Article

The State of India's Indigenous and Tribal Peoples 2009

Executive Summary

A. Tribal/indigenous peoples and armed conflicts

At present, 21 out of 28 states of India are afflicted by armed conflicts. With the exception of Jammu and Kashmir, conflicts in all other states involve indigenous peoples. During 2008, the indigenous peoples continued to be further engulfed into the armed conflicts. Media reports estimated that nearly 1.2 lakh Gutti Koya tribals have fled to Andhra Pradesh’s Khammam district from Bastar and Bijapur districts of Chhattisgarh during January-June 2008 to escape violence by the Maoists and the Salwa Judum activists.[1]

B. Violations of the rights of the indigenous/ tribal peoples

According to the 2007 Annual Report of the National Crime Records Bureau (NCRB) of the Ministry of Home Affairs, a total of 5,532 cases against Scheduled Tribes (or tribals) were reported in the country during 2007 as compared to 5,791 cases in 2006 showing a decline of 4.5% in 2007 over 2006.

But the NCRB figures do not reflect the actual intensity of violence against the indigenous peoples of India. During 2007, the conviction rate for crimes against the tribals remained as low as 27%.[2] Clearly, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act of 1989 remained largely unimplemented.

The Central government failed to introduce the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) (Amendment) Bill, 2008 in the Parliament although it was listed for introduction during the Monsoon Session (17 July-23 December 2008).[3] The Bill sought to amend Section 14 of the Act to give “absolute jurisdiction” to Special Courts to try the cases under the Act.[4]

The security forces were responsible for gross violation of the rights of the tribal people including arbitrary arrests, illegal detention, torture, custodial killing and extrajudicial killings in the name of “counter-terrorism” measures. On 7 January 2008, the para-military Tripura State Rifles (TSR) personnel shot dead one Dhananjoy Debbarma, a 17-year-old tribal school student, mistaking him for an insurgent during a counter-insurgency operation in Kunjaban under Kalyanpur police station of West Tripura district of Tripura.[5] Dhananjay had gone to the jungles to collect bamboo. The killing led to violent protests by the tribals.[6]

Following the attack on West Bengal Chief Minister Buddhadeb Bhattacharya’ life by the Maoists on 2 November 2008, the police inflicted inhuman atrocities on the tribal villagers including women and children in Lalgarh in West Midnapur district of West Bengal. Many tribal villagers including school children were arrested as Maoists.[7] The tribals protested by cutting off Lalgarh area for nearly a month. The protests were suspended only after Mr Bhattacharjee apologized publicly to the tribals and withdrew some police camps from Lalgarh area.

In Chhattisgarh, the tribals had to face violent retribution from the Salwa Judum forces for deposing before the visiting NHRC investigation team. An independent fact-finding team of civil society groups found that 11 houses belonging to the tribals were burnt down by the Salwa Judum members at Nendra village in Konta block in Dantewada district in reprisal to depositions by the villagers before the NHRC investigation team on 10 June 2008.[8]

C. Violations by the armed opposition groups

During 2008 the armed opposition groups (AOGs), in particular the Maoists, continued to be involved in killing, abduction, summary trial and execution, and torture. The Maoists continued to kill tribal civilians on the charge of being “police informers”, members of the anti-Maoist civilian militia such as “Salwa Judum” and for not obeying their diktats.

On the night of 17 January 2008, Maoists killed 35-year-old tribal, Samireddy Ganesh of Bhiram village under G. Madugula mandal in Visakhapatnam district of Andhra Pradesh after abducting him on the charge of being a “police informer”. In the custody, the victim was allegedly tortured and then axed to death.[9] On 27 July 2008, Maoists abducted and killed a tribal leader, Niram Singh Dhruv, ex-head of Amagaon village under Mainpur police station in

Chhattisgarh. Accusing him of being a “police informer”, the Maoists tied him to an electricity pole in village square at Amagaon and shot him in the chest.[10]

D. Violations of the rights of tribal/indigenous women

Indigenous/tribal women faced violence including killing, torture, rape, and other inhuman and degrading treatment at the hands of the law enforcement personnel, the armed opposition groups, and village pachayats, among others.

