Protecting the Tribal Rights

The word ‘Tribe’ denotes a group of people living in fixed territory. These tribes are a social group living in a fixed territory having no such specialisation of functions and the people living inthese social groups are known as tribes or tribal people. Tribes also have several sub groups and collectively they are known primitive and ruthless conditions. As ‘Tribal Society’. Tribes are theinhabitants of forests since pre history and even in this modern world this trend is followed by many people.

Tribes constitute around 9.6 percent of the total Indian population, and of the total tribal population around 80 percent are found in Central India. India has the second largest tribalpopulation in the world. In India, Scheduled Tribes are mainly spread across the forests and hilly regions of India. Tribes in India are mainly characterised by their geographical location and distinct culture.

In India, tribes are treated very low, are execrated and are even treated as untouchables by the prevailing adherence to social norms and caste system.

The tribal people were compelled to perform duties which were considered inferior because of their economic backwardness and illiteracy. Since, these people were ill treated and were not enjoying equal status with other people are guaranteed to all the citizens of India by Article 14 of The Constitution of India.

Thai is ” The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”, so there was a need to provide these tribal people some rights for their welfare and development.

In earlier times, Mahatma Gandhi fought for the rights of the tribal people and recognized them as Girijans or the Children of the Forest God and after Independence in 1947, the Government of India spent lot of resources to improve the standard of living of tribal people and also helped them through legislations and developmental programmes and in safeguarding their rights.

RKIA an Emirati investor, recently initiated an investment treaty arbitration (ITA) claim against India under the India-UAE Bilateral Investment Treaty (BIT).

It sought compensation of $44.71 million after claim arose after a MoU between Andhra Pradesh and RAKIA to supply bauxite to Anrak Aluminum Limited, in which RAKIA has 13% shareholding, was cancelled.

It is alleged that the concerns of the tribal population in those areas led to cancellation of the MoU.

Similarly, in 2014, Bear Creek Mining Corporation initiated an ITA against Peru under the investment chapter of the Canada-Peru Free Trade Agreement, claiming violation of the investment obligations due to the withdrawal of mining concessions, allegedly as a result of the protests by indigenous peoples.

These cases present an opportunity to evaluate the impact of the obligations of the host states under BITs on the rights of the tribal people.

Bilateral Investment Treaty

A bilateral investment treaty (BIT) is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in another state.

These types of investments are called FDIs.

BITs are established through trade pacts.

Most BITs grant investments made by an investor of one Contracting State in the territory of the other a number of guarantees, which typically include fair and equitable treatment, protection from expropriation, free transfer of means and full protection and security.

Criticism- NGOs have spoken against the use of BITs, stating that they are mostly designed to protect the foreign investors and do not take into account obligations and standards to protect the environment, labour rights, social provisions or natural resources.

Constitutional rights to tribal people

The Constitution of India has provided special provisions to the tribal people to safeguard their interests.

Article 15 of the Indian Constitution states that the state shall not discriminate any citizen on grounds of religion, race, caste, sex, place of birth or any of them. This explains that every citizen of
India is provided equal rights and opportunities without any discrimination.

Government of India has made reservation for the tribes in employment under Article 16(4) of the Constitution of India.

The Government of India has reserved seats in The House of People (Lok Sabha) and The State Legislative Assemblies under Article 330 and 332 of The Constitution of India.

Article 19(5) of the Constitution of India guarantees the tribal people right to own property and enjoy it in any part of the country.

Article 338 of The Constitution of India grants the right to appoint a Commissioner to look after welfare activities of tribes.

Article 46 of the Constitution of India states that, The State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular, the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Under Article 275(i) of the Constitution of India the Centre Government is required to give grants-in-aid to the State Government for approved Tribal Welfare Schemes.

Tribal protection under law

The United Nations Declaration on the Rights of Indigenous People (UNDRIP), 2007 recognises indigenous peoples’ rights to self-determination, autonomy and their right against forcible
displacement and relocation from their lands or territories without free, prior and informed consent, among other things.

India has voted for in favour of this Declaration.

Also, there is International Labour Organisation (ILO) convention concerning Indigenous and Tribal Peoples, 1989. It is based on the “respect for the cultures and ways of life of indigenous
peoples” and recognises their “right to land and natural resources and to define their own priorities for development.”

