From Samatha to Vedanta: Variation in Judicial Approach to tribal rights

Dr Konbrailatpam Ratnabali *

It is an irony that tribal's unfettered rights and interest in their traditional land for generations in the past, prior to the coming of the state, need an instrument of law today in order to assert their rights in them. Further, it is also unfortunate that there is a seeming dichotomy between approach to development and protection of tribals' rights particularly their land rights, giving rise to seeming conflict between the two wherein tribals are seen as 'anti-development'.

In the previous article on similar issue, the significant stride taken in the realm of the judicial recognition and protection of tribal rights in Samatha Case has been pointed out. Post-Samatha, the subsequent judgments/orders that were passed in series of cases filed before the Court by Narmada Bachao Andolan show the difference in the focus of the Court. It may be pertinent to mention that in Narmada Bachao Andolan - I case, the Supreme Court held that:

The displacement of the tribals and other persons would not per se result in the violation of their fundamental or other rights.

The effect is to see that on their rehabilitation at new locations they are better off than what they were.

At the rehabilitation sites they will have more and better amenities than those they enjoyed in their tribal hamlets.

The gradual assimilation in the mainstream of the society will lead to betterment and progress.

This shows that the Court's emphasis in these cases is more on development in the form of better amenities, improvement in standard of living and assimilation in the mainstream of the society. The Hon'ble Court does not seem to appreciate the fact that availability of facilities and visible signs of economic standard may not necessarily mean development of the displaced community in real terms.

For instance, the policy that is followed now for rehabilitation and resettlement of the displaced people is to provide monetary compensation and not provide 'land-for-land'. In such circumstances, a tribal who received compensation in lieu of displacement may exhibit signs of 'improved living conditions' at the initial phase, but what matters is whether he is able to garner a decent livelihood to sustain that condition of living or not.

Further, the fact that, rehabilitation and resettlement even on paper, in most cases are left wanting, and there are gaps between the rehabilitation and resettlement programmes adopted and its implementation, a detailed assessment and impact need to be studied much before a development project requiring displacement of tribals is done.

In light of the point across, the judgments in the Narmada Bacho Andolan case is more akin to a statement made from the perspective of an outsider looking at the whole process of displacement and rehabilitation in relation to this project. The Court has ignored the unique relation which the tribals have with their land, and disregarded the emphasis given to tribal-land relationship by the Court in Samatha case.

Post-Narmada Bacho Andolan case, a landmark judgment which has given significance to tribal rights is the Vedanta case (Orissa Mining Corporation Ltd. v. Ministry of Environment & Forest & Others, 2011). It is for the first time in judicial history that challenges against acquisition of tribal lands for development purposes has been made firmly on the ground that the mining will have negative impact on the ecology of the place as well as on the culture, identity and customary rights of Dongria Kondh tribe residing there.

The Supreme Court in this case remarked that the fate of the Primitive Tribal Groups need some emphasis, as very few communities in India in general and Orissa in particular come under the ambit of such a category. Their dependence on the forest being almost complete, the violation of the specific protections extended to their "habitat and habitations" by the Forest Rights Act, 2006 are simply unacceptable. Further the Court pointed out that just because the tribes are not inhabiting on the hill top does not mean that it would not be covered by the Forest Rights Act.

The Court also stated that the object of the Fifth Schedule and the Regulations made there under is to preserve tribal autonomy, their cultures and economic empowerment to ensure social, economic and political justice for the preservation of peace and good Governance in the Scheduled Area. Further, the Forest Rights Act has been enacted conferring powers on the Gram Sabha constituted under the Act to protect the community resources, individual rights, cultural and religious rights.

It is of immense significance that the Court held that religious freedom guaranteed to Scheduled Tribes (STs) and the Traditional Forests Dwellers (TFDs) under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands. The Court was of the opinion that the above mentioned Articles guarantee them the right to practice and propagate not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam-Raja has, therefore, to be protected and preserved.

On the basis of the above reasons, the Court gave the Gram Sabhas the power to decide the question whether STs and other TFDs, like Dongaria Kondh, Kutia Kandha and others, have got any religious rights i.e. rights of worship over the Niyamgiri hills, known as Nimagiri, near Hundaljali, which is the hill top known as Niyam-Raja.

This judgment highlights the importance that need to be given to such sacred spaces of tribals, particularly the Primitive Tribal Groups (also known as Particularly Vulnerable Tribal Groups) and also the right to determine whether such developmental project will affect such spaces.