According to the NCRB, a total of 627 cases of rape of tribal/indigenous women were reported in 2007. There was a marginal decrease since 2006 in which 699 cases of rape of tribal/indigenous women were reported. Out of these 627 rape cases reported during 2007, 45.9% were reported from Madhya Pradesh.[11] Non-tribals were involved in these rape cases.

The women were vulnerable and discriminated because of their sex. On 12 March 2008, a tribal woman identified as Aapaima Mog (21 years) (wife of Polo Mog) was allegedly raped and killed by Jagadish Shil, a Special Police Officer (SPO) of District Armed Reserved (DAR) at Avangacherra village (Chefru Mog Para) under Baikhura police station in South district of Tripura. An investigation by the police confirmed that the SPO had killed the victim after rape.[12]

On 6 October 2008, a tribal woman identified as Gujriya, wife of Hakma, was forced by the village panchayat to dip her hands into a vessel filled with boiling water to prove her innocence after she was accused of being a “witch” at Khara village in Sirohi district of Rajasthan. Later, she was allegedly beaten up with hot iron rods.[13] In another clear case of denial of justice on the ground of sex, the Showuba Village Council in Nagaland let off the four rapists by merely fining them Rs 15 each after they had abducted and raped a pregnant tribal woman on 27 August 2008 at Showuba village near Dimapur in Nagaland.[14]

E. Violations of the rights of tribal/indigenous children

The tribal/ indigenous children were vulnerable at the hands of the security forces, the armed opposition groups and the society at large. The protectors turned predators. On 24 January 2008, a 10-year old tribal girl (name withheld) was allegedly raped by police constable Arvind Kumar Das at Chandli village in Giridih district of Jharkhand. The accused constable was arrested and suspended following a complaint by the victim’s family.[15] Again on 3 July 2008, a 14-year-old tribal girl (name withheld) was allegedly raped by Head Constable Zakir Khan posted at Bisthan Police post in Khargone district of Madhya Pradesh. The accused barged into the victim’s house near the Bisthan police post when she was alone and raped her. Later, the victim was admitted to the Khargone district hospital in a critical condition.[16]

F. Alienation of tribal land

Despite of the Constitutional and various legal protections against alienation of tribal land, the problem is widespread and alarming. The Ministry of Rural Development of the Government of India in its 2007-2008 Annual Report states, “The State Governments have accepted the policy of prohibiting the transfer of land from tribals to nontribals and for restoration of alienated tribal lands to them. The States with large tribal population have since enacted laws for this purpose.” The 2007-2008 Annual Report further states, “Reports received from various States, indicate that 5.06 lakh cases of tribal land alienation have been registered, covering 9.02 lakh acres of land, of which 2.25 lakh cases have been disposed off in favour of tribals covering a total area of 5.00 lakh acres. 1.99 lakh cases covering an area of 4.11 lakh acres have been rejected by the Courts on various grounds.[17]

Once the tribal lands have been alienated, it is extremely difficult to restore the land to the original tribal owners. A few states such as Jharkhand have been providing legal aid to the tribal victims to help them restore their lands. But not many lawyers were interested to fight the cases for the tribals for merely Rs 5,000 per case as part of Jharkhand government’s legal aid assistance. The state government of Jharkhand has provided an annual budget of Rs 50 lakh for its legal aid programme for the poor tribals but the authorities have reportedly spent less than 10% of the total budget over the last six years.[18]

G. Displacement of indigenous/ tribal peoples

Development-induced displacement

The indigenous/ tribal peoples who constituted 8% of the total population of India at 1991 census also constituted 55.1% of the total development project-induced displaced persons up to 1990. The Ministry of Tribal Affairs in its Draft National Policy on the Tribals stated that nearly 85.39 lakh tribals have been displaced until 1990 on account of mega developmental projects like dams, mining, industries and conservation of nature etc.[19] Tens of thousands of tribals have been displaced from 1990 onwards without proper rehabilitation. Yet, no study has been conducted in regard to displacement and rehabilitation of tribals in the country.

