Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Indigenous and Tribal Populations Convention, 1957 (No. 107) - India (Ratification: 1958)

Articles 2 to 5 of the Convention. Protection of the Dongria Kondh. In its previous observation, the Committee requested the Government to provide more specific information on the implementation of the Conservation-cum-Development plan by the state government of Odisha, which covers 13 particularly vulnerable tribal groups, including the Dongria Kondh, and on the steps taken to give effect to the orders issued by the Supreme Court of India in its judgment of 18 April 2013 on the protection of the religious rights of the scheduled tribes and other traditional forest dwellers in the Niyamgiri Hills. The Committee notes that, in its report, the Government states that it awaits information from the state government of Odisha in response to the questions raised by the Committee. The Committee recalls that, in the past, it referred to the situation of the Dongria Kondh people in relation to a bauxite mining project to be developed in the lands traditionally occupied by them, and noted with interest the Supreme Court of India’s judgment of 18 April 2013, which provided certain directions to the state Government and the Ministry of Tribal Affairs for compliance in the context of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The Committee requests the Government to ensure that the rights and interests of the Dongria Kondh and the other particularly vulnerable tribal groups are fully respected and guaranteed, and to provide information on the measures taken in this regard. It also requests the Government to provide information on the implementation of the Conservation-cum-Development Plan prepared by the state government of Odisha and on the measures taken to give effect to the orders issued by the Supreme Court of India in its judgment of 18 April 2013 on the protection of the religious rights of the scheduled tribes and other traditional forest dwellers in the Niyamgiri Hills. The Committee also requests the Government to indicate the steps taken to ensure that the communities concerned are involved in the design and implementation of such measures. The Committee further refers to the point below on the implementation of the Recognition of Forest Rights Act, 2006.

Articles 11 to 13. Land rights. In its previous observation, the Committee requested the Government to continue providing information on the implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, and of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. The Committee notes the Government’s indication that, according to the monthly progress report prepared by the Ministry of Tribal Affairs on the basis of the information received from the state governments, 4,196,880 claims (4,052,702individual and 144,178 community claims) were filed and 1,859,595 titles (1,789,670 individual and 69,925 community claims) were issued, as of 31 March 2018. The Committee further notes from the latest monthly report available from the website of the Ministry of Tribal Affairs, dated 12 March 2020 and covering the period ending on 30 November 2019, that 4,241,135 claims (4,092,183 individual and 148,952 community claims) were filed and 1,977,097 titles (1,900,923 individual and 76,174 community claims) were distributed. It also notes from the annual report 2019 2020 of the Ministry of Tribal Affairs that the Ministry aims to accelerate the implementation of the Recognition of Forest Rights Act, 2006, including by ensuring wider publicity and dissemination of information about the Act to the intended beneficiaries.

The Committee notes that on 13 February 2019, the Supreme Court of India, in its judgment on the matter of Wildlife First & Others v. Ministry of Environment, Forest and Climate Change & Others (Writ Petition No. 109/2008), directed state governments to evict the persons/parties whose claims under the Recognition of Forest Rights Act, 2006, were rejected. The Committee notes that 21 states are concerned, namely: Andhra Pradesh, Assam, Bihar, Chhattisgarh, Goa, Gujarat, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Manipur, Odisha, Rajasthan, Tamil Nadu, Telangana, Tripura, Uttarakhand, Uttar Pradesh and West Bengal. The Committee notes that, according to the annual Report 2019–2020 of the Ministry of Tribal Affairs, the said Ministry filed an application before the Supreme Court on 26 February 2019 asking the Court to consider modifying its order of 13 February to direct the state governments to file detailed affidavits regarding the procedure followed and the rejection of the claims, and to withhold until then the eviction of the concerned communities. The Committee notes that, on 28 February 2019, the Supreme Court stayed its order of evictions based on the consideration that the state governments had not provided sufficient information on how the decisions on the claims were made, and therefore directed all States to submit an affidavit by 12 July 2019, in which they should provide information on the procedure adopted for rejecting the claims; which competent authority rejected the claims; and under which provision of law the evictions orders were made. The Court also asked states to clarify whether the process established by the Recognition of Forest Rights Act, 2006 was respected, in particular as regards the role of the Gram Sabhas (village assemblies), and to indicate the process to be followed for eviction after the rejection orders were passed. The Committee notes that in July 2019 the stay on evictions was further extended.

