August 30, 2011
ALRC-CWS-18-04-2011
Language(s): English only
HUMAN RIGHTS COUNCIL
Eighteenth session, Agenda Item 3, Interactive Dialogue with the Special
Rapporteur on Indigenous Peoples
A written statement
submitted by the Asian Legal Resource Centre (ALRC), a non-governmental
organisation with general consultative status
INDIA: Human Rights
Council's intervention sought concerning India's violations of indigenous
peoples' rights
The Asian
Legal Resource Centre (ALRC) wishes to highlight the Government of India's
failure to ensure the rights of indigenous people in the country,
particularly in the states of Madhya Pradesh and Orissa, where the
indigenous population (also known as Scheduled Tribes or Adivasis)
is predominant. India has amongst the largest concentrations of indigenous
populations globally, with official records indicating that 664 tribes
live in India. 62 tribes recognised as Scheduled Tribes live in Orissa and
46 in Madhya Pradesh.
In January 2011, the Indian Supreme Court acknowledged in a judgment that
the descendants of the original inhabitants of India currently live in the
states of Jharkhand, Chhattisgarh, Orissa, West Bengal, and in the seven
states of the north-eastern region. The Court held that the most
"marginalised and vulnerable communities in India characterised by high
level of poverty, illiteracy, unemployment, disease and landlessness." The
Court declared that it is now time to undo the historical injustice
suffered by these communities. The Court also said that the forefathers of
the present generation of these communities were slaughtered in large
numbers, and that the survivors and their descendants have been degraded
and humiliated, with atrocities having been inflicted upon them for
centuries. The Court recognised that the indigenous people are deprived of
their lands, and pushed into forests and hills where they eke out a
miserable existence living in poverty, illiteracy, and with disease. The
Court deplored the efforts made at present to deprive them of even their
current forests and lands, and the forest produce on which they survive.
The ALRC is of the opinion that the number of cases of human rights
violations reported to have been committed against these indigenous people
exposes the fact that the Indian State is a major violator of the rights
of indigenous people. Most violations occur as a direct consequence of
State policies, involving gross neglect of the right of indigenous people
to participate in decision-making, thereby depriving their fundamental
rights.
Indigenous women and children in particular, are seriously deprived of
their fundamental rights, including the right to food, health, and
education, due to government neglect. They are also at threat of rape by
the State and State-sponsored private security forces like the Salwa
Judum, a private militia now declared illegal by the Supreme Court.
The Bonda tribe for instance, one of the Primitive Tribe Groups (PTGs;
officially categorised as one of the most vulnerable tribes in India) live
north-west of Machchkund river in Malkangiri district, Orissa.
Deforestation and the lack of development of sustainable agro-forestry
produce have resulted in food insecurity for the Bonda, who mainly depend
on forest produce for survival. The government has thus far not developed
a sustainable long-term policy to ensure food security for this tribe. Now
the tribe partly has to depend on government food subsidies, but this
typically fails to reach them.
The Primary Health Centre (PHC) in Mudulipada village remains mostly
closed, and the doctor attached to the PHC is available only for a couple
of days each month. Children are often taken to a PHC located some 30
kilometres away from the village. In Kirsanipada village, three-year-old
Chaitanya Kirsani, the son of Mongla and Adi Kirsani, suffers from Severe
Acute Malnutrition (SAM). Three more children are in a critical condition
and most of the children in the village are malnourished.
A lack of safe drinking water in the tribal area is another serious
concern. Only one tube well is available for a total of 112 households. In
addition, construction of a primary school remains incomplete and has been
pending for five years. Midday school meals are only provided 4-5 days
each month. Ms. Mangli Sisa, a widow with a son and five daughters,
suffers from hunger since she has no resources for food. Government
support for poor widows does not reach her. Other widows in the village
face a similar situation.
Separately, certain facilities provided by or enabled by the
administration have the potential to permanently alter the cultural
identity of the tribes. While government-sponsored development programmes
deplete natural resources through extensive mining and felling of timber.
The government is also distributing gillnets for fishing, which risks
ending the culture of environmentally sustainable and indigenous forms of
fishing. Once the natural sources are depleted, the community will become
completely dependent upon government subsidies for survival. Religious
groups are also exploiting the situation, by setting up religious camps
and constructing Hindu temples, or engaging in forced and induced
conversion to Christianity. Unhealthy competition among religious
fundamentalists has also brought religion-based violence into tribal
villages. Both Hindu and Christian missionaries preach to tribal
communities that their gods are inferior to the superior gods of either
the Hindus or Christians. The free supply of alcohol is used as an
incentive to lure tribal youths into religion.
