Constitutional geographies and cartographies of impunity

Abstract

The Report of the High-Level Committee on Socio-Economic, Health and Educational Status of Tribal Communities of India (2014) details the situation of adivasi/indigenous communities in India: Scheduled Tribes (ST), de-notified tribes and particularly vulnerable tribal groups. The report sets out the terrain for a consideration of human rights of indigenous/adivasis/tribal/aboriginal communities in India. 1 Sixty per cent of the forest area in the country is in tribal areas. Fifty-one of the 58 districts with forest cover greater than 67 per cent are tribal districts. Three states – Odisha, Chhattisgarh and Jharkhand – account for 70 per cent of India’s coal reserves, 80 per cent of its high-grade iron ore, 60 per cent of its bauxite and almost 100 per cent of its chromite reserves. Forty per cent of those displaced by dams are tribal peoples. A look at violent conflict, whether in Schedule V States or in Schedule VI States, shows that ‘the state is involved in all of these conflicts in some way or another.’ Not surprisingly, the areas where these wars are being waged (with the state as party) are tribal areas with rich mineral reserves. The Armed Forces (Special Powers) Act (AFSPA) guarantees impunity to state perpetrators of extrajudicial murder and assault, and there are a large number of peaceful mass movements against the appropriation of tribal homelands by the state and by corporations. The definition of what is a tribe, and who is recognized as belonging to a ‘Scheduled Tribe,’ far from being a matter of academic and historical interest alone, is critical to the application of human rights standards and specific constitutional protections – rights to equality, non-discrimination, life and liberty and the guarantee of autonomy in governance under Schedules V and VI of the Indian constitution, for instance. 2 While most of these protections are available to groups named in the Constitution (Scheduled Tribes) Order 1950, there are tribal communities that fall within the categories of “Scheduled Castes” (SC) and ‘Other Backward Classes’, and some that do not fall into any of these categories. Around 91 percent of the Scheduled Tribes live in rural areas; while about 9 per cent of all Hindus are ST, close to 87 percent of ST declare themselves as Hindu, 33 percent of all Christians are ST and close to 79 percent of ‘other religions’ are ST, the last an indication of the strong presence of autochthonous religions among tribes/adivasis. The Scheduled Tribes report ‘owning’ larger amounts of land when compared to Scheduled Castes (SCs), which might be suggestive of an adivasi understanding of access to forests as ownership; however, this coexists with sharp disparities in monthly per capita expenditure (MPCE), with MPCE for Scheduled Tribes being the lowest among all social groups. In general, according to Deshpande, indicators of ST standard of living show that they are the most marginalized among social groups with clear and persistent disparities. Against this background, this chapter presents a framework for approaching the field of human rights with reference to adivasi communities in India. It opens a window to understanding adivasi/indigenous rights in India by introducing arguments around the law in relation to the experience of being adivasi in India.