Introduction

The Adivasis, indigenous tribal communities of India, have faced historical injustice and systematic alienation from their ancestral lands and forests. Adivasis had occupied and cultivated forest lands for generations before colonial policies led to their dispossession in favor of imperial interests. After independence, the state continued similar policies of excluding Adivasis from their habitat and livelihood sources. This resulted in impoverishment, loss of self-governance, and erosion of cultural identity for Adivasi groups. Securing land rights has therefore become a key demand of the indigenous rights movement in India.

The Indian Constitution contains special safeguards for Scheduled Tribes and provisions to prevent alienation of tribal lands. Further legislation like the Panchayats (Extension to Scheduled Areas) Act 1996 (PESA) and the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006, also known as the Forest Rights Act (FRA), provide a framework for restoring land and forest rights of Adivasis. However, there are significant gaps in the implementation of these laws which continue to deprive indigenous communities of rights over ancestral lands and resources.

Historical Injustice and Land Alienation of Adivasis

The British colonial administration in India introduced legal and policy changes that led to systematic alienation of Adivasis from their customary lands and forests. The colonial forest laws declared vast tracts of forests as state property, depriving indigenous communities of traditional usufruct rights.[1] The colonial land tenure systems also enabled transfer of tribal lands to non-tribals through unrestricted sale, mortgage or lease.[2]

Post-independence, the State continued the colonial legacy of excluding indigenous communities from forest lands declared as government property.[3] This was done in the name of scientific conservation and commercial exploitation of forests. Adivasis were evicted from their habitat without recognition of rights or provision of alternatives. The loss of land, livelihoods and self-governance resulted in growing impoverishment and social exclusion of indigenous groups.[4]

According to the Report of the Scheduled Castes and Scheduled Tribes Commission, approximately 60 million Adivasis have been displaced in India since independence.[5] The alienation from traditional habitat has severely impacted the social, economic and cultural lives of indigenous communities. Securing land rights is therefore crucial for the survival and wellbeing of Adivasis.

Constitutional Safeguards for Adivasi Land Rights

The Indian Constitution contains special safeguards for the rights of Scheduled Tribes under Fifth Schedule and Sixth Schedule. The Fifth Schedule prohibits transfer of tribal lands in Scheduled Areas to non-tribals. The Governor of each State having Scheduled Areas is empowered to make regulations to protect Adivasi interests and customary laws.[6] The Sixth Schedule provides for autonomous district and regional councils in certain tribal areas of North-East India.[7]

However, the constitutional safeguards have not been fully effective in preventing alienation of tribal lands. The Scheduled Areas where the Fifth Schedule applies are limited to only nine States.[8] The transfer regulations are often circumvented to allow non-tribal ownership of lands.[9] There are also issues of poor implementation and lack of political will in enforcing special constitutional provisions for indigenous rights protection.[10]

Key Legislations for Adivasi Land Rights

A. Panchayats (Extension to Scheduled Areas) Act 1996 (PESA Act)

The PESA Act legally empowers Gram Sabhas (village assemblies) in Scheduled Areas to protect and manage customary lands and community resources. It provides for community control over natural resources and dispute resolution through traditional modes. PESA mandates prior consultation with the Gram Sabha before acquisition of land and resettlement in Scheduled Areas.[11]

However, most States have not framed rules for implementing PESA. There is lack of devolution of powers to Gram Sabhas and continued control of bureaucracy over indigenous habitat and resources.[12] The promises of self-governance remain unfulfilled due to lack of political will and administrative resistance.

B. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006

The Forest Rights Act (FRA) recognizes individual and community forest rights of Adivasis and traditional forest dwellers over ancestral lands. The cut-off date for eligibility is December 13, 2005. The FRA mandates the Gram Sabha to initiate the process for determining forest rights and prepare maps delineating customary forest boundaries.[13]

However, procedural complexities, bureaucratic hurdles and rejection of claims have hampered FRA implementation.[14] Conservation groups have also legally challenged community forest rights leading to eviction of Adivasis. Critical wildlife habitats are being notified without settlement of rights.[15] The promise of the FRA remains unrealized due to gaps in operationalization and resistance from certain quarters.