India is not a party to this convention but is a party to the ILO Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent
Countries, 1957. Incidentally, this convention is outdated and closed for ratification.

In India, the Constitution provides autonomy to tribal areas in matters of governance under the Fifth and Sixth Schedules.

It was further fortified by the Samatha v. State of Andhra Pradesh & Ors (1997) judgment where the Supreme Court declared that the transfer of tribal land to private parties for mining was null
and void under the Fifth Schedule.

The framework for protection of the rights of tribal and indigenous people is further strengthened by the Recognition of Forest Rights Act, 2006. It protects the individual and community rights
of tribal people in forest areas and their right to free and prior informed consent in event of their displacement and resettlement.

Business and investment promotion

Xaxa committee report 2014 has highlighted that though the protection of the rights of tribal people are in place, they are regularly flouted.

The state becomes more concerned about fulfilling contractual obligations towards the private investor instead of ensuring that tribals are not ousted from the land to which they are
historically and culturally connected.

Hence, the state has been clearly flouting the constitutional and legal principles.

The evidence is in the fact that there have been increase in number of MoUs being signed by natural resources-endowed states with investors for facilitation of developmental projects.

For instance, till 2014, Chhattisgarh and Jharkhand have reportedly entered into 121 and 74 such MoUs, respectively, with various private players.

Thus, these kind of stands and actions alter the role of the state vis-à-vis the tribal people as the state prefers economic expediency at the cost of the rights of tribal people.

Economic Development

The states invite investments from domestic investors as well as foreign players whose interests are not only protected under domestic laws but also under the BITs.

The purpose of BITs is to give protection to foreign investors while imposing certain obligations on the host state.

For example, if a development project involving a foreign investor in tribal areas leading to acquisition of tribal land is met with protest, there may be two possible scenarios.

The State government due to socio-legal and political pressures may yield to the demand of the tribal people to the detriment of the foreign investor, which is what has happened in the case of
RAKIA.

Or, assuming that the government continues with the project, the judiciary may order the cancellation of permits given to the foreign investor, which is what happened in the case of Vedanta in
2013.

In both the cases, foreign investors may drag India to ITA claiming violation of obligations under the BIT, such as fair and equitable treatment or indirect expropriation.

This perceived threat of ITA against the state may compel the latter to refrain from implementing tribal rights in the development project area.

A recent report of the UN Special Rapporteur on the Rights of Indigenous Peoples recognises three main reasons for serious impact that foreign investments have on the rights of indigenous
people:

Failure to adequately address human rights issues of tribal people in BITs

The perceived threat of ITA for enforcement of investor protection

Exclusion of indigenous people from the policymaking process.

Possible solutions

Economic development and protection of tribal rights have to happen together as both have equal importance in country’s development which is aimed at being inclusive.
Some suggestions that can be looked forward to are:

Including the tribal angle

None of the 80-plus BITs signed by India contains even a single provision on the rights of tribals. Even the 2015 model Indian BIT does not contain any such provision.

Thus, to avoid ITA cases by foreign investors, the government’s approach should be to include provisions relating to the protection of indigenous people in BITs.

Examples from world:

Canada has several exceptions to protect the rights of indigenous people in many of its BITs.

The Trans-Pacific Partnership agreement incorporates the rights of the Maoris from New Zealand also.

Since India is going to renegotiate its existing BITs, it should create a special exception for taking regulatory measures for protecting the rights of tribal people, in which case it should have a
textual basis in the BITs to derogate from investment protection obligations under BITs.

Maintaining balance

The strengthening of BITs must go hand in hand with the implementation of domestic legislation for the protection of the rights of tribal’s, where the state does not consider tribal’s as
impediments in the development process.

Involvement in policy making

Tribal people should be given representation even in investment policymaking.

This will help the state to bring in their concerns as well as development possibilities.

Expected Questions

Protecting tribal rights and driving investments for economic development require a balanced approach. Critically evaluate.

Coverage of Syllabus

General Studies 1

Effects of globalization on Indian society

Social empowerment

General Studies 2
Bilateral, regional and global groupings and agreements involving India and/or affecting India’s interests

General Studies 3

Inclusive growth and issues arising from it.

By:Gudipati Rajendera Kumar