INDIGENOUS RIGHTS AND ENVIRONMENTAL PROTECTION: LEGAL
CHALLENGES IN SAFEGUARDING INDIA’S NATIVITY
INTRODUCTION
In India, a nation of vast ethnic, linguistic and ecological diversity, the indigenous peoples —
commonly referred to as Adivasis — have typically strong ties to their territories. They hold
particular cultural components that are important, but so does the traditional ecological
understanding of these various groups-, and well, goes without saying - crucial for preserving
biodiversity. But their way of life, as well as the ecological balance, has been greatly affected
by rapid development and environmental degradation. The article sheds light on the urgent
necessity of a cohesive legal apparatus which respects and intertwines the conservation of
biodiversity and the protection of indigenous rights in India. It counts the legal hurdles to this.
HISTORICAL CONTEXT OF INDIGENOUS RIGHTS
Indian indigenous groups have long been marginalized, a situation made worse by colonial and
post-colonial practices. Laws that disregarded native peoples' rights to their land were passed
during British control, which resulted in widespread eviction. Although the Indian Constitution
acknowledged the rights of Scheduled Tribes after independence, these rights have not always
been fully implemented.
An important turning point for indigenous rights in India was the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA)1. It recognized the
rights of communities living in forests over land and resources, with the intention of redressing
previous injustices. Nevertheless, many indigenous peoples are at risk of being displaced and
ecologically disrupted due to the difficulties in enforcing the FRA.
1
Ashish Kothari, Neema Pathak, Arshiya Bose chapter 2 forests, rights and conservation: fra act
2006, india.
THE LEGAL FRAMEWORK
India has a complex legal system that includes international treaties, special laws, and
constitutional provisions pertaining to environmental protection and indigenous rights.
➢ CONSTITUTIONAL PROVISIONS
Provisions dealing with rights of Scheduled Tribes in the Indian Constitution are as follow:
Article 462- The state shall promote with special care the educational and economic interests
of the weaker sections of the people, and in particular, of SC/ST’s and shall protect them from
social injustice and all forms of exploitation3.
Article 244 - provides for the establishment of Scheduled Areas, where special protections can
be applied to safeguard the rights of indigenous peoples.
Article 371: Offers special provisions for certain northeastern states, acknowledging their
unique cultural and historical contexts.
Even with these right guarantees, implementation is wanting; contributing to a welfare-rights
gap.
2
Constitution of India,1950. Chapter XI Special Representation in service of SC & ST.
3
[Link]
interests-of-scheduled-castes-scheduled-tribes-and-other-weaker-sections/
➢ THE FOREST RIGHTS ACT (FRA), 20064
The FRA is a vital piece of legislation that sought to correct historical injustices meted out to
forest dwelling communities by recognizing their rights over land and resources. Therefore, it
recognizes both rights as individual and communal right, a concept that reflects the samawi of
indigenous societies.
Nevertheless, there have been many technical challenges encountered in the course of
implementation of the FRA such as:-
1. Bureaucratic Hurdles : Accessing rights is complex and almost always obstructed by
bureaucratic inefficiencies and corruption. Local officials may not know about it, or
may be unwilling to grant rights for their own personal or political reasons.
2. Industries Resistance: Development projects have become major points of contention
for indigenous groups, especially mining — and infrastructure-related as well.
Industries often lobby against any move to enforce the FRA, saying it kills growth.
3. Awareness and Capacity: Many indigenous communities are unaware of their rights
under the FRA, hindering their ability to assert these rights effectively.
➢ PANCHAYATS (EXTENSION TO SCHEDULED AREAS) ACT, 1996
(PESA)5,
which extends the provisions of the Panchayati Raj system to tribal areas. PESA empowers
tribal Gram Sabhas to manage community resources, make decisions on land acquisition,
and control the use of natural resources. Despite its empowering provisions, PESA’s
4
The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act,
2006.
5
Panchayats (extension to scheduled areas) act, 1996 (PESA).
implementation has been inconsistent, leading to legal challenges concerning the autonomy
of indigenous governance.
➢ LAND ACQUISITION, REHABILITATION AND RESETTLEMENT ACT,
20136
While this law provides a legal framework for the acquisition of land and the resettlement
of displaced communities, indigenous people often face legal hurdles due to bureaucratic
inefficiencies and inadequate rehabilitation measures. Many of these projects are initiated
in tribal areas, displacing indigenous communities without proper consent.
➢ ENVIRONMENTAL PROTECTION LAWS
India has a robust legal framework for environmental protection, including laws such as:
• The Act of 1986 that Protects the Environment7: With the intention of preserving
and enhancing the environment, this act offers a framework for environmental
governance. However, it frequently disregards the rights of indigenous groups in favor
of economic development above ecological integrity.
