Rights of Indigenous and Tribal People

Updated: Mar 9

INTRODUCTION

Tribal as well as indigenous inhabitants exist throughout the Indian Territory. Earlier, the indigenous inhabitants were considered as fearful, archaic, disadvantaged, wrecked, cruel and backward classes. They become prey not only of abuse of Human Rights but are also subjected to injustice and hatred. In India, in almost 30 states as well as Union Territories there are almost 705 groups that are regarded as ethnic as they are called Scheduled Tribes. These Schedule Tribes are called indigenous inhabitants[1]. But, one point to be noted is that in India apart from these 705 ethnic groups there are more groups which are entitled to the position of Scheduled Tribes but they are not formally identified[2].

In the Indian Constitution, there are Fifth and Sixth Schedule which identify rights to land as the main right of indigenous inhabitants. About indigenous inhabitants, the Government of India sanctioned UNDRIPS[3] i.e. The United Nations Declaration on the Rights of Indigenous Peoples.


RIGHTS OF INDIGENOUS PEOPLE

There are many rights offered to indigenous inhabitants like rights to their territories, resources as well as land. They are also given the right to self-sufficiency. But at the same time, indigenous inhabitants face a lot of abuses related to human rights. Several declarations discuss rights of indigenous inhabitants:


A) United Nation Declaration on the Rights of Indigenous Peoples

This declaration was approved by the General Assembly of United Nations with a total of 144 majorities in their support including 11 abstentions and Canada, America, Australia and New Zealand were the only four nations that were against this declaration. Moreover, this declaration was approved on the 13th day of September in the year 2007. After a lapse of time, a large number of nations too joined this declaration including the four nations which were earlier against the declaration but now they also have approved the declaration.

UNDRIP is one of the most significant declarations which deals with the privileges of indigenous inhabitants in the field of international policy as well as international law. This declaration deals with minimal norms of preservation, encouragement as well as acknowledgment of these privileges of indigenous inhabitants. There are few significant privileges embodied in this declaration as well as in international law are:

  1. Social, Economic and Cultural Rights: There is one convention as well as one declaration which deal with social, economic and cultural rights which are the Indian Labour Organization Convention and UDRIP declaration. These two are persistent with the analysis of these rights which are usually done by the Committee on Social, Economic and Cultural Rights as well as by the Committee on Human Rights. The ILO Convention and the UDRIP provide several rights to indigenous inhabitants like services, habitation, learning, well-being, hygiene, proper living standards and social security. Further, Article 3 of the UDRIP declaration is significant as it allows indigenous inhabitants to openly evaluate their social, economic and cultural growth.

  2. No discrimination and Equality: Article 1 and 2 of the UDRIP declaration deals with the privileges of indigenous inhabitants to every kind of human privilege. Further, the ILO Convention and UDRIP Declaration consider no discrimination and equality as the most important objective of Tribal and Indigenous inhabitants. So, every single person and indigenous inhabitants are at par with each other and they have the privilege to be immune from any sort of differentiation while they are exercising their privilege.

  3. Collective Rights: The rights of indigenous inhabitants in simple terms are known as collective rights. Before the adoption of the UDRIP declaration, the system of human rights was very gradual to adopt the notion of rights embodied in the class of individuals. Then, it was realized that the rights of individuals would be enough to provide effective safeguards and advancement of privileges like cultural rights. Further, with the approval of the UDRIP Declaration, the international association confirms that indigenous inhabitants need acknowledgment of their collective privileges as inhabitants to permit them to relish human rights.

B) International Labour Organization Convention, 1989

This Convention deals with the principle of non-discrimination[4]. ILO, 1989 deals with various rights of indigenous peoples like the right to land, laws on customs, development, health, employment, education and resources. At the time when the International Labour Organization was adopted, the main focus was given on the control of indigenous peoples over their living as well as institutions.


United Nation Human Rights Treaty System

Under the UN Human Rights Treaty System, three main international covenants are dealing with the rights of indigenous and tribal peoples. They are:

1. International Covenant on Economic, Social and Cultural Rights: As per Article 1, it covers the right of self-determination. It was recognized by the Committee formed under this Covenant that tribal peoples are suffering from the problem of forced eviction and due to this indigenous peoples are entitled to the right to proper housing[5]. It also imposes responsibility on the State to take appropriate means to make sure that there is adequate safeguarding of the rights of indigenous peoples concerning their productions, which is regarded as the remark of their traditional knowledge and cultural heritage[6]. Article 15 further talks about the rights of indigenous people to participate in their cultural life[7]. Here, the main emphasis was laid down on the significance of the ancestral land and the nature of the culture of indigenous peoples.

2. International Convention on Elimination of All Forms of Discrimination: This convention relating to the elimination of all forms of discrimination deals with the elimination of racial discrimination. This convention deals with various issues of indigenous peoples and makes few suggestions:

a) To safeguard and recognize the rights of tribal and indigenous peoples and to enable them to control, develop, own and use their territories, resources and communal lands.

b) To make sure that the tribal and indigenous peoples are entitled to equal rights while participating in the spheres of public life.

c) To make sure that no decisions are taken against tribal and indigenous peoples without receiving their consent.

3. International Covenant on Civil and Political Rights

According to Article 1, the main right of tribal and indigenous people under this Covenant is the right to determine them i.e. right to self-determination. Further, Article 27 talks about the rights of minority groups, that is, they have the right to practice any religion, to enjoy their own culture and right to choose their language.

The Committee under this covenant requires the state to provide tribal peoples greater advantage in the process of making decisions in the field of activities influencing their way of living and culture.


Conclusion

This article focuses on the rights of indigenous peoples as given under the United Nations Declaration on Rights of Indigenous Peoples and The International Labour Organization Convention. It also provides several rights guaranteed to indigenous peoples under International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and International Covenant on Elimination of all Forms of Discrimination. From this evaluation of rights of indigenous peoples, we can conclude it by mentioning some opportunities, challenges and trends.

Opportunities

  1. There is a need to have an association for the women belonging to tribal and indigenous communities.

  2. Strengthening of power of international and national human rights institutions and national courts to guide the process of implementation.

  3. The associations of tribal peoples should be powerful.

  4. There must be commitments of soft laws to grant liberty for litigation and promote the rights of tribal peoples.

Trends and Challenges

  1. A lot of discrimination is suffered by the tribal women in addition to the denial faced by them regarding access to their land.

  2. The legislative, constitutional and policy provisions relating to the rights of tribal peoples are not effectively implemented.

  3. The territories and lands of tribal peoples are given importance only for conserving biological diversity.

  4. The collective rights of the indigenous peoples are not fully recognized.

  5. Since the tribal peoples are dependent on the natural resources and lands, they are considered as vulnerable to climate change.

Footnotes

[1] The terms ‘Scheduled Tribes (STs)’, ‘tribal’ and ‘Adivasi’ have been reciprocally used to refer to ‘indigenous inhabitants.

[2]http://timesofindia.indiatimes.com/india/6-Assam-tribes-may-soon-get-Scheduled-Tribes status/.

[3] See 4 IWGIA 2016 yearbooks.

[4] Refer to A Guide to ILO Convention No. 169.

[5] Committee General Comment No. 7 (1997).

[6] Committee General Comment No. 17 (2005).

[7] Committee General Comment No. 21 (2009).


Submitted by,

Shivani Bisht & Vaibhav Gusain,

LL.M. & LL.B. (respectively).


(Image used for representational purpose only.)

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