Article By: HASHIM AK, BBA LLB (Hons) Student, Government Law College Kozhikode

Abstract

The land rights of Indigenous communities in India are always a matter of discussion. This article examines the land rights of Indigenous communities in India through landmark judgments. This article dives into several landmark judgments related to the land rights of Indigenous communities and constitutional and statutory provisions in India. The limitations for the implementation of land rights of Indigenous communities are also analyzed in this article. The balancing between the Indigenous community’s land rights and development projects is hard for lawmakers and courts. This article critically analyzes the nexus between several constitutional and statutory provisions and their implications. However, the struggle of the Indigenous community to survive and protect their lands is still ongoing.

Introduction

India is home to different cultures and ethnicities. As India removed the status of land rights from fundamental rights to just legal rights, the conflicts associated with land rights have always occurred. In India, many Indigenous people are living in forests and lands surrounding it. As this land is protected and owned by the government, there always arises a problem between the ownership of land and the domicile right of land. As people living there are poor and less educated, they don’t know much about land laws. Sometimes government development projects may infringe on their land rights or take away their lands. To protect the land rights of Indigenous communities there are several statutes and judicial interpretations.

Legal Frameworks

The Indian Constitution provides specific protections for Scheduled Tribes. Articles 244[i] and 244A[ii] recognize the distinct cultural identity and land rights of Indigenous communities. The Fifth Schedule[iii] applies to scheduled areas in most states, while the Sixth Schedule[iv] provides autonomous governance mechanisms in tribal areas of northeastern states.

Some major statutes protecting Indigenous land rights are:

• The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (FRA)
• The Panchayats (Extension to Scheduled Areas) Act, 1996 (PESA)
• The Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR)

Despite these legal protections, implementation remains inconsistent, and Indigenous communities continue to face challenges in asserting their land rights.

Landmark Judgements

1. Narmada Bachao Andolan v. Union of India (2000)[v]

It is regarded as one of the most important cases dealing with the land rights of Indian Indigenous communities. This case involves the construction of Sardar Sarovar Dam on the Narmada River and the infringement of land rights of Indian Indigenous communities in the three states[vi] that were affected due to the construction. This case examines the equation between development and land rights of Indian Indigenous communities. In the final judgment, the Supreme Court decided in favor of the construction with certain safety measures. The court also stressed the protection of the rights of affected individuals and their just compensation and rehabilitation. This case again asserted that land rights cannot be abandoned in the name of development.

2. Samatha v. State of Andhra Pradesh (1997)[vii]

The forest area of Borra Reserve Forest, together with other 14 villages, in Anan-Thagiri Mandal of Visakhapatnam, Andhra Pradesh was identified as a scheduled area. The government gives this land to private entities as leases for mining purposes. After that, the complete forest was declared as reserved and identified as a tribal scheduled area. But the lease of land didn’t cease to exist. The affected individuals went to the Andhra Pradesh High Court, but the High Court gave a verdict in favor of the government. The case was then heard in the Supreme Court.

Supreme Court overturned the High Court decision and observed that the transfer of land to nontribal persons for mining leases by the government is void and invalid. The court upheld the interests and rights over the land of tribal people residing in scheduled areas in the light of the fifth schedule of the constitution.

3. Niyamgiri Hills Case (Orissa Mining Corporation v. Ministry of Environment and Forests, 2013)[viii]

This case involved the proposed bauxite mining project by Vedanta Company in the Niyamgiri Hills, a sacred site for the Dongria Kondh tribe. The Supreme Court recognized their cultural, religious and spiritual rights on the Niyamgiri Hill, over Vedanta Company’s claim to exploit the hills for bauxite. The Supreme Court ruled that the gram sabhas (village councils) of the affected villages must decide whether the mining project could proceed. In a historic decision, all 12 gram sabhas unanimously rejected the project, asserting their rights under the FRA and PESA. The case highlighted the importance of free, prior, and informed consent (FPIC) in decisions affecting Indigenous lands.

4. State of Kerala v. People’s Union for Civil Liberties (2009)[ix]

In this case, the Supreme Court dealt with the issue of landlessness among tribal communities in Kerala. The case is about the constitutional validity of the legislative actions of the State of Kerala relating to the prohibition on transfer and restoration of land and giving possession of land to landless Scheduled Tribe families. The court asked the state government to allot land to landless tribal families and highlighted the imperative to implement land reform policies with efficiency. The ruling stressed the duty of the state to overcome past injustices and bring Indigenous communities socio-economically.

5. S. Jagannath v. Union of India (1997)[x]

This case involved the environmental and social impact of shrimp farming on coastal communities, including tribal populations. The Supreme Court ruled that development activities must not violate the rights of Indigenous communities and emphasized the need for sustainable development. The judgment highlighted the importance of protecting the livelihoods and land rights of Indigenous communities.

Challenges

Despite progressive judgments and legislative measures, Indigenous communities in India continue to face significant challenges in asserting their land rights. Key issues include:

• Weak implementation of laws
• Land alienation and displacement
• Lack of awareness and legal support
• Conflict with conservation policies
• Administrative and bureaucratic hurdles
• Encroachments and land grabbing
• Conflict with state interest
• Cultural and social marginalization
• Judicial delays and inconsistent rulings
• Environmental degradations
• Internal displacement and migrations

To address these challenges, there is a need for stronger enforcement of existing laws, greater involvement of Indigenous communities in decision-making processes, and increased awareness of their rights. The judiciary has played a crucial role in advancing Indigenous land rights, but sustained efforts are required to ensure that these rights are fully realized.

Conclusion

The Indigenous community in India is struggling to protect their identity and land rights in the developing periods. Several statutes and judicial interpretations protect their land rights. However, they still have hardships due to various limitations on their land rights. The balance between the Indigenous community’s land rights and development projects is a dilemma for lawmakers and the courts. Through time, the Indian judiciary has tried to balance this and protect the Indigenous community’s land rights over development projects. Indigenous community’s struggle to protect their culture and land. The government cannot arbitrarily revoke this on the excuse of development as development is not a license to curb other’s rights.

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[i] The Constitution of India 1950, art 244

[ii] The Constitution of India 1950, art 244A

[iii] The Constitution of India 1950, Schedule 5

[iv] The Constitution of India 1950, Schedule 6

[v] Narmada Bachao Andolan v. Union of India, 10 S.C.C. 664

[vi] Rajasthan, Madhya Pradesh and Gujarat

[vii] Samatha v. State of Andhra Pradesh & ors., AIR 1997 SC 3297

[viii] Orissa Mining Corporation Ltd v. Ministry Of Environment & Forest & Ors., WP (Civil) No 180 of 2011

[ix] State Of Kerala & Anr. v. Peoples Union For Civil Liberties & Ors. (2009) 11 S.C.R. 142

[x]  S. Jagannath v. Union of India & Ors. (1997), AIR 1997 SC 811