In welcome moves, in October 2010, the Ministry of Environment and Forests
withdrew permission for the controversial Vedanta project, and in July
2011, the High Court rejected the expansion of the Vedanta Aluminium
Refinery Project in Lanjigarh. However, the Ministry approved the proposal
of a Korean Pohang Steel Company (POSCO) project on January 31, 2011,
despite two government-sponsored committees raising concerns about the
adverse impact the project would have on the lives and rights of
indigenous people as well as the environment. The POSCO project, the
largest Foreign Direct Investment (FDI) in India, at US$ 12 billion, will
involve the acquisition of some 4,000 acres of land, out of which 2,000
acres are forestland. The government has acquired 2,000 acres for the
POSCO project and is felling an estimated 300,000 trees. The government
committees confirmed that there are 22 tribes residing in the project area
and the Minister of Tribal Affairs recently expressed his opposition to
the project. The state government, on the other hand, denies this. The
police forcibly entered the villages to acquire the land in June 2011,
while villagers protested peacefully. At no point did the government
consult with the members or representatives of the indigenous communities
before the project was cleared for implementation.
In Madhya Pradesh, the government and the Nuclear Power Corporation of
India Limited have been planning to construct a nuclear power plant
affecting 27 villages, including Schedule V area in Mandla and Seoni
districts, ignoring the right to participate in decision-making of the
affected indigenous people. Recently, the government allegedly delivered
the regulations to the company.
The indigenous peoples displaced by the Sardar Sarovar Dam project
currently face acute food insecurity and hunger. The case exposes the
failure by the government to ensure adequate rehabilitation and
compensation in accordance with the domestic laws and in line with
international human rights norms. A study conducted in May 2011 by the
State Advisor to the Supreme Court Commissioners in Madhya Pradesh
discovered that the government has only provided cash compensation for the
loss of houses, excluding the natural resources and land that the
indigenous peoples depended on for their food. Indigenous people relocated
to Alirajpur district after the submergence in the project catchment’s
area do not have proper transportation or boats to access other places and
have been deprived of all public services. Children and women in this
community are particularly exposed to food and health insecurity. Those
who have little land cannot support their families, since the land is not
fertile. Earlier, these indigenous people could cultivate five to six
varieties of crops each year and maintained their own irrigation system,
which was destroyed by the project. Now they have to depend on government
food and nutrition subsidies. Contrary to this reality, the government
claims that it has provided rehabilitation and compensation to everyone
affected by the project.
The government’s failure in ensuring basic living resources is one of the
root causes of vulnerability of indigenous people. For instance, in
practice, access to forests or ancestral lands is not adequately
guaranteed in accordance with the domestic law, the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006. Although the law came into force on December 31, 2007, the state
forest departments of Orissa and Madhya Pradesh deny the benefits of the
law to the indigenous communities by imposing technical obstacles, such as
the need to provide documents to prove possession of forestland.
In October 2010, forest officials, destroyed the houses and other property
of the Khanda tribe living in Kalahandi district of Orissa, without any
form of due process. In Simlipal Sanctuary, Mayurbhunj district, which is
a Scheduled V area, applications for the right to land were not
considered. The government excluded the claims of the villagers from
Jaladiha village, Sundergarh district, since the land is not classed as a
forest area but as revenue land, to and approved it for a mining project.
Less than 20% of claims concerning community forest rights have been
allowed in Orissa. According to the report of the Ministry of Tribal
Affairs, about 20% of total claims were accepted in the states of Madhya
Pradesh (26.7%), Jharkhand (20%), Assam (26%), and about half of total
claims were accepted in Orissa (44%) and Chhattisgarh (57%). No claims
were accepted in Bihar State.
Deprivation of land results in lack of access to food and to hunger in
Madhya Pradesh. The Mawasi tribe in Satna district, Sahariya tribe in
Shivpuri district, Bhil tribe in Jhabua district, Baiga and Gond tribes in
Sidhi, and Kol tribe in Rewa district, have been facing hunger, child
malnutrition, and lack of basic facilities concerning public health, safe
drinking water and education. Most of the tribes have no title to their
land.
The security forces and police repeatedly commit human rights violations
in indigenous peoples’ areas, but deny involvement. For example, on April
19, 2011, a 14 year-old tribal girl was raped by members of the security
forces in Narayanpatna, Koraput district, in Orissa. No effective
investigation has taken place into this serious human rights violation, as
is typically the case concerning violations against indigenous people in
India.
The Asian Legal Resource Centre calls upon the Human Rights Council to:
a. Call on the Government of India to ensure that all violations of the
rights of indigenous people are halted and all allegations of such
violations are promptly and effectively investigated and prosecuted, in
line with domestic legislation and international standards;
b. Urge that the Government of India, and its state governments, in
particular that of Orissa and Madhya Pradesh, to verifiably guarantee
indigenous peoples’ right to participate in the decision-making process
concerning all development projects;
c. Encourage dialogue between experts and the Government of India, to
ensure that the rights of indigenous people and their communities to
access natural resources are not only a part of guarantees concerning
their food security, but are also a question of cultural identity based on
traditional ways of life;
d. Encourage the Government of India to issue a standing invitation to the
UN Special Rapporteur on the rights of indigenous people.
# # #
About the ALRC: The Asian Legal Resource Centre is an
independent regional non-governmental organisation holding general
consultative status with the Economic and Social Council of the United
Nations. It is the sister organisation of the Asian Human Rights
Commission. The Hong Kong-based group seeks to strengthen and encourage
positive action on legal and human rights issues at the local and national
levels throughout Asia.