1. SENIOR PARTNER, HAMMURABI AND SOLOMON, NEW DELHI
THE APPLICATION OF ILO CONVENTION IN RELATION WITH NATIVE GROUPS AND PROTECTION OF TRIBES IN INDIA
A PRESENTATION BY:-
SHWETA BHARTI
SENIOR PARTNER, HAMMURABI AND SOLOMON, NEW DELHI

2. INTERNATIONAL PERSPECTIVE
International Labour Organization (ILO)
Indigenous and Tribal Populations Convention, 1957 (No. 107)
Indigenous and Tribal Peoples Convention, 1989 (No. 169)
United Nations
United Nations Declaration on the Rights of Indigenous People adopted by the General Assembly on 13th September 2007

3. INDIA TRIBAL STATISTICS
INDIA HAS 645 DISTINCT TRIBES I.E., ABOUT 8% OF THE TOTAL POPULATION OF THE COUNTRY.
THE PROMINENT TRIBES ARE:
BHILS AND MINAS IN RAJASTHAN, GONDS IN CHHATISGARH AND MADHYA PRADESH, MUNDAS AND ORAONS IN JHARKHAND, GAROS IN ASSAM AND MEGHALAYA, ONGES IN ANDAMAN ALONGWITH JARAWAS THE PROTECTED TRIBES.

4. STATE WISE POPULATION OF TRIBES IN INDIA

5. BHILS OF RAJASTHAN

6. GONDS FROM CHHATISGARH

7. MUNDAS OF JHARKHAND

8. NAGAS FROM NAGALAND

9. CHENCHUS FROM ANDHRA PRADESH

10. Jarawas of Andaman Islands

11. THE INDIAN LEGAL PERSPECTIVE
1. International obligations
2. Constitution of India
3. Legislations

12. 1. International Obligations

13. INTRODUCTION
India has ratified the ILO Convention No. 107 but not Convention No. 169.
Article 51(c) and 253 of the Indian Constitution deal with the implementation of International Agreements
Therefore, steps have been taken for the implementation of ILO Convention No. 107

14. IMPLEMENTATION OF THE ILO CONVENTION
Ministry of Tribal Affairs, Govt. of India- draft National Tribal Policy
prevent wrongful alienation of Tribal lands by amending the state anti-alienation land laws and establishing fast-track courts
Articles 2 to 5 of the Convention
National Commission of Scheduled Tribes- Tribal Sub Plan Strategy (TSP)
Allocation of funds to the states for ashram schools, educational complexes for tribal women, village grain bank schemes, etc.
Article 27 of the Convention
Passed legislations- Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
protect land and common resource rights of the tribals
Articles 11, 12, and 13 of the Convention

15. Article 12(2) and (3) of the Convention
Supreme Court of India in Narmada Bachao Andolan v. Union of India- reiterated the resettlement policy of affected tribes on displacement
Government- measures for resettlement of tribes affected by the Sardar Sarovar Project
Article 12(2) and (3) of the Convention
Government has taken measures- statistical information on participation of tribals in education and employment
Implemented a “Post Matric Scholarship” for economically backward students- scholarships for higher studies
Part III-VI of the Convention

16. STEPS TAKEN BY GOVERNMENT FOR EDUCATION

17. SELF EMPLOYMENT GENERATION SCHEMES INTRODUCED

18. 2. Constitution of India

19. ADMINISTRATION UNDER THE CONSTITUTION OF INDIA
Fifth Schedule to the Constitution
Self contained code-administration of other Scheduled Areas and Tribes not provided for in the Sixth Schedule
Incapable of self government as the tribals and the non-tribals coexist
Sixth Schedule to the Constitution
Administration of the Tribal Areas in the states of Assam, Meghalaya, Tripura and Mizoram providing a self-contained code for their governance
Self-government and predominated by tribal population

20. SAFEGUARDS UNDER THE CONSTITUTION OF INDIA
State - make laws for the advancement of Scheduled Tribes
Covers reservations/ quotas
Article 15(4)
reservation in appointments or posts in favour of any backward class
reservation in matters of promotion in favour of SCs and STs in the services under the State.
Article 16(4) and 16(4A)
abolishes "Untouchability" and its practice in any form
Untouchability given in double quotes to imply how it has been historically practised
Article 17

21. Article 46, Directive Principles
protection of interests of minorities (which includes Scheduled Tribes)
Article 29(2) guarantees a fundamental right to equality in the matter of admission to public educational institutions
Article 29, 29(2)
Obligation on state to promote the educational and economic interest of weaker sections
Wider powers than under Articles 15(4), 16(4) and 16(4A)
Article 46, Directive Principles
the right to conserve distinct Language, Script or Culture and also instruction in Mother Tongue
Article 350
Art. 243D- reservation of seats in Panchayats
Art reservation in the Lok Sabha
Art reservation in the Legislative Assemblies of States
Political safeguards

22. 3. Legislations in India

23. PROTECTION AND UPLIFTMENT OF TRIBES
Protection of Civil Rights Act, 1955
Parliamentary follow up of Article 17 of the Constitution of India seeking the upliftment of the tribes and conferring upon them the equal status in the society
However, the poor implementation of the Act failed to provide the benefits under the Act.
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989
A law to prevent the commission of offences of atrocities against Scheduled Castes and Scheduled Tribes
to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences

24. ADMINISTRATION OF TRIBAL AREAS
Panchayat (Extension to Scheduled Areas) Act, 1996
An Act for tribes in the Peninsular India (covered under the Fifth Schedule) were introduced to decentralization
By this Act, the states were to devolve certain political, administrative and fiscal powers to local governments elected by the communities (whether tribal or non-tribal)
Reformative Law- sought to empower the tribal community for the protection of community resources, forest produce, forest lands, grants of mining lease and such other relevant factors thereby granting them the power of self-governance

25. PROTECTION OF FOREST RIGHTS
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
Vests the forest rights and occupation in forest land in forest dwelling Scheduled Tribes who have been residing in such forests for generations but whose rights could not be recorded.
Forest Conservation Act, 1980
Prohibits the use of forest land for non forest purpose and as most of the tribals live in forests, their preservation is an important aspect for the livelihood of tribals.

26. DONGRIA KONDH GIRLS

27. VEDANTA’S ALUMINIUM REFINERY IN ORISSA

28. THE ROLE OF JUDICIARY
The Supreme Court of India in 1997 in Animal and Environment Legal Defence Fund v. Union of India:-
“Therefore, while every attempt must be made to preserve the fragile ecology of the forest area, and protect the Tiger Reserve, the right of the tribals formerly living in the area to keep body and soul together must also receive proper consideration.”

29. Hon’ble Supreme Court in its landmark judgment of Samatha v
Hon’ble Supreme Court in its landmark judgment of Samatha v. State of Andhra Pradesh has recognized the rights of people over forest lands being their source of livelihood.
However, even after such recognition of such rights by the Apex Court there are still instances of mining in forest areas.

30. CONCLUSION
Therefore, what is required is the proper implementation of the existing laws and not enactment of more laws.
Tribals constitute about 8% of the total population in India and their protection and concomitant development is rather inevitable.

31. Contact details: shweta.bharti@hammurabisolomon.com
THANK YOU
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