The tribals across India have been protesting against various socalled development projects like dams, mining, and industrial plants. On 8 August 2008, the Supreme Court allowed POSCCO India Pvt Ltd, a subsidiary of Korea-based POSCO, to build its Rs 51,000-crore steel plant in Paradeep in Jagatsinghpur district of Orissa.[20] On the same day, the Supreme Court also allowed Sterlite India Limited, a subsidiary of Britain’s Vedanta Resources Plc, to mine bauxite in Niyamgiri hills in Kalahandi district of Orissa considered sacred by Dongria Kondh tribe.[21] The Supreme Court’s order has undermined the tribal protests and encouraged further acquisition of lands of the tribals leading to their displacement without proper rehabilitation, destruction of their culture and posing threats to their survival in the name of development.

Conflict-induced displacement

According to the estimate of AITPN, a total of 4,01,425 tribals have been displaced due to the armed conflicts and ethnic conflicts across India. This included 47,940 Adivasis in Chhattisgarh,[22] 2,03,485 tribals (Bodos, Santhals and Garos) in Asom (formerly Assam), about 1,20,000 Gutti Koya tribals (from Chhattisgarh) in Andhra Pradesh[23] and 30,000 Brus in Tripura.

The displaced people have been living miserable lives. The National Commission for Protection of Child Rights (NCPCR), which sent a fact finding team to Dantewada district in Chattisgarh and Khammam district in Andhra Pradesh in December 2007, has expressed serious concern about health, nutrition and education conditions of the displaced children.[24] Initially, the state government of Andhra Pradesh had provided benefits of various schemes including ration cards, jobs under the National Rural Employment Guarantee Scheme to about 1.2 lakh Gutti Koya tribals who fled Chhattisgarh to take shelter in Khammam district of Andhra Pradesh but later withdrew these facilities following the killing of more than 30 Greyhound police commandos by the Maoists in an ambush at Chitrakonda reservoir in Orissa on 29 June 2008.[25]

In September 2008, the National Commission for Protection of Child Rights said the team was “appalled by the sub human conditions under which the families had to survive…. There was none or little, if any, registration of births and deaths, marginal immunisation, no health facilities or primary health centres, no functional schools, no safe drinking water, poor sanitation and inadequate rations” in the Bru relief camps in Tripura.[26]

Displacement due to security reasons

In Mizoram, a total of 35,438 Chakma tribals from 5,790 families in 49 villages would be displaced due to the ongoing India-Bangladesh fencing project which is being constructed for security reasons. Till date there is no plan to resettle the fencing affected families. The Home Department of Mizoram has refused to consider the out-fenced victims as “displaced” because “the Fencing Line is not the boundary of Indo-Bangladesh Border”. In other words, it is uncertain whether the government of Mizoram will provide the fencing victims adequate resettlement and rehabilitation.

H. Repression under forest laws

The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act came into force on 1 January 2008 but the Act remained largely unimplemented across India. Tribals continued to be arrested for accessing minor forest produce, evicted from their lands, their huts gutted and even killed by the forest officials. On 8 February 2008, forest guards shot dead a 16-year-old tribal boy Shyamal Rabha at the Buxa Tiger Reserve in Jalpaiguri district of West Bengal. The forest officials accused him of being a “timber smuggler” but the locals and family members said he and three others had gone to the forest to collect firewood for domestic use.[27]
On 2 July 2008, Jalgaon Khandesh Forest Department officials and personnel of State Reserve Police Force burnt down 125 huts and forcibly evicted over 400 Pardhi tribals from forest land near Wadoda village under Jalgaon Jamod taluka in Buldhana district of Maharashtra.[28] On 4 December 2008, forest officials allegedly set ablaze 17 huts belonging to tribals near Malbazar in Jalpaiguri district of West Bengal when the tribals allegedly failed to show the land documents.[29]

I. Failure of the affirmative action programmes

The Constitution of India provides for “positive discrimination” in favour of the tribals but these affirmative action programmes have not been properly implemented.

Non-implementation of the reservations in employment

The Scheduled Tribes (STs) and the Scheduled Castes (SCs) are provided mandatory reservation of 7.5% and 15% respectively in government jobs. But almost all the departments of the government have failed to ensure this prescribed minimum representation of the SCs and STs. The Parliamentary Standing Committee on Welfare of Scheduled Castes and Scheduled Tribes stated that as of 1 January 2005, the overall representation in Groups A, B, C and D posts in the government of India services among SCs was 11.9%, 13.7%, 16.4% and 18.3% respectively and the representation of STs was 4.3%, 4.5%, 6.5% and 6.9% respectively.[30] Various departments often blame the lack of “suitable candidates” among tribals to fill up the vacancies. This is not true.

