Supreme Court and Modi govt fail India’s tribes

India’s first Prime Minister Jawaharlal Nehru, in a speech delivered at the Scheduled Tribes and Scheduled Areas Conference in June, 1952, said, “I have no doubt that, if normal factors were allowed to operate, unscrupulous people from outside would take possession of tribal lands. They would take possession of the forests and interfere with the life of tribal people. We must give them a measure of protection of their lands or forests or interference with them in any way except with their consent and goodwill.”

Sixty-seven years after Nehru’s call for the protection of tribal rights, the Supreme Court of India on February 13 ordered 21 states to evict more than a million tribal forest dwellers whose claims to their lands they rejected.

Supreme justice?

The supreme court, on hearing a complaint petition [SC Criminal Appeal 11 of 2011] by a tribal woman who was raped and paraded naked by upper caste persons in Maharashtra, observed: The ancestors of the present tribals or Adivasis (Scheduled Tribes), were the original inhabitants… The injustice done to the tribal people of India is a shameful chapter in our country’s history. The tribals were called ‘rakshas’ (demons), ‘asuras’ (evil), and what not. They were slaughtered in large numbers, and the survivors and their descendants were degraded, humiliated, and all kinds of atrocities inflicted on them for centuries. It is time now to undo the historical injustice to them.”

In 2013, in a historic judgement the Niyamgiri hills case, the court ordered that:

“The (Adivasis) communities’ decisions must be respected, and projects must not be allowed without agreement by the communities in their favor… gram sabha (local self-governance system) proceedings in Niyamgiri take place independently and completely uninfluenced,.. the Forest Rights Act (FRA) protects a wide range of rights of forest dwellers and Scheduled Tribes including the customary rights to use forest land as a community forest resource and not restricted merely to property rights or to areas of habitation.”

The tribe shot into the limelight for their successful resistance against the Vedanta Group’s plan to mine bauxite in the ecologically and mineral-rich Niyamgiri hill range, located in south-west Odisha,

But now, in 2019, the court is inflicting a historic injustice on Adivasis [tribals] by reversing its own established jurisprudence.

The bench, consisting of Arun Mishra, Navin Sinha and Indira Banerjee, all appointees of Prime Minister Narendra Modi’s government, did not once consider the tribal people’s situation before delivering the reversal judgement.

The forest dwellers are extremely poor and illiterate, making it difficult for them to substantiate claims before the appellant authority. This decision by the supreme court is set to go down in history as a blot on the Indian Judiciary’s claim to upholding judicial independence and the rule of law.

Government perpetrator

The Forest Dwellers (Recognition of Forest Rights) Act, 2006 has proven to be an extraordinary piece of legislation protecting extremely poor, illiterate tribal Indians who were ill-informed of their rights and procedures under the law.

The act was conceived with the intention of recognizing the rights of “forest dwelling scheduled tribes” (FDSTs) and “other traditional forest dwellers” (OTFDs) who have been residing in forests for generations but whose rights have not been officially recognized or recorded.

But when a supreme court petition was filed by a wildlife protection group, the central government, which has been hyper active in matters such as “triple talaq” (instant divorce as practiced by some Muslims), seemingly abdicated its responsibility to defend the Forests Rights Act.

The Union Ministry of Tribal Affairs, through Solicitor General Tushar Mehta and the Bhartiya Janata Party (BJP) rushed to the supreme court after suffering backlash from the tribal community following the court’s verdict.

The plea reads: “It is respectfully prayed that this court may consider modifying its order…and direct the state governments to file detailed affidavits regarding the procedure followed and details of the rejection of claims and till then the eviction of tribal may be withheld.”

The court agreed on February 28 to hear the plea on the eviction of forest dwellers. However this fails to answer questions over why the Modi government did not halt the injustice in the first place by tightening up the arguments on the act when it was challenged.

Some feel that the government’s behavior in this instance signals that something deeper and more chaotic is going on behind the scenes.

The existence of forest tribes has long been a barrier preventing the government from cashing in on forests’ sub-soil minerals and handing their homelands over to corporate mining giants. The absence of defense afforded to tribal groups paved the way for their eviction, making it difficult to believe at this juncture that the government is even interested in defending tribal rights.

Fault Lines

The alienation of tribal Indians started under British rule. After initial, violent confrontations with tribal groups in different parts of the country, the British colonial government adopted a policy of pacification through indirect rule.

The Scheduled Districts Act was passed in 1874 to keep tribal areas administratively separate, and the policy continued with the Government of India Acts of 1919 and 1935. After independence in 1947, the makers of India’s Constitution introduced special provisions to safeguard the rights of tribal groups and to promote their educational and economic interests.

The approach included two guiding principles: protection of the tribal population and their integration in national society. The two terms were largely misinterpreted and widely dismissed as contradictory.

In his various works, renowned anthropologist and expert on tribal groups BK Roy Burman has clarified terms used by the writers of the Constitution. Protection of the tribal peoples, Burman says, does not mean the artificial maintenance of the status-quo; it means creation of conditions in which natural growth of the tribal societies can take place, without imposition from outside and also without inhibition from inside.

Several acts of legislation have been passed to prevent the alienation of tribal lands and to give their occupants protection against usurious money lenders. However, in reality many schemes have failed due to bureaucratic negligence.

The generalization of programs for all Indian tribal citizens is discriminatory. For instance, the Khasis tribe of northeast India’s Assam embraces technology and is not alienated from traditional economic resources; for them, the priority in policy-making has to be the strengthening of socio-political institutions, systematic manpower planning and development-oriented programs.

But the Indian government has failed to acknowledge the diversity of tribal societies and to build distinct, specific, priority-based dynamic growth sets.

Indian tribal groups continue to be at the mercy of external power groups intent only on profiting from their lands. What can be done to address this injustice and to develop tribal Indians’ sense of belonging in their own communities and to reverse decades of alienation? Nearly seventy years after Nehru’s bold words, it appears that India is no closer to finding the answers.