Shortcomings in Implementation of Legislations

The legislations aimed at protecting indigenous land and forest rights have not been properly implemented on ground. Some key deficiencies include:

• Rejection of claims due to lack of documentary evidence, narrow interpretation of eligibility criteria and procedural lapses[16]
• Lack of awareness among claimants as well as officials about provisions and processes under PESA and FRA[17]
• Non-recognition of unsurveyed and unrecorded occupation as proof of forest rights claims[18]
• Eviction of Adivasis from forest lands declared as protected areas without following due process[19]
• Conservation groups legally opposing community forest rights leading to denial of rights[20]
• Bureaucratic apathy, procedural delays and excessive centralization hampering the process[21]
• Inadequate investment in capacity building of Gram Sabhas to exercise powers under PESA[22]

Judicial Trends on Adivasi Land Rights

The higher judiciary in India has played a key role in interpreting laws, protecting indigenous rights and holding the executive accountable on issues concerning Adivasis. Some important judicial interventions include:

In Samatha v. State of Andhra Pradesh (1997), the Supreme Court upheld the Fifth Schedule prohibition on transfer of tribal lands in Scheduled Areas to non-tribals. The Court observed that the prohibition was meant to prevent exploitation of Adivasis and preserve tribal autonomy.[23]

In Niyamgiri case (2013), the Supreme Court directed that Gram Sabhas must be consulted for the proposed mining lease as the Forest Rights Act mandates consent of Gram Sabhas in Scheduled Areas.[24]

However, the judiciary has also passed controversial orders for eviction of Adivasis from forest lands declared as protected areas. In 2019, the Supreme Court ordered eviction of lakhs of Adivasis whose claims were rejected under the Forest Rights Act.[25] After protests, the order was kept in abeyance and the States asked to review the rejections. The judiciary needs to balance conservation goals with protection of indigenous habitat rights.

Suggestions for Effective Implementation

• The States must notify rules for implementing PESA and ensure devolution of powers to Gram Sabhas in Scheduled Areas.
• Capacity building and awareness programs should be undertaken for indigenous communities regarding procedures and rights under PESA and FRA.
• Officials must be sensitized to verify claims through oral evidence and community testimonies rather than insisting only on documentary proof.
• Decentralization, checks on bureaucratic discretion and special mechanisms to reduce delays are required in the claims and appeals process under FRA.
• The States should provide legal aid to indigenous communities and ensure their claims are filed properly before the Gram Sabhas.
• Conservation policies and protected area notifications should respect rights of dwellers under FRA and follow due process.
• The judiciary needs to balance environmental goals with protection of land, livelihood and cultural rights of Adivasis.

Conclusion

The indigenous communities face a history of injustice, displacement and denial of rights over ancestral lands and forests. While legislations like PESA and FRA recognize their rights, gaps in implementation continue to deprive them of entitlements. Lack of political will, bureaucratic apathy and resistance from certain lobbies are stumbling blocks. Effective operationalization of laws, community mobilization and sensitization of officials are required to secure socio-economic justice and dignity for the indigenous people. The executive, legislature and judiciary need to collectively ensure that Adivasi communities get rights over habitat and resources as mandated by the Constitution and for their survival as distinct social groups.

References

[1] Ramanathan, Usha. Displacement and the Law. Economic and Political Weekly. 2005.

[2] Xaxa, Virginius. Tribes as Indigenous People of India. Economic and Political Weekly. 1999.

[3] Kumar, Kundan. FRA: Beyond the Cut-Off Date. Economic and Political Weekly. 2020.

[4] Report of the High Level Committee on Socio-economic, Health and Educational Status of Tribal Communities of India. Government of India. 2014.

[5] Report of the Scheduled Castes and Scheduled Tribes Commission. Government of India. 2004.

[6] The Constitution of India. Articles 244 and Fifth Schedule.

[7] The Constitution of India. Article 244 and Sixth Schedule.

[8] The Scheduled Areas (States) Order, 1950.

[9] The Provisions of the Panchayats (Extension to Scheduled Areas) Act, 1996.

[10] Report of the Committee on Panchayats in Scheduled Areas. Government of India. 1997.

[11] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.

[12] Report of the Joint Committee on the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Bill, 2005.

[13] Ramanathan, Usha. Displacement and the Law. Economic and Political Weekly. 2005.

[14] Kumar, Kundan. FRA: Beyond the Cut-Off Date. Economic and Political Weekly. 2020.

[15] The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007.

[16] Report of the High Level Committee on Socio-economic, Health and Educational Status of Tribal Communities of India. Government of India. 2014.

[17] Report on Promotion and Protection of Human Rights. National Human Rights Commission. 2008.

[18] Samata v. State of Andhra Pradesh. Supreme Court of India. 1997.

[19] Orissa Mining Corporation v. Ministry of Environment and Forest. Supreme Court of India. 2013.

[20] Wildlife First v. Ministry of Forest and Environment. Supreme Court of India. 2019.

[21] Kumar, Kundan. FRA: Beyond the Cut-Off Date. Economic and Political Weekly. 2020.

[22] Report on Promotion and Protection of Human Rights. National Human Rights Commission. 2008.

[23] Samata v. State of Andhra Pradesh. Supreme Court of India. 1997.

[24] Orissa Mining Corporation v. Ministry of Environment and Forest. Supreme Court of India. 2013.

[25] Wildlife First v. Ministry of Forest and Environment. Supreme Court of India. 2019.