Non-use and mis-use of tribal funds

Various state governments do not fully utilize or misutilized the funds allocated to them for tribal development. A report by the Comptroller & Auditor General of India, tabled in the Jharkhand State Assembly in March 2008, found that the Jharkhand government used only Rs 85.55 crore out of Rs 183.84 crore it had received from the Centre during 2003-2007 under the Integrated Tribal Development Project. The unused funds were kept in banks and the interest it earned was used to repair official buildings.[31]
Funds could not be released for the development of tribals due to failure of the various state governments to submit Utilization of Certificate under the Fiscal Responsibility and Budget Management Act. During 2007-08, the Ministry of Tribal Affairs had to withhold grants under Special Central Assistance to the Tribal Sub Plan to the states of Asom, Bihar, Chhattisgarh, Jharkhand, Jammu & Kashmir, Madhya Pradesh, Tamil Nadu, Tripura, Uttar Pradesh and Uttarakhand due to their inability to furnish Utilization Certificates and unspent balances.[32]

Lack of awareness of the schemes

The Parliamentary Standing Committee on Social Justice and Empowerment stated that the Ministry of Tribal Affairs has not taken “sufficient steps” to generate awareness among tribal people about the various schemes being implemented for their upliftment.[33]

J. The state of National Commission for Scheduled Tribes

The National Commission for Scheduled Tribes (NCST) is a powerful constitutional body mandated to protect and promote the rights of the indigenous and tribal peoples. But it has been hamstrung due to its lack of independence. The NCST has framed such Rules of Procedures which has made it subservient to the State. Rule 83 of Rules of Procedure of the NCST states - “All rules, regulations and orders issued by the Central Government and applicable in the Ministries/Departments will also apply in the Commission” which has undoubtedly reduced the NCST into being another department of the Government of India. The NCST has no financial autonomy. The NCST’s investigation procedure is deeply flawed. As per its Rules of Procedure, the NCST has to take prior permission from the concerned state government to investigate any human rights violation in that state and NCST team members are expected to follow the “norms” prescribed by the state authorities. The NCST has no power to implement its recommendations. The NCST suffers from acute shortage of human and financial resources. The sanctioned strength of staff is 124 in the Headquarters in Delhi as well as the six Regional Offices. But the actual strength of staff never reached the sanctioned strength during the last five years of its functioning. There were only 89 staff in position as on 1 December 2004; only 85 staff in position as on 31 December 2005; only 83 staff in position as on 31 December 2006; and only 83 staff in position as on 31 December 2007.[34] This has hugely impacted the functioning of the NCST including its ability even to reply to queries under the RTI Act. It is true that the NCST lacks sufficient funds but ironically, it has failed to utilized the allocated funds optimally. The NCST has failed to utilize Rs. 59,99,000/- during the financial year 2004-2005; Rs.1,27,94,000/- during financial year 2005-2006 and Rs. 1,14,54,473/- during financial year 2006-2007.[35]

K. Denial of voting rights to Chakmas and Hajongs

The Electoral Registration Officers (EROs) and Assistant Electoral Registration Officers (AEROs), who are officials appointed by the State Government of Arunachal Pradesh, continue to willfully violate the guidelines/orders of the Election Commission of India (ECI) with regard to the enrolment of the Chakmas and Hajongs as voters. During 2005-2008, the ECI has held four summary revisions and one Intensive Revision of electoral rolls in Arunachal Pradesh but rather than increasing, the number of Chakma and Hajong voters has consistently decreased during the last 5 years. For example, in 46-Chowkham Assembly Constituency the total of 323 voters in 2004 came down to 291 in 2008, in 49-Bordumsa-Diyun Assembly Constituency, the total of 1164 voters in 2004 came down to 1134 in 2008. In 50-Miao Assembly Constituency names of only 4 new Chakma voters out of about 3500 claimants have been included during the last 5 years. The ECI failed to fix accountability for serious/willful non-compliance of its directions/guidelines by the local electoral officers although the ECI’s own officials found prima facie grave wrongdoings by these local electoral officers.