• The 1980 Forest Conservation Act8: The purpose of this law is to encourage
sustainable forest management and stop deforestation. However, because land is
regularly cleared for economic projects, its enforcement has frequently resulted in
clashes with indigenous land rights.
6
Land Acquisition, Rehabilitation and Resettlement Act, 2013.
7
The Environment (Protection) Act, 1986.
8
The Forest (Conservation) Act of 1980
➢ INTERNATIONAL INSTRUMENTS
The united nations declaration on the rights of indigenous peoples (UNDRIP)9: which
highlights the rights of indigenous peoples to their land resources and cultural legacy is one of
the international treaties to which india is a signatory notwithstanding these pledges a
discrepancy persists between global norms and national legislation frequently depriving native
populations of sufficient safeguarding.
Convention on Biological Diversity (CBD)10: Acknowledges the role of indigenous peoples
in biodiversity conservation and sustainable development.
LANDMARK CASES
1. Narmada Bachao Andolan v. Union of India (2000)11
In this case, the Supreme Court of India dealt with the rights of communities displaced by the
Sardar Sarovar Dam. The Court acknowledged the need for rehabilitation and resettlement of
affected indigenous populations, recognizing their right to livelihood and cultural identity.
However, it also upheld the project's continuation, highlighting the tension between
developmental goals and indigenous rights.
2. Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests (2013)12
9
The united nations declaration on the rights of indigenous peoples (UNDRIP),2007
10
Convention on Biological Diversity (CBD)
11
Narmada Bachao Andolan v. Union of India, (2000) 10 SCC 664.
12
Orissa Mining Corporation Ltd. v. Ministry of Environment and Forests, (2013) 6 SCC 736.
One of the most significant legal battles involving indigenous rights and environmental
protection is the Vedanta case. In 2004, the mining giant Vedanta sought to mine bauxite in
the Niyamgiri Hills of Odisha, a region inhabited by the Dongria Kondh tribe. The tribe
considered the hills sacred and essential to their way of life.
The case was taken up by the Supreme Court and ruled that the Gram Sabhas of the affected
villages had the right to decide whether to allow mining on their lands under the provisions of
the Forest Rights Act. In an unprecedented move, the Gram Sabhas unanimously rejected the
mining proposal, effectively halting the project. This case is a landmark for indigenous rights,
as it placed the power of decision-making in the hands of the affected tribal communities.
3. Jairam Ramesh v. Union of India (2021)13
In a significant ruling, the National Green Tribunal ordered the cessation of mining operations
in the Saranda forest, citing the need to protect the habitat of indigenous communities and the
environment. The Tribunal underscored the principle of sustainable development and the rights
of Adivasis over their ancestral lands.
4. Mohammad Aftab v. State of Madhya Pradesh (2017)14
The Madhya Pradesh High Court addressed the illegal encroachment of forest land affecting
indigenous communities. The Court emphasized the need for protecting forest rights under the
Forest Rights Act, 2006, and mandated the state to recognize and protect the land rights of
Adivasis.
5. T.N. Godavarman Thirumulpad v. Union of India (1997)15
The Supreme Court of India expanded its role in forest governance by issuing a series of orders
to prevent deforestation and encroachments into forest lands. This case led to the establishment
of a mechanism for monitoring forest conservation, but it also raised concerns about the
13
Jairam Ramesh v. Union of India Writ Petition (Civil) 910/2021
14
Mohammad Aftab v. State of Madhya Pradesh (2017) W.P. No. 8498/2016
15
T.N. Godavarman Thirumulpad v. Union of India (1997) AIR: 1997 SUPREME COURT 1228
exclusion of indigenous communities who had lived in forests for centuries. Many tribals were
evicted from forest areas under the guise of conservation, leading to criticism of the Court’s
approach in balancing environmental protection with indigenous rights.
6. Samatha v. State of Andhra Pradesh (1997)16
In this landmark case, the Supreme Court ruled that government land in tribal areas could not
be transferred to private entities for mining purposes. The judgment reinforced the principle
that tribal land should be protected from exploitation by external forces, recognizing the
inherent rights of indigenous communities over their lands and resources.
CHALLENGES IN SAFEGUARDING INDIGENOUS RIGHTS AND
ENVIRONMENTAL PROTECTION
A wide range of intricate difficulties arise when environmental preservation and indigenous
rights collide:
➢ DISPLACEMENT AND LAND DISPOSSESSION :
Indigenous communities are frequently uprooted as a result of development initiatives
including mining, building dams, and industrial growth. Oftentimes, these initiatives are
justified in the name of "development," disregarding the rights and means of subsistence of the
impacted parties. These communities experience economic instability as a result of this
dispossession, which also interferes with their customary ecological practices.