The Committee notes with concern that an estimated 9 million forest dwellers would be affected by the eviction orders (A/74/183, 17 July 2019, paragraph 34). The Committee notes that concerns about the failure to ensure adequate implementation of the Recognition of Forest Rights Act, 2006 have been raised on various occasions by United Nations mandate holders, particularly with regard to the transparency of the process, the consent before displacement or eviction, and the provision of adequate redress and compensation (UA IND 13/2019, 19 June 2019; IND 9/2017, 24 August 2017; IND 9/2013, 8 July 2013, among others). The Committee also notes from the mission report of the United Nations Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, that a disproportionate number of displacements, in connection with projects of various kinds, appear to involve persons belonging to scheduled tribes (A/HRC/34/51/Add.1, 10 January 2017, paragraph 48). The Committee further notes that concerns have been raised over allegations of violence, harassment, intimidation and arbitrary arrests of people belonging to the concerned communities who sought to exercise their rights (UA IND 1/2018, 30 January 2018; IND 1/2019, 16 January 2019, among others). The Committee recalls that according to Article 12(2) and (3) of the Convention the peoples concerned shall not be removed from their territories without their free consent and that, if relocation takes place, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development, or, if they express preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees.

In light of the above, the Committee requests the Government to: (i) supply information on any developments concerning the Supreme Court’s order of 13 February 2019; and (ii) take the necessary measures to ensure that the rights to land of scheduled tribes and other traditional forest dwellers are fully recognized and protected, and the role and functions of the Gram Sabha, as spelt out also in the Recognition of Forest Rights Act, 2006, are fully respected, and provide information in this respect, including on any grievance filed against decisions made under the Recognition of Forest Rights Act, 2006, and of the Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013. Please also provide information on the status of recognition of scheduled tribes’ land rights falling outside the scope of application of the Recognition of Forest Rights Act, 2006.

Articles 5 and 11 to 13. Draft National Forest policy. The Committee notes that on 14 March 2018, the Ministry of Environment, Forest and Climate Change released the draft National Forest policy, 2018, for public comments and that, to date, revisions to the existing policy are still under discussion. The Committee requests the Government to ensure that scheduled tribes and other traditional forest dwellers are involved in the formulation of the new National Forest policy and that the rights under the Convention are fully recognized in the new policy. It also requests the Government to provide information on any measures taken in this respect and on any developments concerning the adoption of the Forest policy.

The Sardar Sarovar dam project. The Committee previously noted the Government’s indication that updated information concerning the resettlement of the remaining 260 families affected by the Sardar Sarovar dam still needed to be provided by the State of Gujarat. The Committee requested the Government to provide updated information on the measures adopted for the resettlement of all families affected by the Sardar Sarovar dam in the state of Madhya Pradesh and other states concerned. The Committee notes the information provided by the Government on the progress made, as of June 2018, on the resettlement and rehabilitation of the families affected by the project in the state of Gujarat. The Committee also notes that the Sardar Sarovar dam has recently been expanded. It notes from communications made by United Nations mandate holders that the expansion may have resulted in the forced eviction and displacement of 40,000 families (Joint Urgent Appeal – JUA IND 8/2017, 29 August 2017). According to the same source, “it is alleged that the status of rehabilitation has been too slow; farmers have been mostly promised barren and non-cultivable lands or meagre cash compensation, and resettlement sites are not in a state of habitation, lacking infrastructure, such as sewage and water pipes, as well as lacking schools, access to health centres and access to other basic rights”. Referring to the standards governing relocation under the Convention, which have been recalled above, the Committee requests the Government to take all necessary measures to ensure that persons belonging to the tribal population displaced by the expansion of the Sardar Sarovar dam project are provided with resettlement and compensation in conformity with Article 12(2) and (3) of the Convention. The Committee requests the Government to provide information on the measures adopted in this regard and the progress made towards resettlement and compensation. Please also indicate the overall status of progress in the resettlement and rehabilitation of the families affected by the project, specifying the number of families belonging to the tribal population that still remain to be settled and the measures taken concerning them.

The Committee is raising other matters in a request addressed directly to the Government.