigenous children 148 2.11. Indigenous peoples in border areas 148 3. Conclusion 150 II: The Indian Constitution, Law and the Adivasis: A case study of Jharkhand 153 1. Background 153 1.1 Historical 153 1.1.1 Pre-colonial Period 153 1.1.2 Under British Colonial Subjugation 155 BOX 1: Major Revolts 156 BOX 2: The British Response 156 1.1.3 Indian independence and after: In Search of Justice 157 1.2. The state 159 TABLE 1: District-wise Scheduled Tribes Population in Jharkhand 160 1.2.1 Current Status 161 TABLE 2: Scheduled Area Districts and Population in Jharkhand 161 1.2.2 Socio-economic status 162 TABLE 3: Health Status of Jharkhand 163 1.2.3 Main human rights concerns 165 1.2.4 Militarization and State Repression 166 1.2.4 Role of media and civil society 168 2. Legal Status 168 2.1 Non-discrimination 168 2.2 Self-management, Participation and consultation 169 2.3. Access to justice 171 2.4. Culture and language rights 173 2.4.1 Cultural Rights 173 2.4.2 Language Rights 174 2.5. Education 175 TABLE 4: Levels of Education among the major Scheduled Tribes 176 2.6. Land, natural resources and environment 177 2.6.1 Forest 177 2.6.2 Mining 179 2.6.3 Displacement and resource alienation 181 3. Conclusion 183 Annexure 1: List of notifications issued by the President identifying certain communities as Scheduled Tribes at different times. 184 Annexure 2: List of Approved Primitive Tribal Groups 185 Annexure 3: Scheduled Tribe Population in India (2001) 187 Annexure 4: List of notified Scheduled Tribes 188 Annexure 5: Scheduled Tribes and the State/ Union Territory where they are scheduled 200 Annexure 6: 75 Districts having more than 50% of Scheduled Tribe Population (2001) 217 Annexure 7: State-wise List of Scheduled Areas 221 Annexure 8: List of ILO Conventions Ratified by India 246 Annexure 9: Administration of Scheduled Areas and Tribal Areas 247 Annexure 10: Legislations for Protection of Tribal Land 265 Annexure 11: PESA,1996 267 Annexure 12: THE SCHEDULED TRIBES AND OTHER TRADITIONAL FOREST DWELLERS (RECOGNITION OF FOREST RIGHTS) ACT, 2006 (ACT NO. 2 OF 2007) 269 Ancestor statue (Garo, Meghalaya) Photo: Chris Erni Constitutional, Legislative and Administrative Provisions Concerning Indigenous and Tribal Peoples in India and their Relation to International Law on Indigenous Peoples. ACKNOWLEDGEMENTS The publication of this comprehensive report on the Constitutional, Legislative and Administrative Provisions concerning Indigenous and Tribal Peoples in India would not have been possible without the dedication and hard work of all those involved. AIPP would like to thank the following research team: C.R. Bijoy, Shankar Gopalakrishnan, Shomona Khanna, Bineet Mundu and Chonchuirinmayo Luithui for the excellence in their work and team spirit. We would also like to specially thank C.R. Bijoy for coordinating the research among the team. His extensive experience enabled the smooth execution of the challenging task within a short span of time.