➢ IGNORANCE OF THE LAW
Most tribal populations have few legal avenues like those created by the FRA and other
environmental laws of which they would be well served to avail themselves. This ignorance
16
Samatha v. State of Andhra Pradesh (1997), AIR 1997 SC 3297.
will undermine their ability to assert their rights and participate in the decision making process.
Moreover, the maze of courts may intimidate those who are not well-versed with legal
complexities compelling them to withdraw attempts for justice.
➢ INEFFICIENCIES IN THE BUREAUCRACY
Bureaucratic red tape has been a common barrier for laws protecting the rights of indigenous
peoples. Systematic denial of rights due to lack of trained functionaries and delayed settlement
of FRA claims. Bureaucratic red tape can make indigenous communities more marginalized as
well as restrict their access to recourse through the law.
➢ INCOMPATIBLE DEVELOPMENTAL GOALS
The conflict between environmental preservation and economic growth is a major obstacle to
the defense of indigenous rights. When industrial growth is prioritized over environmental
preservation, it disproportionately affects indigenous people who depend on natural resources.
For instance, the mining and resource extraction industries have the power to completely
destroy ecosystems, drastically lowering biodiversity and endangering the way of life for
indigenous peoples.
➢ MARGINALIZATION IN POLITICS AND SOCIETY
In political processes, indigenous groups are frequently underrepresented. Environmental
policy and land use decisions are often decided without sufficient input from the people who
will be most impacted. Because more powerful interests frequently drown out the voices of
indigenous peoples, their marginalization makes their problems worse.
THE IMPORTANCE OF AN INTEGRATED STRATEGY
An integrated approach is necessary to successfully handle the issues pertaining to
environmental protection and indigenous rights. In order to promote a comprehensive
understanding of sustainability, this strategy should acknowledge the link of indigenous
populations' rights and environmental health.
➢ ENHANCING THE APPLICATION OF LAW
Improving the way that current laws—especially the FRA—are implemented is essential. This
can be accomplished by:
▪ Capacity Building: By educating officials about the rights of indigenous people and
the value of biodiversity, protective laws can be implemented more effectively.
▪ Streamlined Processes: Communities can more successfully assert their rights when
bureaucratic procedures for claiming rights are made simpler.
➢ ENCOURAGING CONSULTATION IN GOVERNANCE
It is essential to establish procedures that allow indigenous groups to actively participate in
decision-making. This comprises:
▪ Consultative Frameworks: More equitable results may result from the establishment
of frameworks that guarantee the inclusion of indigenous voices in environmental
governance.
▪ Community-Led Initiatives: By aiding conservation initiatives headed by native
people, you can tap into their traditional ecological knowledge and promote
environmentally friendly behaviors.
➢ EDUCATION AND LEGAL AWARENESS
To enable indigenous groups to assert their legal rights, it is imperative that they become more
knowledgeable of the law. This can be accomplished by:
▪ Awareness Campaigns: Native Americans can benefit from education about their
rights and applicable legal protections through the planning of workshops and outreach
initiatives.
▪ Community Legal Aid: Giving communities access to legal aid and related services
can enable them to successfully navigate the judicial system.
➢ REFORMING POLICIES
It is essential to change laws to make sure that development projects go through thorough
evaluations of their effects on the environment and society. The rights and viewpoints of
indigenous groups ought to be given top priority in these evaluations. Conservation efforts can
also be more successful if traditional ecological knowledge is included into environmental
policies.
➢ INTERNATIONAL COOPERATION AND STANDARDS
International organizations can assist in bringing national legislation into compliance with
international norms. Enhancing international collaboration to fortify legal safeguards for native
rights might offer a structure for responsibility and assistance.
FINAL THOUGHTS
In the context of India, law, culture, and ecology are simply inseparable: safeguarding
indigenous rights and environment require a nuanced understanding. For resolving the
problems of indigenous people what is essential other than legally upholding the existing legal
frames, it inclizne participatory governance and serious restructuring of policies to bring their
rights first.
Recognizing the association between environmental health and indigenous rights, can work as
a stepping stone for India to direct the rest of us towards greener pastures. This comprehensive
approach ensures that future generations will have access to India's bountiful natural
inheritance, with proper respect for the rights of the Adivasis. This would be an effective means
by which to show that India is truly committed to sustainability, justice and equality—all of
which are critical for both the people and planet of India.
